Putting the Brakes on ADA Abuse

Date: October 05, 2016

The Americans with Disabilities Act (ADA) imposes an affirmative obligation on business owners to remove barriers to access, and enables litigants to go to court to force business owners to make changes to their buildings. So whether you rent or own, it’s important to be sure that you are fully in compliance—otherwise you might be hit with a lawsuit. And because ADA lawsuits remain such a serious problem, we recently posted an article explaining the fundamentals of what you need to know to become compliant, including in highlighting common problems and directing our readers toward detailed guidelines

Of course, ADA lawsuit abuse remains a problem. In fact it’s such a problem that some plaintiffs have even been named vexatious litigants by the courts—with one being banned from bringing lawsuits after filing more than 400 in California. One must realize that, for the average small business owner, it is extraordinarily costly to deal with an ADA complaint—which is all the more frustrating when its claims appear to be baseless. Accordingly, we were thrilled to see that Arizona Attorney General Mark Brnovich recently took a stand for small business, by stepping in to stop an organization that appears to be bringing numerous frivolous claims in the Phoenix area.

After a flood of lawsuits, the Attorney General filed a petition seeking to consolidate more than 1,200 separately filed claims against various businesses into a single case. This comes after a news expose highlighted what appears to be a pattern of predatory practices by the group bringing these claims—most of which focus on minor alleged parking lot violations. And in response to all of this, a judge has now issued an order blocking this controversial group from bringing new claims while it sorts out whether these suits should be thrown-out.

This is certainly good news for the small business defendants in these cases; however, the reality is that ADA shakedown suits remain a problem nationwide. The concern is that business owners are being coerced into paying settlement agreements over minor alleged violations. Unfortunately, the owners are not allowed a reasonable time to remedy problems once brought their attention, but are instead subject to litigation—which will of course prove far more costly in many cases. 

As explained by Karen Harned, the Executive Director of NFIB’s Small Business Legal Center: “Most defendants choose to settle these claims rather than face a possible negative verdict. This is understandable from the individual businesses’ perspective. However, by settling, serial plaintiffs are empowered to continue victimizing small businesses. A rule requiring that notice be given before a lawsuit is filed, is a commonsense approach that will require plaintiffs attorneys’ to do their homework before suing and help stop frivolous litigation, which does not improve public access.”

Yet, so long as the ADA remains the law of the land—in its current form—these shake-down suits will continue to populate. We can hope that the Arizona Attorney General’s action proves successful, and that this may send a warning to unscrupulous plaintiffs. But, at the end of the day, the only way to avoid legal problems is to ensure total compliance. So once again, we would encourage business owners to check-out our guidance here.

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