Legislation intended to reform the Americans with Disabilities Act by making it more difficult to win nuisance suits based on it, designated HR 620, has passed the U.S. House of Representatives and is now under deliberation by the Senate.
Title III of the original ADA law, was enacted to ensure access for persons with disabilities to public accommodations. However, advocates of the reform legislation argue that the ADA has been abused by those seeking to unreasonably profit from it.
“Too often, serial litigants have abused Title III to shake down businesses for quick settlements over minor, technical violations without actually seeking to improve access,” according to Susan Joo and M. Brett Burns, attorneys with the law firm of Hunton & Williams.
“Amending the ADA to include a notice and cure provision, proponents of HR 620 say this bill will curb predatory public accommodations lawsuits brought by serial plaintiffs and their lawyers against businesses,” they say.
If passed, HR 620 would amend the ADA to provide a “notice and cure period.” Under the bill, those wishing to sue businesses in federal court over an ADA public accommodations violation must first deliver a written notice to that business detailing the illegal barrier to access and then give that business 60 days to come up with a plan to address the complaints along with an additional 60 days to take any necessary action.
The written notice must “specify in detail the circumstances under which an individual was actually denied access,” and lays out details about what the notice must include.
Among them are the property address, the specific sections of the ADA alleged to have been violated, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.
A lawsuit can only be filed if the business does not respond within 60 days with a description of the improvements aimed at removing the barrier.
The legislation also says that plaintiffs can file suits if the business responds but fails to remove the barrier, or if it doesn’t make “substantial progress” toward removing the barrier within 120 days after the notice was issued.
Strengthening Mediation
In addition, the bill directs the Department of Justice to develop a program to educate state and local governments and property owners on effective and efficient strategies for promoting access to public accommodations.
The legislation also calls for the Judicial Conference of the United States to develop a model program for alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve ADA Title III claims.
In some states courts are already doing this. For example, the Northern District of California, already requires a stay of discovery for these types of cases to facilitate early settlement.
Unfortunately, the bill does not specifically pre-empt state law. For it to be effective, similar state laws may need to be enacted, Joo and Burns note.
Disability rights advocates are vigorously opposing the bill, arguing that it represents a reversal of the rights protected by the ADA.
According to these groups, a business owner will not have any incentive to comply with the ADA until a lawsuit is threatened. Because of this opposition, the bill is expected to face an uphill battle in the Senate.
