Title III Notice and Cure Bill Passes Initial Legislative Hurdle

The House of Representatives passed a bill on February 15, 2018, that requires Americans with Disabilities Act (ADA) Title III plaintiffs to provide businesses with notice and an opportunity to cure any barriers before filing suit. The Senate must also pass a version of the bill before it can be sent to the White House for signing. Senate passage is reported as uncertain.

The bill, known as the ADA Education and Reform Act of 2017, is designed to provide businesses a chance to remove barriers to access before getting sued. Under the bill, plaintiffs with disabilities would have to provide businesses 60 days to devise a plan to remove architectural barriers and an additional 120 days to implement the plan before filing a civil action under Title III of the ADA. The bill also directs the federal judicial conference to develop a mediation program that would stay discovery and other litigation activities until the parties mediated their dispute.

Despite near-universal support in the business community, there is significant debate about just how effective the bill would be. The bill might eliminate some litigation, but it is more likely to move massive amounts of litigation into state courts where most states have bills that, like the ADA, require the removal of architectural barriers. It is expected that plaintiffs and their lawyers would shift their focus to non-architectural violations. In addition, the bill does nothing to address the growing amount of litigation in states like California, Texas, and New York, where damages are available for instances of architectural access barriers.

The mediation program contemplated by the bill already has some models in place in certain federal judicial districts. In those districts, while discovery and other litigation costs often get stayed, mediation programs typically require a broad inspection that usually identifies more barriers than the plaintiff originally found.