Sunday, April 2, 2017

A Right-Left Cure for Disabilities Torts

A Right-Left Cure for Disabilities Torts

ADA lawsuits have doubled in five years, and six firms file 81%.

Photo: Getty Images        
California is supposed to be the heartland of resistance to all things Donald Trump, but then what to make of the effort by Golden State Democrats and Republicans in Washington to stop runaway disabilities torts?
Congress passed the Americans with Disabilities Act (ADA) in 1990 to ensure that handicapped people aren’t discriminated against or denied access to services. But due to regulatory overgrowth, the 275-page ADA building code now specifies everything from the height of bathroom mirrors to the size of toilet-paper dispensers.
The regulations have guaranteed lifetime employment for building consultants and spawned an industry of attorneys who manufacture cookie-cutter lawsuits. While plaintiffs aren’t entitled to damages under federal law, defendants are required to pay their attorneys fees. Many states let plaintiffs recoup damages, and in California businesses are on the hook for a minimum of $4,000 per violation.

Plaintiff attorneys know that it’s typically less expensive for businesses to settle claims than incur hefty legal expenses. One lucrative line of business is “drive-by” lawsuits in which attorneys file complaints based on violations they spot from their cars—such as faded paint on a curb or a broken sign. Some attorneys use Google Earth to troll business façades.
ADA lawsuits in federal courts have more than doubled in five years, and they now account for about a quarter of civil-rights cases (up from 12.3% in 2011). Miami and Los Angeles are ground zero, accounting for nearly 40% of ADA lawsuits last year. One reason is minority-owned businesses make easy targets since immigrants may be less fluent with the law and reluctant to fight claims.
While some complaints have merit, most are filed by a few predatory attorneys. The California Commission on Disability Access says six law firms accounted for 81% of federal and state complaints last year. Plaintiffs involved in 10 or more complaints accounted for three quarters.
In 2012 Senator Dianne Feinstein complained to then Senate President Darrell Steinberg (D., Plaintiffs Bar) that the “‘shakedown tactics’ used by these lawyers may place a financial strain on businesses” and “jeopardize their ability to survive.” Anecdotes of abuse shamed Democrats in Sacramento last year into granting small businesses a 15-day grace period to correct “technical violations.”
While this curbed the worst abuses, plaintiff attorneys have continued to ring out large payouts by jamming the federal courts. State claims fell by a third between 2015 and 2016 even as complaints in federal courts in California soared by 60%. The good news is there’s appetite in both Sacramento and Washington for more reform.
Democratic Assemblyman Adam Gray recently proposed additional procedural hurdles for “extremely high-frequency litigants” who have filed 15 or more complaints in the prior year. GOP Congressman Jeff Denham has sponsored legislation that mirrors a bill last year by California Democratic Rep. Jerry McNerney that would give businesses 120-days to remedy ADA violations.
These sensible reforms would protect the disabled while reducing opportunities for ethically impaired lawyers to ransack businesses. Will Democrats spurn bipartisan legislation to spite Republicans and President Trump?
Appeared in the Mar. 31, 2017, print edition.

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