This is the third in a four part series on the Americans With Disabilities Act (ADA) and the problems with lawsuit abuse. Part one can be seen here. Part two can be seen here.
As I’ve explained in prior posts, abusive ADA “troll” lawsuits are claims that, one by one, are meritorious, and address access problems that should be remedied. What makes those cases problematic is that they are filed in such great volume that the attorneys can’t possibly see them through to a conclusion. They don’t try. Instead, they want a quick dollar payoff in exchange for going away.
The hurts everyone. Not only does the business pay off the “troll,” but if the access problem is not fixed, the business can get sued repeatedly. Too many of the “trolls” target small businesses that can’t afford to fight back, which creates legitimate outrage and really horrendous publicity about ADA lawsuits.
It’s a classic baby-and-bathwater problem – how is it possible to support legitimate ADA lawsuits while deterring the abusive lawsuits? How does anyone distinguish between the two?
A number of courts have tried to weed out the ADA “trolls.” Some of the more notorious individual mass filers, including the original California “troll,” have been labelled “abusive litigants” who must get court permission to file any additional lawsuits. Sometimes that has been effective, but sometimes, the individuals have just moved to a different area, out of the jurisdiction of that court. Some “troll” attorneys have been fined by the courts, ordered to pay the other side’s attorneys and have had their licenses to practice suspended.
Many courts are cracking down on “assembly-line” pleadings that make the same complaint essentially verbatim in every case, changing nothing but the name of the defendant. (The captioning cases referenced in the newspaper article are like this.) Those courts are beginning to throw out any complaint state quite specifically when the complaining party encountered obstacles to access and how those obstacles impacted them, a requirement that makes it considerably more difficult to file cases by the dozens.
These judicial efforts have a “whack-a-mole” quality to them – one “troll” is shut down, but others pop up quickly. So legislators have tried to develop blanket fixes that would apply to everyone. One popular “remedy” is a requirement that before any disability lawsuit can be filed, the business in question be given notice and have the opportunity to fix the problem. That may seem reasonable, but as always, the devil is in the details. A proposed federal statute to that effect was opposed by the disability-rights community because it would have allowed an inordinately long time to fix the problems, and at the same time remove any incentive businesses might have to fix things on their own – they would just wait until they got a notice.
That proposal did pass the House of Representatives with bipartisan support, but died in the Senate when Sen. Duckworth organized enough opposition to filibuster the bill. However, the fact that the measure got as far as it did remind the disability-rights community that there is broad support for doing something to tame the “trolls,” even at the expense of legitimate ADA lawsuits. That experience also reminded us that a notice-and-cure requirement is far from the worst thing that lawmakers could done.
A considerably more balanced and targeted measure has currently been introduced into Congress. It unequivocally requires all business websites to be accessible, which would include captioning the content. That is a plus for us, because the courts have disagreed about whether the Americans with Disabilities Act (ADA) does apply to websites. While the over-lengthy process required before filing a lawsuit makes the proposal unacceptable in its present form, there is enough promising stuff here that this could be the basis for an agreement between the business and disability-rights community.
Ultimately, the best way to demonstrate the importance of legitimate ADA lawsuits is for lawyers to act ethically and responsibly, and to encourage other lawyers to do the same. In the final post, I’ll talk about efforts to do just that.