By Richard Hunt

In a letter to the Subcommittee on the Judiciary the National Multi Housing Counsel and National Apartment Association expressed support for HR 3356 as a solution to abusive litigation under the ADA and FHA. The goals of the ADA Compliance for Customer Entry to Stores and Services (“ACCESS”) Act, as HR 3356 are good, but it does not address the problem in a manner consistent with the goals of the ADA and FHA.

HR 3356 provides that an aggrieved plaintiff must give the owner of property notice and an opportunity to cure before filing suit. This eliminates the most aggravating thing about ADA litigation, which is that the suit is often filed before the property owner even knows there is an issue to be fixed. Unfortunately HR 3356 goes too far because it doesn’t directly address the reason lawsuits are filed without notice, which are economic and involve the attorneys, not the plaintiffs. Plaintiffs have no economic incentive at all to file ADA and FHA lawsuits, and it is fair to say they are not the cause of abusive litigation. Lawyers do have an incentive, but they can only recover fees if they file suit, not if they make a successful demand. The notice and cure provisions in HR 3356 take away any economic incentive for lawyers to help disabled clients. This leaves owners in ignorance about their violations of the ADA and leaves the purposes of the ADA and FHA unfulfilled.

There is a better way. Create an incentive for plaintiffs and their lawyers to make a demand before filing suit. For example, the statutes could provide that it is an affirmative defense to any award of attorney’s fees if, after a demand is received, the owner corrects all specifically identified violations within a reasonable time and offers to pay the plaintiff, if represented by counsel, a reasonable attorney’s fee for time spent making the demand. At the demand stage the amount of fees should be small enough that neither side will want to litigate a difference of opinion as to what is reasonable.

There are also other opportunities to meaningfully reform ADA and FHA litigation. Abusive ADA and FHA lawsuits tend to be cases in which the standing of the plaintiff to bring the suit is marginal or non-existent. The statutes should codify the standing requirements imposed by the best existing case law, including the requirement of specific pleading. Abusive lawsuits are also usually based on a handful of violations, but seek through discovery to expand the scope of the claim. The best case law forbids this on standing grounds, and the statutes should explicitly limit lawsuits to barriers actually encountered by the plaintiff before suit was filed. Finally, in those cases in which suit is filed after a failed demand the owner’s good faith efforts to comply with the statutes should be a factor explicitly considered in any award of attorney’s fees to the plaintiff.  This would permit the Court to reduce fees for plaintiff’s attorneys who unreasonably file suit but whose conduct does not satisfy the strict standards for sanctions in Rule 11 of the Federal Rules of Civil Procedure, and to balance the equities in cases where both parties may have been partly to blame for the litigation.

Abusive FHA and ADA accessibility litigation is an undeniable problem. HR 3356 is a starting point for reform, but goes too far. A more nuanced approach, like that described above, is required.