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Risk Management

The firm Carlson Lynch has peppered businesses with
hundreds, if not thousands, of demand letters. They have
established a business model that is simple, inexpensive to
execute, and easy to scale. It is also very easy to copy by
other plaintiffs’ law firms, which adds to why we expect this
to snowball quickly.
To really get this, compare these new accessibility web
claims to the long history of facility ADA claims. Physical
claims required “testers” to visit the business location in per-
son to assess and document violations. Here, that process is
digital and takes only seconds using free WCAG testing soft-
type of legal suits clogging up the courts. NSAA strongly sup- ware, and the ability to cut and paste the results into a form
ports this legislation, and we believe a 90-day cure period is demand letter with a draft settlement. This is easy money,
eminently sensible to responsibly balance the interests of the and there’s no secret sauce to it, so expect this cottage indus-
disabled community and the business community. try to grow rapidly.
Needless to say, plaintiffs’ lawyers hate such proposals. As a result, if your ski area has not taken website accessi-
Notably, this bill would also create criminal fines for plain- bility seriously until now, you may want to reconsider in the
tiffs’ attorneys who send demand letters that do not specify in short term, and make website remediation a priority. And, if
detail the alleged violation, or how an individual was denied and when Congress amends the ADA to add a cure period
access. The disability community—hardly a fan of Trump requirement prior to bringing a lawsuit, do you think your
to begin with given his offensive comments made during the ski area can remediate your website within a 90-day cure
campaign—has also come out strong against this type of period? That’s a tall task even with a skilled IT department
reform. The disability community points out that under the and outside web developers making remediation a priority.
ADA, they already cannot obtain civil penalties against busi-
nesses that violate the ADA (only attorneys’ fees), and that
without the strong threat of recovering attorneys’ fees, there
would be far less interest for attorneys to take on ADA law-
suits to rectify ADA violations. (And the disabled commu-
nity has a point.) That being said, though, in the 26 years
since Congress passed the ADA, the lawsuit abuse by plain-
tiffs’ attorneys has reached epidemic proportions. Even in
California—probably the least friendly state for any type of
tort reform—the Democratically controlled state legislature
and governor enacted legislation last year allowing for such a
cure period for disability claims under California state law for
businesses with fewer than 50 employees.
Still, it will take at least a year, if not more, before the
Republican Congress will tackle this issue of amending the
ADA statute to adopt a requirement for a cure period prior
to suing businesses (Republicans in Congress will tackle dis-
mantling Obamacare first). But therein lies the irony—in the
meantime, plaintiffs’ lawyers will see this writing on the wall,
knowing that there is a strong possibility that ADA reform will
get signed into law under President Trump. After all, Trump
himself faced many of these lawsuits over alleged ADA viola-
tions in his hotels and casinos. As a result, his election could
actually spur more lawsuits and claims—and quickly—from
plaintiffs’ law firms alleging ADA website inaccessibility
claims, before such ADA reform can be achieved in Congress. TELLS ITS OWN TALE Member of the Doppelmayr/Garaventa group

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