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Congress addresses ADA nuisance suits in bill, but prospects dim

Congress addresses ADA nuisance suits in bill, but prospects dim

A bill that passed the U.S. House of Representatives earlier this month addresses businesses’ vulnerability to the numerous so-called “drive-by” lawsuits filed by plaintiffs charging violations of Title III of the Americans with Disabilities Act, which are often based on minor architectural issues.

But the Senate’s passage of H.R. 620, The ADA Education and Reform Act of 2017, is doubtful. And assuming it is passed by the Senate and enacted into law, at least a portion of this litigation will move to state courts.

Experts say the bill’s passage by the House is nevertheless a promising sign.

The ADA’s Title III prohibits discrimination on the basis of disability in public accommodations including restaurants, movie theaters, schools and recreational facilities.

Businesses are required to remove architectural barriers in existing buildings and make sure newly built or altered facilities are constructed to be accessible to individuals with disabilities.

Among the bill’s requirements is that before filing litigation in federal court, “the aggrieved person” must send a written notice on the alleged architectural barrier and give the property’s owners 60 days to provide a written response outlining planned improvements.

Defense attorneys say multiple lawsuits are often filed by the same firms, with the same named plaintiffs, with the intent of encouraging businesses to readily settle for attorneys fees because it would be less expensive than facing further litigation.

“The problem with these cases is there’s been a small, but powerful, segment of plaintiff lawyers who have decided to file case after case using the same plaintiff, alleging mostly a minor failure to fully accommodate in accordance with the ADA standards,” said Todd A. Bromberg, a partner with Wiley Rein L.L.P. in Washington.

Many of Title III’s requirements “are very specific,” such as calling for the correct height of toilet paper or hand towel dispensers, said Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh.

These lawsuits often focus on such minutiae, say experts. “It’s a volume business,” said Dana J. Finberg, a partner with Arent Fox L.L.P. in San Francisco.

“The truth of the matter is, these lawsuits are by and large cynical money grabs, where you’ve got plaintiff lawyers finding a willing person to put a name on a case and target businesses they have no intent of patronizing” in an effort not to obtain injunctive relief to make the disabled’s lives better, but to attract settlement money as businesses seek “to make the cases go away quietly,” he said.

The bill, which was intended to provide relief for businesses from these nuisance suits, is “something that’s been a long time in the making on the federal level,” said Kristina M. Launey, a partner with Seyfarth Shaw L.L.P. in Sacramento, California.

“Over the years, we’ve seen various attempts at reform that just haven’t gone anywhere, so I think it’s encouraging for businesses to see the Congress is doing something to try to provide” them with some relief, she said.

Disability groups have criticized the bill as undermining their rights under the ADA.

The bill “would weaken the ADA, a critical source of rights for people with disabilities to public accommodations,” said the Berkley, California-based Disability Defense and Education Fund in a statement on the issue on its website. “It would turn people with disabilities into second-class citizens, and undermine the very principles of an inclusive society that America is all about.”

However, “it’s not the draconian measure it’s made out to be, nor is it going to stop businesses from complying with Title III of the ADA,” said Frank C. Morris Jr., a member of law firm Epstein Becker Green L.L.P. in Washington.

“It takes account of the fact that the statute has been abused by attorneys who have used it as a niche business, not because of extraordinary interest in ensuring the rights of individuals with disabilities, but to take advantage of securing easy paydays.”

“I think all in all (the bill’s) a positive move and would be a great thing, particularly for small businesses, while at the same time getting ADA claimants what they’re looking for here,” said Mr. Finberg.

“It gives businesses a reasonable opportunity to cure deficiencies they might not have been aware of” before facing litigation, he said.

If the bill should become law, “businesses would likely see more letters” making allegations of Title III violations, said Joseph J. Lynett, a principal with Jackson Lewis P.C. in White Plains, New York.

But, “it’s a step in the direction of the kind of reform the business community” has been seeking for many years, even though “it will create obligations for businesses to respond to the letters when they are received,” he said.

But putting federal law in place may mean just moving at least a portion of the litigation to state court.

If the bill is enacted, it is “going to move a great deal of litigation to state courts,” where there will be “less discipline and control over the plaintiffs and their lawyers,” said David Raizman, office managing shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Los Angeles.

“I certainly can see an uptick in litigation in state courts alleging only state claims or local law claims,” said Mr. Lynett.

New York City, for instance, has its own law on this issue, he said, adding that, unlike the federal law, plaintiffs can seek damages under some state laws.

“I don’t think it will be a simple, 100% shift from the federal courts to these state courts, but I do think it’s safe to say some number of cases will be pursued by state law claims, particularly in states where damages are available and not just injunctive relief and attorneys fees,” said Mr. Morris.

But most observers say they are not optimistic about the bill’s prospects in the Senate. The House’s 225-192 vote in the bill’s favor “was pretty close, and there’s some major detractors in the Senate,” said Mr. Raizman.

Meanwhile, litigation spurred by website accessibility remains a particularly hot issue say attorneys. 



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