Judge Wake Hearing Re: AID Tactics

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Advocates for Individuals

with Disabilities, LLC,
et al.,
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Plaintiffs,
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vs.
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MidFirst Bank,
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Defendants.
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_____________________________ )
No. CV 16-1969-PHX-NVW-NVW
Phoenix, Arizona
December 12, 2016
1:11 p.m.
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BEFORE:
THE HONORABLE NEIL V. WAKE, JUDGE
REPORTER'S TRANSCRIPT OF PROCEEDINGS

(Show Cause Hearing)
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Official Court Reporter:

Laurie A. Adams, RMR, CRR
Sandra Day O'Connor U.S. Courthouse, Suite 312
401 West Washington Street, Spc 43
Phoenix, Arizona 85003-2151
(602) 322-7256
Proceedings Reported by Stenographic Court Reporter
Transcript Prepared by Computer-Aided Transcription
APPEARANCES:
For the Plaintiffs:
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STROJNIK P.C.
By: Peter Strojnik, Esq.
1 East Washington Street
Suite 500
Phoenix, Arizona 85004
ADVOCATES FOR INDIVIDUALS WITH DISABILITIES
By: Fabian Zazueta, Esq.
40 North Central Avenue
Suite 1400
OSBORN MALEDON
By: Mark I. Harrison, Esq.
By: Josh Bendor, Esq.
By: Geoffrey M.T. Sturr, Esq.
2929 North Central Avenue
Twenty-First Floor
For the Defendant:
SHERMAN & HOWARD LLC - Scottsdale
By: John A. Doran, Esq.
By: Matthew A. Hesketh, Esq.
7033 East Greenway Parkway
Suite 250
Scottsdale, Arizona 85254
For the State of Arizona (Amicus):
OFFICE OF THE ATTORNEY GENERAL
By: Matthew B. du Mee, Esq.
By: Oramel H. Skinner, Esq.
1275 West Washington Street
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P R O C E E D I N G S
THE COURTROOM DEPUTY:
Civil Case 2016-1969,
Advocates for Individuals with Disabilities, LLC, et al.,
versus MidFirst Bank.
hearing.
This is the time set for a show cause

01:11PM
Counsel, please announce for the record.
MR. HARRISON:
Good afternoon, Your Honor.
Mark
Harrison, one of the counsel for AID and Mr. Strojnik.
are my partner, Geoff Sturr and my colleague, Josh Bendor.
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MR. STROJNIK:
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Strojnik for the plaintiff.
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Number 6464.
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MR. ZAZUETA:
Peter
MR. DORAN:
That's Peter Strojnik, Sr., Bar
Fabian
John Doran
01:11PM
and Matthew Hesketh on behalf of the defendant.
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MR. DuMEE:
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Matthew du Mee and Oramel Skinner on behalf of Amicus State of
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Arizona.
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01:11PM
Zazueta for the Plaintiff.
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With me
THE COURT:
Good afternoon, counsel.
Let me preface
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our discussion by restating that the ultimate inquiry today is
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whether to enter judgment dismissing both the federal claim and
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the state claim in this Court or to remand to the state court.
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And all the other questions I have asked are presented to the
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extent they may be relevant as subsidiary to that question.
01:11PM
01:12PM
None of the other questions are here in a primary sense but to
help understand what the right resolution is to the plaintiff's
motion to remand rather than enter judgment of dismissal on
both counts.
I do want a little bit of information.
start with Mr. Doran.
demand in this case?
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MR. DORAN:
My client did not receive a pre-suit
demand that we are aware of, Your Honor, nor did we in MidFirst
II which is a second case pending in superior court.
THE COURT:
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make any changes because of this litigation?

MR. DORAN:
immediately.
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settlement discussions.
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THE COURT:
01:13PM
And what, in fact, was -- what were the
changes that were made?

MR. DORAN:
I believe the sign was raised a few
inches, and I don't believe there was any restriping.
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it was just a raising of the signs by a few inches.
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THE COURT:
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MR. STROJNIK:
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Almost
There was prompt remediation, which led to our
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Did your client
At this property, yes, Your Honor.
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01:13PM
Again, I'm not assuming what matters.
just want to know what the lay of the land is.
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01:12PM
Did your client receive a pre-suit
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Let me just
I think
01:13PM
Mr. Strojnik, is that correct?

That is substantially correct, Your
Honor, yes.
THE COURT:
All right.
And what did it cost your
01:14PM
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client to do that?
MR. DORAN:
I don't know the number but somewhere
between $500 and $700, Your Honor.
THE COURT:
And how quickly was that done?
MR. DORAN:
It took probably three to four weeks if my
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math is correct.
THE COURT:
All right.
Now, are there any outstanding
disputes between the parties as to any other remediation?

MR. DORAN:
There is a second MidFirst lawsuit pending
in superior court.
01:14PM
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THE COURT:
I'm not worrying about that case.
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MR. DORAN:
Not with respect to this property.
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THE COURT:
And in this case, did Mr. Strojnik make a
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dollar demand for money to be paid in connection with dismissal
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of the case?
01:14PM
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MR. DORAN:
He did, Your Honor.
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THE COURT:
How much was it?
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MR. DORAN:
I believe it was 5,000 in the complaint;
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7,000 post-complaint; and our response to offer to settle, I
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think, 3,500.
01:15PM
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THE COURT:
I'm sorry.
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MR. DORAN:
We did, Your Honor.
Who made the offer of 3,500?

And we received a
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response saying the parties were far too far apart to possibly
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settle the case.
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01:14PM
THE COURT:
All right.
01:15PM
MR. DORAN:
I should say, Your Honor, we did
eventually arrive at a number but the case was never formally
settled.
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THE COURT:
All right.
And Mr. Strojnik, is any of
that incorrect?
01:15PM
MR. STROJNIK:
Yes, Your Honor.
incorrect but incomplete.
THE COURT:
MR. STROJNIK:
I don't know if it's
The offer was actually $319.
I need you to speak into the microphone.
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THE COURT:
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MR. STROJNIK:
Sorry.
Is this better?
And you can pick it up.

Thank you.
It will move.
Actually, Your Honor, the
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latest offer to resolve the case was $319, which is the cost of
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the filing fee.
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THE COURT:
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MR. ZAZUETA:
When was that offer made?

Your Honor, the offer was made about a
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month ago.
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days assigning any settlement agreement.
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THE COURT:
I'm sorry.
outstanding issue of remediation.
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would need to be proved?

MR. ZAZUETA:
I thought there was no

So what needs to be proved,
01:16PM
We were not aware of at the time, and
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we, in our offer, we did the $319 and proof of remediation if
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any needed to be done.
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proof or just --
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01:16PM
So it was 319 and proof of remediation within 90
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01:15PM
THE COURT:
And that's in the form of photographic
Well, you don't need to prove something
01:16PM
unless you have a dispute.
for something.
pursue a lawsuit on remand or in any way?
So I'm confused now.
You sued them
What remains outstanding for which you would
MR. ZAZUETA:
To my knowledge, in this particular
case, they had not communicated that remediation had been
complete.
proof of remediation within 90 days to give him a reasonable
time.
And that's why we entered that separate term of
THE COURT:
Is that correct, Mr. Doran?
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MR. DORAN:
I very respectfully disagree, Your Honor.
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I believe we had a conference right outside those doors after a
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scheduling conference.
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THE COURT:
Let me be careful here.
01:17PM
I do not want to
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intrude into settlement discussions.
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to get enough of this to understand whether there's a basis to
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remand.
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That's what I'm trying to get at.
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everything was worked out.
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proof of something that they cannot identify to me.
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that's as far as I need to go at this part of our discussion.
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01:16PM
I'm only asking -- I want

01:17PM
And part of that is, is there any outstanding dispute?
MR. DORAN:
So I think maybe you say
They say they want some future

So maybe
01:17PM
What I can tell you, Your Honor, is at the
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scheduling conference I met with both counsel and informed them
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that we had remediated and were, in fact, looking at all
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properties to make sure they were all properly remediated at
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that time.
01:18PM
THE COURT:
All right.
Now, let me come back to the
direct issue of whether to dismiss here or remand to the state
court.
And now, Mr. -- actually, I'm going to speak to that
table.
If I call the wrong name, the right person will stand
up and answer my question.
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All right?
01:18PM
So Mr. Strojnik, your motion to remand says you also

want the Court to remand the federal claim to the state court?
MR. STROJNIK:
That is correct, Your Honor.
Your
Honor, there's a lot of confusion, I believe, both with private
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counsel as well as with the courts whether the standing issue
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is one of the elements of the claim.
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applies to the jurisdiction of a particular court.
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example, the federal court has different standing issues than
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the state court.
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to the cause of action.
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It's not.
01:18PM
Standing only
For
But none of the standing issue actually goes
THE COURT:
01:18PM
Well, what it goes to is whether the
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particular plaintiff is hurt in any way.
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here that there's no standing, we're saying that person in the
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courtroom is not hurt in any way at all.
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or lack of standing means.
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MR. STROJNIK:
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THE COURT:
So when we say over
That's what standing

01:19PM
Absolutely.
But right now, my question is limited to
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the federal claim.
You don't cite any authority.
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authority that says that a case that is properly in federal
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court and adjudicated here to have nobody hurt and so nobody
Is there any
01:19PM
can sue, nevertheless has to or even can be remanded to the
state court?
say that.
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You don't cite anything.
MR. STROJNIK:
The Asarco case doesn't
Your Honor, this issue has been briefed
in the federal court at least 28 times now.
THE COURT:
01:19PM
Not the issue of remand.
It's not been
briefed in any thorough way until I asked for the briefing in
this case.
authority that says this Court can or must remand a federal
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claim to state court once this federal court has determined
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there is no standing to assert that federal claim?
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MR. STROJNIK:
THE COURT:
me.
We have cited
What is there?
01:20PM
If the district court is absolutely
clear -THE COURT:
I know that.
I'm asking if you have any
cases.
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MR. STROJNIK:
Yes, Your Honor.
They have been filed.
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I don't know if it was filed in this case or one of the 28
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other cases that have been remanded on that basis.
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know.
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the state court has an entirely different set of issues.
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01:20PM
I'm just reading the briefs you have given
MR. STROJNIK:
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Yes, Your Honor.
I don't see anything in your briefs.
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Do you have any federal
numerous cases.
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So that's what I'm asking.
01:20PM
I don't
But what I would like to share with the Court is that
THE COURT:
If you don't mind, I will give everybody
01:20PM
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the chance to say everything they want but I would rather
proceed in a sequence rather than hearing everything from
everybody all at one time.
MR. STROJNIK:
Because I can't think that --
I understand.
But I would be more than
happy, Your Honor, to brief that matter to you by the end of
the day, even today, because there are state -- there are
federal cases indicating that if the state court has standing
over the remaining state court issue, remand is a proper manner
of --
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THE COURT:
I'm not talking about that yet, Mr.
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Strojnik.
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authority that requires this Court to remand the federal claim
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to the state court after we determine here that there's no
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standing for the federal claim.
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remanding state claims.
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My question is the federal claim.
01:21PM
Is there
That's different from

01:21PM
So please, lets focus our discussion because we'll all
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communicate better if we try to talk to each other on
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specifics.
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federal claim that's properly here because it's properly
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removed because the defendant has a federal right to have the
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federal claim adjudicated in this Court nevertheless has to be
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remanded to the state court after the federal court has
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determined there is no standing?
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have found no case for that.
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01:21PM
And I'm asking, do you have any cases that say a
MR. STROJNIK:
You cite no case for that.
01:21PM
Do you have any cases for that?
Your Honor, there is one case that
01:22PM
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talks on that issue.
But unfortunately, I don't have the
citation in front of me.
Zazueta.
THE COURT:
MR. STROJNIK:
I am going to turn this over to Mr.
Certainly.
Who is better versed in this matter
than I am.
MR. ZAZUETA:
Your Honor, to address the Court's
question, the motion to remand relies on the 28 U.S.C. 1447(c)
which state, in relevant part, that any time --
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THE COURT:
That's the state claim.
It says the state
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claim shall be remanded.
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have any authority that says that a federal claim that has been
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adjudicated in federal court with respect to a litigant who has
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a federal right to have his case here nevertheless must or may
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be remanded to the state court for any reason?
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MR. ZAZUETA:
I will say it one more time.
01:22PM
Do you
01:22PM
I do not have a case off the top of my
head.
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THE COURT:
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MR. ZAZUETA:
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01:22PM
Okay.
I haven't found any.
The Arizona Constitution allows
concurrent jurisdiction.
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THE COURT:
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MR. ZAZUETA:
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THE COURT:
01:23PM
We haven't gotten there yet.

Okay.
So I want to know, so is the plaintiff
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contending or not, as Mr. Strojnik said in his motion to
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remand, that this Court must remand the federal claim to state
01:23PM
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court for further proceedings in state court after this Court
has adjudicated, indeed ultimately without objection from Mr.
Strojnik, that that case has no standing and otherwise would be
dismissed here?
MR. STROJNIK:
Your Honor, yes.
We contend, as has
been confirmed by a different section of this court, that a
federal claim that is not bound by federal standing in the
federal court can be remanded to the state court because the
state court has concurrent jurisdiction.
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THE COURT:
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MR. STROJNIK:
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THE COURT:
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for that.
That's what I'm asking.
You have given me nothing, no authority
So I need something more than your proclamation.

