The legal-looking envelope arrived at Riverbend Eatery in Bailey in February 2016. Owner Michael Abbondanza waited until he was home in Conifer with his son, Michael III, to open it. Inside was an eleven-page legal document filed with the U.S. District Court of Colorado claiming that Riverbend Eatery was out of compliance with the Americans With Disabilities Act.
According to the complaint, plaintiff Santiago Abreu had moderately severe multiple sclerosis and used a wheelchair to get around. When he’d visited Abbondanza’s restaurant on July 14, 2015, he’d encountered numerous difficulties with accessibility, the complaint claimed, citing fourteen instances of non-compliance.
“We were stunned,” says Abbondanza. “I was wondering how they could’ve gotten it so wrong.”
None of the fourteen claims seemed to have any validity, Abbondonza remembers thinking. What stood out more were the obvious inaccuracies in the complaint. For example, it stated that the restaurant didn’t have a wheelchair ramp, when it did.
Reading through the complaint, Abbondanza had to wonder if Abreu had actually been to Riverbend Eatery.
Today, he wonders if Abreu exists at all.
In April 2015, with his Denver restaurants long closed, Abbondanza opened Riverbend Eatery. The restaurant sits on busy Highway 285 in Bailey, by a bend in Roark Creek, and offers scenic views as well as Italian specialties. Business was good from the start. “When we would open at eleven, it was like a bus pulled up,” he recalls. “It was packed.”
Although business slowed in the fall and winter, Abbondanza had big plans for Riverbend’s second summer.
But then he received Abreu’s complaint, filed by lawyers Brett N. Huff, who is based in Edgewater, and Jason S. Weiss of Coral Gables, Florida, claiming that their client “was denied full and equal access and full and equal enjoyment of the facilities, services, goods and amenities within the Premises.” (Multiple calls to Huff’s law office were not even answered; the attorneys for these attorneys did not respond for comment.)
Abreu had taken about two trips a year to Colorado in the previous four years and planned to continue this travel schedule, the lawyers said. In fact, they added, after their client received confirmation that the violations had been remedied, he would be returning to Riverbend Eatery to dine.
In the complaint, the lawyers described Abreu as a hero for disability rights, noting that he acted as a tester “for the purpose of discovering, encountering and engaging discrimination against the disabled in public accommodations.”
At the end of the filing, they asked for confirmation that the violations had been addressed, as well as court fees, expert fees...and attorneys’ fees.
Title III of the ADA requires private businesses, such as restaurants, to be fully accessible to people with disabilities. But enforcement of Title III’s provisions often occurs only after an individual visits an existing business, encounters an obstacle and speaks up.
Kevin Williams, legal director of the Colorado Cross-Disability Coalition, which was founded in 1990, says he considers testing restaurants to see if they’re ADA-compliant much the same way he regards civil-rights activists who investigated racial discrimination at restaurants in the mid-twentieth century. “This would be just like a black individual going to a lunch counter and figuring out if they’re allowed to be at the lunch counter,” explains Williams, who’s been a quadriplegic since a diving accident when he was a teenager and uses a wheelchair to get around. While studying law at the University of Denver, Williams was the plaintiff in a Colorado Cross-Disability Coalition lawsuit to make the College of Law more accessible; that case ended with the school agreeing to make its facilities more accessible.
Over the past decade, ADA Title III lawsuits across the country have increased in frequency. Some have involved plaintiffs that are suing for the first and probably only time. Others are filed by serial plaintiffs and have earned the title “drive-by lawsuits,” since the plaintiffs drive (or are driven) from one business to another, specifically looking for violations, then file complaints.
One such plaintiff is Carlos Brito, a Florida resident who’s filed suits for ADA violations across the country, using Florida and Colorado attorneys. Brito will visit a business, often a restaurant, then send an ADA compliance investigator to check the violations he’s identified after he files. After that, Brito and his lawyers follow up to make sure the restaurants come into compliance.
“They know the ADA,” says Murray Weiner, a Colorado Springs attorney who has represented multiple businesses on the receiving end of Brito lawsuits, and has always settled them. “But I view it as misuse of the ADA.” (Brito’s lawyers did not respond to a request for comment.)
But all ADA complaints are not created equal.
In 2017, Colorado District Court Judge Kathleen M. Tafoya ordered the release of a contract between a lawsuit’s plaintiffs and Arizona-based Litigation Management and Financial Services. LitMan, as the company became known during court proceedings, gave ADA plaintiffs $50 for every case filed on their behalf. The operation was clearly a money-making racket that wasn’t aimed at compliance, the judge determined. In 2018, Tafoya recommended that LitMan, a Colorado plaintiff, and the attorney representing him, Jeff Emberton, all be found in contempt of court. LitMan subsequently was.
