June 24, 2019

A Different Perspective on “Drive-By” Lawsuits

I write to offer a very different perspective in response to “Colorado Businesses Beware – ADA Public Accommodation ‘Drive-By’ Lawsuits On The Rise.” It accuses two Florida lawyers of drumming up fake ADA lawsuits by investigating businesses, drafting boilerplate complaints, and soliciting Kristin McIntosh, a paraplegic who uses a wheelchair. Their claimed scheme: to extort fast, large sums of money from hapless business owners without changing accessibility for those who use wheelchairs. I write to counter the message that all accessibility lawsuits are “Drive-by’s.”

STOP! Full disclosure: Read my bio*. Colorado Cross-Disability Coalition’s (“CCDC”) Legal Program once represented Kristin McIntosh in a 2000 case alleging violations of the ADA. Also, I have used a motorized wheelchair for 26 years because of a spinal cord injury.

I am not writing to vouch for McIntosh or her lawyers. CCDC’s position is if the article and news story are correct, there are multiple ways they can and should be stopped because they do everyone a huge disservice. If they can’t prove their claims – not an easy feat in access cases – they lose; judges can – and have – sanctioned lawyers for bad conduct in access cases.

Before we tie every ADA lawsuit to so-called “Drive-By” lawyers, we need to understand there are multiple, real violations out there. The ADA was passed in 1990. Still, numerous businesses are out of compliance. CCDC has 2 current access cases: a 2009 case against Hollister Co. stores, and a 2010 case against El Diablo restaurant. Both owners refuse to admit they have violated the ADA, despite judges’ rulings in the Hollister and El Diablo cases that the owners created accessibility barriers that violate the ADA. They keep paying defense lawyers to fight, rather than fix, the barriers.

Here’s how access cases usually work: A person who uses a wheelchair runs into an access barrier at her grocery store. After talking to the store owner who does nothing, she contacts lawyers, all of whom charge $300 per hour to talk, which she can’t afford. Under the ADA’s public accommodations law, only injunctive relief is available, no money damages. Attorney fees are available, if the plaintiff wins. So she finds one lawyer willing to front the costs of a long, expensive legal battles with only the hope of a win and (maybe) fees 2 or 3 years later, but her current case load is too big to take it on. Many violations go unchecked.

Violations exist everywhere because businesses make the ‘business decision’ to wait to be sued before making changes. Many build things and don’t bother to comply. In my experience, demand letters do not work.

I find it troubling that settlement agreements reached are confidential, so we can’t know what happened. CCDC’s settlement agreements are available online. But one part of this story is overlooked: The business owner interviewed by Channel 7 entered an agreement and made her business accessible.

We don’t know the defense lawyer in that case, but he said, “These companies want to get into compliance. They want to make their properties accessible for handicapped individuals, but what they don’t want is to have extortion.” Suing and demanding money settlements in exchange for not having to comply is wrong and must be stopped. But why is any business not in compliance 22 years later? What are they waiting for?

We agree with the blogger on one thing: If a business really “wants to come into compliance” now, it should conduct an ADA-accessibility audit. There are many great tools available free on the Department of Justice’s ADA Home Page.

Kevin Williams is the Legal Program Director for the Colorado Cross-Disability Coalition (“CCDC”), a non-profit, disability rights membership organization. CCDC advocates for social justice for people with all types of disabilities. CCDC’s Legal Program practice consists almost exclusively of representing plaintiffs in ADA and other civil rights cases. On CCDC’s website, past case and current case information is available.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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