MR. STROJNIK:
Your Honor, the authority is found in
two places.
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Constitution, and it is also found in --
It is found both constitutionally in the Arizona
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THE COURT:
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MR. STROJNIK:
It provides that a superior court will
have the broadest possible jurisdiction available to the
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superior court.
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01:24PM
What does the Constitution say there?
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01:24PM
Which is greater.
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01:24PM
THE COURT:
I don't think that speaks to this at all.
But what's your second provision?

MR. STROJNIK:
The second provision is, and this is an
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important provision, Your Honor, that has been brought to you
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by the Attorney General's office.
We actually have a statute.
01:24PM
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THE COURT:
I'm sorry for interrupting you.
I'm not
talking about the State statute.
State claim.
moment.
time, we're only talking about the federal statutory claim.
What other authority do you have that says once this Court has
adjudicated a lack of standing on the federal claim that it can
or should or must remand that federal claim to state court.
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I'm not talking about the
I'm talking now -- we will talk about it in a
Right now, let me say this for the seventh or eighth
MR. STROJNIK:
myself clearly.
Your Honor, perhaps I'm not expressing
And let me try.
01:25PM
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Our position is that the jurisdictional requirements
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between resolving a matter in the state court and the federal
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court are different.
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the standing, if such exists, is much broader.
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THE COURT:
later.
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01:25PM
Our position is that in the state court,
I understand that.
We'll get to that
01:25PM
Let us take that as a given for now.

MR. STROJNIK:
Well, let me finish because I think
it's going to address the question that you have.
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And I believe that the broad jurisdictional reach of
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the state court encompasses a federal right.
So the state
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court does not, with respect to a federal right, does not ask
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would there be constitutional standing over the federal right
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in the state court.
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constitutional right even present in the state court.
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view --
01:26PM
The state court asks, is there a federal

And my
01:26PM
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THE COURT:
Did the defendant have a right to remove
this case to federal court?
MR. STROJNIK:
That is something -- this is so
fascinating, such a fascinating question.
we filed in state court.
jurisdiction in federal court.
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THE COURT:
Because, Your Honor,
The defendant says there's no
Actually, no.
The defendant said you
attempted to plead a federal claim and so we are removing it.
MR. STROJNIK:
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THE COURT:
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MR. STROJNIK:
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THE COURT:
Right.
There's nothing wrong with that, right?
And by federal statute, they have a right
to remove the case here because you have attempted to plead a
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federal claim.
Correct?
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MR. STROJNIK:
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THE COURT:
They have that right.
01:27PM
Now, this Court has adjudicated that you
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don't have standing for that claim.
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have a right to be in this Court for the federal claim and have
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this Court adjudicate what there is in the federal claim?
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01:26PM
Right.
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01:26PM
MR. STROJNIK:
Absolutely.
But doesn't the defendant
Absolutely they have that
01:27PM
right.
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THE COURT:
This Court, I think, as many of my
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colleagues have said, you haven't said your plaintiffs are
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hurt.
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to state court, it's still pleading a federal claim, isn't it?
And that's our decision.
Now, if it does get remanded
01:27PM
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MR. STROJNIK:
THE COURT:
It is still a federal claim.
It will be removed again, infinite
regression of removal and remand.
what you're saying, right?
MR. STROJNIK:
That's the consequence of
Your Honor, I did not think it that
far.
but the case in controversy of Article III no longer applies.
That's how far I took it.
I only thought it this far:
THE COURT:
Okay.
It is still a federal claim,
Well, I'm having this extended
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dialogue with you because I'm trying to, A, understand your
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claim, and see if you have any authority for it.
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you have not given me any authority whatever for this specific
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proposition that the federal claim has to be remanded.
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if it's remanded, isn't it still a federal claim?
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remove it again?
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01:28PM
And so far
Because
Can't they
01:28PM
MR. STROJNIK:
Your Honor, it is still a federal
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claim, and the question you pose is for greater minds than
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mine.
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difference does it make?
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01:27PM
But, but if I may add a real life comment to this, what
THE COURT:
Let's remand the state claim.
The difference is if -- is a very
01:28PM
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practical one of whether litigants who are brought into court
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for what I will call diseconomic claims, and by that I mean a
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claim that's far more economical to just pay whatever than to
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win, whether that process will continue in state court.
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that's the practical consequence of what you are asking to do
And
01:29PM
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to keep the federal claim alive.
MR. STROJNIK:
Actually, the policy of my clients has
been to not file any more lawsuits until we figure out what the
state courts will do with them and what the federal courts will
do with them.
to learn.
and then we will follow those opinions.
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We are not pushing the envelope.
We just need
01:29PM
We need to find out what the various opinions are
THE COURT:
That's helpful.
I appreciate it.
We can
move on to another -- anything the defendants want to say about

that?
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You don't have to.

MR. DORAN:
01:29PM
No, Your Honor.
I think it's clear that
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Congress conferred on the district court's federal jurisdiction
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over federal claims to force federal courts to adjudicate
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federal claims.
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THE COURT:
All right.
Let's go to the remand for the
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state claim for that question.
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know, is whether it is a certainty that the state claim will
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fail from the Bell case.
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case the Court held that under the substantive law -- well, it
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was substantive law in the sense of Idaho -- it was absolutely
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certain there was nothing the state court could do because the
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true relief being sought was a challenge to the election.
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under the Idaho laws there was a time limit, it was gone, and
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the Court concluded to an absolute certainty that that couldn't
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pass.
01:29PM
And the standard there, as we
And Bell is an unusual case.
Now, that didn't have to do with standing.
In that
01:30PM
And
That just
01:30PM
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had to do with substantive or semi-procedural state law.
wasn't the standing case like this.
It
So the question ultimately I'm trying to get my hands
around is, is it a certainty that the Arizona -- or that the
Arizona court, we have to think in terms of the Arizona Supreme
Court, would or would not allow this to go.
that's the question.
of all, I guess, is a question for you, Mr. Strojnik.
no damages, right, because it's -- the fact has been determined
And it does -- so
So I have some background on that.
First
There's
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in this Court that there is no injury, nothing pleaded.
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there were any damages you would still be in federal court.
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when you get back to state court as you wish, the first premise
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of our discussion is there's no damages, right?
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MR. STROJNIK:
If
01:31PM
So
Well, the damage is inability to access
a public accommodation.
01:31PM
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THE COURT:
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be remanded at all.
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there is no injury, there is no standing, but you still would
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like to be in state court.
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happen in state court?
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no injury.
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think of something that would constitute injury, then they
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would remove it back here.
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01:30PM
If that were the case, this case would not

The starting point of discussion is that
So what I'm asking is what would
Because the beginning point is there is
01:31PM
And, by the way, if I did remand and then you did
So I'm trying to figure out what would happen in state

court.
Are we agreed there would be no injury, no money
01:32PM
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damages that would be in play if remanded?
MR. STROJNIK:
I would respectfully disagree, Your
Honor.
what the Attorney General has proposed in his letter opinion to
you, which is, the Attorney General has admitted that a state
has -- I'm sorry -- that the plaintiffs have the right to bring
the cause of action because the statute says that any person --
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What would happen once we got to the state court is
THE COURT:
I thought they were disputing that.
01:32PM
Was
that Mr. -- is it Mr. Matthews?
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MR. DU MEE:
Du Mee.
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THE COURT:
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I thought they were disputing that.
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MR. STROJNIK:
Du Mee.
01:32PM
I wrote half of your name down.
They are admitting there is a statute
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that says that.
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event, if you look at the entire sentence you will note that
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they say, well, even though any statute or any person appears
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to mean any of the 10 billion people on the planet, it doesn't
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really mean that and we are going to judicially interpret the
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statute to mean otherwise.
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They had previously denied that.
THE COURT:
But, you know, I'm sorry.
But in any
I really need
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to have this channelled discussion.
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you get from the state court on remand?
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What you are telling me now is that, you know, under your view,
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they can have a lawsuit with no injury.
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later.
01:32PM
01:33PM
I'm asking you what would

What would they do?
We'll talk about that

01:33PM
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What will you get if this -- if the state claim goes
back to the state court?
there's no damages.
You have not alleged any injury from anybody.
It seems to me the starting point is
I have given you the opportunity to amend.
MR. STROJNIK:
I will get three things:
Number one, I
will get the responses to the discovery that has been
propounded along with the complaint in the state court.
get those answered.
appropriate method of finding out the level of violations.
I will
Under Doran versus 7-Eleven that is an
10
Number 2, the state court does not follow the -- and I'm going
11
to mispronounce that.
THE COURT:
13
years of Latin like I did --
It's actually, if you had studied seven
14
MR. STROJNIK:
15
THE COURT:
16
MR. STROJNIK:
18
19
"imprimatur."
I did too, Your Honor.
It's "imprimatur."
We didn't say it that way.
01:34PM
We said it
I was born in a different place than you, Judge.
THE COURT:
I guess Latin pronunciation varies all
over the world, doesn't it?
20
MR. STROJNIK:
21
So the state court does not follow that Latin word.
That is true.
22
The state court still, in my opinion, follows the catalyst
23
aspect of attorney's fees.
24
would also get costs.
25
01:34PM
Correct me if I'm wrong -- imprimatur.
12
17
01:33PM
THE COURT:
We would get attorney's fees.
You would get attorney's fees.
01:34PM
We
01:34PM
20
MR. STROJNIK:
THE COURT:
heard any substantive relief.
Correct.
What substantive relief?
MR. STROJNIK:
I still haven't
Well, the substantive relief is that
the defendant would have to correct all barriers to entry to
the disabled community that, number one, we identified in the
complaint; and number two, they identified in their responses
to the discovery requests.
relief under both.
10
11
THE COURT:
That is the fundamental of the
I'm sorry.
That's what I thought I asked
01:35PM
earlier.
12
MR. STROJNIK:
13
THE COURT:
14
01:35PM
I'm sorry.
Is there substantive violations still in
dispute?
15
MR. STROJNIK:
So far it is.
We have asked for proof
16
of the fact that the violation has been cured.
17
received that proof.
18
been proved, but we said we will give you -- you know, we will
19
settle this case.
20
expensive, you know.
21
it's, frankly, not very pleasant for the plaintiffs to do all
22
of that.
01:35PM
We have not
We have received a statement that it has
We'll go away.
This is getting too
We had to lawyer up just on this case and
01:35PM
So. . .
23
THE COURT:
I understand your answer.
24
MR. STROJNIK:
25
THE COURT:
Thank you, sir.
All right.
Well, I really don't want to
01:36PM
21
intrude into your settlement discussions, but it all sounds a
bit hard to grasp.
something to say on each issue.
defendants want to say about that?
order.
Now, I want too make sure everybody has

Is there anything the
That's on an offer not an
01:36PM
MR. DORAN:
Very briefly, Your Honor.
The notion that
even an Arizona court would confer standing on somebody to
conduct discovery to find some harm that's not alleged in the
complaint is supported by no case law whatsoever.
10
versus 7-Eleven does not say that.
11
Doran is no relation to me.
12
THE COURT:
And Doran
And, by the way, Jerry
You know that raises another question I
13
had elsewhere on my list, but is there any Arizona case in
14
which the Court explicitly said, you know, we're going to
15
forget -- this is important enough we're going to waive
16
standing to award money damages.
17
that says that?
18
to me every Arizona case that waives standing.
19
of holding you to the cases in your memoranda but I don't see
20
any unless I have forgotten.
21
waives standing in order to assess damages against a private
22
person who has no injury, for a plaintiff who has no injury but
23
nevertheless collects damages.
24
Strojnik?
25
01:36PM
01:37PM
Is there any Arizona case
This is why I asked you, by the way, to cite
MR. STROJNIK:
And I am kind
Is there any Arizona case that
01:37PM
Is there any such case, Mr.
There would be, or there could be, no
01:37PM
22
1
2
such decision with respect to any claims in federal court.

THE COURT:
No.
Please listen to my questions.
I'm
talking about any claim in the Arizona courts, ever, where the
Arizona courts waived standing in order to assess damages
against a private party at the behest of another litigant
plaintiff who had no injury.
any case where they have done that?
8
9
MR. STROJNIK:
I can't find any.
Do you have
We have cited a case that gave a
general definition of when standing applies and how it applies.
10
It is a general proposition of law contained in an opinion by
11
the appellate bench.
12
standing is not an Arizona Constitutional issue even though
13
there is prudential standing, obviously.
14
and says standing sometimes can be waived altogether.
15
THE COURT:
And it says the following:
Yes.
01:38PM
It says
And then it goes on
I know that in general, but cases
16
I'm familiar with involve injunctive relief.
17
maybe all, involve action by or against government officials
18
who are dealing with issues of great public importance and they
19
deal with injunctive relief.
20
01:38PM
01:38PM
They almost all,
So I'm going to ask my question one more time and let
21
the other table respond to it as well.
22
instance ever where the Arizona courts said there's no standing
23
here, but we're going to adjudicate the case anyway and we're
24
going to assess damages against a person at the behest of
25
someone else who is not injured?
01:39PM
Do you have any
I'm looking for, you know, a
01:39PM
23
horse with the same spots and colors.
animal in the forest, so I want you to tell me if there is any.
3
4
MR. STROJNIK:
THE COURT:
MR. STROJNIK:
8
9
10
11
12
I have not found any either, because in
my opinion it's impossible for such a case to exist.
I haven't found any such
Why would it be impossible?

