Without question, the Americans With Disabilities Act (“ADA”) is a great statute that protects some of the most vulnerable Americans from discrimination. But, as with many laws, rules, and regulations, there is the potential for significant legal system abuse. Indeed, in recent years, there has been some outcry that abuse of the system has been happening with the ADA, with the filing of frivolous lawsuits by what are known as “serial plaintiffs.” The issue is NOT that legitimate discrimination should not be punished, but that plaintiffs engage in ADA shakedown litigation. They demand that small businesses pay money settlements by merely alleging ADA violations.
Is reform coming?
Recently, some courts have been pushing back against ADA lawsuits that do not allege sufficient facts to allow recovery under the ADA. For example, in Calcano v. Swarovski North America Ltd., 36 F.4th 68 (US 2nd Cir. June 2, 2022), the Second Circuit — based here in NYC — agreed that five ADA lawsuits deserved dismissal. Those cases involved visually impaired plaintiffs who sued retail stores for failing to carry Braille gift cards. The court dismissed the claims because the identical allegations were “conclusory” and “boilerplate.”
In recent news, as reported here, a legislative effort is underway in Washington to crack down on “shakedown” ADA litigation. House Representative Ken Calvert (R-CA) has introduced legislation allowing small businesses to “cure” ADA violations before a plaintiff could file an ADA lawsuit. According to Calvert, this would crack down on frivolous lawsuits and still honor the ADA’s original intent. As quoted, Calvert has stated that “… the goal of the Americans with Disabilities Act is to provide access for the disabled — it’s not to allow unscrupulous trial lawyers to abuse small businesses.”
The proposed law would require that business operators be given notice of alleged ADA violations, given up to 60 days to outline corrective and remediation efforts, and given 120 days to correct or remove the ADA violation. A lawsuit could be filed if a business did not respond to the notice. Likewise, a case could not be filed until the notice was sent and the sixty days response time had passed.
Will it come to NYC soon?
So, does New York and NYC need such legislation? Calvert has asserted that California is “ground zero for abusive ADA lawsuits,” but the problem is nationwide. Again, the issue is not actual discrimination but abuse of the process. Calvert’s solution would move in the proper direction — encouraging remediation rather than making the ADA a “money grab.” If Calvert’s bill is passed, the provisions will apply nationwide. In the meantime, the NYC City Council or the New York Legislature could take action to cut down on ADA lawsuit abuse.
Contact the NY Business Litigators at Wright Law Firm NYC Today
For more information, call the experienced New York City business lawyers and litigators at Wright Law Firm NYC. We provide legal services for New York businesses. We defend small retailers in the defense of ADA shakedown litigation. To schedule a consultation, please get in touch with our office by e-mail or call us at (212) 619-1500.