Seyfarth Synopsis: HR 620 requires potential plaintiffs to provide businesses with notice of architectural barriers and give them an opportunity to remove them before filing suit.
Today, the House of Representatives passed the ADA Education and Reform Act (HR 620) by a vote of 225 to 192, with 12 Democrats voting for the bill. As we recently reported , the number of ADA Title III lawsuits has risen dramatically in the past four years. HR 620 is primarily an attempt to stem the tide of lawsuits brought by serial plaintiffs who bring dozens, if not hundreds, of lawsuits against businesses based on relatively minor physical access barriers found in their facilities for quick settlements.
HR 620 requires a would-be plaintiff to send the business a pre-suit notice that specifies (1) the alleged barriers in the facility, with a citation of the section of the ADA that has been violated; (2) “the circumstances under which the individual was actually denied access to a public accommodation;” and (3) whether a “request for assistance in removing the barrier was made.” A lawsuit can only be filed after sending this notice if the business does not respond within 60 days with a description of the improvements that it will make to remove the barrier. If the business responds as required, but fails to remove the barrier or make “substantial progress” toward removing the barrier within 120 days, a lawsuit can be filed. HR 620 also requires the U.S. Department of Justice (DOJ) to develop a program to educate state and local governments and property owners about the ADA’s requirements, and directs the Judicial Conference of the United States to develop a model program to promote the use of alternative dispute resolution mechanisms (including a stay of discovery during mediation – similar in concept to what some courts already require by local rule, such as in the Northern District of California) to facilitate early resolution rather than litigation of ADA claims based on alleged architectural barriers.
Supporters of the bill say that — because there are so many technical requirements that businesses can violate unknowingly (e.g., the toilet paper roll is half an inch too far away from the toilet, or the mirror is 1” too high) — providing businesses with notice and an opportunity to remove barriers is a good thing and does exactly what the law was designed to do — make businesses accessible. Opponents say that the amendment will cause businesses to sit back and take no action to comply with the law until they receive a notice. In addition, they claim that attorneys will be reluctant to take on these cases because there is no chance to receive a fee award by a court if a business does in fact remove the barriers identified in the notice.
Whether HR 620 (or some form of it) will ever become law remains to be seen, as the Senate has taken little action on this issue. That said, HR 620 is the most significant development thus far in the effort to deter serial ADA lawsuit filers and may provide some momentum for legislative reform.