Because no court would ever say we have
no standing but we're going to continue this case anyway.

THE COURT:
whole basis.
The Arizona courts do it.
That's your
They do it in extremely rare circumstances.
MR. STROJNIK:
That only applies to the remand of the
THE COURT:
No.
I'm talking about the -- I'm asking
you about remand of the state statutory claim.
14
out of my question.
So don't slip
Please answer my question.
MR. STROJNIK:
There is no such case, however, there
16
is clear statutory provision that says that we have standing in
17
state court.
18
THE COURT:
19
MR. STROJNIK:
20
THE COURT:
What would that mean?
Yeah.
What would -- well, I'm sorry.
think I have already asked you about that.
22
more narrow.
23
at the defense table wants to respond you are invited.
25
01:40PM
What would that mean?
21
24
01:39PM
federal case.
13
15
01:39PM
01:40PM
This question is
This question is about damages only.
If anybody
Did you all find any case ever where damages were
awarded under a waiver of standing in the state courts?
01:40PM
24
MR. Du MEE:
Your Honor, Matthew du Mee from the State
of Arizona.
We have searched diligently and found no such
case.
Arizona Supreme Court precedent instructing that whether or not
standing is a constitutional requirement, and we have
submitted, respectfully, that it is for the purposes of a
possible appeal.
very clear that there is a regress standing requirement in that
it can only be waived in exceptional and varied circumstances,
Indeed, such case, I think, would fly in the face of
01:40PM
Whether or not it is, this Court has been
10
and those circumstances involve either a constitutional
11
challenge of some sort or some other type of challenge to
12
governmental action such as the line item veto, for example.
13
THE COURT:
All right.
Now, with -- all right.
01:41PM
Let
14
me shift then to the more general thing you are pointing out,
15
Mr. Strojnik, about the general articulation of the standards
16
in which the Arizona Supreme Court will waive a lack of
17
standing and nevertheless proceed to adjudication.
18
it -- you may shorten this discussion for me.
19
breaking down, this specific subquestion, breaking down into
20
two parts:
21
cases say in setting the extremely demanding requirements for
22
waiver of standing and whether you fit that.
23
If you were invoking that, then we have a lot to talk about
24
about that.
25
What is
I see this
One is, invocation of the general criteria that our
01:41PM
We can have that.
Another way to come at it is you are not contending
01:41PM
01:42PM
25
that.
those standards.
says anybody who thinks there was a violation can be bring --
or you may be relying on both.
on one and not the other, we'll talk about one.
relying on both, we'll talk about both.
You don't really -- you don't say you could you meet
But you are relying on the statute here that
MR. STROJNIK:
So tell me.
If you are relying

If you are
So tell me.
Your Honor, we can certainly talk about
both, because the last thing I want to do is waive an argument
in the state court if this Court decides to send it back to
10
state court.
01:42PM
11
THE COURT:
12
you are going to be held to.
Let me be clear.
13
MR. STROJNIK:
14
THE COURT:
15
MR. STROJNIK:
16
THE COURT:
Everything you say here
So I'm here to get answers.
Okay.
Let's talk about the first one.

First one is -- I'm sorry.
01:42PM
The general, what is it about this case
17
that is so important to the public that it cannot wait for
18
ordinary litigation by somebody with standing because the
19
public needs an answer so quickly.
20
it about your case against MidFirst Bank that meets that
21
criterion?
22
01:42PM
MR. STROJNIK:
It's so important.
What is
01:43PM
It is not just this case, Your Honor.
23
It is all the cases that have been removed to the district
24
court.
25
rudderless ship because sometimes we get court opinions that
Your Honor, we are somehow, or sometimes, acting as a
01:43PM
26
are not consistent with other court opinions.
like from this Court, and I beg you to give it to us, is a
clear guidance as to what it is that we can or cannot do.
THE COURT:
What we would
I'm going to do my best to give you that.
But my question to you is what's the right answer?
specifically, how does this case meet the summary I have just
given and the other elements of the Arizona case law that must
be met to waive standing?
meet that general criterion?
10
MR. STROJNIK:
And
How does your MidFirst Bank case
It meets the criteria, Your Honor,
11
because it would allow us to either continue with private
12
enforcement or discontinue with private enforcement and
13
continue it alleging a federal claim or not continue alleging
14
the federal claim.
15
secondary aspect, which is the statutory --
16
THE COURT:
01:44PM
But the more important aspect is the
I'm sorry.
jump all around the map.
18
time, so I want to exhaust that one.
19
of the general criteria?
20
in all candor, what you just said doesn't seem to me to respond
21
at all to whether you meet the general criteria that we have
22
just summarized of something, I think almost always injunctive,
23
that is so important to the public that it must be answered
24
now, even in the absence of a real dispute between real people.

MR. STROJNIK:
01:44PM
I really don't want you to
17
25
01:43PM
I can only focus on one thing at a

Do you meet the standards
And your summary answer is yes, but
Your Honor, the best answer that I
01:44PM
01:45PM
27
could possibly give you is the answer I have given you.
THE COURT:
With respect, that's -- not only is that
not persuasive, it doesn't even deal with the subject.
no attempt to apply this case to the general criteria.
The --
MR. STROJNIK:
That's
01:45PM
Let me, then, to streamline the matter,
let me then point out that we will simply not rely on that
aspect of it because that's the best I can give you.
THE COURT:
Actually, let me just -- just to nail this
10
down, I see in the briefs that you have filed, what, 1700 cases
11
like this?
12
MR. STROJNIK:
13
THE COURT:
14
Is that total from the beginning or just
MR. STROJNIK:
That's probably total from the
THE COURT:
Okay.
Now, and how many do you have
pending now, just roughly?
19
MR. STROJNIK:
20
THE COURT:
About 900.
Okay.
900.
In the circumstances of this
21
case, you know, this Court allowed you to amend.
22
to amend.
23
be amended to save that, the federal case in controversy.
24
you have 900 cases out there.
25
01:45PM
beginning.
17
18
Correct.
pending now?
15
16
01:45PM
01:45PM
You chose not
You, I thought, pretty much acknowledged it couldn't
MR. STROJNIK:
Correct.
But
01:46PM
28
THE COURT:
It has never occurred to me that none of
those cases have standing.
some of those people you brought actually were there, had a
history of being there, had demonstrated intentions to be there
and that their cases would not be dismissed unless you want to
acknowledge to me, and I'm not putting words in your mouth, do
you want to acknowledge to me that all your pending 900 cases
are like this and that you don't have a better claim for
standing than what was found insufficient in this case?
10
MR. STROJNIK:
It seems statistically certain that
No, Your Honor.
Actually, I would like
11
to dispute that.
12
at least one judge in the superior court has ruled very clearly
13
that there is standing and that we are entitled to proceed with
14
the action.
15
01:46PM
I would like to point out to this Court that
THE COURT:
I would expect that in at least some cases
16
out of 900.
17
you.
18
to the infirmity that we have found here and some of my
19
colleagues have found lack sufficient individual connection
20
with the property and provable intention to be there?
21
are some out there that would even meet our standards.
22
your position?
23
01:46PM
I was not asserting otherwise.
01:47PM
I'm just asking
So the 900 there are, are there any that are not subject
MR. STROJNIK:
There
01:47PM
Is that
There are some out there who are
24
similar to this case with respect to -- and I hope I'm
25
answering your question.
01:47PM
29
THE COURT:
Go ahead.
MR. STROJNIK:
There are some out there who are based
on the same discussion we have had today about standing in
federal court, and there are some who I believe if they were
removed from state court to this Court would be dismissed for
lack of standing.
injunction by Judge Talamante from taking any action in those
cases so I can't go in and even dismiss those cases.
9
10
The problem is that we are under an
THE COURT:
Okay.
I don't really think that matters
for the discussion I'm trying to have.
01:48PM
11
I'm not asking whether other judges have made
12
different rulings on exactly materially identical circumstances
13
in this case.
14
any of your 900 cases are more favorable as to your position of
15
that individual person's injury and contact or whether -- I'm
16
not trying to put any words in your mouth, I just want to know.
17
My assumption without knowing, there must be some out there
18
where you have got real injury from a real plaintiff.
19
there aren't any, tell me because that will channel our
20
discussion in a different way.
21
MR. ZAZUETA:
22
23
01:47PM
I'm not asking you that.
I'm asking you whether
01:48PM
But if
01:48PM
Your Honor, Fabian Zazueta, counsel for
AID.
The answer to your question, I think it depends.
The
24
plaintiffs in the state court for the 900 consolidated cases
25
sought to amend the complaint, which was denied by Judge
01:49PM
30
Talamante, we filed a special action last Friday which, if we
are successful, we will have standing as to one of the
plaintiffs that we're trying to amend our complaint.
THE COURT:
You know, please bear with me, because I'm
trying to elucidate a point of law or elucidate, discover
whether there are facts that might fit one pattern compared to
a different.
filing cases that get removed to federal court that all of my
colleagues have found do not allege sufficient standing for
10
11
Obviously, you have got a big pattern here of
federal jurisdiction.
01:49PM
What I'm asking is whether you have any cases, any
12
facts, that are better for you than the pattern of facts that I
13
and my colleagues in this Court have found to be insufficient
14
for standing, or is this the best you have to say for any of
15
your 900 people?
16
17
18
01:50PM
MR. ZAZUETA:
Again, the answer, it depends on the
special action.
THE COURT:
I'm not asking you -- I'm asking what the
19
right answer is.
20
some other judge will do.
I'm not asking for your prediction of what

01:50PM
21
MR. ZAZUETA:
I don't have any facts that will --
22
MR. STROJNIK:
Your Honor, Peter Strojnik again.
23
Obviously, we have facts.
24
not been allowed to allege them.
25
01:49PM
THE COURT:
However, up to this time, we have
Tell me what those facts are would be for
01:50PM
31
some real client that you have, not just some hypothetical.
MR. STROJNIK:
MR. ZAZUETA:
I will let Mr. Zazueta answer that.

Some of those members for the foundation
are individuals who we can also amend the complaint if this
case proceeds or any other of the 900 cases proceed.
could add more facts via amendment.
THE COURT:
So we
Well, can I take it as your avowal that
you believe you have facts that are better and that you will,
in fact -- well --
10
MR. ZAZUETA:
Yes, Your Honor.
So the facts are we
11
have members who have visited the public accommodations in
12
question in the state court in the 900 cases who have actually
13
been there within a matter of a month or a little bit over a
14
month.
15
THE COURT:
01:50PM
I wasn't asking you to make any
16
concessions.
17
saying.
18
somewhere among your 900 pending plaintiffs people who will
19
have some real injury.
20
question that raises for me is if you have folks out there that
21
would have standing, certainly under the -- even under a narrow
22
view of state law standing which we haven't exhausted yet, you
23
have people who are going to go the distance in state court,
24
aren't they?
25
adjudication whether under your unlimited view of standing
01:51PM
01:51PM
I just want to have nailed down what you are
So then let's take that as a given, that you do have
Now, the problem, or the further

01:51PM
People who have standing sufficient to get an
01:52PM
32
under the state statute or whether the other side's more
interpreted narrow view, you are going to have people that get
that decided, right?
MR. ZAZUETA:
THE COURT:
That's correct, Your Honor.
Okay.
That takes us -- that appears to me
to be fatal, fatal, to your request to remand the state claim
here.
in the Arizona cases, were for waiving standing is that we
don't -- we won't get to this case in a normal lawsuit.
Because one of the essential requirements, as I read it
It is
10
so important, we need a decision now and so the public interest
11
outweighs the general very strong purpose of courts resolving
12
disputes withstanding, as the Arizona courts say, and the
13
courts not just being roving instruments of justice.
14
going to get that, aren't you?
15
01:52PM
01:52PM
You are
You just told me.
So it seems to me, and I put it to you to tell me why
16
it would be wrong, that you can't possibly make a case that the
17
Arizona standards would -- for waiving standing could be met
18
here because you have some of your own cases that are going to
19
get prompt adjudication.
20
you?
01:53PM
So you don't need these others, do

01:53PM
21
MR. ZAZUETA:
22
THE COURT:
Correct, Your Honor.
All right.
And Mr. Strojnik, I just
23
wanted to close the door on that, because Mr. Strojnik had
24
already acknowledged -- I want to be clear, because I don't
25
want to hold people to abandoning something and turn around
01:53PM
33
later and say I didn't actually mean that.
saying, okay, we're giving up on that.
rely on the statute.
as irrevocable concession given the known we'll have to pay
legal fees again to think about that you are only relying on
the Arizona statute as a basis for saying that it's not
absolutely certain that this case would be denied progress
without standing under Arizona law?
I thought he was
We're just going to
Is that still the case?
MR. ZAZUETA:
Can we take that
Your Honor, just to address the waiving
10
of standing argument, and the quickest thing I can think of
11
right now, is all these cases 900 cases in the state court are
12
consolidated.
13
millions of individuals with disabilities and in the aggregate,
14
because it's one action, that's a matter of public importance.
15
And we can make the argument that --
So it's essentially one action.
01:54PM
There are
01:54PM
16
THE COURT:
17
Again, part of what -- I want to be clear about this.
I've only got Mr. Doran's client.
18
When I write an order on this ruling, on this motion, do I or
19
do I not need to have a discussion about whether you had
20
satisfied the general Arizona criteria for litigation without
21
standing, or do I not have to talk about that because you
22
acknowledge either you are not relying on it or you couldn't
23
win it and you are only relying on the statute as a basis for
24
standing?
25
01:54PM
01:55PM
What do I have to write about?

