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Bills Introduced to Battle Serial ADA Filers

In response to continuing claims of predatory lawsuits by frequent filers under the Americans with Disabilities Act (ADA), various legislative measures have been introduced. These efforts seek to limit repeat serial plaintiffs and to provide businesses with a right to cure deficiencies prior to being subject to ADA suits. The architects of the legislation regard reform as necessary in light of the vast number of lawsuits filed by just a handful of plaintiffs in the state.

Extremely high-frequency litigantsAssembly Bill (AB) 913 in California is targeted at preventing “extremely high-frequency litigants” from proceeding with ADA claims without court approval. Under the legislation, the court would be required to enter an order preventing such a litigant from pursuing a filing without obtaining leave from a presiding judge where the litigation is to be filed. The judge would be required to confirm that the litigation is meritorious and has not been brought for a fraudulent purpose to permit a filing by an extremely high frequency litigant. The author of AB 913 believes that appointing judges as gatekeepers for ADA lawsuits will successfully minimize the recurrence of litigation by serial filers. In one report that served as the basis for the legislation, the California Commission on Disability Access found that 14 people brought 46% of all disability lawsuits in the state in 2014.

Cure periods. Unsuccessful legislation in the past has focused primarily on affording businesses with a “right to cure” period for deficiencies in their ADA compliance. House Resolution (H.R.) 1493 introduced in the United States House of Representatives is designed to institute similar requirements in favor of businesses that are threatened by ADA litigation. According to H.R. 1493, a suit under the ADA cannot be commenced until written notice is provided to the business owner to allow him to identify the barrier to access. Litigation cannot be initiated until after such notice is received and the owner fails to provide a written description of how such barrier will be cured after 60 days, or upon providing notice, the owner fails to remove the barrier after 120 days.  Similarly, H.R. 620 provides that civil actions for the failure to remove an architectural barrier to access at public accommodations are not permitted unless the potential plaintiff furnishes written notice to the owners and the owners fail to describe in written form the improvements to be made or fail to remediate the barrier.

If you have questions or concerns about whether your business is in compliance with the ADA and the California Building Code, contact California ADA attorney and certified accessibility specialist (CASp) Cris Vaughan for assistance. To discuss your concerns, please call 310.426.2836 in Los Angeles, 415.492.2854 in San Francisco Bay Area and 916.660.9401 in Sacramento.

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