Minnesota Tightens Restrictions on “Drive-By” Disability Access Lawsuits
Author: Andrew E. Tanick (Minneapolis)
Published Date: July 19, 2017
On May 23, 2017, Minnesota Governor Mark Dayton signed into law amendments to the Minnesota Human Rights Act (MHRA) that are intended to curb the flood of “drive-by” disability access lawsuits in the state.
The law now requires plaintiffs to deliver written notice of alleged accessibility violations and give a business owner 60 days to fix the problem, before filing suit against that business. If weather conditions prevent a business from removing an architectural barrier during the 60-day window, the business may obtain a 30-day extension by affirming, in writing, its plans to remove the barrier. If the plaintiff still files suit, the business may cite its resolution of the problem within the cure period as an affirmative defense to the lawsuit.
This legislation does not apply to claims filed by plaintiffs without lawyers or to lawsuits filed before the amendments became law on May 24, 2017. Moreover, because Title III of the federal Americans with Disabilities Act (ADA) does not require notice, the new state law will not impact plaintiffs’ ADA claims. Unlike the MHRA, ADA accessibility claims do not permit plaintiffs to recover monetary damages; they only allow for injunctive relief and the recovery of attorneys’ fees.
This is not the first time the Minnesota Legislature has attempted to address the number of “drive-by” lawsuits filed in Minnesota. (These cases are so named for a suspected practice of plaintiffs or lawyers who allegedly “drive by” businesses to spot visible legal violations without any real intent to patronize those businesses.) Responding to Minnesota business owners’ complaints about such predatory litigation, the state legislature first sought to address the issue in 2016 by amending the MHRA to require plaintiffs to provide certain information in any pre-litigation notice that they chose to send, but the law did not require the plaintiffs to provide notice in the first place. Not surprisingly, that amendment failed to stem the tide of new litigation. Therefore, in response to continued complaints from the business community, the Minnesota Legislature, with bipartisan support, amended the statute in 2017 to accomplish what the prior amendment had failed to do.
It is anybody’s guess whether the MHRA amendments will slow the tide of drive-by disability access cases. The new pre-suit notice requirement may cause plaintiffs’ lawyers to bring their cases under the ADA rather than the MHRA, limiting their damages and, therefore, the settlement value of their cases. On the other hand, we have seen an increase in “drive-by” litigation around the country, including in states that have no damages provisions at all, and we can expect that many plaintiffs and their lawyers may find it profitable to proceed by asserting ADA claims and simply seeking attorney’s fees and costs for their efforts. In addition, we have also seen some active plaintiffs who have learned to effectively represent themselves and will continue to do so; as noted, the new amendments to the MHRA do not apply to pro se lawsuits. We also suspect that businesses receiving notices may not act in response to the notices or may not act quickly enough, and may find themselves in the same position, only with the additional burden of having failed to react to the notice.
Employers with businesses in Minnesota will want to become familiar with the ADA and MHRA disability access laws and regulations, including the notice provisions of the amended MHRA statute. In most cases, the lawyers who file these lawsuits know the law and only pursue clear violations, so the business owner may well need to take some remedial action to come into compliance with the law. It is sound practice for business owners to respond to notices in writing, through legal counsel, by confirming that remedial measures have been taken and providing evidence, such as photographs, of the businesses’ compliance.
Andrew E. Tanick is a shareholder in the Minneapolis office of Ogletree Deakins.
Brian Moen is a law student, currently participating in the summer associate program in the Minneapolis office of Ogletree Deakins.
Andy Tanick has over 30 years of experience defending employment claims and helping employers develop effective policies and avoid litigation. He advises businesses of all sizes on issues such as non-compete agreements, severance negotiations, and employment policies and practices, and has successfully defended cases throughout the country in areas such as discrimination, retaliation and harassment. Andy’s litigation practice also includes his defense of disability access lawsuits under...