MR. ZAZUETA:
Yes, Your Honor.
Mr. Strojnik.
01:55PM
34
THE COURT:
MR. STROJNIK:
THE COURT:
4
5
Go ahead.
Mr. Strojnik, whoever.
Yes, Your Honor.
What do I have to write -- I have to write
about all of it?

MR. STROJNIK:
No.
No.
I have previously indicated,
we live in the real world.
and we're going to give up the claim upon which you quizzed me
on which I was not able to properly respond in the last 10 or
15 minutes.
10
11
We understand how these things go
And it was an actual very nice quizzing session,
but I'm not giving up on the statutory standing issue.

THE COURT:
Thank you for the clarity.
to a binding conclusive waiver on that, and there will be no
13
opportunity to backstroke on that later.
14
about everything I do have to write about.
15
your concession, that is no longer one of them.
16
us to the statute.
17
you already stated, does that mean anybody in the state?
And I will write

But in light of
So that takes
01:56PM
Any person who believes -- I mean, I think
MR. STROJNIK:
Your Honor, and I wanted to address
19
this earlier.
20
concept out of the 10 billion people on the planet, even the
21
Sherpa and Tibet, would have standing if he had knowledge of a
22
violation.
23
01:55PM
And I hold you
12
18
01:55PM
This whole concept of any person is a very broad

01:56PM
I understand that's a very broad concept.
THE COURT:
Okay.
You know, I have got to compliment
24
you, Mr. Strojnik, because in thinking through the questions to
25
ask to put this issue, one of the questions I thought about is,
01:56PM
35
what if somebody in the Himalayas out there, would he have
standing?
think of Sherpa.
You have just answered my question yes.
I didn't
I just thought of the Himalayas.
MR. STROJNIK:
I'm completely off now.
THE COURT:
MR. STROJNIK:
The Attorney General then says that the phrase "any
Well --
01:57PM
Let me finish.
I'm back on.
person" is subject to judicial statutory interpretation.
Now,
there are two types of interpretations under the law that I
10
understand.
11
that the legislature tells us what they mean when they say
12
"any" or "person."
13
that and the term "any" and "person" become ambiguous somehow
14
and not understood by the regular man on the street, that now
15
this ambiguity has to be resolved by a judicial statutory
16
interpretation.
17
One is a legislative interpretation, which means
01:57PM
And the other one is when we don't have
01:57PM
Well, we are fortunate in our case, because in Title
18
1, Article 2 of the Arizona Revised Statutes, we have an actual
19
definition of what the term "person" means.
20
"any" means.
It's an adjective.
21
say it, any.
And the interpretation -- the legislative
22
interpretation of the term "person" means not only a natural
23
person but also a corporation, a partnership, an association,
24
or any other sort of association of people that might be
25
possible.
We all know what
It means -- how else can I
01:58PM
01:58PM
36
So if the argument is made that somehow statutory
interpretation through a judicial mean would be appropriate, I
respectfully submit that when you have a legislative
interpretation, the judicial interpretation is not permitted.
I also respectfully argue that a term "any person" is not
ambiguous or complex.
7
8
THE COURT:
Thank you.
And I see that's in the State's brief you
have attached.
Do any of you actually know of any court that's
10
actually addressed this specific question of the meaning of
11
that statute where it says, "Any person who believes," and I'm
12
looking for actual facts in an application as opposed to just
13
abstract discussion of language.
14
and it always takes its meanings from its context.
15
there ever -- do you know of any judge, this would probably be
16
in state court, not here, who said the Sherpa and Himalayas can
17
sue the store to fix the striping in their lots?
18
this, any -- for any remedy under the statute?
19
20
MR. STROJNIK:
No, sir.
01:59PM
Language has broad meanings
No, sir.
But have
01:59PM
Or not just
I have no such
case.
21
22
01:58PM
02:00PM
THE COURT:
All right.
Anybody on the other side?
Mr. du Mee, you probably have had motivation to look for this.
23
MR. Du MEE:
Yes, Your Honor.
24
looked.
25
refers to an aggrieved person.
We have looked and
There's one case that mentions the statute and it

That's the Bailey-Null case and
02:00PM
37
we refer to that in our Motion to Dismiss.
THE COURT:
You know, I could be wrong about this, but
my general recollection is there's a case out there that talks
about the statute that used aggrieved sort of like a synonym.
Is my memory on that correct?
MR. Du MEE:
02:00PM
Well, Your Honor in the following
Subsection it refers to an aggrieved person possibly being able
to recover monetary damages.
legislature was trying to refer to an aggrieved person when it
10
So that may suggest that the
was writing these statutes.
11
THE COURT:
02:00PM
I take it there's no cases out there where
12
anybody got any money without actual conventional traditional
13
injury.
14
MR. Du MEE:
15
THE COURT:
16
No, Your Honor.
Not that we're aware of.
How about injunction?
Can anybody in the
02:01PM
Sherpa or Himalayas get injunction?
17
MR. Du MEE:
18
THE COURT:
19
MR. Du MEE:
20
THE COURT:
Under the statute, Your Honor?

Correct.
No.
Not that we're aware of.
So I'm just thinking out loud.
The
21
statutory interpretation would be, same statute, it uses the
22
word "person," uses the word "aggrieved," whether -- how that
23
bears on -- the question I want to put to both of you is, and
24
this -- I have researched others.
25
I have a background thought, but I haven't researched.
02:01PM
I have not researched this.
My
02:01PM
38
general recollection is that this waiver of standing is that
the way it works is that there is a -- the Arizona courts are
out there to adjudicate disputes and that there is a demanding
requirement about, you can call it constitution law or
whatever, that there be injury.
determine in rare circumstances that there are broader
interests of the public that can only be served by waiving
standing.
criterion is met, it's a constitutional requirement that there
The Court has the authority to
But absent the Court's determination that that
10
be -- I don't want to be confusing.
11
concept.
12
the Arizona courts do lack the power to just decide cases
13
absent this finding of this special rare exception that is a
14
constitutional document, that the Arizona courts adjudicate
15
real disputes with real people with remedies that they are
16
entitled to under the law.
17
research.
18
not articulated that way on the cases.
19
Standing is a federal
It's also a more general word.
Yes, Your Honor.
Is that -- maybe it's
We believe so.
We
believe that it's a constitutional requirement and we also
21
believe that according to separation of powers the legislature
22
cannot require the judicial branch to hear cases that are not
23
real disputes.
25
02:03PM
Again, I haven't done a focused
Is that right, Mr. du Mee?
MR. Du MEE:
02:02PM
Some are standing but
20
24
02:02PM
02:03PM
And I think --
THE COURT:
Absent the Court's own determination that
meets this rare exception of overwhelming public interest that
02:03PM
39
it be decided now without a real lawsuit, real dispute.
MR. Du MEE:
THE COURT:
4
5
Yes, Your Honor.

Right.
Does that play into how one reads
the statute of any person it believes?

MR. Du MEE:
Yes, Your Honor.
We believe so.
Of
course, there's the canon of construction that says that a
statute should be construed in a constitutional manner if
that's possible.
possible but that's recommended in the appropriate reading.
And here we believe that that's not only
10
And we cited in our Motion to Dismiss on Page 15 Dail versus
11
City of Phoenix which noted that the Court had previously
12
refused to construe a section of the Declaratory Judgment Act
13
to create standing where standing did not otherwise exist.
14
02:03PM
THE COURT:
All right.
02:04PM
But that was constitutional
15
avoidance, not invalidity.
You know, I'm remembering a line
16
that I'm quite fond of from a law professor that I read decades
17
ago that a statute does not re-create the entire jurisdictional
18
universe; that when statutory -- that was Paul Bator, the late
19
Paul Bator -- that every statute is passed in the background
20
and context of an existing framework of laws, of statutes, and
21
that meaning has to be taken from that existing background.
22
And the fact, I think, what the professor was getting at, is
23
that the circumstance that every statute, no statute can say
24
everything, doesn't mean that because you didn't say it again
25
it's no longer the background or the law for this context.
02:04PM
02:05PM
02:05PM
40
This may be that kind of a case, because when this any
person, you are just talking in the background of an aggrieved
person.
legislature wants to make everybody an Attorney General against
be everything or whatever this area is, you are dealing in
impractical enterprise of obligations imposed with consequences
and enforcement, whether it's the Attorney General or other
persons, aggrieved persons.
would have to say that one interpretation compared to another
10
11
Because why would the legislature -- unless the
So maybe this is something that I
is an absolute certainty to go further.
02:06PM
So if that's the test, Mr. du Mee, can I say with an
12
absolute certainty that the Arizona Supreme Court, in a statute
13
that uses the word "aggrieved" in places and "any person" in
14
another place, that that does not include the Sherpa and
15
Himalayas, or is there any plausible possibility in which
16
taking language and the other criteria we have articulated it
17
might include the Sherpa and Himalayas?
18
02:05PM
MR. Du MEE:
02:06PM
Your Honor, we believe that it is, as
19
explained in our brief, we believe that it is an absolute
20
certainty.
21
Act was passed in 1992.
22
has repeatedly articulated the standing requirement, how
23
important it is, how rare it is that it would ever be waived,
24
and we have never seen any court that would recognize any claim
25
against one private individual against another private
And part of that is the Arizonans with Disabilities
02:07PM
Since then, the Arizona Supreme Court
02:07PM
41
individual for any type of relief in which you do not have to
demonstrate standing.
So if this case were to eventually come to the Arizona
Supreme Court, unless the Court were to overrule several prior
decisions, which we have cited in our brief, then the
plaintiffs would have no claim and that's true, I think,
regardless of what the legislature intended.
no way for the legislature to overrule the judicial branch and
say standing is not really a requirement because we said so.
10
THE COURT:
02:07PM
There simply is
And just thinking out loud here for a
11
minute, under normal criteria of statutory interpretation, one
12
does take into account the context and broader purposes.
13
suppose the legislature said, you know, we care so much about
14
AZDA, we care so much we're going the let anybody sue any
15
facility at all.
16
seems like that would be an open attack on the juris prudence
17
of our courts.
18
sparse, but there is some.
19
legislative history specifically for the statute in '92 to get
20
any indication where the legislature said, we're taking on the
21
Supreme Court.
22
injury, and we're not caring about that.
23
acknowledged our general criteria wouldn't meet it.
24
just going to -- we think they are wrong and we're going to
25
assert that.
We really want to do that.
02:07PM
But
Don't -- that
02:08PM
And the legislative history in Arizona is

Have you all looked at the
02:08PM
They've got all this law about you have to have

Mr. Strojnik just
But we're
Is there any case in legislative history that
02:09PM
42
meant to do that?
If you haven't looked at the legislative
history, just tell me.
MR. Du MEE:
Your Honor, we have looked at the
legislative history.
We have found no such indication.
if the legislature were to do so, its U.S. Supreme Court in its
Spokeo decision from earlier this year made clear that even if
you have a statutory violation that in and of itself cannot
confer standing without a, in that case, concrete and
particularized injury, and in the case of Arizona, distinct and
10
Even
palpable injury.
02:09PM
11
THE COURT:
12
MR. ZAZUETA:
13
Just to look at statute context, the legislature also
Yes.
Mr. Zazueta.
Fabian Zazueta.
14
has a retaliation statute within the Title 41.
15
position that any person -- the legislature did not require
16
only an individual to bring a claim but because of fear of
17
retaliation.
18
should be interpreted within the broadest sense because they
19
don't want any individuals with disabilities suffering from any
20
other retaliatory claims from other public accommodations,
21
whether it be Title 3, Title 2, or Title 1.
22
02:09PM
So it is our
02:09PM
So looking at the statute in context, any person
THE COURT:
02:10PM
For retaliation liability we see those
23
cases all the time in federal court.
You don't have to have an
24
underlying violation of ADA or whatever.
25
have a violation.
You don't have to
It's just enough that the employer perceived
02:10PM
43
that and was motivated and now you have to a have but for
causation.
know, maybe, that might explain this broader use word.
don't know.
5
6
But so you don't have to have a violation.
You
Well, I
I think your point is correct, but how does it fit in

here?
MR. ZAZUETA:
I think just looking at the statute in
context, the legislature intended that any person -- you
wouldn't have to be an individual with a disability to bring a
10
claim and it's our position any person means any person as we
11
previously have stated.
12
THE COURT:
02:10PM
That would fit for retaliation.
13
Retaliation is sort of a analytically, not totally separate,
14
has unique qualities to it within the broader frame of
15
protection of statutes.
16
any person as -- you know, the probability is nobody thought
17
about any of this.
18
any senator, representative, or staffer thought about this at
19
all.
20
to rely on Professor Bator's principle that courts will be
21
sensible in interpreting statutory language.
22
02:10PM
So that might be a way to interpret
02:11PM
There's nothing in the drafting to suggest
They are just writing stuff in general because they get
All right.
02:11PM
I think I have a few more questions, then
23
again, everybody will have all the time you want to say
24
anything you want extra.
25
Yeah.
I raised these questions about ethics issues
02:11PM
44
because one of the -- whether there is a fact and a pattern
here of using these cases that are readily resolved who
pressure people to pay unreasonable attorney's fees claims, and
my thought was if there is either a pattern of that or evidence
of it in this case, and the state courts are looking at giving
meaning to either their general criteria we have talked about
or their statute, they would look to that as to whether one
interpretation would open the door to abuse of litigants by
demands for money that is cheaper to buy your way out than to
10
achieve justice.
We all know that every lawyer tells their
11
clients, we have all done it a million times, that courts do
12
not exist to do justice for you.
13
resolve this with the least amount of money spent.
14
really an aspect of the law of economics which is immune from
15
repeal by human beings that if you can get out of a problem for
16
$3,500 and it costs you 7, 8, or 9 or $10,000 to go the
17
distance and win, every lawyer tells their client don't pay me
18
$10,000.
02:12PM
02:12PM
Your objective in court is to