While this case was under way, Ted Poe, a U.S. Representative from Texas who’s a Republican, introduced a bill to curb serial frivolous ADA lawsuits. Poe’s proposal would have mandated that an individual would have to notify a business of inaccessibility issues and give it a chance to remedy the problems before suing. The bill passed the House but never came to a vote on the Senate floor, owing to Democratic opposition.
“The law is not the problem. It’s people who take advantage of the law who are the problem,” says Williams. “Let’s punish the wrongdoers. Let’s not throw the baby out with the bathwater.
“The fact that somebody comes from a different place and goes to a different restaurant and discovers particular accessibility barriers does not mean that the barriers don’t exist,” Williams continues. “I don’t care if that person files twenty restaurant [lawsuits] a day in Bailey, Colorado. If those are valid complaints, then I frankly have to say, I’m sorry, the law is almost thirty years old and you shouldn’t have been in violation.”
While Abreu only filed one complaint against a restaurant in Bailey, his suit against Riverbend Eatery was not his first claiming a business had failed to comply with the ADA. It was not his twentieth, either. He’s listed as the plaintiff on seventy such complaints in Colorado, and more around the country.
Abbondanza tried to deal with the complaint himself, but ultimately went to court and told Judge Michael E. Hegarty that he couldn’t afford a lawyer; in August 2016, the judge appointed Courtenay Patterson, who runs her own law firm out of Longmont and specializes in business and employment law and ADA lawsuits, to take the case pro bono. Patterson found an expert ADA-compliance investigator, who inspected the restaurant building and found that only four of the fourteen alleged violations would have been legitimate.
That seemed to support her client’s contention that Abreu had never visited the premises, Patterson says.
And now it looked like Abreu would never get the chance to go there. That fall, Abbondanza closed his restaurant, blaming legal headaches. But he kept the building.
On January 13, 2017, Patterson told Peter Leiner, an attorney working with Weiss in Florida, that she wanted to depose Abreu. Leiner said he would get back to Patterson with times and dates. He never did.
On January 25, Patterson went ahead and scheduled Abreu’s deposition for February 27, 2017. About a week later, Leiner filed a motion for summary judgment, in an attempt to get the judge to rule quickly in Abreu’s favor.
A week after that, Weiss called Patterson to say that Leiner was no longer with his firm. During that call, she told him that Abbondanza had fixed the violations and closed the restaurant.
“Well, if he fixed the problems, then the case is moot and should be dismissed,” she says he responded.
Weiss then said he would file a joint stipulation for dismissal with each side to cover its own attorney’s fees, and that he would send it right away, Patterson recalls.
Patterson asked Weiss if he and the other lawyers wanted to first see pictures or visit the restaurant to confirm that the violations had been fixed. “I’ll take your word for it,” she says he told her. Ten minutes after the call ended, Weiss sent over the motion for dismissal.
Abbondanza agreed to dismiss the case. “I took the financial path of least resistance because otherwise they’ll just bury you,” he says, adding that he was afraid if the case moved forward, Abreu’s lawyers would go after his remaining property.
“My responsibility is to my client. To get him out from under a lawsuit as efficiently, quickly and least expensively as possible.”
Patterson filed for dismissal. “My responsibility is to my client,” she explains. “To get him out from under a lawsuit as efficiently, quickly and least expensively as possible.” If she’d been charging for her work, Patterson estimates that her attorney’s fees would have cost Abbondanza close to $5,000, excluding the expert’s fees, which the court ultimately picked up.
In the months that followed, Patterson took on some cases involving LitMan. While working on those, she kept thinking back to the Riverbend Eatery case, and began wondering if Abreu was involved in some sort of racket himself.
She did some digging, looking for online hits about Abreu. She found many cases with him listed as plaintiff filed across the country, including 70 in Colorado, 71 in Florida, and others in Michigan, Indiana, Arizona and Illinois. She spoke with all of the attorneys who’d represented other Colorado businesses that were sued by Abreu.
Some, like a case filed against the Rusted Porch in Steamboat Springs, had ended with a settlement after the restaurant owner paid court costs and expert and attorneys’ fees; others were dismissed before they got too far into litigation. None of the Colorado attorneys had ever deposed Abreu.
And her search of Google Images did not turn up a photo of a man named Santiago Abreu in a wheelchair.
(A web search does pull up a court record indicating that Santiago Donalito Abreu of West Palm Beach, Florida, had filed for bankruptcy in 2014, as well as Florida voter records showing that Santiago Donalito Abreu is a member of that state’s Democratic Party with active voter status.)
