It may not win you Litigator of the Week, but plenty of lawyers routinely sue businesses for failing to meet accessibility requirements under the Americans with Disabilities Act.

Good for them. The ADA was enacted 29 years ago, and public places should be accessible to everyone.

But is there a point where legitimate private enforcement crosses the line, where a plaintiffs firm that's churned out at least 1,400 drive-by suits could actually be guilty of racketeering?

A novel case in U.S. District Court for the Eastern District of California is testing the theory—and it just might work, especially after the incensed judge issued terminating sanctions last week against two of the defendants for witness tampering. 

Litigators from Sheppard, Mullin, Richter & Hampton led by Hayley Grunvald are working pro bono on the case. It began in 2014, when Iranian immigrants Reza and Fatemeh Saniefar, who owned a now-shuttered restaurant in Fresno, were hit with a lawsuit for violating the ADA.

The plaintiff, Ronald Moore, ticked off a long list of problems in his complaint—the restaurant's front door was too heavy, the threshold was raised, the bathroom stall entrance was too narrow, there were no grab bars in the stall by the toilet, the men's room counter lacked proper knee clearance, the hand dryer was out of reach, there was no table properly configured for a person in a wheelchair.

The restaurant promptly fixed the problems. A federal judge in 2017 dismissed the ADA claim on summary judgment, ruling that the remediation made it moot. Moore, apparently determined to collect his statutory minimum of $4,000 in damages under California law plus legal fees, refiled in state court, only to have his case tossed on a technicality. 

Usually, that would have been the end of it. 

Not this time. The daughter of the restaurant owners, Moji Saniefar, is a lawyer—she spent five years as an associate at Orrick, Herrington & Sutcliffe and is now a solo practitioner. 

And a few things seemed fishy about Moore's suit. For one thing, he was represented by the Moore Law Firm in San Jose, run by his brother Kenneth “Randy” Moore and his sister-in-law, Tanya Moore. (It's not clear if they've subsequently divorced.)

Cozy.

Moore claimed he got stuck in the restaurant's non-ADA compliant bathroom and yelled so loudly for help that his grandson could hear him in the main dining room. Which seems like the kind of commotion that the restaurant owners or staff would remember—but no one did.

Moore did have a receipt from the restaurant—but he had a lot of receipts. For example, Saniefar found that on May 31, 2014, he claimed to have gone to two restaurants, an ice cream parlor, a barbershop, four mini mart gas stations and a cigar shop. Receipts in hand, he sued them all for ADA violations. 

Unless, as Saniefar alleged, the grandson “visits establishments in lieu of his grandfather, Defendant Ronald Moore, for the purpose of using Defendant Ronald Moore's credit card to make purchases, collect receipts, and submit such receipts to Defendant Moore Law Firm to use in filing complaints.”

She also questioned whether Ronald Moore was even disabled, conducting undercover video surveillance that showed him “walking, kicking, hopping, and bending, and all for an extended period of time without any need for support or showing any signs of discomfort or hesitance in doing so.”

She alleged the defendants formed a criminal enterprise “to institute actions based on false allegations of disability, injury, and standing to collect quick settlements from California businesses and citizens,” she wrote in the RICO complaint. “Defendants have perverted the purpose of the ADA and related state laws for their own greed and financial gain.”

The Moore family in court papers pushed back. Ronald Moore never testified he couldn't walk, they said. He uses a wheelchair because he has hydrocephalus, which causes problems with balance, and also suffers from degenerative disc disease and chronic pain syndrome. He is disabled, they said—the only issue perhaps is the extent of his disability.

“There can be no dispute that the underlying litigation was not without merit, at least insofar as the existence of the ADA violations is concerned,” wrote Tanya Moore in a motion to dismiss. “Saniefar implies that there is something inherently wrong with [the Moore firm] having filed 'approximately 1,400' disability related litigation in the past eight years involving Ronald Moore and other plaintiffs. But again, she fails to explain how this is evidence of a nefarious intent rather than a wholesale lack of voluntary compliance with the ADA.”

Last year, U.S. District Chief Judge Lawrence O'Neill refused to dismiss the RICO suit, noting that while the First Amendment protects petitioning activity, there's an exception for sham litigation.

Saniefar “adequately alleges that each of these individuals—either acting through a corporation or individually—participated in the enterprise and engaged in racketeering activity,” he found.

He also ruled that Saniefar was entitled to challenge whether Ronald Moore was actually disabled—though he took a dim view of her prospects, noting that another court did in fact find he was disabled, and that the U.S. Court of Appeals for the Ninth Circuit upheld the decision.

A trial date was set for 2020 when the defendants committed a huge unforced error.

There's another player in the Moore family enterprise—Tanya Moore's son, Geoshua Levinson, who just so happens to be a Certified Access Specialist, authorized by the state of California to assess ADA accessibility and compliance.

According to the RICO complaint, Levinson would surreptitiously scout out businesses for the family to sue. Sometimes he allegedly even sold his remediation services to businesses he'd targeted and his mother had sued—without disclosing the connection.

During discovery, Saniefar was drilling into just how exactly Levinson got to be a Certified Access Specialist. And that's when the defendants blew it big time.

Levinson in his application to the state of California said he worked for a family friend, Timothy McAdams, to get the requisite experience for certification, claiming at age 16 to be a project manager for his construction company. 

Understandably, Saniefar wanted to ask McAdams about that, and sent him a subpoena to appear for a deposition. When McAdams got the notice, he called Randy Moore (the attorney). 

When McAdams was actually deposed, he spilled the beans about what happened next. 

Moore allegedly told him to call Saniefar, and to secretly place him on the call too. And then as McAdams spoke to Saniefar, Moore sent him 69 text messages with blow-by-blow suggested responses such as “I have nothing to tell you” and “I don't know anything” and “You seem to be harassing me.”

During a June 17 hearing on a motion for sanctions, Sheppard Mullin's Grunvald said McAdams “doesn't have skin in this game. He doesn't know the Saniefars. He had every reason to lie and he didn't lie,” according to a transcript.

On behalf of the defendants, Gordon Rees Scully Mansukhani's Steven Inouye acknowledged that the text messages “don't look good, but they are not tampering with witnesses … you must not be pleased with the texts, obviously.”

“Oh, I'm never pleased with perjury,” the judge shot back.

Inouye did not respond to a request for comment.

O'Neill in ruling from the bench said there was “no way Mr. Moore did not know which case this was and to whom Mr. McAdams was speaking. And for him to testify that he didn't know is, frankly, a lie.”

He continued, “It's clear that Mr. Levinson wanted Mr. McAdams to testify consistently with the application, which was an untruthful application, that a 16-year-old was a project manager for four years, and thereby, somehow, was fulfilling the requirement that he be a licensed inspector.”

As punishment, O'Neill struck the answers by both defendants, so it was as if they'd defaulted on the case. 

And indeed, on Tuesday the court entered default judgment against both defendants—all that's left to determine are damages—although the case continues against the law firm and others associated with it.

“Mr. McAdams was a big deal to both of the defendants in this case, and they were trying to keep him in line,” the judge said. “The only possible remedy that is of any value or of any justice here is striking of the answers.”

The saddest thing about this all is that ADA compliance and accessibility are good things—but that gets obscured amidst all the alleged deception and sleaze. As Sheppard Mullin's Grunvald said in an interview, “The ADA has done amazing things. But it undermines the efforts of legitimately disabled people when this type of lawyer files these kinds of lawsuits.”