So that's
02:13PM
Just pay $3,500 and get away with it.
19
So if an interpretation opens itself up to that kind
20
of abuse in a systemic and broad way, I was wondering whether
21
that would be a factor that would enter into analysis under
22
Arizona law whether one interpretation or another would be
23
favored.
24
is -- this Court is not involved in meting out professional
25
discipline.
So that's why I ask those questions.
I mean, this
But it is, I thought, substantial consideration
02:13PM
02:13PM
45
that the Arizona courts would take into account of and,
therefore, I should look at as to how they would take account
of it for purposes of deciding whether there's an absolute
certainty that Arizona courts would not let a case like this go
forward.
02:14PM
So in that regard, and I thank you for your memoranda
on that, I did have a couple of questions.
One is this ER
1.5(a).
all wrote that part of the brief or whoever wants to answer.
And I guess maybe this is for you Mr. Harrison, if you
10
And I meant to bring my book out but I didn't.
11
I'm going to paraphrase, says lawyers shall not charge, agree,
12
or accept or something, an unreasonable fee.
13
say that only with respect to your client.
14
charge unreasonable fee, and what textual reason is there to
15
think that opposing litigants who have a legal obligation to
16
pay a reasonable fee, can be just negotiated with without
17
boundary, that assertions can be made.
18
the text of the rule.
19
Your 1.5(a),
02:14PM
But it does not
It says you won't
02:15PM
I'm not seeing that in
So another way to phrase my concern is, charging of
20
attorney's fees is a matter of special, I would say,
21
extraordinary concern to the Bar, to the Supreme Court that
22
regulates us, because of the vulnerability that people have and
23
because of the need for lawyers to internally know, understand,
24
and apply those boundaries.
25
an opposing party who -- of whom an unreasonable demand is made
02:15PM
Why would it be any different from
02:15PM
46
just to see if you can negotiate yourself to something else, as
Mr. Strojnik says in his brief, well, I started there but I
usually negotiate down.
What is there about 1.5(a) that excludes opposing
parties from the same or at least similar constraints and
obligations of the lawyer?
MR. HARRISON:
Your Honor, first of all, we tried to
address this in our memo which you acknowledge seeing.
wisely brought my lawyer with me, Geoff Sturr, so if I can't
10
answer the question, he probably can.
11
your question is there is nothing in ER 1.5(a) which makes a
12
distinction between what you charge your client and what you
13
charge an opposing party.
14
Couple things I would say.
The straight answer to
these situations opposing counsel is represented by counsel or
16
is often represented by counsel, and therefore, if counsel on
17
the other side believes that the fee is unreasonable, there
18
will be an objection and resistance.
19
risk of charging an unreasonable fee.

THE COURT:
It aggravates the risk of extortion from
putting people in a position where they have to incur a lot of
22
expense to achieve justice because they have to hire a lawyer
23
to stop another lawyer from an ethical violation.
24
another way to phrase the same situation.

MR. HARRISON:
02:16PM
So that mitigates the
21
25
02:16PM
First of all, in most of
15
20
02:16PM
That's
Well, I would take issue with your
02:16PM
02:17PM
47
characterization of what's going on, because remember, the
cause is presumably broad because of a violation of a federal
statute and a state statute, and that claim, by definition, is
an ipso facto extortion.
THE COURT:
No.
My assumption is that there is a
reasonable fee due.
for an unreasonable amount, whether that is either unethical in
its own right or even if it falls short of sanctionable
conduct, whether it is dishonorable conduct of a character that
I'm talking about when the demand is made
10
the Arizona Supreme Court would take account of in deciding
11
whether to empower the continuation of what may have been going
12
on for quite a while.
13
MR. HARRISON:
where, first of all, the average fee ending up being charged is
15
$3,400 without regard to how far the case has gone, and
16
secondly, where in most of these cases, if the other lawyer on
17
the other side or the other party thinks it's extortion it
18
won't settle, I can't imagine a court or a discipline body
19
saying that where you have made a demand, which isn't binding,
20
and it ends up being something less than the demand, that's
21
somehow an unreasonable fee or extortion.

THE COURT:
02:17PM
I frankly can't imagine in this context
14
22
02:17PM
02:18PM
02:18PM
Let me put it to you this way, Mr.
23
Harrison:
I'm a lawyer.
I make an agreement with a client.
24
I'm compliant so it's in writing.
25
you, and you will pay, a reasonable fee.
And it says, I will charge

And we all know
02:18PM
48
there's a range there, so that probably means somewhere within
a reasonable fee.
then sit down with your client and say, and you know in your
heart, my hourly rate time on this was $2,000, maybe give some
extra under the criteria for -- you know most of the criteria
as you know better than anyone else already blended into the
hourly rate.
8
9
And you do that.
You achieve success.
You
Sometimes there are others that can enhance.
You sit down with the client and say, I want $10,000.
What's your counter?
I put it to you that that would be asking
10
for an unreasonable fee.
11
lawyer could escape discipline for that because his client
12
could go out and hire a lawyer to negotiate with him to get him
13
down to a reasonable fee.
14
MR. HARRISON:
And it's hard for me to see how a
an unreasonable fee because I don't know what the potential for
16
the litigation in question is or the engagement in question is.
17
If the engagement presupposes a lawsuit, $10,000 may not be an
18
unreasonable fee.
THE COURT:
02:19PM
And your brief, I think, quite
20
appropriately acknowledges that it could be unethical in the
21
wrong situation.
22
02:19PM
I don't know whether it's presumptively
15
19
02:19PM
02:20PM
Depends on the facts.
MR. HARRISON:
Absolutely.
I'm not aware of anything
23
in the context of the litigation brought by AID that implicates
24
that rule, that suggests that the way they negotiate, the fee
25
they suggest at the beginning of an action, implicates 1.5(a).
02:20PM
49
THE COURT:
Let me explain something in the Order to
Show Cause I sent out.
litigation driving to work hearing an extended report on our
local national public radio outlet that there was a pretty
lengthy -- by radio standards, pretty lengthy statement from
Mr. Strojnik in which I heard him say, I thought he said
$7,000.
pay.
everybody.
10
I actually learned about this
If it was 5, I remember wrong.
This is what people charge me.
He said this is what I
This is what I get from
Now, when I heard that, I thought, gee, some of these
11
cases you know, soon as people get the lawsuit they turn
12
around, they pay the 5 to $700 because they don't want to pay
13
Mr. Doran five times what they could pay to get it fixed, and
14
if it's just as simple a thing as giving notice, it couldn't
15
possibly get to 5 or 7,000 on any understanding.
16
to a reasonable fee of 5 to $7,000 in that situation.
17
what I haven't asked Mr. Doran or Mr. Strojnik is, and I will
18
at the right time, what actually, what is the hourly rate fee,
19
the lodestar.
20
adjustment for contingency.
21
02:20PM
We can make adjustments.
It can't get
02:21PM
02:21PM
And so
You can't make an

02:21PM
But it seemed to me that it couldn't possibly be
22
ethically proper to ask for 5,000 in every case.
Some of them
23
might have been -- might have had $300 in attorney's fees by
24
any reasonable view, but even in a generous one.
25
know the specifics of any case.
So I don't
But it just looked pretty bold
02:22PM
50
as an example of there has to be, has to be fairly significant
demanding here of fees that could not possibly be reasonable.
MR. HARRISON:
I would start by suggesting that
something you know as well as I, and that is you shouldn't
believe everything you hear on the radio.
THE COURT:
MR. HARRISON:
02:22PM
I heard from Mr. Strojnik.

That's why I brought Mr. Strojnik.
Actually this Order to Show Cause was directed to him.
just here to add a little --
10
THE COURT:
11
MR. STROJNIK:
12
Go ahead, Mr. Strojnik.
THE COURT:
14
station, KJZZ or --
Your Honor, if you heard that on the
This was on -- what's our public radio
MR. STROJNIK:
Right.
I have been interviewed by Mr.
16
Stone a number of times.
17
due respect, you didn't hear correctly.
18
THE COURT:
19
certain it was you.
20
21
22
02:22PM
radio purporting to be me, you heard from a parallel universe.
13
15
I'm
Now, let me tell you why, with all
You know, I recognized your voice.
MR. STROJNIK:
together in Latin maybe.
02:23PM
I was
Well, then we've got to look at it
02:23PM
I don't know.
The point I'm making is, when we first -- when I was
23
first asked to become the lawyer for the disabled individuals,
24
I made an agreement that I would charge a fee but all the fee
25
would always be given to the 501(c)(3) organization.
I make
02:23PM
51
zero dollars.
me of making money on this deal.
come down to the courthouse.
THE COURT:
from that activity?
So I am frankly offended when the media accused
money.
people.
disabled.
I don't pay for my --
Do you get any benefit in any indirect way

02:24PM
MR. STROJNIK:
I don't get paid mileage to
No, sir.
No, sir.
No, sir.
I make no
I get the emotional satisfaction of helping disabled

My grandmother was killed.
She was disabled.
I am passionate about this.
I am
And for the media, and
10
we've heard this expression before, the dishonest media,
11
there's no good copy unless you say something bad about a
12
lawyer.
13
there's one fellow out of Channel 15.
14
around.
15
16
17
And all you have heard, I'm sure you have heard,
THE COURT:
I could just slap him
I don't watch TV news.
MR. STROJNIK:
Fantastic.
19
know, I'm pro bono publico attorney.
20
not pro bono plaintiff, pro bono publico.
23
02:24PM
Then you heard me from
other times, too.
22
I get all my news
from public radio.
18
21
02:24PM
I always make it a point to let everybody

Not pro bono defendant,
02:25PM
So to accuse me of charging an unethical fee, to me,

is just egregious and I object to it.
THE COURT:
Actually, I'm sure you are aware that it
24
doesn't matter in the slightest if you donate your fee to
25
someone else.
Your ethical obligations run to clients,
02:25PM
52
opposing people, so it's completely irrelevant whether you --
MR. STROJNIK:
It goes to motive, Your Honor.
What
motive do I have to try to charge -- what do I have?
want to do in this life, and all I wanted to do since February
of this year, is to enforce compliance.
reports, standing in front of a federal judge, people bad
mouthing me, people threatening me with killing me.
I get.
All I
And all I get is bad
That's all
Now that we've got to think about.

THE COURT:
You know, I'm trying to remember, I heard
10
that report on the radio, maybe it was August or July.
11
know.
12
you did not give an interview in which you said -- talked about
13
your fees and said this is what everybody has to pay me?
14
is what I ask for everybody?
15
It was several months back.
MR. STROJNIK:
I don't
This
I always make it absolutely sure that
everybody who interviews me knows full well that I make no
17
money on the deal.
18
hour at Channel 15, one hour, giving an interview.
19
picked out the stuff that just it was all fine, all good, just
20
didn't look so good, like I made a facial expression.
21
them as clear as day I don't charge a fee.
22
fellow was sitting on the side and he was hollering, well how
23
does he make any money then?
25
Let me give you an example.
02:26PM
I spent an
And they
I told
02:26PM
And the second
Judge, let's take the media for what they are.

are good; some are bad.
02:26PM
And you are telling me now
16
24
02:25PM
Some
This fellow Stone, I was interviewed
02:27PM
53
by him several times.
Jim Walsh several times, always the same discussion.
don't make a dime.
THE COURT:
Good.
NPR.
Good.
I was interviewed by
Judge, I
When I drive home, I pay my own gas.

See, my concern is whether other people
are being abused, litigants are being coerced to paying it.
Legal fees, you can make whatever charitable donations you
want.
is victimized it's no comfort to them that you are generous in
charitable support.
10
But it's your responsibility ethically, and when someone
MR. HARRISON:
Just to add one thing, Your Honor, and
11
that is that 1.5 and the cases which construe it make clear
12
that you really have to make a determination at the end of the
13
representation whether the fee ultimately charged is
14
reasonable.
15
handled by Mr. Strojnik, aside from the fact that he
16
contributes whatever fee he earns to charity, which I think
17
does go to motive and his state of mind, I think you would find
18
that the fees charged ultimately are reasonable.
19
from case to case.
20
you heard about flat fees and intractable amounts, that isn't
21
what the experience shows.
22
23
24
25
02:27PM
02:27PM
And we would submit that if you examine the cases
THE COURT:
02:28PM
And they vary
So whatever you may have inferred from what

02:28PM
Go ahead, and I have a question for you
too, Mr. Strojnik.

MR. STROJNIK:
Fine.
I want to say one thing.
a little hot earlier because I am hot about this.
I was
02:28PM
54
1
2
THE COURT:
I know that you are not accusing me of
anything.
MR. STROJNIK:
THE COURT:
Of course not.
And, by the way, I know sometimes the
press edits stuff and it doesn't come across the way it should
or the way you intended.
MR. STROJNIK:
I know that happens.

