Quick Hits – ADA and FHA news of note

October 23, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Litigation Procedure Tags: ADA Reform, ADA serial litigation, Litigation and Management Services, LLC, Zimmerman

Last week’s Quick Hits blog got a good response, so we are repeating it this week. Both of this week’s cases concern abusive serial litigation and the efforts of courts and state governments to put an end to it.

Ford v. Jalisco Market, LLC, 2:16-CV-619-CW-BCW, 2017 WL 4621612, at *15 (D. Utah Oct. 13, 2017) is in many ways a companion to last week’s Ford v. H Unit Five, Inc. The same serial filer and her counsel worked desperately but to no avail to keep a lawsuit alive after all the originally pled ADA violations had been remediated. The decision is a good read for defense counsel because the tortious path to dismissal included a number of mis-steps to avoid. For any concerned business the case has fresh interest because of the Court’s observation that the conduct of the plaintiff’s lawyer might constitute a violation of the applicable standards of conduct. Besides the serial nature of the lawsuit, the Court noted that the plaintiff’s response to any effort at discovery or defense was to increase her settlement demand and take some action intended to drive up the cost of defense. In other words, plaintiff and her counsel were using otherwise legitimate procedures only as means to coerce settlement. This is not an uncommon litigation tactic, but the Court’s recognition of the fact that serial lawsuits of this kind are nothing but an exploitation of the ADA and the court system is one that seems to be spreading.

ADA reform: neither complaints nor pre-suit notice will solve the problem.

December 30, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, Internet Accessibility Tags: ADA Reform, ADA serial litigation, Anderson Cooper, drive-by lawsuits

Sixty Minutes and Forbes have now weighed in on the serial litigation crisis that threatens small businesses sued for often innocent or trivial ADA violations. Congress is gearing up once again to require pre-suit notice, a change demanded by businesses and opposed by disability rights groups. Meanwhile, the pace of ADA filings has only increased, with hyper-aggressive lawyers moving from dozens to hundreds of lawsuits a month, many now concerning web access. Federal judges have responded in some cases with sanctions that amounted in one case to more than $100,000.

How did we get to here? Why has a law to help the disabled turned into a litigation industry? The answer is more complicated than unethical lawyers or profiteering plaintiffs. At the root of the litigation crisis are four things: More

ADA reform legislation moves forward

July 9, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees Tags: ADA Legislation, ADA Reform, H.R. 3765, Senator Poe

On July 7 H.R. 3765, the ADA Education and Reform Act of 2015, passed out of the House Judiciary Committee. H.R. 3765 is one of several pending ADA reform bills targeting “drive-by” or serial litigants. They share a common approach, requiring that plaintiffs give notice before filing suit so the problem can be fixed. They also share a common reaction from the disabilities and business communities. Disability advocates vehement oppose the bills while business groups support them.

We’ve blogged about H.R. 3765 before (click HERE and HERE to read the earlier blogs). Our prediction that the bill would go nowhere is proving wrong, but our criticism of the bill’s likely effectiveness hasn’t changed. Serial litigation is driven by cheap standing and the economics of defending a lawsuit in federal court, neither of which will be changed by this bill. There is something in the bill that all sides should agree on – a requirement for more ADA education. Unfortunately, this requirement comes without any funding, so it is unlikely to be effectively implemented. The best way to reduce litigation and help the disabled involves seriously funded education for business and coordination of ADA compliance requirements with the building inspection process at the local level. This would improve ADA compliance before a suit was filed or demand letter sent, and that would have the effect of moving resources from attorneys fees to accessibility. Private enforcement of the ADA through litigation is the most wasteful way to achieve the goals of the ADA, and as long as litigation is the main tool for enforcement the lion’s share of money will go to lawyers instead of improvements in accessibility.