Student Note on Serial ADA Litigation

New on Westlaw: Carri Becker, Note, Private Enforcement of the Americans with Disabilities Act: Abusive or Commendable?, 17 Hastings Women's L.J. 93 (2006). The author tends to think that serial litigation is generally abusive, and recommends the following policy prescription:

Reforms to the ADA should focus on providing protection to businesses that have demonstrated good faith efforts to come into compliance. Certification is a means of providing protection to small businesses that is supported by the California Chamber of Commerce. Recently enacted legislation establishes a scheme by which individuals can become certified ADA access specialists. These specialists can assist businesses in identifying compliance issues and foster greater accessibility statewide. However, these specialists will not prevent vulnerability to lawsuits.

According to the Chamber of Commerce, unless safe harbor provisions are adopted, businesses will continually be vulnerable to lawsuits even when following the advice of certification specialists and making good faith efforts to comply with all of the accessibility guidelines of the ADA. An effective safe harbor provision should provide immunity from lawsuits to businesses that solicit and follow a certified ADA specialist's recommendations, unless that business is given specific notice of violation and fails to make necessary repairs in a reasonable time.

I believe that the California Chamber of Commerce has the right idea. A safe harbor provision should be provided to business owners who make good faith efforts to come into full ADA accessibility requirements. This solution is more appropriate than a mandatory notification period, which has been introduced in both the House and the Senate, because it does not reward bad faith efforts of businesses to avoid making accommodations. Under the proposals of the House and Senate, businesses can avoid following ADA guidelines without repercussions up to the point when notice of a violation is received. Adopting a safe harbor according to the provisions outlined above would avoid this major criticism, which is often made by ADA activists and members of the disabled community.

I would modify the Chamber of Commerce's suggestion in one way, however. Instead of only allowing a safe harbor to those business owners who employ the services of certification specialists, I would extend the safe harbor to businesses that are able to make an affirmative showing of good faith efforts to comply with the ADA. This would avoid the imposition of the costs of hiring a certification specialist for those businesses that are comfortable following the ADA Accessibility Guidelines without professional assistance. This provision could be effectuated by allowing businesses an opportunity to prove that violations were unintentional and not made in bad faith. If the court is satisfied that the business acted in good faith, the business should be granted a safe harbor period in which to remedy the situation without being subject to plaintiff's attorney's fees or damages. This provision would only apply to minor infractions, however. For example, if the grab bar in a bathroom was installed one inch too high despite architectural drawings depicting proper placement, the business that hired the contractors should not be liable for the inadvertent mistake, provided such mistakes are extremely limited in number. The downside of this modification, however, is that making such an affirmative case in court would undoubtedly require the expenditure of attorney's fees. Still, the expenditure of fees may be warranted when the cost of settling is substantially higher.

For what it's worth, I'm currently working on a paper that takes a less hostile view of serial ADA litigation. My argument, which elaborates some things I have written on this site, is that though there have been abuses by serial litigants, there is nothing abusive about serial ADA litigation per se.