Your Honor, every case is different.
We have sued people who would call us and say, I don't have any
money.
I'm running the business by myself.
I can't do this
10
and my response was I would call the client and say, send
11
somebody out there to make the correction, and we will dismiss
12
the case.
13
02:29PM
So we pay for the correction and dismiss the case.

In another case, I get a call from a lawyer from --
14
for Crittenden Wayward Girls, I forget what the name is.
15
the lawyer asked me a very salient question:
16
money we would pay you and ultimately AID be better used to
17
serves these ladies?
18
the case.
19
02:28PM
And
Wouldn't the
02:29PM
And I said, absolutely, and I dismissed
There was another case where we sued a company who was
20
making wheelchairs.
And as you know, we are a charitable
21
organization.
22
different sort of things.
23
There was another case where we sued a hamburger joint and the
24
guy said, well, we don't have that money.
25
you serve the disabled $1,000 worth of hamburgers, and we
02:29PM
We charited out over $100,000 in wheelchairs and

And I said, grant us a wheelchair.
I said how about if
02:30PM
55
agreed to that.
2
3
Your Honor, we are the good people.

work.
4
5
We're not the bad guys.

THE COURT:
Do you keep your hours, your professional
hours?
02:30PM
MR. STROJNIK:
THE COURT:
MR. STROJNIK:
keep hours in all cases.
10
how much -- not exactly.
12
THE COURT:
I keep.
Do you keep records?
11
We're doing God's
I keep hours in some cases.

But I have a history.
I don't
I know exactly
02:30PM
Wouldn't that be the acid test.
If you
keep your hours --
13
MR. STROJNIK:
14
THE COURT:
No, Your Honor.
-- virtually the way everybody does, you
15
can show how much time and effort you put in it and one could
16
look back with hindsight, or at the time you make your demand,
17
if you have got $1,000 worth of time in there and you are
18
demanding $7,000, that would be conclusive proof if you are
19
keeping your time.
20
Harrison, isn't there an opinion out there or something that
21
says you should keep your time just to prove the reasonableness
22
of your fees if questioned?
23
02:30PM
And if you are not keeping your time -- Mr.
MR. HARRISON:
02:30PM
Well, I think that one of the measures
24
of whether the fee is reasonable is an evaluation of how much
25
time was spent.
It's not the only one and 1.5(a) lists several
02:31PM
56
factors which are considered in determining reasonableness.
And what happens very often, as the Court knows, and
particularly, if you have to file a fee application in a
personal injury case, most plaintiffs lawyers don't keep time.
I advise them all to do it, but they don't.
and reconstruct their time.
THE COURT:
I have to go back
My point is under the statute we're
dealing with here, you only get the lodestar.
contingency fee.
You do not get a premium.
You do not get a

So it's a
10
lodestar.
Under the rules there can be adjustments to the
11
lodestar.
But how can you get a fee under the statute without
12
having kept your time?
13
start with the lodestar under the statute.
14
MR. HARRISON:
That's a mystery to me.
Again, I think that the determination
of a fee has to depend upon the factors pertinent to each case,
16
what the result was, how long it took, what special skill might
17
be involved.
18
is ultimately charged.
20
02:31PM
You have to
15
19
02:31PM
02:32PM
All of those factors end up determining what fee
THE COURT:
I understand.
On the other hand, what is
it, is it the nine factors?
21
MR. HARRISON:
22
THE COURT:
02:32PM
I think it's 9 or 10.
Plenty of cases say most of those factors
23
are already factored into the hourly rate and number of hours.
24
There's some factors that don't factor in.
25
recovery would be -- the legal authority to ask someone else to
And where the fee
02:32PM
57
pay your fees comes from a statute you can't charge more than
that statute allows and then only allows the lodestar, which is
the hourly rate, no premium.
a pronouncement here, but it's very hard for me to see how a
lawyer could justify any fee claim under this statute without
having kept accurate time records unless the fee was so small
you remember in your head what it was.
$5,000.
And so, you know, I am not making
Anyway, that's my concern.
It could never get to
You don't have to respond
10
to it.
11
in my best prediction and whether my prediction rises to the
12
level of certainty of what the Arizona law would allow for this
13
case where a lot of these fees may have been reasonable, but
14
there's every reason to think that a lot of them may not have
15
been reasonable if there's a starting point of $5,000 even if
16
your starting point was $500 worth of recoverable fees.
17
02:33PM
And again, the purpose of this discussion is to factor
02:33PM
02:33PM
Anyway, Mr. du Mee, I'm going to give you all a
18
chance.
I think I'm almost to the end of the questions I want
19
to put to you.
20
going to have to take a short break or OSHA will come after me
21
for abusing my court reporter.
22
Mr. du Mee.
23
MR. Du MEE:
Oh.
One thing.
Go ahead, Mr. du Mee and we're

02:34PM
So we'll come back.
Your Honor, we would submit that the
24
arrangement that Mr. Strojnik came to with AID is very relevant
25
to whether or not there have been ethical violations and
02:34PM
58
whether or not the Arizona Supreme Court would allow this sort
of behavior to continue.
came to an agreement with AID before they began that he would
donate all of his attorney's fees back to AID.
not contain any sort of recovery other than attorney's fees.
And the design of that law was to stop plaintiffs from being
able to get any kind of windfall off of cases.
8
9
Mr. Strojnik just testified that he
The ADA does
In this case, this is what AID has actually set up is

a system where they charge a -- where Mr. Strojnik charges an
10
illusory fee.
11
give it to Mr. Strojnik and Mr. Strojnik turns around and gives
12
it right back to them.
13
monetary damages or civil penalties, and yet that's exactly
14
what AID is exacting from these defendants.
15
02:34PM
They then recover that fee amount, and then they
02:35PM
The ADA doesn't have any provisions for
I would also submit that despite the representations
16
that have been made about Mr. Strojnik adjusting his fees in
17
certain cases, I have a document where Mr. Strojnik swore under
18
penalty of perjury in Case Number CV 2016-004628 in Maricopa
19
County Superior Court, Advocates For Individuals With
20
Disabilities, LLC, and David Ritzenthaler versus Megha, LLC,
21
that his fee, his reasonable attorney's fee was $5,000.
22
that case, the reason he was submitting an affidavit was
23
because no response had ever been filed to the complaint.
24
case went directly to default status and in support of his
25
default application he filed a fee application that said he
02:35PM
02:35PM
In
The
02:36PM
59
deserved $5,000 for the act of appointment in this case filing
a complaint, which is almost an exact copy of hundreds of other
complaints that have been filed.
4
5
6
7
So I believe that raises some serious questions about

whether Mr. Strojnik does, in fact, adjust -THE COURT:
02:36PM
Did he attach an affidavit showing his
time and rates?
MR. Du MEE:
THE COURT:
No, he did not, Your Honor.

I want to take a 15-minute break.
10
Everybody can gather your thoughts, and I have really gone too
11
far already.
12
Strojnik, when we come back, is all those fees you collect and
13
donate, are you recognizing all those fees as income on your
14
tax return and taking deductions for the charity?
15
And one thing I think I will ask you, Mr.
MR. STROJNIK:
It's not April 15th of 2017.
But the
16
reason I set it up that way was precisely for that purpose.
17
And there's actually an accounting question if I every see the
18
fees or if I just assign them whether I have to actually report
19
them and claim them.
20
02:36PM
THE COURT:
I can't give you the answer to that, but I
21
do have some background in law practice where my understanding
22
is you can't do that.
23
income, pay income taxes on it, and take a charitable
24
deduction.
25
background.
02:36PM
02:37PM
If it's your fee you have to recognize
But don't rely on that.
That's my uninformed
02:37PM
60
We'll take a 15-minute recess.
(Recess from 2:37 p.m. until 2:54 p.m.)
THE COURT:
Well, I think I have gotten through the
questions I wanted to ask.
time to say what you want.
Mr. Harrison.
MR. HARRISON:
I promised I would give you all the

02:54PM
I just have three brief points to make,
Your Honor.
it's difficult to make generalizations about whether fees are
10
11
First of all, I think you would acknowledge that
reasonable except in light of the facts of a given case.

The second point I would make is in this context,
12
reasonableness includes fees, costs, and expenses.
13
I would suggest that in the case to which Mr. du Mee referred,
14
I want to read something for Your Honor.
15
plaintiff made an offer to MidFirst:
16
settlement from each client in the amount of $319 along with
17
proof of remediation from each client within 90 days after a
18
settlement agreement has been fully executed," to which
19
MidFirst responded --
20
THE COURT:
I'm sorry.
And third,
On October 10th, the
"Plaintiff will accept a
Can you tell me what's going
21
on about this settlement offer but there's stuff in the future?
22
I'm just still confused about that.
23
MR. HARRISON:
24
THE COURT:
25
02:54PM
02:55PM
02:55PM
I'm sorry, Your Honor?
I heard different narratives from counsel.
Mr. Doran is saying they want stuff in the future and some
02:55PM
61
proof of compliance in the future.
was.
MR. HARRISON:
But I don't know what that
Well, their response to what I just
read to Your Honor was, "MidFirst is willing to pay $1,000 to
settle all pending lawsuits," I think there were three lawsuits
at that point, "including not limited to," and they identify
the cases.
not limited to Advocates for Individuals with Disabilities
Foundation, Advocates for Individuals with Disabilities, LLC,
And then they add, "All plaintiffs, including but
10
David Ritzenthaler, Shannon Puckett, who weren't plaintiffs,
11
Theresa Brook and all related or associated parties, agents, or
12
representatives" --
13
THE COURT:
14
15
Slow down.
02:56PM
We can't type faster just
because you are reading.

MR. HARRISON:
I apologize.
"Must agree not to ever
16
go to, visit, and/or return to any place of business owned or
17
operated by MidFirst; and two, not ever assert any claim or
18
action against MidFirst or any of its subsidiaries or
19
affiliates alleging a violation of or failure to comply with
20
the ADA, AZDA, or any other associated regulation of law."
21
02:55PM
02:56PM
02:56PM
The plaintiff has not yet responded to that
22
counteroffer for fairly obvious reasons.
But I think my point
23
here is that while the Court has a very legitimate interest in
24
finding out whether the fees in a given case were reasonable or
25
excessive, in the context of this kind of litigation,
02:57PM
62
reasonableness has to embrace the three items I mentioned;
fees, costs, and expenses, and B, I don't think that's an issue
in the case before the Court.
THE COURT:
And as I tried to say early on, the reason
for this and all these subsidiary inquiries is just for how
they do or they might play into the question of predicting how
the Arizona courts or whether one can compare with certainty
that they would not allow this.
disciplinary court, but that's why I'm inquiring into it.
10
may not bear at all.
So this is not the
And so anything else from the plaintiff's side?
12
MR. STROJNIK:
Yes, Your Honor.
THE COURT:
15
MR. STROJNIK:
16
THE COURT:
May I approach the
Pardon?
May I approach the podium?
Yes, please.
02:58PM
The microphone is better
there.
18
MR. STROJNIK:
19
Thank you, Your Honor, for hearing me out both on the
20
02:57PM
podium?
14
17
It
But that's part of the inquiry.
11
13
02:57PM
Thank you.
radio and today.
21
02:58PM
THE COURT:
By the way, my law clerk checked during
22
the break and KJZZ has apparently posted that interview you are
23
in.
24
MR. STROJNIK:
Fantastic.
We'll take a look at it.
25
But when we first met to discuss with AID whether or
02:58PM
63
not this matter would go forward, we wanted to know what the
media has been saying about lawyers who represent individuals
with disabilities and the media just jumped all over them.
the headline you would see is lawyers make money off poor mom
and pops.
of the reasons why I'm working pro bono publico.
I am asked by anybody, and I have been interviewed 15 or 20
times, the first thing I tell them is I'm not getting paid for
anything.
10
That's the headline.
And
We wanted to avoid that is one

And whenever
But that's not what I'm here for.

Your Honor, we can all agree in this courtroom, every
11
one of us, that we all want the same thing to happen with
12
respect to Arizona with Disabilities Act and the Americans with
13
Disabilities Act.
14
of the American culture, the individuals with disabilities,
15
have access to all public accommodations and all private and
16
public buildings.
17
I am here for that.
18
for that.
19
that even the offending businesses would agree that that is a
20
laudable design, laudable plan that we should have.
21
up sometimes in the middle of the night and I ask myself, why
22
can't everybody get together and fix this problem?
23
02:58PM
02:59PM
And that is that the most populous minority
02:59PM
That's ultimately what we are all here for.

AID is here for that.
Your Honor is here
The Attorney General is here for that.
I believe
So I wake
02:59PM
Now, from my perspective, my dad used to tell me the
24
following:
Those who can do, those who can criticize.
25
believe that we can make a change, myself, and AID, and Mr.
We
03:00PM
64
Ritzenthaler.
standing, let us know.
issued by Judge Snow back in the middle of 2016 that talked
about standing under ADA, we thought we knew.
didn't read it correctly.
If we had over stood the issue of Article 3

We thought that we knew from an order
Perhaps we
Perhaps we were wrong.
But the point I'm raising is, there is no reason for
the Attorney General to fight with us.
There is no reason for
us to fight with the Attorney General.
There is no reason for
us to fight with the media.
10
11
12
03:01PM
THE COURT:
Actually, in all candor, you want $5,000
in attorney's fees, too.

