ALBUQUERQUE (CN) — Recommending dismissal of 99 Americans with Disabilities Act lawsuits against businesses as malicious and filed in bad faith, Albuquerque’s chief federal magistrate judge also suggested the woman may be on the hook for almost $40,000 in filing fees.
Alyssa Carton and her attorney Sharon Pomeranz filed 99 federal lawsuits this year, alleging ADA violations against businesses throughout Albuquerque. The complaints used a boilerplate template in which only the name of the business being sued and the nature of the violation changed.
All but two of the lawsuits were filed in forma pauperis, with Carton saying she could not afford the filing fees. But those IFP filings did not disclose that Carton and Pomeranz were working with Litigation Management and Financial Services (LMFS), which had agreed to pay court costs, including filing fees, for Carton’s lawsuits, Chief U.S. Magistrate Judge Karen Molzen found in her July 10 Proposed Findings of Fact and Recommended Disposition.
Carton signed a funding agreement with LMFS which agreed to pay her $50 for each lawsuit filed, and an attorney fee agreement with Pomeranz which entitled the attorney to 100 percent of all settlements or court awards from the lawsuits.
Molzen calls this funding model a “carnival shell game,” adding that “Ms. Carton’s expectation for receiving any settlement proceeds was illusory.”
Carton, who suffers from spinal bifida and uses a wheelchair, claims she was connected with Pomeranz after answering a Craigslist ad seeking disability advocates. She received documents from both LMFS and the group Advocates for Individuals with Disabilities Foundation (AID) while preparing the lawsuits.
AID is known for having filed nearly 1,000 lawsuits in Scottsdale, Phoenix, Mesa, Chandler and Gilbert, Arizona during six months in 2016 alleging ADA violations, and for suing Arizona Attorney General Mark Brnovich for failing to enforce the Arizonans with Disabilities Act. Brnovich in March 2017 filed for sanctions against the group for bad faith and false representations of monetary damages.
Pomeranz claimed in a May 1 hearing this year that she had no association with LMFS or AID, but in a May 11 hearing she disclosed that she received funding and legal support from LMFS, including being provided with staff and funding for litigation expenses.
A driver took Carton around Albuquerque, allegedly to inspect businesses for ADA violations, but Carton testified in the May 11 hearing that she did not actually enter each business, and that she was not always the one to take measurements establishing whether the facilities were ADA-compliant.
“I entered most of them,” she said during the hearing. “I think there is several that we, that were just parking lot situations ... so most of them, yes, I would say I was there in the building. But there’s several that we just filed for the parking lot.”
Though each complaint stated: “Plaintiff in her individual capacity and as a tester, visited the Premises, encountered barriers to access at the PPA [place of public accommodation], engaged and tested those barriers,” Judge Molzen wrote: “Ms. Carton testified that generally her driver would visit the PPA, take the measurements, and then later take Ms. Carton to the PPA to ‘observe’ violations and sometimes photograph her at the location to document her physical presence at the location.”
Businesses sued by Carton and Pomeranz said they were given no opportunities to correct alleged ADA violations before the lawsuits were filed, though Carton claimed she had asked her legal team to do so.
“Taken together,” Molzen concluded, “these circumstances indicate that the Court was misled into believing that plaintiff Carton lacked the resources to pay the required filing fees and that these cases were filed in bad faith primarily for the purpose of coercing settlements.”
The judge concluded: “Based upon all the above observations, I recommend that the Court dismiss these cases with prejudice as malicious because they were primarily filed for an improper purpose. It appears that attorney Pomeranz and LMFS are using the judicial process to harass defendants into settlements to obtain financial gain for attorney Pomeranz and LMFS and not to remedy ADA violations that served as barriers to individuals with disabilities in accessing goods and services.”
The court invited the 99 affected businesses to request sanctions against Pomeranz.
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