Seyfarth Synopsis: Here’s our take on Sunday’s 60 Minutes episode on “drive-by” abusive ADA Title III lawsuits and the legislative efforts to address them.
60 Minutes aired a segment about ADA Title III “drive-by” lawsuits on Sunday, December 4, which focused on a few of the ways in which the law has been misused by some plaintiffs and their attorneys to make money. Some disability rights advocates have called the piece a “hit job” on the ADA and “propaganda” for the future Trump Administration’s perceived anti-civil rights agenda. Others say that by highlighting only the “bad apples,” the story “mischaracterized the ADA as an instrument of opportunism” instead of the force that has opened doors for millions of Americans. These are all fair points, but – as these advocates’ blogs demonstrate – the 60 Minutes piece does highlight the need for targeted changes which would mitigate the abusive litigation and restore confidence in a very important law.
When Anderson Cooper interviewed our ADA Title III Team Leader, Minh Vu, for the story, it seemed that the piece would seek to uncover the reasons behind the huge year-over-year increase in ADA Title III lawsuits (which we have reported on this blog); whether the cases are legitimate; and whether reform to the law might stop its abuse by a small cadre of plaintiffs’ lawyers and their serial plaintiffs. The final story was much narrower and focused on a small hotel owner who was sued for not having a pool lift by a plaintiff who had never been to his hotel; a California attorney who made millions filing over 2000 lawsuits under the ADA and state law; and two disabled plaintiffs who claim they were recruited by and then deceived by their attorneys who filed and settled lawsuits on their behalf without their knowledge. The segment also highlighted the fact that the ADA regulations contain “thousands” of detailed requirements for public accommodations facilities that small businesses are not likely to know.
Interestingly, the story did not highlight the most notable “serial plaintiff” stories of the year – there was no mention of the Arizona lawyer who filed thousands of lawsuits this year alone, prompting that state’s Attorney General to intervene and file a motion to dismiss over 1,000 of those cases; nor the Florida serial plaintiff who was exposed as not being disabled; nor the hundreds of demand letters and lawsuits that have been sent and filed by various law firms this year alleging violations of the ADA due to inaccessible websites.
The subject of these so-called “drive-by” lawsuits elicits strong reactions from businesses, especially small ones, because they are brought by people whose stated interest in patronizing the defendant businesses are highly suspect. Businesses that are sued could try to get the case dismissed on the theory that the plaintiff has no genuine interest in returning to the business in the future, but filing a motion to dismiss can cost tens of thousands of dollars. For this reason, most businesses choose to settle the lawsuits for a lesser amount. Small business owners that do not have the resources to fight the suits are the most vulnerable targets.
Federal and state lawmakers have often pursued reform legislation. For example, in May and September 2016, California’s Governor signed into law two such bills. On the federal level, in 2015, companion bills called the ADA Education and Reform Act were introduced in the House and Senate. The bills require plaintiffs who want to bring lawsuits about architectural barriers to first provide 60-days’ notice to the business owner about the specific barriers that they allege violate the ADA. No lawsuit can be brought if the business takes action to address the barriers. The bill also directs the Judicial Conference of the United States to develop a model program to promote alternative dispute resolution mechanisms to resolve such claims. While opponents of the bill may say that these businesses have had notice of their obligations for over 25 years and should not be getting more notice, the reality is that most business owners are not aware of the very detailed requirements of the ADA Standards for Accessible Design. A 60-day notice provision would address easily fixed issues such as sink pipes that are not protected, incorrect door hardware, and bathroom dispensers and mirrors that are off by a few inches. The notice requirement would not prevent lawsuits about more serious barriers which could not be addressed in that period of time.
The ADA Reform Act may well get a boost of momentum from the 60 Minutes story, particularly in a Trump administration.