Patterson sent letters to the lawyers who’d represented Abreu in his case against Abbondanza, demanding that they provide evidence that he exists and had actually visited Riverbend Eatery. She didn’t hear back.
“I couldn’t let it slide,” says Abbondanza. “It would’ve been cheaper and easier to let it slide. But at this point in my life, I couldn’t let it slide.”
On February 7, Patterson filed a lawsuit on behalf of Abbondanza, accusing attorneys Weiss, Leiner, Huff and legal partner Richard Leslie, and Giovannia Paloni, an ADA-compliance expert investigator hired by the lawyers, of running a “criminal enterprise.” After Abreu first sued Abbondanza, Paloni said that she’d visited the restaurant to inspect the premises, but emails between Abreu’s lawyers and Patterson appear to indicate that she never actually visited Riverbend Eatery, only looked at pictures. The complaint alleges that the five had engaged in racketeering, mail fraud, wire fraud, abuse of process and civil conspiracy.
Patterson based her lawsuit on one filed in California in 2017. That suit claims that a plaintiff who’d filed an ADA complaint didn’t actually need a wheelchair to get around and lied about his condition; it also argues that the lawyers representing the plaintiff engaged in racketeering. The case survived a motion to dismiss in 2018 and is still pending.
In her filing, Patterson argues that Abreu’s lawyers, plus his expert witness, “formed a criminal enterprise by using the Americans with Disabilities Act, Title III (‘ADA’) to institute actions based on fictional plaintiffs, false allegations of injury, and false allegations of standing to collect quick settlements from Colorado businesses and citizens.”
And she goes further, charging that the defendants in the civil case “have perverted the purpose of the ADA for their own greed and financial gain.”
Most complaints from these lawyers are settled, she explains, because it’s “cheaper to settle than to litigate the merits of the action.”
But now she’s litigating this case. Abreu is not named as a defendant in the complaint, because Patterson is charging that he does not exist.
And even if he does, she argues that he never visited Riverbend Eatery on the day in question. Bailey is a small town, she notes, and no one at the restaurant saw an out-of-towner in a wheelchair come in on July 14, 2015.
“If they perpetrated fraud in our case, then they’ve perpetrated fraud in every case,” Patterson charges.
The U.S. Chamber of Commerce’s Institute for Legal Reform, which aims to reduce frivolous litigation, finds Abbondanza’s case persuasive enough that it’s featuring him in a video that’s part of a public-awareness campaign called “Faces of Lawsuit Abuse.” The video is slated to go live in the coming weeks.
In April, the Denver-based lawyers who are now representing the lawyers named in Abbodanza’s case filed a motion to dismiss.
“This is a curious case in which the owner of a restaurant sued three years ago for violations of the Americans with Disabilities Act now brings claims against the adverse lawyers and expert witness on the speculative grounds that the then-plaintiff ADA ’tester,’ Santiago Abreu, either does not exist or, even if he does exist, did not visit the restaurant,” attorney Michael Hutchinson says in his motion.
“The most plausible explanation of these allegations is that Mr. Abreu did indeed visit the restaurant when he said he did, entered the men’s room and encountered at least the ADA barriers Plaintiffs admit to, documented the barriers...paid cash for his meal, didn’t take a ‘selfie,’ and relayed the ADA information to his expert,” he continues.
But nowhere in the motion to dismiss does Hutchinson say that Abreu is real, or that he definitely visited the restaurant.
“It seems that if Defendants are attempting to have this Complaint dismissed, the easiest, fastest, and most logical way to demonstrate that Plaintiff’s Complaint does not have a basis in law or fact is to provide proof of Santiago Abreu’s existence,” Patterson writes in her response to the motion to dismiss, on which federal court Judge John L. Kane has yet to rule.
The only evidence that purports to show Abreu actually visited the restaurant is a cropped receipt that shows an eleven-dollar purchase and the numbers “14-15,” which apparently refer to 2014-2015. Since it’s cropped, the receipt doesn’t include the signature line or the name of the purchaser.
The original complaint filed back in February 2016 also includes an affidavit signed by Abreu, in which he affirms that he visited the restaurant. In that complaint, his lawyers also said that Abreu would like to return to Riverbend Eatery once the problems are remedied.
They have been, promises Abbondanza, who reopened Riverbend Eatery in spring 2018 in hopes that it will be easier to eventually sell the building with an operational business. And it will also make it easier for Abreu to return...if he exists at all.
“No one has produced anything to show that he’s an actual person,” Patterson says. “I just don’t think this guy is real.”