20 December 2016

ADA COMPLIANCE: DECEMBER UPDATE from Mesa Chamber of Commerce

BACKGROUNDThanks to a Chamber member, we were informed a few months ago of the lawsuits being filed against businesses and property owners in and around Mesa. We held a small meeting right away, followed by a larger forum graciously hosted by Phoenix Marriott Mesa with Attorney Lindsay Leavitt from Jennings, Strouss, and Salmon, PLC presenting. We had a great forum and were able to share quite a bit of information.
Since that time the Arizona Attorney General's Office has taken action and is now working to resolve the legal challenges.

This is a recent update from the Arizona Attorney General's Office
On Wednesday, December 7, the Attorney General's Office just filed a Motion to Dismiss and Motion for Judgment on the Pleadings, in which the AGO asked the Court to dismiss all of the 1,000+ Consolidated Cases without leave to amend.  Plaintiffs will now have a chance to respond to the Motion, and then we will have the ability to reply.  After that occurs, Judge Talamante may order oral argument, or may simply rule. 
In state court, the AGO's motion to dismiss is still pending, and AID's response is due December 27.
On December 12, Judge Wake held a hearing in federal court on whether to remand one case before him (AID v. MidFirst Bank) to state court.  Under the federal standard, if Judge Wake felt it was "absolutely certain" that a remand would be futile, he could dismiss the state claim instead of remanding.  As you'll recall, Judge Wake also raised some questions about potential ethical violations by AID's counsel.
The hearing lasted about two and a half hours.  Judge Wake extensively questioned AID about their injury (or lack thereof), their damages (or lack thereof), their settlement demands, their ethical responsibilities, and their theory of standing.  (Mr. Strojnik claimed that anyone, anywhere in the world could bring an AZDA claim as long as they had knowledge that any instance of non-compliance in Arizona existed.)  Notably, in this particular case, AID's settlement demand had dropped all the way down to $319.
Judge Wake allowed the State to participate as an amicus, and we were able to raise several points at the hearing, including: (1) AID's lack of standing under Arizona Supreme Court precedent; (2) AID's circumvention of the ADA by setting up an agreement with Mr. Strojnik in which Mr. Strojnik agrees to charge a $5,000 flat fee but then promises to "donate" the fee back to AID, thus allowing AID to collect more than it actually had to spend; and (3) the fact that many defendants are not, and were not, represented by counsel, and thus may not have realized how unreasonable AID's settlement demands were, or been able to see that AID presented inflated damages and fees amounts with no basis in fact or law. 
Judge Wake took the matter under advisement, and I will let you know when he issues a ruling.  Obviously, any ruling that he makes does not directly apply to any of the Consolidated Cases in state court, but his ruling could provide helpful information for Judge Talamante to consider when he is evaluating whether these cases should be dismissed and/or whether AID and its counsel should be sanctioned.
 Matthew du Mée | Office of the Arizona Attorney General
Senior Litigation Counsel

Thanks to ABC15 Investigative Reporter, David Biscobing for his work on this story. Please follow David on his Facebook page at: https://www.facebook.com/DaveBiscobing/
Aired on ABC15: August 3, 2016
Aired on ABC15: August 4, 2016
Link to story on KJZZ:
Pacific ADA Center
ADA questions and resources
Department of Justice's ADA Information Line
Aaron Ament
AEC Engineering
Peter Fischer
Access Architectural
Nick Ade
Signarama - East Mesa
Hank Drenth
Ace Asphalt
Please do not hesitate to send any additional questions to Chamber CEO Sally Harrison, reach her by email at sharrison@mesachamber.org or by phone at (480) 481-7780.    

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