Rep. John Smithee

Rep. John Smithee (R-Amarillo) today filed H.B. 1463 to discourage so-called “ADA Drive-by litigation.”

Similar to “patent trolling,” some plaintiff’s lawyers have developed a practice of sending demand letters to Texas businesses threatening to sue them under the Americans With Disabilities Act if they don’t pay a specified “settlement” amount. Sometimes lawyers send these demand letters after little more than a Google Earth search for businesses in certain areas. Alleged violations can range from a handicap parking sign that is not adequately visible, a ramp that is slightly too high, the absence of a lift at a hotel pool, or even a website that does not provide voice activation. A recent “60 Minutes” broadcast highlighted the problem, noting that restaurants, retailers, financial institutions, and retailers are frequent targets of “ADA Drive-by” lawsuits.

While some businesses may indeed be in technical or inadvertent violation of the ADA, the law should never be used to extort money by threatening litigation with false and misleading demand letters. For example, the National Restaurant Association alerted its members of one such letter sent by an ADA Drive-by law firm

“The letters are headlined ‘FOR SETTLEMENT PURPOSES ONLY’ (emphasis in the original) and say that ‘experts . . . have identified access barriers” on restaurant websites. In its letters, the law firm lists ‘compliance failures’ and urges recipients to contact the firm as a first step. Specifically, the letter states that before ‘engaging outside experts of your own, we invite you to first contact us directly to explore a far more cost-effective and pragmatic approach to resolving these issues’ (emphasis in the original). The firm also encloses a “Draft Settlement Agreement” under which the restaurant would agree to, among other things, “pay certain attorney’s fees and expenses in the amount and in accordance with the terms memorialized in a separate, confidential letter agreement.”

This egregious conduct not only offends basic ethical principles of the practice of law, it dishonors the people whom the ADA is designed to assist.

To stop the abuse of the ADA, TCJL supports the legislation filed by Rep. Smithee. It requires that property owners be notified of potential violations and be given a right to correct them. Specifically, the proposed legislation requires a claimant to give notice to a business of intent to file an ADA claim. The notice must detail the name of the individual asserting the claim (no more demand letters from law firms on their own behalf), each alleged violation and how the alleged violation specifically violates a statutory or regulatory provision, each design, construction, technical, or other standard alleged to have been violated, and the time, place, and manner in which the claimant discovered the violation. We also propose to entrust the Attorney General with enforcement authority to enjoin bad faith ADA claims, including with civil penalties for ADA abusers.


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