Labor / Employment, On The Job

Stopping Drive-By Lawsuits

Can anything be done to stymie this tide of questionable lawsuits?

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The Americans with Disabilities Act 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. The two parts that get the most attention (and the only two I deal with) are Titles I and III. Title I prohibits discrimination in employment. Title III deals with public accommodations, i.e., making facilities and websites accessible to those with disabilities. Title III has provided significant benefits to individuals with disabilities, and the law was obviously well-intended.

But, as they say, the road to hell is paved with good intentions.

The United States Access Board, an independent federal agency, is tasked with developing accessibility guidelines and standards for Title III, known as the ADA Accessibility Guidelines (commonly referred to as the ADAAG). These guidelines deal with everything from the slope of parking spaces and the thresholds in doorways to signage height. Given the technical complexity of the guidelines, it’s not hard to find a violation of some kind at practically any business.

Title III permits private individuals to sue non-compliant businesses for alleged violations, no matter how minor or technical the alleged violation. And while Title III plaintiffs are not entitled to monetary damages, the statute contains an attorneys’ fees provision for successful plaintiffs. Using the attorneys’ fees provision as leverage, it has become common to see plaintiffs’ attorneys specializing in Title III litigation to pair with a repeat or serial plaintiff and file dozens (and in some cases hundreds) of these lawsuits against various businesses.

Some sources place the average settlements in these cases at around $16,000 (not including the costs of the business’s expert witnesses and attorneys and the expense of any agreed remediations), while the cost of fighting the case can easily land in the hundreds of thousands of dollars. This has resulted in a phenomenon referred to as “drive-by lawsuits,” which a Forbes article called an “extortion scheme [that] is now a perfected business plan executed by unethical attorneys.” 60 Minutes recently did a segment on drive-by Title III suits.

There were 6,601 federal Title III actions filed in 2016. California bore the brunt of these lawsuits, with 2,468. Florida placed second, with 1,663 suits filed. With seemingly no bottom to this well, plaintiffs’ attorneys are quickly ramping up litigation in new jurisdictions as well, such as New York, Arizona, and Texas.

Can anything be done to stymie this tide of Title III lawsuits?

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Florida recently enacted House Bill 727 (effective July 1, 2017), also known as the Accessibility of Places of Public Accommodation. The new law was designed to address the large number of Title III cases being filed in Florida by allowing non-governmental businesses to hire an accessibility expert to inspect its premises for Title III compliance. The business can then file with the Florida Department of Business and Professional Regulation either a certificate of conformity (stating the business is in compliance with Title III) or a remediation plan (stating that the business will conform with Title III within a specific time period). The filings will be publicly accessible.

The law goes on to require courts in Florida to consider any certificate of conformity or remediation filed prior to a Title III lawsuit when determining if the case was filed in good faith and whether the plaintiff is entitled to fees and costs. It is unclear, however, to what extent (if any) federal courts will honor Florida’s new law. Furthermore, the filed reports could make participating businesses easy-to-find targets for Title III suits. I’m skeptical as to whether Florida’s new law will have a noticeable impact on the Title III litigation in the state.

State attorneys general are also taking action to try and curb serial Title III filings. For example, the Nevada and Arizona attorneys general have intervened in lawsuits in their respective states on various grounds seeking dismissal of cases brought by serial filers.

But will any of this be enough? I’m not sure. I believe there will have to be legislative action on the federal level to effectively curb serial filers and their attorneys. Florida’s House Bill 727 may be a good place to start with such legislation, but greater clarity in such legislation would be necessary to be effective.

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evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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