Many people have heard of drive by lawsuits but don't know much about the term other than the words "extortion" or "blackmail." People hear the stories through friends or on the news, shake their heads and walk away. I will admit, I was one of those people until a transaction I was a part of got caught up in one. Now I am an advocate for reform.
The definition of drive by lawsuit as described by Forbes Magazine in December of 2017 is this: "drive-by lawsuits involve allegedly injured plaintiffs who never actually attempt to patronize a business, but simply drive business to business collecting addresses and notating minor and technical violations of the law. With these pieces of data in hand, they then file hundreds of lawsuits utilizing the same or similar language, and in most cases, merely change the name and address on a boilerplate complaint. Business owners, in most cases small, family-owned enterprises, must choose between paying a shakedown settlement or spending several times that amount to fight it in court."
The American with Disabilities Act (ADA) was passed by Congress in 1990 and was later amended in 2009. It was the nation's first comprehensive civil rights law focused on addressing the needs of disabled Americans. There are several different parts to the ADA, but the part that gets the most attention from dive by lawsuits is Title III.
Title III deals with public accommodations, i.e., making facilities and websites accessible to those with disabilities. Title III has provided significant benefits to individual with disabilities, and the law is obviously well-intended. However, it has been taken advantage of by many people looking to profit off of hard working business owners. Luckily, a bipartisan solution was passed in February 2018 to help business owners with this problem: the ADA Education and Reform Act of 2017.
This bill requires the Disability Rights Section of the Department of Justice to develop a program to educate state and local governments and property owners on strategies for promoting access to public accommodations for persons with disabilities. The program may include training for professionals to provide guidance of remediation for potential violations of the ADA of 1990.
The bill prohibits civil actions based on the failure to remove an architectural barrier to access into an existing public accommodation unless: (1) the aggrieved person has provided to the owners or operators a written notice specific enough to identify the barrier, and (2) the owners or operators fail to provide the person with a written description outlining improvements that will be made to improve the barrier, or they fail to remove the barrier or to make substantial progress after providing such a description. The aggrieved person's notice must specify the circumstances under which public accommodation access was denied.
The Judicial Conference of the United States must develop a model program to promote alternative dispute resolution mechanisms to resolve such claims. The model program should include an expedited method for determining relevant facts related to such barriers, as well as steps to resolve accessibility issues before litigation.
HR 620 provides a time period to fix the alleged violation or make substantial progress to resolve it. If the property owner fails, the plaintiff has the right to pursue action that the ADA provides. This legislation addresses an unintended consequence of the ADA that has been allowed to flourish over time, tarnishing an otherwise landmark, life-changing law.
The ADA is one of the most important civil rights laws of our time and I believe HR 620 will have positive changes made to assist the disabled community and benefit society as a whole.
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| Matt Eaton, CCIM RE/MAX Commercial Brokers, Inc. meaton@nolacommercial.com (504) 838-0001 nolacommercial.com |