MR. STROJNIK:
14
THE COURT:
16
17
18
All we want to do is one thing,
compliance.
13
15
Not me.
I suspect that's why the Attorney General
is interested.
03:01PM
MR. STROJNIK:
Well, Your Honor, the Attorney General
gets 5,000 per case, too.
So that's where we go.
But the point I'm raising is, it's fine for the
19
Attorney General to go to the media and say, I am the only one
20
who can enforce this law.
21
We have given the Attorney General 10,000 complaints about
22
10,000 cases we were going to file and we said, we don't want
23
to deal with this.
24
25
03:00PM
That's fine.
You do it.
And we encourage that.
03:01PM
They haven't.
So what I want to see, or what I would like to see,

and I know this is not a perfect world and I know everybody's
03:02PM
65
got his own agenda.
know there are divisions between those who favor the disabled
and those who just hate them.
accommodations where the owner would tell me, we don't want
your kind here.
And I know there's politics involved and I
I have talked to public
03:02PM
So how do we -- Judge, how do we do this?

I no longer know.
How do we
make it happen?
Because the good we tried
to do is met with death threats, reports that are horribly
wrong, with the Attorney General fighting with us, taking the
10
side of the defendants in 900 cases.
11
taking the side of the defendants in 900 cases.
12
failing to enforce the Arizona DA, enforcing, I believe, 10
13
actions since 1981, going to court and telling, in 2001,
14
telling the Court of Appeals in the Ninth Circuit, yes, private
15
individuals can enforce this law and then telling the judge
16
something different today.
17
THE COURT:
Let me say that again,

Failing to --
I didn't hear anything different today.
18
didn't hear them say that private individuals cannot enforce
19
those laws.
20
MR. STROJNIK:
It's been made to the media.
22
I believe -- whatever it is, Your Honor, I'm just asking -THE COURT:
03:03PM
Well, the statement has been made.
21
23
03:02PM
03:03PM
And the Attorney General himself,
It is entirely clear that those statutes
24
can be privately enforced.
What I'm hearing them be concerned
25
about is what they perceive as a pattern of abusive demands for
03:03PM
66
legal fees that are, in their fear, greatly beyond what can be
reasonable that they are looking out for prevention of what
they fear is abuse of the litigation system to exact large but
unjustified amounts of money from people.
or said anything that they are denying the propriety of private
enforcement which is exactly the way Congress and the
legislature set it up.
But please continue.
MR. STROJNIK:
They haven't heard

03:04PM
The point I'm trying to make, Your
10
Honor, is we would like to work with the Attorney General.
11
feel that we are friends with the Attorney General.
12
the same goal as the Attorney General.
13
anymore.
14
do and we will do it.
15
doing it.
We
03:04PM
We have
We don't want to fight
We just want somebody to tell us what it is we should
Nobody.
Because, Your Honor, nobody else is
Not for 26 years.
16
Does Your Honor have any questions of me?
17
THE COURT:
Very briefly.
03:04PM
You had attached some
18
samples of the notices you have sent out, but it wasn't clear
19
to me from reading those samples you attached whether the
20
pre-suit demands that you are now making but were not before
21
ever get specific.
22
stuff that said referring people to regulation statutes and you
23
go do self-audit and we're going to sue you if you don't.
24
Maybe it's there, but I didn't see where you actually said this
25
sign, the wheelchair sign, is five inches too low.
03:05PM
I couldn't see whether -- I mean, I saw
That
03:05PM
67
handicapped parking spot isn't labeled wheelchair accessible
although, you know, when I drive around it's always completely
obvious to me whether there's room on the side for a side entry
wheelchair.
need to fix or we're going to sue you or just keep figuring
things out.
and tell us you are in complete compliance.
you are telling me.
ultimately say?
Do you tell them this, this, and this is what you
Here's the three categories.
Read the regulations

I don't know what
What does your pre-suit demand letter
10
MR. STROJNIK:
11
how that all of that came about.
12
that lawyers, the civil rights lawyers like myself don't give
13
pre-suit notices.
14
have been introduced over and over again to give their notice.
15
They have always been denied.
16
Arizona, the same has occurred.
17
18
19
Let me give a historical prospective of
03:06PM
The second major complaint is
Now, in the United States Congress bills
THE COURT:
more.
03:06PM
In the state legislature in
I understand.
But what do you do?

MR. STROJNIK:
03:06PM
But we can discuss that
My question is what does --
So we sat down and we said, okay, we're
20
going to do two things:
Number one, we will tell the people we
21
are going to inspect and the plaintiffs are going to go.
22
going to tell them we're going to do it and we're going to ask
23
them if they could, most kindly, make sure there's no
24
violations.
25
We sent 40,000 of those out to the cost of 20,000 to the
03:06PM
We're
We would tell them exactly what it is we look for.
03:07PM
68
company.
received were generally very positive.
We received some responses.
And those responses we
Now there's a secondary pre-file notice which was, I
think, 800 in which we gave notices to businesses whose
violations were actually confirmed.
THE COURT:
MR. STROJNIK:
THE COURT:
9
10
now?
Identify the specific violation.

Correct.
Is that how you are doing it all the time
Are you suing anybody now without having told them ahead
of time, you need to fix this sign and that spot?
11
MR. STROJNIK:
disarray that we are no longer filing suits until we get some
13
guidance as to what we should do.
14
THE COURT:
I want to be clear, because I don't want
15
anybody misled.
16
precondition to filing a lawsuit that you give a pre-suit
17
demand.
18
statute that requires that.
19
administrative exhaustion, but that's not this.
The statute does not -- it's not a
Some statutes have an
As that case you cited says, it is not a bar to filing

a lawsuit you haven't made a demand and it's not an automatic
22
bar to seek attorney's fees.
23
questions is it goes to the reasonableness of fees.
25
03:07PM
I can't off the top of my head, I can't think of any
21
24
03:07PM
Your Honor, this matter is in such
12
20
03:07PM
03:08PM
The reason I'm asking these
So if you can solve a problem for a client with a

letter that said, oh, gee, there's a big chance the other
03:08PM
69
side's going to have to pay my fees.
a lawsuit.
fees.
reasonableness of the fee demand which is entirely different
from whether there's a precondition of filing suit.
that case you cited me, in the footnote at the back end, it
says exactly that.
entitled to fees at all.
because he didn't make a pre-suit demand.
And at the end, I'm not going to ask for the $700
I will ask for 5,000.
To my mind that goes to the
Indeed
03:08PM
It says we're not saying this guy is

We say he's not precluded from fees
10
he's entitled to anything.
11
reasonable fees should be.
12
Let's surprise them with
We're not saying
We're saying nothing about what the
03:09PM
That's why I'm asking these questions, because it
13
bears upon what you have been doing, what you may have done in
14
this case, whether you -- whether the amounts you have been
15
demanding are unreasonable when many of them appeared they
16
could be solvable with a letter.
17
MR. STROJNIK:
Anyway, go ahead.
I understand that, too.
18
know I have appeared before you before.
19
commercial litigator.
20
commercial litigation matters.
21
it's common to make a demand.
22
into the ADA.
23
03:09PM
And as you
You know that I was a
And filing pre-suit demand is common in

The response is always no, but
03:09PM
That practice has not morphed
Nobody that I am aware of --
THE COURT:
I'm saying, I'm acknowledging, it doesn't
24
have to.
But it bears on the reasonableness of the fee you can
25
demand.
Fees have to be reasonable, and that's how it matters.
03:10PM
70
MR. STROJNIK:
THE COURT:
MR. STROJNIK:
I accept that.
I see that as a point.
Go ahead.
Your Honor, I have nothing further.
All I would like to say is we are before you with a pure heart.
We want to do good.
THE COURT:
Mr. du Mee?
All right.
Thank you.
03:10PM
Anything Mr. Doran or.
You don't have to say anything further.
MR. Du MEE:
THE COURT:
10
That's all we want to do.
I will try to keep it brief, Your Honor.

Why don't you come up to the podium.
It's
a better microphone there.
03:10PM
11
MR. Du MEE:
Thank you, Your Honor.
12
I do, first of all, just want to categorically
13
disagree with essentially everything that Mr. Strojnik said
14
about the Attorney General, the Attorney General's Office.
15
of our jobs is we enforce the Arizonans with Disabilities Act.
16
And when people bring complaints in, we investigate those
17
complaints.
18
order to try to reach an agreement with the business.
19
as a last resort do we ever proceed to litigation.
20
Strojnik mentioned, we could get a penalty as a result of that
21
litigation, and that's at the very end of the process.
22
$5,000 for a first-time offender.
03:10PM
The statute directs us to use conciliation in
23
THE COURT:
24
MR. Du MEE:
25
One
And only
And as Mr.
03:11PM
It's
And that's for the State, correct?

I would have to double check, Your Honor,
but I believe so.
03:11PM
71
So but that's radically different from these cases
and, in fact, extremely rare.
And I'm not aware of any
instances in which it got to that point.
have previously admitted in their response to our Motion to
Consolidate in the state court, Docket 19 at Page 4, most
defendants prefer to simply fix the issues.
that we find that that's true.
they are not in compliance with the regulation then they fix
the issue just as the defendant did in this case.
Because as plaintiffs
And we believe
When defendants realize that
10
And the problem is, in this case, the private cause of
11
action is being used improperly not to address these issues but
12
in order to get settlements for attorney's fees that we learned
13
today never even existed in the first place.
14
15
16
THE COURT:
03:12PM
No, Your Honor.
That's only available to
17
the State, as is the attorney's fees under the Arizonans with
18
Disabilities Act.
19
point out at Page 16 and Page 17 of our Motion to Dismiss.
That's in the Attorney General section as we
20
THE COURT:
21
and I was not aware of that.
22
private litigants under the AZDA?
23
03:12PM
Remind me, that $5,000, is that available
to private litigants?
MR. Du MEE:
03:11PM
MR. Du MEE:
I know the federal statute is different,
03:12PM
So there's no fee recovery for
That's correct, Your Honor.
If you look
24
at that particular provision it says it's only for claims
25
brought under this section, which refers to .09.
In contrast
03:12PM
72
the part about monetary damages says in a proceeding brought
under this article.
monetary damages under the Arizonans with Disabilities Act.
And plaintiffs in this case asked for $5,000 in monetary
damages in hundreds of complaints that the Foundation brought,
ADA Foundation.
have no monetary damage claims.
8
9
So we agree there is the possibility of
03:13PM
And yet they have admitted since then they
And this brings me back to one of the things that

concerns us most, which is as Mr. Harrison mentioned, in some
10
case, people are represented by counsel.
But in very many
11
cases they are not represented by counsel.
12
to many a defendant who said, you know, I had to choose whether
13
I was going to pay thousands of dollars to have somebody
14
represent me or just take the deal, have closure, walk away,
15
and these people do not know what an appropriate fee is.
16
are being confronted with a complaint that asks for monetary
17
damages of $5,000 which didn't exist, which asked for
18
attorney's fees that can't actually be awarded under the
19
Arizonans with Disabilities Act and attorney's fees that didn't
20
really exist.
03:13PM
And I have talked
They
03:13PM
03:14PM
21
That's one of the biggest reasons we stepped in, is
22
not for defendants like MidFirst who, in this case, are ably
23
represented by counsel and who have, apparently, negotiated the
24
settlement demand all the way down to $319, but for people who
25
are not represented by counsel and have to make that difficult
03:14PM
73
choice.
The last thing I would like to mention is just that as
Mr. Harrison mentioned, attorney's fees are a case-by-case sort
of assessment.
that Mr. Strojnik gets $5,000 no matter what the case looks
like and, in fact, has sworn under penalty of perjury that
$5,000 is an appropriate fee in a case where there was a
default and a complaint pasted from another complaint and, as
far as we can tell, no other action was taken.
And in this case, apparently, the agreement is
10
MR. DORAN:
11
You heard some anecdotes from Mr. Strojnik, and I
03:14PM
03:14PM
12
would like to share some of my own anecdotes with you, Your
13
Honor.
14
a company which owns bank properties throughout the state.
15
first case is 2:16 CV-0097-DGC.
16
call Action 1.
17
case to federal court, and the case settled on July 15th only
18
after Judge Campbell had issued an Order to Show Cause with
19
respect to standing.
20
I asked you to consider the two cases of CP Maple Leaf,

The
AID sued CP 2 in what I will
There was no pre-suit demand.
03:15PM
We removed the
By the time Action 1 was settled, every property had
21
been inspected and every property had been ensured to be in
22
compliance with the Act, which we informed AID.
10 days later,
23
AID filed CP 2.
It was a
24
different property.
25
it gave them a matter of days to supposedly retrofit with no
That action is 2:16 CV 03-073.
03:15PM
There was a pre-suit demand this time but
03:16PM
74
reason to expect that there was anything that needed to be
retrofitted.
We sent a Rule 11 letter explaining that we had
remediated at all properties to the extent they needed
remediation.
Dismiss.
included a very detailed declaration replete with photographs
demonstrating that this property had been in compliance since
before the lawsuit was filed.
10
No response from AID.
We filed a Motion to
In response to -- and with the Motion to Dismiss
The proper thing for an organization that is worried
11
about the rights of the disabled, that is so unbelievably
12
devoted to this cause, would have been to say we made a
13
mistake.
14
they are doing in this case and they have done in many others.
15
And that's a cut and run strategy to try to at least get back
16
to state court.
17
We're sorry.
But they didn't.
And so they move to remand.
03:16PM
They did exactly what
03:17PM
They have not responded
18
to the factual allegation that the property was in compliance
19
even before the complaint was filed.
20
at this point.
21
on that case.
22
from the examples that Mr. Strojnik gives you.
23
03:16PM
That is a conceded point
We are just waiting for Judge Silver's ruling
03:17PM
But that is an example that is very different
I will give you one other anecdote.
It's QuikTrip 1,
24
2, and 3.
By way of background, the QuikTrip gas stations have
25
historically been subject to a federal consent decree with
03:17PM
75
respect to the ADA.
filed a lawsuit against one property.
consent decree and said we are in complete compliance.
voluntarily dismissed.
against another property.
is still in complete compliance.
a federal consent decree and they get audited every year.
dismissed.
They are all in complete compliance.
ADA
We notified them of the

