On August 17, 2021 judges in the 11th Circuit Court of Appeals upheld sanctions against a Florida lawyer (Scott Dinin) and his client (Alexander Johnson) because of unethical conduct in cases brought under the Americans with Disabilities Act (ADA) and similar Florida law.
Sanctions are a way that a court can punish lawyers and clients for bad behavior. In this case the sanctions included requiring Johnson and Dinin to pay money to a disability-based nonprofit or the court and preventing them from filing ADA cases without the court’s permission.
What did the lawyer and his client do wrong?
The cases that lead to the opinion were about videos that play on gas pumps. The videos did not have captions, and Mr. Johnson, who is deaf, sued under the ADA and Florida state law saying captions were required. The appeals court opinion was about two of the cases; the pair had filed 26 of them.
The bottom line for the judges upholding the lower court sanction order?
Mr. Johnson was driven by fees he and Mr. Dinin could collect rather than by a desire to remove barriers to access for people who are hearing impaired.Alexander v. Caraf Oil, page 22
It is important to note that the court’s opinion did not say one way or another whether captions were required on gas pump videos. In fact, the opinion recognized that Mr. Johnson had standing to bring the lawsuit.
Instead, the appeals court agreed with the lower court that in fact, the cases were not about captions or ADA inclusion at all:
The District Court found that Mr. Johnson and Mr. Dinin’s purported goals of remediating discrimination faced by people with disabilities were not “sincere.” More to the point, it found that, despite proclaiming a desire to help the hearing impaired community by obtaining closed caption capabilities on gas pump videos, Mr. Johnson and Mr. Dinin repeatedly engaged in what the court described as “self-dealing” behavior that failed to further any protections for the hearing impaired community.
Notably, the majority of the settlement agreements from the gas pump cases provided no remedial relief whatsoever. Instead, they resulted only in payment of Mr. Johnson’s legal fees and costs along with a dismissal with prejudice. And in other settlements the remedial relief (in addition to costs and fees) was not actually providing closed captioning to the videos, but simply turning off the videos at the gas pumps entirely Alexander v. Caraf Oil, page 7
Read the full Court Opinion in Johnson v. 27TH Avenue Caraf, Inc., d.b.a. Caraf Oil.
Who were the judges?
This sanctions Opinion came out of the Eleventh Circuit Court of Appeals (the same Court that issued the Winn-Dixie opinion last spring). In addition to my article about the narrow scope of the Winn-Dixie opinion, I also wrote about the Trump-appointed Judge who wrote the Winn-Dixie Opinion and her conservative, anti-civil rights approach.
The judges in the gas pump sanctions case — Judge Beverly Martin and Judge Robin Rosenbaum — were appointed by President Obama. A third judge — Robert Luck — was appointed by Donald Trump. He agreed with the other judges except on one point — he wanted to make it harder for any person filing an ADA lawsuit (ethical or not) to have standing to bring the case.
I’m a civil rights lawyer: Why do I like this opinion?
As a disability civil rights lawyer, I’m glad to read this opinion. Unethical lawyers and clients in the ADA space hurt disabled people with legitimate, ethical claims. The behavior of Dinin and Alexander (who had a deal to split whatever money they could collect from these cases) makes other judges, organizations, and the general public think all people with disabilities are greedy.
The conduct described in the opinion robs the ADA and similar state laws of their power as civil rights protections. In addition to hurting disabled people, it hurts the vast majority of disability rights lawyers who are ethical.
Seeking attorneys’ fees in ADA cases is essential if the law is to be an effective tool to enforce disability rights. And while the ADA does not allow disabled people to seek payment for discrimination they have experienced, money damages for plaintiffs with disabilities is a vital remedy under state laws across the country. So it wasn’t that lawyer Dinin and plaintiff Alexander sought payments. It was they sought only money when they claimed the case was about providing access. And they sought the money in a blatant unethical way, as basic legal ethics prevent the kind of fee splitting operation the court found the two were running.
Unethical conduct like described in this case creates a perception that the ADA needs changing. I also like this opinion because it shows that the current court system has tools to curb bad actors. Limiting the ADA’s protections is not needed. (Learn more about attempts to limit the ADA’s ability to stop discrimination in the digital world in my piece titled In 2021 The Proposed Online Accessibility Act in US Congress is [STILL] Bad for Digital Inclusion.)
Two years ago I wrote an article for this website about unethical lawsuits in the digital accessibility space. It was the first time I had grappled with the tension of honoring ADA lawsuits and calling out lawsuits I considered unethical. I felt compelled to explore the nuances (not the soundbites) of accessibility lawsuits after a New York Times reporter called me about a flood of web access cases against New York art galleries. I struggled with my quote in that article (which was titled Galleries From A to Z Sued Over Websites the Blind Can’t Use) and knew I had to spend time figuring out how to talk about the dangers of unethical lawsuits to disability rights.
My article exploring the nuances was called “Ethics in the Digital Accessibility Legal Space: ADA Enforcement Cases or Something Else?” The judges in the Alexander v. Caraf Oil case recognized the “something else” that hurts ethical efforts toward an inclusive digital world. I’m glad they did.