Da Announces Appeal Of Dismissal Of Lawsuit Against Ada Lawyers

Recently appointed San Francisco District Attorney Brooke Jenkins announced Thursday that her office is appealing the dismissal of a civil lawsuit against Potter Handy, a San Diego law firm known for litigating thousands of lawsuits under the Americans with Disabilities Act to have submitted.

Standing in the crowded dining area of ​​the New Lun Ting Cafe in San Francisco’s Chinatown neighborhood, Jenkins said, “We are taking this action to protect businesses from predatory law firms that are abusing disability protections by filing these fraudulent lawsuits.”

Jenkins was joined by Lily Lo of the nonprofit BeChinatown and Larry Yee, former chair of the Chinese Consolidated Benevolent Association.

When she appeals the lawsuit, Jenkins finds herself in the ironic position of agreeing with former San Francisco DA Chesa Boudin, a man she has actively worked to have removed.

In an interview with Bay City News shortly after leaving office, Boudin said the lawsuit was “just” and “stands out in my memory of areas of work that I’m most proud of.”

The civil action was initiated in April 2022 in San Francisco Superior Court by Boudin and Los Angeles District Attorney George Gascon, himself a former San Francisco District Attorney and Police Chief.

The case drew widespread attention because it accused the law firm of Potter Handy and 15 of their individual attorneys of orchestrating a massive fraud in federal courts across the state to shake off thousands of small business owners who paid financial settlements to resolve the cases.

The district attorney’s lawsuit alleged that Potter Handy’s clients — about a dozen disabled plaintiffs — provided fabricated testimonies in order to gain legal “authority” to bring a lawsuit. Potter Handy allegedly knew about the false testimony but filed the lawsuits anyway.

The law firm took action against Boudin and Gascon, accusing them of filing the lawsuit for political reasons. Dennis Price, a partner at the firm, said, “Both prosecutors are facing serious threats of removal because they feel they are not diligently performing the duties of their offices and are filing these lawsuits to generate support.”

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At the time, both prosecutors were threatened with dismissal proceedings. The recall effort against Boudin eventually qualified for the vote and he was elected from office on June 7. Jenkins was appointed to take his place until the November 8 general election.

Despite Boudin’s recall, the suit had an immediate impact. Potter Handy filings with the ADA in the Northern District of California — then at a rate of three suits a day, seven days a week — slowed to a trickle and then stopped entirely.

In addition, a number of federal judges in the district cited the lawsuit as grounds for requiring Potter Handy and its clients to file affidavits in their pending cases, which form the basis of their alleged standing. In later trials, several judges found that the testimony of Brian Whitaker, one of Potter Handy’s most prolific clients, was not credible.

In a recent case mentioned by Jenkins at Thursday’s news conference, US District Court Judge Vince Chhabria imposed financial sanctions on Whitaker and Potter Handy, stating that they were “so confident in their mission” that they were “ready.” to spread any lie they deemed necessary to make their lawsuit survive.”

Chhabria said he wasn’t sure if her “mission” was “to get companies compliant, a mission to make money, or both,” but he noted that the law firm and client “in engaged in an outrageous pattern of malicious misconduct. “

The background to Jenkins’ announcement was relevant not only to the prosecution, but also to Potter Handy.

The district attorney’s office lawsuit arose out of an investigation Boudin announced after a wave of more than a hundred ADA lawsuits were filed against owners of Chinatown shops and restaurants in the summer of 2021. At a July 2021 news conference, Boudin said, “We will not tolerate fraud or abuse of legal process… We will stand by our small businesses.”

Despite the high-sounding rhetoric, the lawsuit ran into trouble from the start.

Shortly after the lawsuit was filed, Potter Handy filed a “Demurrer,” a motion for the court to dismiss the case without a trial. The theory was that California’s litigation privilege required the case to be dismissed.

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At an initial hearing on the objection in July, San Francisco Superior Court Justice Richard Ulmer declined to devote “judicial resources” to the dispute until he determined whether Boudin’s successor would pursue the case. Boudin had been recalled by this point, but Jenkins had not yet been appointed.

Gabriel Markoff, lead counsel for plaintiffs, argued that there was no reason for delay. In his view, the case was no different from the other 5,600 active cases the San Francisco Attorney’s Office was handling at the time.

Ulmer said there was a big difference between the case and most others in the prosecutor’s office because the other cases were not brought “in the middle of a political campaign like this.”

Markoff replied that he didn’t think that fact had any relevance; The judge shot back, “You may not, but I do.”

After Jenkins was appointed, prosecutors asked Ulmer to resign, which he did without explaining his reasons. The hearing of the objection was then rescheduled before San Francisco Superior Court Justice Curtis Karnow.

In an Aug. 27 ruling, Karnow explained that California procedural law involves court records and related communications. He then stated that the conduct of Potter Handy’s attorneys was covered by the privilege. The judge noted that the privilege applied “regardless of the maliciousness or untruth of the communication.”

The privilege was intended to protect access to courts, “not because we want to protect the shady practitioner,” Karnow said, citing a previous court case, “but because we don’t want the honest person to have to worry” about later challenges in other courts.

Karnow dismissed the case without giving prosecutors an opportunity to change their complaint.

By appealing the dismissal, Jenkins has another opportunity to exonerate thousands of small business owners who have settled lawsuits from Potter Handy customers. The lawsuit seeks not only to prevent future lawsuits, but requires the law firm to return settlements paid to the firm and its clients over the past four years.

An analysis by Bay City News revealed that nearly 6,000 Potter Handy ADA cases were resolved in California during that period. Not all cases have been settled, but most have.

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Prosecutors alleged in their lawsuit that Potter cell phone cases generally settle between $10,000 and $20,000 per case. If the low end of the district attorney’s estimate were used as a magnitude estimate, the firm’s settlements on behalf of its clients for that period would reach $60 million.

The location of the press conference was also significant to Potter Handy’s partner, Price, who noted that the New Tun Ling Cafe was not ADA compliant, thereby “ensuring that not all members of the public could attend.”

The award referred to a several inch step from the sidewalk to enter the restaurant, the same issue identified in Potter Handy’s 2021 lawsuit against the landlord/owner of the property on which the restaurant is located became. Price said the lawsuit was against the landlord, not the restaurant.

According to court filings, a settlement in the lawsuit against the landlord was reached in December 2021. Price said he understood that as part of the settlement, the landlord had been given a deadline to fix the issue, but had not done so by the time of Thursday’s press conference.

Price added: “The media’s portrayal of what is happening is wrong. My clients are making California more compliant. Prosecutors have the same power to enforce the ADA, but they don’t. Instead, instead of doing their law enforcement job, they attack victims. It’s despicable… slandering my clients and acting as a mouthpiece for politicians who can’t be held liable if they lie about what’s going on isn’t going to make California any more accessible.

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Copyright © 2022 by Bay City News, Inc. Republication, redistribution, or other reuse without the express written consent of Bay City News, Inc. is prohibited.

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