I had a moment while my daughter, who is in for spring break, is out doing something with my wife. Writing blog entries is the most favorite part of my practice. So, I figure I would write a blog entry. This blog is pretty short. I will say that there will not be a blog entry, outside of this one, for the week of March 16. The next blog entry after this one will be the week of March 23.

 

Turning to the blog entry for the week, the Georgia House passed HB 1470 and it is now in a Georgia Senate committee. The question this blog entry deals with is whether this particular bill assuming it gets through the Georgia Senate and is signed by the Governor of Georgia, will withstand a court challenge. As usual, the blog entry is divided into categories and they are: key facts; actual provisions of HB 1470; and if HB 1470 is signed into law by the governor of Georgia, will it withstand a court challenge.

 

I

Key facts

 

  1. Georgia has virtually no nondiscrimination laws of its own. It has a very limited one with respect to employees of state entities but that’s it.
  2. There most certainly is an industry whereby certain firms sue for inaccessible websites.
  3. There are no regulatory standards detailing what an inaccessible website is, though WCAG 2.0 et. ff. is the gold standard.
  4. In the United States, the standard is that each party pays their own party’s attorney fees unless a statutory scheme indicates otherwise. With respect to the ADA, a prevailing party invariably obtains reasonable attorney fees. It is very difficult for a defendant to get attorney fees as a defendant basically must show that the claim was frivolous in the first place.

 

II

Actual provisions of HB 1470

 

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 8 SECTION 1. 9 Chapter 1 of Title 51 of the Official Code of Georgia Annotated, relating to general 10 provisions relative to torts, is amended by enacting a new Code section to read as follows: 11 “51-1-58. 12 (a) When a civil action brought by a claimant against a person or entity of this state 13 alleging that such person or entity operates a website that violates the federal Americans 14 with Disabilities Act of 1990, 42 U.S.C. Section 12101, et seq., as amended, is adjudicated 15 on the merits against such claimant, involuntarily dismissed at any stage of the civil H. B. 1470 (SUB) – 1 – 26 LC 63 0140S 16 proceedings, or dismissed based on the claimant’s lack of standing, such person or entity 17 shall be entitled to recover the following from the claimant and the claimant’s attorney: 18 (1) Actual damages for disruption of such person’s or entity’s business or other lost 19 opportunity costs related to the unsuccessful action, or statutory damages of $10,000.00, 20 whichever is greater; 21 (2) Reasonable attorney fees related to the defense of the unsuccessful action and to the 22 prosecution of an action under this Code section; and (3) Treble damages when, prior to the entry of judgment in the underlying unsuccessful 24 action, the claimant was given written notice of the provisions of this Code section but 25 refused or otherwise failed to voluntarily dismiss such action. 26 (b) Any action under this Code section shall be brought within two years after the entry 27 of judgment in the underlying unsuccessful action. 28 (c) This Code section shall be narrowly construed and shall not be construed to alter or 29 amend any other provision of law.”

 

III

If HB 1470 Is Signed into Law by the Governor of Georgia, Will It Withstand a Court Challenge?

 

  1. In Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), here, the Supreme Court said that it is fundamental that Congress has the power to preempt state law.
  2. Crosby also says that preemption can be of two kinds. First, when Congress intends federal law to occupy the field, state law in that area is preempted (this is what you see with respect to the Air Carrier Access Act and the regulations implementing same). Second, even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.
  3. With respect to conflict with a federal statute, Crosby says preemption can take two different forms. First, preemption exists where it is impossible for a private party to comply with both state and federal law. Second, where under the circumstances of the particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
  4. Crosby also says that when the question is whether a federal act overrides a state law, the entire scheme of the statute must be considered. If the purpose of the act cannot otherwise be accomplished-if it’s operation within a chosen field must be frustrated and its provisions refute their natural effect-the state law must yield to Congress within the sphere of it delegated power.
  5. Title III of the ADA does provide for enforcement by DOJ and for civil penalties imposed by DOJ when they take on the case. See 42 U.S.C. §12188(b)
  6. Title III of the ADA is mainly enforced by way of the private attorney general system whereby a prevailing party can get attorney fees and injunctive relief but nothing else. See 42 U.S.C. §12188(a).
  7. Georgia, unlike California, for example, and numerous other states, does not have any statutory scheme prohibiting disability discrimination, with one limited exception involving state employees.
  8. The provisions of HB 1470 will undoubtedly chill any exercise of rights by a person through the private attorney general process when they seek to address disability discrimination after visiting an inaccessible website.
  9. The proposed legislation chills the private attorney general process in several different ways: 1) allows for actual damages for disruption of the business or other lost opportunity costs or statutory damages of $10,000 whichever is greater; 2) grant reasonable attorney fees related to the defense of the unsuccessful action and to the prosecution of recovering attorney fees under HB 1470; and 3) provides for treble damages where the plaintiff refuses to voluntarily dismiss the action after being given notice of the provisions of HB 1470. In short, I can’t see any plaintiff taking on a website inaccessibility case given these provisions. Again, Georgia has no, with one small exception, disability discrimination law.
  10. In short, for all the reasons mentioned in this blog entry, it is hard to believe, though one never knows, that HB 1470 if signed into law would survive a legal challenge. As mentioned above, I am certainly not denying that an industry exists for certain firms suing for inaccessible websites.
  11. It is interesting that I just read in the Georgia Bar Journal, that the Georgia legislature has very few attorneys in it. It is hard to say whether if the legislature had more attorneys, whether this bill would get as far as it already has.
  12. We don’t know what course whether this bill will pass the Georgia Senate and whether the governor of Georgia will sign it.
  13. One wonders if the bill passes and is signed into law, whether a defendant seeking to utilize HB 1470’s provisions wouldn’t then automatically expose themselves to an interference cause of action under 42 U.S.C. §12203(b), here. See also this blog entry.
  14. If Georgia did have significant protections against disability discrimination of its own, it would of course be free to manage that statute. For example, California has amended their disability discrimination statute as a result of the industry arising out of suing for architectural barriers.