July 29, 2010 1:37PM

ADA and the ‘Chipotle Experience’

The Chipotle Mexican Grill heralds its “Chipotle Experience,” in which customers can watch their food being made behind a glass partition. Now a Ninth Circuit panel (including famously liberal judges Stephen Reinhardt and Dorothy Nelson) has ruled that the “experience” violates the Americans with Disabilities Act, to quote the AP, “because the restaurants’ 45‐​inch counters are too high. The company now faces hundreds of thousands of dollars in damages.” The ruling arrives just in time for the ADA’s 20th anniversary, which, as the Washington Post notes, is serving as the occasion for a virtual binge of new regulation‐​making by the Obama Administration and Congress.

Online reaction to the Chipotle case is tending toward the negative if not incredulous, even at places like the San Francisco Chronicle (“Good Lord, people are complaining because they can’t see a taco, get a life.”) But it’s also worth noting this significant passage (via Ted Frank at Point of Law) from the court record that the Ninth Circuit panel had to overcome:

The [district] court found that [wheelchair‐​using complainant] Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his “purported desire to return to the Restaurants is neither concrete nor sincere or supported by the facts.” It also stated that Antoninetti’s “history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the Restaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment.”

It’s an open scandal, especially in states like California that offer enhanced penalties or liberal procedural rules, that serial complainants and their lawyers carve out profitable practices visiting dozens or hundreds of businesses and leveling ADA complaints that they then settle for cash. As a phenomenon, the ADA filing mill has much in common with other forms of baleful legal “entrepreneurship” such as patent trollery, mass “citizen suit” filings against small businesses and school districts over paperwork lapses, and — the most recent to emerge — copyright mills such as the recently formed RightHaven, which has begun to acquire the rights to old newspaper articles and then mass‐​file lawsuits demanding thousands of dollars from bloggers, mom and pop businesses, and others who’ve ill‐​advisedly reprinted the articles online without permission.

Note that the objection to the litigation‐​mill model does not in itself depend on there being anything improper about the underlying rights being asserted (even those who think patents and copyrights in general a fine thing are free to disapprove of their use as a troll predicate). Instead, conditions are often propitious for abuse when 1) statutory damages or fines are far out of line with actual damage to a complainant; 2) the cost of legal defense can much exceed the damages at issue; 3) oft‐​recurring fact patterns make it easy to mass‐​produce plausible fill‐​in‐​the‐​blank complaints; and 4) the law either awards “one‐​way” attorney’s fees to successful complainants, as does the ADA, or at least refuses to stop the award meter at the point when a defendant proffers a change in the offending practice and adequate compensation for the complainant’s actually sustained damages, if any. Promising avenues for reform may include redefining statutory damages down to non‐​jackpot levels; assessing attorneys’ fees against whichever side makes trial necessary by spurning a settlement in line with actual damages; and introducing “demand before suit” procedural stages meant to put defendants on notice of a claimed infringement.

Inadvertently or not, the new ruling does afford the public a clear look at one particular kind of assembly line, presided over by lawyers rather than restaurant employees. And unlike the kind you can watch behind the glass partition at Chipotle, there’s nothing appetizing about seeing this one in action.