{"id":685,"date":"2018-07-10T17:17:36","date_gmt":"2018-07-10T21:17:36","guid":{"rendered":"https:\/\/sites.bu.edu\/dome\/?p=685"},"modified":"2018-07-10T17:17:36","modified_gmt":"2018-07-10T21:17:36","slug":"drive-by-legislation-will-not-solve-drive-by-lawsuits","status":"publish","type":"post","link":"https:\/\/sites.bu.edu\/dome\/2018\/07\/10\/drive-by-legislation-will-not-solve-drive-by-lawsuits\/","title":{"rendered":"Drive-By Legislation Will Not Solve Drive-By Lawsuits"},"content":{"rendered":"

If you ask disability rights activists about the ADA Education and Reform Act of 2017 (the \u201cReform Act\u201d), you may get a response that the Reform Act, which recently passed the House<\/span><\/a>,<\/span> is not nearly as benign or as amicable to the interests of persons with disabilities as its title suggests.\u00a0 In fact, many activists claim that the Reform Act would be downright harmful<\/span><\/a> to persons with disabilities.<\/p>\n

Tension over the Reform Act arises over key provisions requiring individuals with disabilities to give notice to businesses<\/span><\/a> before filing a noncompliance lawsuit under the Americans with Disabilities Act (\u201cADA\u201d).\u00a0 Currently, an individual can bring a lawsuit under Title III of the ADA<\/span><\/a> immediately for a business\u2019 failure to comply with the ADA. Under the proposed law, after receiving notice, the business would have 60 days<\/span><\/a> to provide a written plan describing how the business will conform to the ADA\u2019s requirements.\u00a0 The business then could take another 120 days<\/span><\/a> to remove or make \u201csubstantial progress\u201d toward removing the accessibility barrier.\u00a0 \u00a0Individuals with disabilities would have to wait at least 180 days, if not longer, to enforce their civil rights under the ADA.\"\"<\/a><\/p>\n

Although disability rights activists and many supporters of the disabled community oppose the proposed law, the Reform Act has some bipartisan support in Congress<\/span><\/a> in an effort to stem the tide of excessive \u201cdrive-by\u201d lawsuits<\/span><\/a>.<\/p>\n

Do we have a \u201cDrive By\u201d Lawsuit Problem in the United States?<\/strong><\/p>\n

\u201cDrive-by\u201d lawsuits<\/span><\/a> are a practice where unscrupulous attorneys file hundreds of lawsuits alleging often minor, technical violations of the ADA. <\/span><\/a>\u00a0Lawyers working with as little as one plaintiff file lawsuits with boilerplate complaints<\/span><\/a> looking for quick settlement payouts.\u00a0 These lawyers have often only visited the business they are suing one time and sometimes neither the lawyers nor their clients are patrons of the business.<\/span><\/a><\/p>\n

Recent, more extreme versions of \u201cdrive-by\u201d lawsuits are called \u201cGoogle lawsuits;\u201d<\/span><\/a> where lawyers file lawsuits just by looking for ADA violations on Google Earth.\u00a0 By some estimates, businesses pay an average of $16,000 to settle these lawsuits<\/span><\/a> rather than paying significantly more in legal fees to challenge the lawsuits in court.\u00a0 Under Title III of the ADA, a plaintiff cannot recover damages, but can recover attorneys\u2019 fees along with injunctive relief (see p.378).<\/span><\/a>\u00a0 Proponents of the Reform Act argue that these remedies promote excessive litigation.<\/p>\n

Unfortunately, these \u201cdrive-by\u201d lawsuits often do not result in increased ADA compliance.\u00a0 These settlements are often just shakedowns for cash, which may not actually lead to fixing the underlying ADA violation<\/span><\/a>.\u00a0 As a result, some in the disabled community feel that these \u201cdrive-by\u201d lawsuits actually harm relations<\/span><\/a> between businesses and persons with disabilities.\u00a0 Still, could the Reform Act do more harm than good?<\/p>\n

Could the ADA Education and Reform Act Damage the ADA?<\/strong><\/p>\n

Originally enacted in 1990, the ADA has improved the lives of countless individuals with disabilities.\u00a0 The ADA passed with widespread bipartisan support and is considered one of the most comprehensive and progressive<\/span><\/a> disability civil rights statutes in the world.\u00a0 In fact, many other nations<\/span><\/a> have modeled their disability rights laws after the ADA.<\/p>\n

