Capitol-BuildingMarianne Wilson of Chain Store Age Media reported that a new effort at ADA litigation reform, the “ADA Education and Reform Act of 2015”, H.R. 3765, was introduced on October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL). Like previous attempts to amend the private remedy provisions in the ADA this one requires notice and opportunity to cure as a prerequisite to a private lawsuit. I won’t speculate on the odds that it will pass in the current legislative climate, but it does provide a reason to look at real problems with private ADA enforcement, none of which are addressed by this legislation. Instead of treating plaintiffs as the problem, Congress should look at defects in the ADA and the way the courts interpret it.

H.R. 3765 certainly addresses the thing that most aggravates businesses sued under the ADA: They are accused of a violation of the law when they didn’t know they had ADA issues. “If I had only known,” the argument goes, “I would certainly have made the changes needed to make my business accessible.” If that were the only problem with ADA litigation, the newest legislative effort would provide a cure. However, most businesses learn after they have been sued that getting out of an ADA lawsuit is more complicated than just eliminating a barrier to access.

The first problem not addressed by the current legislation is the lopsided approach to awarding attorneys fees. A winning plaintiff will always be awarded reasonable fees under the ADA. A winning defendant will be awarded fees only if there is egregious bad faith on the part of the plaintiff.  H.R. 3765 looks as if it might address this problem, because filing suit without the required notice would presumably be an act of bad faith. Look a little deeper though and the basic disparity remains. The business owner is required to provide a “written description outlining improvements that will be made to remove the barrier” within 60 days and to “remove the barrier or to make substantial progress in removing the barrier” within 120 days. A determined plaintiff will probably be able to find some defect in the written description, and substantial progress is a phrase that invites dispute. A plaintiff who sues and argues the notice or work were defective may not win, but he or she probably won’t pay attorneys fees to the defendant. Similarly, the defendant may win, but will do so at a cost that far exceeds what the plaintiff’s lawyer would have wanted to settle the case in the first place. As long defendant attorneys’ fees cannot be easily recovered by defendants plaintiffs will file suits and defendants will have to settle just because it is the most economical way out.*

A second problem is the unreasonable perfection required by ADA standards as the courts interpret them. At the pleading stage, and certainly through summary judgment, most courts assume that even the smallest discrepancy with respect to ADA requirements is an actionable violation. The result is that many businesses are sued even though they and their architects and contractors believe the structure is ADA compliant. In one recent case the court conducted a trial because the plaintiff’s expert measured the slope of a ramp at one place and the defendant’s expert measured it at another. The defendant won, but at what cost in attorney’s fees? Moreover, because the standards are so strict, a business can rarely be confident it is in compliance. A demand letter may trigger thousands of dollars on experts just to verify there is no ADA violation, and since experts can disagree, the plaintiff may sue anyway.

A related problem is the ease with which a plaintiff can plead an ADA injury. Current interpretations of the ADA require only that a plaintiff plead the existence of a violation; not that the violation actually interfered with the plaintiff’s ability to enter the premises or buy goods and services. It is this interpretation that permits abusive ADA lawsuits in the first place, because plaintiffs can literally “drive-by”** a property, see a violation, and file suit. I’ve reported here on a recent case where the plaintiff ultimately lost at trial on this issue, but once again, the defendant’s cost to win probably far exceeded what the plaintiff would have taken to settle at the beginning of the lawsuit.

Finally, the present legislation does nothing about lawsuits based on claims that a business has a practice or policy of violating the ADA. Suppose everything goes perfectly and the defendant sends the description of work in 60 days and finishes in 120 days. The plaintiff will still have available a claim that the defendant had a discriminatory policy of ignoring ADA violations until it was threatened with a lawsuit.

Fortunately, businesses can protect themselves  without waiting for political action. It is as simple as finding violations and fixing them; especially those involving parking and access to the front door. Most genuinely abusive lawsuits are filed by plaintiffs who see a parking or accessible route problem and go no further. Good looking, well marked parking spaces and access aisles will deter these plaintiffs, particularly when, as one plaintiff’s lawyer has told me, there is plenty of other low lying fruit. This isn’t a guarantee that there won’t be a lawsuit, but it will do more to avoid litigation than any provision for notice and an opportunity to cure would.

* The proposed statute also contains a provision to create a pre-litigation dispute resolution procedure. While this might be helpful in some cases, in most any additional procedural steps only increase the fees the defendant cannot recover. The typical abusive lawsuit rarely involves disputes about the merits of the claim that barriers to access exist because they almost always do, and if it is a close call plaintiffs are more than willing to negotiate. After all, their profits depend on getting out quickly with a minimum of effort.

** The word “drive-by” when used with respect to abusive ADA lawsuits is, as I’ve said before, offensive. Whether or not one likes serial or abusive ADA plaintiffs, there is no justification for comparing them to murderous gang members.