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While the Americans with Disabilities Act (ADA) might be well-intentioned, the law has become an invitation to spurious lawsuits that have a marginal connection to the purpose of the statute.  The number of lawsuits brought by high-frequency litigants has become a testament to the ADA abuse that hurts small businesses. ADA “tester” lawsuits reward plaintiffs with disabilities while financially crippling small businesses that cannot keep up with the cost of constantly changing regulatory revisions.  Our ADA compliance and defense attorneys welcome the increasing calls to reform the law and to eliminate abusive, predatory ADA lawsuits.

In many states, a handful of plaintiffs’ lawyers and their clients are using the ADA for the exclusive purpose of filing hundreds of “drive-by” ADA access lawsuits to rake in millions of dollars.  The backlash against frivolous lawsuits has led to multiple negative monikers being used by the media that include “predatory lawsuit,” “drive-by lawsuit,” and “frequent flyer.”  This abusive scam using the ADA involves “professional plaintiffs” armed with a list of violations and businesses who blanket areas with lawsuits seeking quick settlements of between $4,000-12,000 or more.  The sham nature of the lawsuits is reflected in the fact the plaintiffs never check back to confirm compliance.  These predatory ADA lawsuits are nothing more than shakedowns of small businesses.

The economic damage these lawsuits cause has justifiably become a common topic in the media.  The damage to the economy caused by this form of ADA abuse is felt in multiple ways.  Many small businesses simply close their doors because they cannot afford the cost associated with an ADA claim.  The lawsuits also harm consumers by squelching competition in the market.  While a large national chain can put money aside in a slush fund to cover the cost of defending ADA lawsuits, as well as compliance costs, mom and pop businesses often lack the profit margin to create this kind of emergency reserve.  Large national chains gain a competitive advantage created by the financial burdens imposed by these numerous drive-by lawsuits.  These predatory lawsuits also damage the job market at a time that the labor participation rate is a mere 63 percent with a “real unemployment rate” of 9.8 percent.  Small business closures lead to a staggering number of lost jobs.

A recent news story reported by Denver7 examines the impact of professional plaintiffs.  A plaintiff from Florida brought 65 complaints against Colorado businesses alleging ADA violations.  He claimed he patronized these businesses during frequent trips to the state.  The lawsuits claim he is a “’tester’ for purposes of discovering, encountering, and engaging discrimination against the disabled in public accommodations.  The court filings reportedly allege technical violations of the ADA, such as soda dispensers, urinals, and ATMs positioned too high or issues involving parking spots, doorways, or entryways.

A small business owner bought and renovated a market and eatery.  He reportedly devoted careful attention to county building codes.  His attempts at compliance included large bathroom stalls and a wheelchair ramp at the front entrance of the building.  The bathrooms also were equipped with grab bars and large stalls. The “professional plaintiff” alleged some minor technical violations and offered to settle the lawsuit for $15,000 through his lawyer.  Some other business owners told the media source that they would have to close their doors and lay off their employees.

Some articles discussing this misuse of the ADA also have suggested predatory ADA lawsuits harm those the law is supposed to protect.  Because some serial plaintiffs file hundreds of ADA lawsuits, this practice has caused a backlash against wheelchair users according to media reports.  When a single plaintiff forces the closure or relocation of a slew of businesses, the resulting loss of jobs and tax revenue can engender ill will toward the very people the ADA is designed to protect.

Our predatory ADA lawsuit attorneys are glad to see states starting to take steps to prevent this economically damaging practice.  For example, California has introduced legislation designed to curb the abusive practices of “high-frequency litigants” engaged in the exploitation of the ADA.  While the proposed reform is hardly a panacea, it would impose a duty on potential plaintiffs to notify the business of the specific ADA violation a full 90 days before a lawsuit can be filed.  The business also can obtain a 30-day extension if a “good faith” effort at compliance can be shown.  We laud this long overdue effort of state legislatures to attempt to curb the outrageous abuse of ADA “tester” lawsuits.