They
A month later they filed a new suit

We notified them again, the property
All of these were subject to
QuikTrip 3, they do the very same thing again.
They
And
10
the point here, Your Honor, is this isn't disability advocacy.
11
And frankly, if that was what AID was all about, they wouldn't
12
worry about whether a sign was one inch too low.
13
out fighting the real causes, the real barriers for the
14
disabled, and they are not doing that.
15
inches of signs that they can see from the street using a
16
drive-by expert to take pictures without the plaintiffs ever
17
having an iota of any kind of intent to go to those properties.
18
This is a money making machine for somebody, whether it's for
19
Mr. Strojnik or AID.
20
of money.
21
03:18PM
03:18PM
They would be
They are quibbling over

03:18PM
It's somebody who is making an awful lot

03:19PM
I use those to put into perspective some of the things
22
Mr. Harrison said earlier.
And, of course, I have the world of
23
respect for Mr. Harrison.
24
perfectly clear.
25
where a party is represented, if they see an unreasonable fee
But I want to make a couple things
Mr. Harrison told you that in litigation
03:19PM
76
request they will push back always.
Where you have got tiny cases like this, and I will admit that
my hourly rate is unmodest.
clients.
settled cases with Mr. Strojnik for $7,500 because he refused
to come down from that number because it was a small little
company and he saw that he had them over the barrel.
So, no, Mr. Harrison is incorrect.
It's simply not the case.
And I have that discussion with my
And we look at the economics of the case.
correct itself.
We have
The market doesn't
And as Mr. du Mee pointed out, the market
10
can't correct itself for mom and pop shops who can't afford to
11
hire their own counsel.
12
THE COURT:
rely on the market to fix it, because the market has enumerable
14
casualties.
I didn't understand him to be saying that.
MR. DORAN:
I meant that in a broader sense that the
16
adversarial nature of the legal market you can expect that
17
opposing counsel won't agree to a settlement that's blackmail.
18
That's just not true.
19
of economic extortion.
20
03:20PM
I'm not sure Mr. Harrison was saying just
13
15
03:19PM
03:20PM
These cases are founded on the principle
And Mr. Harrison says all these cases were obviously
21
brought presumably with a violation in plain sight or in mind,
22
but the QuikTrip cases show that is completely untrue.
23
truly drive-by litigation.
24
knew after the first lawsuit that all these properties were in
25
compliance and that they were just dead wrong.
03:20PM
It is
They filed three lawsuits when they
They filed the
03:20PM
77
CP 2 Maple Leaf case after they knew that we were in full
compliance and opposed our Motion to Dismiss and sought remand
instead when we provided uncategorical, undeniable proof that
we were in compliance.
in the sight of an obvious violation of the law.
brought as part of the litigation mill that, at one point in
time, threatened to file 8,000 of these cases back in August.
8
9
So, no, these aren't brought presumably

They are
03:21PM
Mr. Harrison points out that the average settlement

value of these cases is $3,400, but that is really funny math.
10
I mean, I can take my historical outlier of $7,500 which Mr.
11
Strojnik would not move off that number as a perfect example.
12
But it's funny math, because after things started to get really
13
grim for AID, after the State got involved, after Orders to
14
Show Cause were coming down at the federal court level, they
15
began a fire sale.
16
where in October they said, we'll settle this thing for $319.
17
But they refused to settle for that average number months
18
before with us.
19
less than $6,500 just months before the fire sale began.
20
03:21PM
And that fire sale is evident in this case
03:22PM
In fact, they refused to settle for anything
So the average number is affected by their fire sale,
21
and it doesn't accurately reflect what the value of these cases
22
should be.
23
AID when you make your settlement offer that is four pages of
24
legalese that basically says you know what?
25
what we tell you, you are going to spend a lot more money.
03:22PM
And what you get in response is a form letter from
If you don't do
For
03:22PM
78
example, letter from Mr. Strojnik dated August 25th, 2016:
"Economically, then, it is in everyone's interest to reach a
fair and amicable resolution.
achieve the goal of ensuring your client's compliance with the
ADA; and on the other, your client will prudently limit its
exposure to significant additional costs and fees."
7
8
THE COURT:
On the one hand, our client will
The only additional cost being liability
for attorney's fees.
MR. DORAN:
Exactly.
It is the tail wagging the dog.
10
And I have got numerous examples of that.
11
offered $3,500 Mr. Strojnik said, "In the spirit of compromise
12
and amiable resolution, I have been authorized to settle this
13
matter on the following terms:
14
even though the property was in compliance, "two,
15
confidentiality covenant, and three, a reduced payment of
16
damages of $6,500 for damages under the AZDA costs, fees,
17
expenses, and attorney's fees.
18
other lawyers to come in and say that's what their experience
19
is, too.
20
03:22PM
In this case when we
03:23PM
1, ADA compliance as proposed,"
03:23PM
And, Your Honor, I can get 600
That's what's going on here.

I noted with some concern and then surprise that Mr.
21
Harrison would say fees in a case vary from case to case.
22
can look at the pleadings in this and every other case.
23
shouldn't vary.
24
camera from parking lot to parking lot all day, every day, is
25
going to be the same case to case.
03:23PM
You
They
The cost of the guy who goes around with the
The cost of filing the
03:24PM
79
complaint is going to be the same because it's a cookie cutter
complaint.
$5,000 is the reasonable fees in a default, why would they
settle for $319?
Why would fees vary from case to case?
And if
None of it adds up, Your Honor.
I do want to end with the rather dramatic point that
Mr. Harrison made with respect to the demand we made in
response to their $319 demand.
waiver and release where we asked for a covenant that these
people would not come back to the property.
He reads language of a broad
And that, from Mr.
10
Harrison, signals an obvious reason why they would never accept
11
such a thing.
12
AID is to make sure that these people can go property to
13
property to property.
14
03:24PM
03:24PM
And implicit in that is the important mission of
Your Honor, I can point you to at least a half dozen,
15
and I guarantee if I called the other 600 lawyers involved in
16
these cases a lot more than that, a lot more instances, where
17
they have agreed to precisely that language.
18
boilerplate we pulled from a prior settlement agreement with
19
AID.
20
is drive-by litigation at its worst.
21
it would be completely futile to send this back to the state
22
court where they lack standing in the first place and
23
completely unfair to MidFirst Bank.
24
case about AID and somebody who is disabled.
25
money for somebody, whoever that somebody is, and that's just
03:25PM
That was
The fact of the matter is, this is a litigation mill.
It
And at the end of the day
03:25PM
This is not a do-gooder
It's about making

03:25PM
80
wrong.
THE COURT:
Any reply?
MR. HARRISON:
You don't have to.
It will be brief.
It will be brief,
Your Honor, because 90 percent of what Mr. Doran talked about
had nothing to do with the case before the Court.
hearsay.
all kinds of subjective characterizations of what's going on
which really shouldn't influence the Court's decision in this
case.
It involved documents I haven't seen.
It involved
03:26PM
It involved
And frankly, I am troubled by it, because I'm not in a
10
position to respond to all of those vague, you know, hyperbolic
11
charges about extortion and things like that.
12
they are uncalled for.
13
03:26PM
In fact, I think
But you have the facts before you in this case, and if
14
you need any more facts pertinent to this case, we'll be happy
15
to supply them.
16
03:26PM
THE COURT:
Again, and I'm going to repeat myself, in
17
light of the wide-ranging discussion we have had, and I'm going
18
to repeat myself just to try to prevent misunderstanding.
19
discussion is all subsidiary to the question of whether to
20
remand the state claim, and that comes down to whether I can
21
say with certainty that the state courts would not allow it to
22
proceed.
This
23
So there's a lot of things I'm looking at, because I
24
think at least under -- well, there are a lot of things state
25
courts would look at in deciding how they would interpret these
03:26PM
03:27PM
81
statutes or whether they would allow this.
don't want anyone to think that we have had this discussion for
any specific purpose bearing on them but as to how all these
questions bear on that prediction I have to make.
So I want -- I
I can tell you I am satisfied without doubt that the
federal claim does not get remanded.
authority, and the critical, if you look at the cases, the
critical difference in my mind is, these defendants had a
statutory right to have that claim in this Court be decided.
I have been supplied no
10
And that right would be defeated if we said no, we're going to
11
send you back for more of the burden of litigation.
12
other issue requires additional analysis of the remand of the
13
state claim.
14
And also, you know, Mr. Doran, I didn't realize this

until Mr. du Mee told me, there's no fee recovery under the
16
state statute.
MR. STROJNIK:
18
THE COURT:
19
I'm sorry, Mr. Harrison.
20
MR. HARRISON:
That is incorrect, Your Honor.
Well, I won't worry about it then.
I was through, Your Honor, unless you
03:28PM
have any further questions.
22
THE COURT:
23
MR. HARRISON:
25
03:28PM
At least -- is that not correct, Mr. Strojnik?
17
24
03:27PM
So but the
15
21
03:27PM
No.
No.
I can't counter Mr. Doran's political
speech.
MR. DORAN:
Your Honor, we're willing to move those
03:28PM
82
letters into evidence if they will help you.
THE COURT:
Look, I'm not sure.
Like Mr. Strojnik, I
may be a little reluctant to make a decision right here on the
spot, because I am just not confident as I sit here that they
would bear on the high level of judgment I have to make
anticipatory.
court should make.
know.
It's to the high level of judgment the state

So if I change my mind, I will let you
MR. DORAN:
10
THE COURT:
Thank you all, counsel.
11
helpful discussion.
12
03:29PM
It's been a
And the motion is taken under advisement.
(Proceeding concluded at 3:29 p.m.)
13
14
15
16
17
18
19
20
21
22
23
24
25
03:29PM
83
1
2
3
4
5
6
C E R T I F I C A T E
7
8
I, LAURIE A. ADAMS, do hereby certify that I am duly
appointed and qualified to act as Official Court Reporter for
10
the United States District Court for the District of Arizona.
11
I FURTHER CERTIFY that the foregoing pages constitute
12
a full, true, and accurate transcript of all of that portion of
13
the proceedings contained herein, had in the above-entitled
14
cause on the date specified therein, and that said transcript
15
was prepared under my direction and control.
16
17
DATED at Phoenix, Arizona, this 20th day of December,

2016.
18
19
20
s/Laurie A. Adams
_______________________________
Laurie A. Adams, RMR, CRR
21
22
23
24
25

Judge Wake Hearing Re: AID Tactics

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Judge Wake Hearing Re: AID Tactics

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1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Advocates for Individuals

THE HONORABLE NEIL V. WAKE, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Official Court Reporter:

UNITED STATES DISTRICT COURT

For the Plaintiffs:

UNITED STATES DISTRICT COURT

THE COURTROOM DEPUTY:

Civil Case 2016-1969,

Advocates for Individuals with Disabilities, LLC, et al.,

versus MidFirst Bank.

This is the time set for a show cause

Counsel, please announce for the record.

Good afternoon, Your Honor.

Harrison, one of the counsel for AID and Mr. Strojnik.

are my partner, Geoff Sturr and my colleague, Josh Bendor.

Good afternoon, Your Honor.

Strojnik for the plaintiff.

That's Peter Strojnik, Sr., Bar

Good afternoon, Your Honor.

Good afternoon, Your Honor.

and Matthew Hesketh on behalf of the defendant.

Good afternoon, Your Honor.

Matthew du Mee and Oramel Skinner on behalf of Amicus State of

Zazueta for the Plaintiff.

Good afternoon, counsel.

our discussion by restating that the ultimate inquiry today is

whether to enter judgment dismissing both the federal claim and

the state claim in this Court or to remand to the state court.

extent they may be relevant as subsidiary to that question.

UNITED STATES DISTRICT COURT

None of the other questions are here in a primary sense but to

help understand what the right resolution is to the plaintiff's

motion to remand rather than enter judgment of dismissal on

I do want a little bit of information.

start with Mr. Doran.

demand in this case?

My client did not receive a pre-suit

make any changes because of this litigation?

And what, in fact, was -- what were the

changes that were made?

I believe the sign was raised a few

inches, and I don't believe there was any restriping.

it was just a raising of the signs by a few inches.

There was prompt remediation, which led to our

Did your client

At this property, yes, Your Honor.

Again, I'm not assuming what matters.

just want to know what the lay of the land is.

Did your client receive a pre-suit

Mr. Strojnik, is that correct?

And what did it cost your

UNITED STATES DISTRICT COURT

I don't know the number but somewhere

between $500 and $700, Your Honor.

And how quickly was that done?

It took probably three to four weeks if my

Now, are there any outstanding

disputes between the parties as to any other remediation?

There is a second MidFirst lawsuit pending