I have a few cases in my pipeline, but there was never any question as to what this week’s blog entry was going to be on. Considering that the House of Representatives passed HR 620 and the Internet has lit up with it, blogging on HR 620 was the only choice for this week. As usual, the blog entry is divided into categories and they are: what HR 620 provides; how a defense lawyer is going to go about his or her business assuming it passes; and takeaways. The reader is free to look at any or all of the sections.

I

What HR 620 Provides

  1. HR 620, “the ADA Education and Reform Act,” amends the ADA with respect to suing for architectural barriers in the following ways:

“(B) BARRIERS TO ACCESS TO EXISTING PUBLIC ACCOMMODATIONS.—A civil action under section 302 or 303 based on the failure to remove an architectural barrier to access into an existing public accommodation may not be commenced by a person aggrieved by such failure unless—

“(i) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and

“(ii) (I) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide to that person a written description outlining improvements that will be made to remove the barrier; or

“(II) if the owner or operator provides the written description under subclause (I), the owner or operator fails to remove the barrier or, in the case of a barrier, the removal of which requires additional time as a result of circumstances beyond the control of the owner or operator, fails to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 60 days after that date.

“(C) SPECIFICATION OF DETAILS OF ALLEGED VIOLATION.—The written notice required under subparagraph (B) must also specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.”

  1. The “education,” piece of the act is that the act requires the Disability Rights Section of the Department of Justice to develop, in consultation with property owners and representative the disability rights community, a program to educate on efficient strategies for promoting access to public accommodations for persons with disabilities. The program may include training for professionals such as certified access specialists, which exists in California and Texas that I know of, to help provide guidance of remediation for potential violations of the ADA.

 

II

How a Defense Lawyer Is Going to Attack This

I have worked as a legal consultant or as co-counsel defending title III lawsuits. If this bill becomes law without being amended, here is how you can expect a defense attorney to attack an architectural barrier lawsuit:

  1. Respond just about every time that the notice wasn’t sufficient. Then, make the argument that the sixty day period doesn’t start until the notice is sufficient.
  2. While engaged in ¶ 1, promptly hire an accessibility consultant (costs for that are highly variable, probably five grand is useful at a minimum, depending upon the person hired and scope of the work).
  3. Once the accessibility report comes in, make the per se readily achievable changes and prioritize the rest, thereby mooting the case. The defense may even want to consider holding off on carrying out the non-readily achievable changes (priority list), until being called on it by a plaintiff since it is almost certain that the readily achievable list in the regulations will get the most attention from a plaintiff. It is entirely possible that the priority list will never be subject of a suit.
  4. Argue that the execution of ¶ ¶ II 1-3 above is substantial progress.
  5. If a plaintiff persists after all this is done, move for attorney fees.

III

Thoughts and Takeaways:

  1. Plaintiff with disabilities and plaintiff lawyers are the big losers here. Also, a big loser are businesses because this gets businesses to think in the short term and to limit the customers they may serve. Businesses also lose because defending these suits is going to get more expensive than it currently is. The big winners are defense lawyers because it enables defense lawyers to drag out the process, and it also enables defense lawyers to get very persnickety about whether the notice is sufficient before their client has to do anything. See also ¶ 6 below.
  2. You want to review this blog entry:
  3. This legislation applies strictly to the removal of architectural barriers under title III of the ADA. Therefore, it doesn’t affect what is going on with web accessibility litigation at all nor does it affect architectural barriers litigation under title II of the ADA.
  4. Sen. Duckworth from Illinois and Sen. Murray from Washington have both come out with guns blazing with respect to stopping this in the Senate. That said, this isn’t the kind of legislation where it can necessarily be assumed that all Democrats are going to be against or for that matter all Republicans are going to support. It is going to come down to whether the Republicans combined with some Democrats can get the 60 votes for cloture.
  5. By putting drop dead deadlines into the legislation, this legislation actually cuts off some flexibility that the defense currently has. Right now, the defense wants to immediately make the per se readily achievable changes, but has flexibility as to when the rest of the changes can be made. This legislation takes that away.
  6. Look for lots and lots of litigation over what substantial progress means (more business for defense lawyers).
  7. With respect to the notice required by a plaintiff to a defendant, think of it in terms of fact based pleadings, which is a difficult burden to meet absent discovery.

3 Responses to H.R. 620: The Defense Lawyers Full Employment Act

Although it isn’t obvious from the structure of the bill, I think it will help reduce serial litigation without much impact on accessibility. A complaint based on parking and slopes (most of the serial cases fall into this category) involves remediation that is (a) readily achievable, (b) can be done fairly quickly and (c) is too cheap to making fighting about it reasonable. In these cases there is no incentive to pay defense counsel for delay. We are seeing defendants in California default and fix for this very reason – it’s cheaper than paying for any defense at all.

In the much smaller number of what I’ll call “serious” lawsuits in which the plaintiff has actually identified specific interior barriers to access the statute will give defendants an advantage, but it isn’t much more than you get in an ordinary federal lawsuit. Between service of the complaint and the Rule 16 conference defendants usually have plenty of time to get an accessibility report and even get most of the work done. If you skip a Rule 12 motion the fees are small until after the Rule 16 conference, so there is a chance to moot the case with minimal legal expense even without this statute. Offers of judgment provide another way to reduce fee exposure. There is a sense in which these cases have always been defensible even without the statute, provided the client and defense counsel take a longer view of the best strategy.

Finally, the real problem with the bill is that it does not fund the educational effort it commands. No funding means nothing will really happen. We do need something more effective than individual lawsuits to inform businesses of their obligations, but an unfunded DOJ education program is very unlikely to be of any use at all.

Richard

Thanks for the litigation insight. Here is a question. High end hotels notoriously do not get deaf accessibility. I would argue that deaf accessibility is not governed by hr 620 since no architectural barrier is involved. So, now you would have the law treating disabilities differently depending upon whether the debate is over an architectural barrier. Is there a rational basis for such distinctions? Maybe….

It also wouldn’t seem to impact non-architectural educational accessibility. Since the Dept. of Education seems hellbent on gutting IDEA, state laws & federal laws affecting equal access for the disabled may soon be the only real protections left in some states.

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