The ADA is effective, in part, because of two key areas: Title I and Title III, which allow private rights of action to enforce individual rights.\u00a0 Title I protects persons with disabilities in the employment context, and Title III protects persons in public accommodations.\u00a0 Under Title III, places of public accommodation must remove accessibility barriers, but only if this is \u201creadily achievable<\/span><\/a>\u201d and not and where removing barriers would require a fundamental alteration or an undue burden<\/span><\/a>.\u00a0 Unfortunately, although employers and places of public accommodation must proactively comply with the ADA, persons with disabilities often have to bring lawsuits to enforce the provisions of the ADA.<\/span><\/a>\u00a0 Businesses comply with the ADA not only because it is the right thing to do, but also because of the threat of lawsuits.<\/p>\n

Accordingly, disability rights activists decry the Reform Act as a thinly veiled threat to disability rights.\u00a0 The proposed law would fundamentally shift the balance of power for ensuring compliance to favor businesses.\u00a0 Instead of proactive compliance, businesses could sit on their hands and wait to be sued<\/span><\/a>.\u00a0 Then, businesses would only have to show \u201csubstantial progress\u201d toward compliance, not even full compliance, over the course of months.\u00a0 For those who are legitimate patrons of a business and who require accessibility, waiting six months or more for \u201csubstantial compliance\u201d is simply not a realistic option.<\/p>\n

A Path Forward:\u00a0 Changing Our Perception<\/strong><\/p>\n

Disability rights attorney Robyn Powell argues changes can be made without the Reform Act.\u00a0 First, Ms. Powell posits that attorneys are bound not to represent individuals in frivolous lawsuits<\/span><\/a>; making this is an issue for state courts and bar associations to address, not Congress.\u00a0 Second, Ms. Powell points out<\/span><\/a> that the, \u201cADA does not require any action that would cause an \u2018undue burden\u2019 or that is not \u2018readily achievable,\u2019\u201d for a business to accomplish.<\/p>\n

Many of the issues that the Reform Act seeks to address are issues that can be resolved without curtailing the civil rights of persons with disabilities.\u00a0 Both the business community and the disability community have mutual interests in ensuring that frivolous, \u201cdrive-by\u201d lawsuits are prevented.\u00a0 However, rather than place severe restrictions on the rights of persons with disabilities through an extensive period of notice and opportunity to cure, other options should be considered.<\/p>\n

States and their respective state bar associations could opt to impose stricter penalties for attorneys filing frivolous lawsuits under the ADA.\u00a0 Coupled with these stricter penalties, state bar associations could also adopt mechanisms like thresholds for the number of lawsuits that can be filed with one plaintiff under the ADA before an investigation is triggered.\u00a0 Alternatively, we could adopt requirements that prioritize injunctive relief over attorney\u2019s fees or damages.\u00a0 Such requirements would force parties to engage with each other and would reduce the number of businesses that can be subject to \u201cdrive-by\u201d lawsuits.\u00a0 Further, injunctive relief under the ADA would be consistent with the goals of truly achieving accessibility.\u00a0 At the very least, if the Reform Act moves forward, it should be amended so that the notice and opportunity to cure period is significantly shorter in order to lessen the burden that would be shifted to persons with disabilities.<\/p>\n

Finally, when it comes to accessibility we would all do well to remember that accessibility is a universal issue, not just a disability issue.\u00a0 For example, stairs are an accommodation to people who are capable of walking to move between floors.\u00a0 Despite the frustration of these \u201cdrive-by\u201d lawsuits, the fact that these lawsuits exist serve as a reminder that we must continue the push for improving accessibility for all people.\u00a0 With increased accessibility, there will be less opportunity to take unfair advantage of laws like the ADA.<\/p>\n

\"\"<\/a>Nicholas Stone<\/strong> graduated from Boston University School of Law in May 2018. \u00a0He plans to practice in Portland Oregon.<\/p>\n","protected":false},"excerpt":{"rendered":"

If you ask disability rights activists about the ADA Education and Reform Act of 2017 (the \u201cReform Act\u201d), you may get a response that the Reform Act, which recently passed the House, is not nearly as benign or as amicable to the interests of persons with disabilities as its title suggests.\u00a0 In fact, many activists […]<\/p>\n","protected":false},"author":15015,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[10,4,6,8,1],"tags":[157,160,156,23,109,159,158],"_links":{"self":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/685"}],"collection":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/users\/15015"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/comments?post=685"}],"version-history":[{"count":4,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/685\/revisions"}],"predecessor-version":[{"id":741,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/685\/revisions\/741"}],"wp:attachment":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/media?parent=685"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/categories?post=685"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/tags?post=685"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}