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House of Representatives Passes Changes to ADA to Curb “Drive-By Lawsuits”

On February 15, 2018, the US House of Representatives passed legislation that would amend the Americans with Disabilities Act (ADA) in an effort to stem “drive-by” lawsuits – so called because the lawyers who threaten them (and the plaintiffs they represent) often do not physically inspect the premises or intend to patronize the businesses they sue. Under the bill passed by the House (H.R. 620, titled the ADA Education and Reform Act), those wishing to sue businesses in federal court over an alleged ADA public accommodation violation must first deliver written notice to the business detailing the alleged barrier to access, and then give that business up to 60 days to come up with a remediation plan and an additional 60 days to take action. Currently, no such “notice and cure” requirement exists, and plaintiffs are free to file suit without providing any notice to businesses regarding the alleged ADA violations. The House legislation would also require the US Department of Justice to establish a program for educating businesses on how to enhance accommodations for individuals with disabilities.

The bill now goes to the US Senate, where its prospects are uncertain. To date, no similar bill has been proposed by a Senate committee, and a number of top Democrats have expressed opposition to amending the ADA to impose a notice and cure requirement.

While “drive-by” lawsuits remain a costly problem for businesses facing allegations that their brick-and-mortar locations are not ADA compliant, businesses are now facing a twenty-first century variation on the theme – claims based upon allegations that their websites violate the ADA because they contain barriers to access for individuals with disabilities. The only thing necessary for plaintiffs’ lawyers to seek out targets for these “browse-by” lawsuits is an internet browser, and a number of plaintiffs’ firms have created a cottage industry of bringing hundreds of ADA suits on behalf of a handful of named plaintiffs focused on extracting monetary settlements. We have written about these website-related ADA cases in the past involving a luggage retailer and a grocery chain, and unfortunately for businesses, they show no sign of abating. In fact, since late October 2017, one plaintiff’s firm is behind the filing of more than 100 website-related ADA complaints in the US District Court for the Southern District of New York alone, against businesses as varied as high end fashion retailers, moving and storage companies, fast food restaurants, grocery stores and bridal shops.

Arent Fox attorneys have extensive experience representing businesses confronted with ADA claims, including “browse-by” lawsuits alleging that their websites violate the ADA, and counseling businesses on best practices for mitigating the risk of such claims. If you have any questions, please contact Anthony Lupo or Dana Finberg.