Vimbai Chikomo May 19, 2016, 2:05pm


WASHINGTON (Legal Newsline) – Today, U.S. Rep. Ken Calvert (R-CA), who is sponsoring the ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act, is testifying before the House Judiciary Committee’s Subcommittee on Constitution and Civil Justice today on behalf of the bill he says will help stop plaintiffs’ lawyers from “trying to enrich themselves on the backs of the disabled.”

The ACCESS Act, also known as H.R 241, would require an aggrieved person to notify a business of an Americans with Disabilities Act (ADA) violation in writing, and give the business owner 60 days to provide the aggrieved individual a detailed description of improvements to remedy the violation. Then, the owner would have 120 days to remove the infraction. Failure to meet these conditions would be grounds to further the lawsuit.

The ADA was enacted in 1990 by Congress, and prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications and governmental activities.

Calvert told Legal Newsline that as a property owner himself, he has had to deal with complaints from people who find minor discrepancy in a building or in following the regulations, and instead of being given time to correct the infraction, owners get slapped with lawsuits and “lawyers get rich.”

 “We all want to have access (for) the disabled, we just don’t want to make this an excuse for lawyers to sue small business owners,” he said. “Nobody is objecting to making sure that we have access for the disabled.”

Calvert said some of the infractions are very minor, like not having a sign in the right location or neglecting to paint a line in the right way.

Instead of rushing to file lawsuits, Calvert said business owners should be given an opportunity to fix infractions and comply with the law.

After reviewing more than 10,000 federal ADA lawsuits filed since 2005, NBC Bay Area reported in 2014 that an astounding 7,188 ADA lawsuits had been filed in California – more than the lawsuits filed in Florida, Pennsylvania, Texas and New York combined.  

According to the California Commission on Disability Access’ 2015 Annual Report to the California State Legislature, there were 2,323 federal and state ADA complaints submitted to the commission in 2015. This number does not include demand letters. Forty percent of the complaints were filed by two law firms, 70 percent of the complaints were filed by six law firms.

Interestingly, 69 percent of plaintiffs involved in construction-related accessibility complaints filed 10 or more complaints in 2015 alone.

California lawmakers took action to curtail the rampant lawsuit abuse.

On May 12, Gov. Jerry Brown signed legislation aiming to protecting small businesses from costly lawsuits over technical ADA violations.

Senate Bill 269, sponsored by Sen. Richard Roth (D-Riverside), gives businesses 15 days to fix minor ADA violations once a complaint or written notification has been received. The violations covered by the law include faded or damaged paint in parking lots.

Although California is considered ground zero for ADA lawsuits, small businesses around the country with modest budgets have also taken a financial hit.

In Florida, 3,303 ADA lawsuits had been filed during that same time period; 1,322 in New York; 677 in Pennsylvania; and 651 in Texas.

“Small businesses are the life-blood of our communities,” U.S. Rep. Ted Poe (R-Texas) wrote in an editorial last year. “The vast majority of them strive to serve their customers to the best of their ability – relying on the ADA as another tool to help ensure that customers with disabilities can enjoy the services that they provide. However, despite their best attempts, certain attorneys and their pool of serial plaintiffs look for minor, easily correctable ADA infractions so they can file a lawsuit and make some cash.”

Operating under modest budgets, Poe said many small businesses take a financial hit and often feel backed into a corner.  

“They have few choices: settle, pay fees that match those of lengthy and expensive litigation, or spend time and money to go through the legal process,” he said.

According to a 2014 Manhattan Institute report, trial lawyers “have found ways to exploit legal rules in disability statutes to their personal benefit, fleecing taxpayers and business owners alike in the process.”

“Yearly ADA-related payouts paid through employment-discrimination claims filed with the federal Equal Employment Opportunities Commission (EEOC) exceed $100 million and have grown at an annualized rate of more than 12 percent over the last seven years, a period when overall tort-litigation costs in the U.S. have fallen,” the report stated. “These payouts, moreover, understate the true cost of such litigation, which almost always settles, given that the expected expense of defending against an ADA lawsuit to the employer tops $250,000.”

In New Orleans, the Bizer Law Firm has become notorious for filing a large number of ADA lawsuits in recent years.

Attorneys at the firm have reportedly filed more than 100 lawsuits on behalf of a small group of serial plaintiffs over the last five years, one of whom was involved in more than a dozen other ADA lawsuits against local businesses.

The law firm is currently representing three men suing the city of New Orleans, the Regional Transit Authority (RTA), and the RTA's private manager, Transdev, claiming lack of access to the St. Charles Streetcar, which the plaintiffs’ assert violates the ADA and the Rehabilitation Act.

In 2015, 94 ADA Title III lawsuits were filed in the U.S. District Court for the Northern District of Illinois. Of those, 77 were filed by only eight plaintiffs, each represented by the same legal counsel.

But now a recent wave of lawsuits that aren’t limited to how ADA compliant a business’ physical location is have become prevalent throughout the county, particularly in the Western District of Pennsylvania.

Plaintiffs are coming forward in droves with lawsuits against companies claiming the companies’ websites fail to provide accommodations for people with disabilities. Many of the complaints have been filed against national corporations such as the NBA, Brooks Brothers, Toys “R” Us and others.

Since ADA was enacted when the Internet was in its infancy, there is still a lot of uncertainty as to how ADA rules apply to websites, and how companies with websites can become compliant with ADA.

Darren McKinney, director of communications for the American Tort Reform Association, told the Legal Newsline that the association is in full support of Calvert’s bill.

“Although realistically, being an election year and with the stranglehold that the trial bar has on Senate Democrats generally, one can’t be particularly optimistic about the bill," he said. "But certainly it is needed; the congressman is to be applauded.”

McKinney said small businesses around the country are supportive of the bill because ADA lawsuits “are spreading like kudzu all around the country now.”

Calvert said the issue is not a Republican or Democrat issue, but just a common-sense solution to a problem.

“This is supposed to help people that are disabled, not help some attorney get his kids through college,” he said

But he’s expecting resistance from those “trying to enrich themselves on the backs of the disabled.”

“I don’t think those guys really give a hoot about the disabled; they care about their own bank accounts,” he said.

Calvert has never had a complaint from disabled groups about being given a chance to fix infractions. In fact, people with disabilities want to get the problem fixed to make sure they get access, he said.

“This is the kind of thing that is common-sense stuff, and I think we need to get this passed as soon as possible,” he said.

 

Organizations in this Story

U.S. Representative Ken Calvert (CA-42)
4160 Temescal Canyon Rd
Corona, CA 92883

United States House Committee on the Judiciary

Washington, DC 20515

U.S. Representative Ted Poe (TX-2)
1801 Kingwood Drive
Humble, TX 77339

Manhattan Institute for Policy Research
52 Vanderbilt Ave
New York, NY 10017

Bizer Law Firm, LLC
3319 Saint Claude Avenue
New Orleans, LA 70117

American Tort Reform Association
1101 Connecticut Avenue Northwest
Washington, DC 20036

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