This article is the second installment of the disabled access “myth” series. The first installment discussed the myth that alleged violators have been violating the law for for nearly 25 years. The article pointed out the fact that businesses in buildings built before 1992 (the year of implementation of the ADA), are exempted from the ADA construction standards with the exception of a duty to remove barriers when it is readily achievable to do so, which has acted a “reverse loophole” for opportunistic lawsuits and no clear defense. This reverse loophole facilitates excessive settlements by “threat of expense” of litigation rather the than threat of victory on the merits. The second myth is one that plaintiff’s attorneys use to maximize the litigation expense, as well as shock value, of their lawsuits, in turn maximizing their monetary settlement leverage.

2) Injunctive relief is necessary to insure compliance – Otherwise Violators will Just Pay Without Removing Barriers: Almost all disabled access lawsuits filed in California request the court to order that various modifications be made to the facility in accordance with access standards for new construction. Typically, these “causes of action” are included in the lawsuit despite the fact that the plaintiff has never asked for such modifications outside of litigation, and thus there is no indicia of an actual dispute regarding such claims. The law contains no requirement that plaintiffs notify a defendant or request barrier removal or modifications prior to filing a lawsuit. For years, businesses have unsuccessfully attempted to obtain statutory amendments requiring pre-litigation notice. Not only have such attempts failed after meeting strong opposition from disability and access groups fearing a “slippery slope” of erosion of disabled access rights, but misguided legislative efforts by business groups have actually made it more difficult to provide pre-litigation notice.

In my experience, injunctive claims are added by plaintiff’s attorneys simply to gain access to courts reserved for larger and more complex litigation. Otherwise, these lawsuits would easily fall into the jurisdiction of the Small Claims Court, in which an attorney is not even allowed. This tactic drives up the expense of defending such lawsuits and increases their “shock” value. It also enables plaintiff attorneys to recover attorney fees in settlement negotiations through the risk of much larger attorney fees if the case is litigated to judgment.

Plaintiffs and their attorneys defend this tactic by asserting that without injunctive relief, defendants would simply pay the minimum monetary damage amount without removing access barriers. Such an assertion is absurd. Most of the lawsuits are brought against small independent businesses in old buildings. For these businesses, $4,000 is a significant amount and they cannot risk being sued repeatedly for the same thing, even by the same plaintiff (which would be allowed). Hence, there is a strong motivation to remove any alleged barriers, regardless of whether it is an actual barrier to non-litigation minded disabled persons. Moreover, without first asking the business to remove the alleged barrier, how can it be known that court involvement is even necessary?