Risk Managers Want to Stop Drive-By Lawsuits — Here’s Why You Should Too
“Drive-by” lawsuits are a growing risk for small business owners. As the name suggests, these suits are brought by plaintiffs who quite literally drive by storefronts, taking note of potential ADA violations like lack of a wheelchair-accessible ramp or too-narrow doorways, and sue the establishment without ever setting foot inside.
Between 2005 and 2017, filings of ADA lawsuits increased 395%, even while all other civil rights cases decreased by 12%.
Businesses slapped with these suits are often forced to settle as the attorney’s fees pile up, often totaling tens of thousands of dollars and eventually outweighing the cost of actually fixing the violation.
“There are entire groups of plaintiffs’ attorneys who base their business on these frivolous lawsuits,” said Mark Humphreys, vice chair of RIMS’ external affairs committee.
“It’s a real burden on small businesses especially, but large businesses too.”
For that reason, Humphreys’ committee is urging RIMS members to contact their Congressperson and ask for co-sponsorship of the ADA Compliance for Customer Entry to Stores and Services Act, or ACCESS Act.
What It’s About
The ACCESS Act seeks to eliminate drive-by lawsuits by giving businesses time to respond to complaints and fix accessibility issues.
Under the Act, aggrieved parties must give businesses a written notice of their complaint. The business would then have 60 days to respond and 120 to fix the violation. Only if those time-frames have lapsed without a response or a solution can the complainant move forward with a lawsuit.
These changes would give businesses a fair chance to address legitimate concerns and throw a monkey wrench in ADA lawsuit mills.
The ACCESS Act also provides for the development of educational programs directed at state and local governments which would promote strategies for making public spaces more accessible.
The bill (H.R. 4099) was introduced on July 30, 2019 by California Representative Ken Calvert (California, Florida and New York have perennially been hot-spots for drive-by ADA cases) and currently has seven co-sponsors.
It will need to be approved by the House Judiciary Committee on Constitution, Civil Rights, and Civil Liberties before moving to a vote on the House or Senate floor.
A similar bill, the ADA Education and Reform Act of 2017, passed the House in February 2018 but has been stuck in the Senate ever since.
The Reason for RIMS’ Support
By establishing a concrete time-frame in which a business must make modifications in compliance with the ADA or face legal action, the ACCESS Act actually ensures that buildings becomes more accessible — an outcome which many ADA lawsuits don’t achieve.
“The settlement agreement may stipulate that the problem must be fixed, but there’s usually no follow-up once the attorney’s fees have been paid,” Humphreys said.
When lawsuits aren’t legitimate, in other words, nothing gets solved. The Act, therefore, would benefit both the disabled and small business owners in the long run.
“Congress needs to know that companies want to do what’s right. And we want everyone in compliance with the ADA. This bill just introduces a level of fairness to it,” Humphreys said.
The Case for Getting Involved
Humphreys said RIMS’s External Affairs Committee evaluates every new piece of legislation to determine its relevance and meaning for members.
For bills addressing issues that impact a broad swath of organizations and are likely to have bipartisan support, member advocacy can help move them along.
RIMS also hosts a legislative summit each October in Washington, D.C. during which members visit lawmakers on Capitol Hill to discuss bills in need of co-sponsorship.
“These issues are important for everyone,” Humphreys said.
“Member involvement in public policy and advocacy will be an increasing focus over the coming years.” &