-----Original Message-----
From: I. S. MARGOLIS [mailto:[log in to unmask]]
Sent: Thursday, February 17, 2000 2:45 AM
To: [log in to unmask]
Subject: Fwd: ADA-LAW Digest - 16 Feb 2000 - Special issue (#2000-144)

-----Original Message-----

From: Frederick A. Shotz <[log in to unmask]>
To: [log in to unmask] <[log in to unmask]>
Date: Monday, February 14, 2000 8:18 PM
Subject: VERY IMPORTANT - HOUSE BILL HR3590


 >To all list members and readers;
 >
 >As many of you know it is not often that I ask you to do something
specific
 >in support of our rights. A few months ago I asked all of you to
contact
 >20/20 about an anti ADA story that was being prepared. You may have
noticed
 >that the story never ran. It was scheduled a few times but all of the
 >objections to the story kept it from being aired. It may still make it
on
 >the air one day but it will be a more balanced story than the original
plans
 >called for.
 >
 >A week or two ago I asked you to consider joining Access Now to help
them
 >with the class certification in some of their lawsuits against
national
 >department store chains. My thanks to those of you who responded.
 >
 >Now I am asking for some very important help.
 >
 >There have been several posts to disability related lists about the
bill
 >filed in the U.S. House of Representatives by Rep. Foley. This bill,
 >cosponsored by Rep. Shaw, would amend the ADA to require written
notice to
 >any public accommodation before an ADA lawsuit could be filed. It
would
also
 >give the public accommodation 90 days to respond to the notice before
a
 >lawsuit could be filed. This bill would clearly harm people with
 >disabilities while making it easier for public accommodations to
continue
 >discriminating against people with disabilities. With so many people
with
 >disabilities not even able to find lawyers to represent them in ADA
 >litigation this bill would just create one more hoop for people with
 >disabilities to jump through while giving lawyers one more reason to
not
 >take ADA plaintiff cases.
 >
 >I spent most of this afternoon on the telephone with staff from Rep.
Shaw's
 >office and Rep. Foley's office. Michael Harrington from Rep. Shaw's
office
 >at first was not at all open to my comments about the problems with
this
 >bill. It seemed that he was listening to me with his mind already made
up.
 >After about a half hour of conversation he began to become more open
to
the
 >idea that this may not be a good bill. We finally got to the point of
him
 >stating that, at the very least, the bill has caused some attention to
the
 >abuse of the ADA by some lawyers. He does now seem open to some other
ideas
 >as to how to address the problem of abuse of the ADA by a small number
of
 >lawyers.
 >
 >Elizabeth Nicolson, legislative director for Rep. Foley, was much more
 >receptive and interested in my concerns. Our more than one hour
conversation
 >was a real exploration of the issues and possible solutions to the
abuse
of
 >the ADA by a small number of plaintiff lawyers. I will be meeting with
Rep.
 >Foley and working with his office on amending this bill or replacing
it
with
 >another bill. I have suggested that notice is not necessarily a bad
idea
but
 >written notice could be difficult for many people with disabilities.
Many
 >people with disabilities do not have the ability to write or to write
a
 >proper legal notice. I suggested the possibility of a affidavit being
 >included with the initial complaint stating that the plaintiff
notified
the
 >defendant verbally or in writing prior to the lawsuit being filed. I
also
 >suggested a waiting period of no more than 10 business days for the
 >defendant to respond to the verbal or written notice before a lawsuit
could
 >be filed.
 >
 >Another alternative I suggested, instead of a requirement for advance
 >notice,  was that legal fees be limited for any Title III lawsuits
where
the
 >defense provides a written offer to settle the case within 30 days of
being
 >served and where the case is settled within 60 days of initial
service.
 >Mediation could be required if the defendant claims that the plaintiff
is
 >being uncooperative in addressing settlement offer.
 >
 >My suggestions are based on the fact that some lawyers are abusing the
ADA.
 >One lawyer in Rep. Foley's district filed 40 ADA lawsuits in one day.
An
 >offer to settle on the day of service resulted in a demand for $4,000
for
 >plaintiff legal fees. The 40 lawsuits were identical except for the
name
of
 >the defendant. The suits only addressed parking for people with
 >disabilities. A lawyer in Miami just presented a stipulation for
settlement
 >to a municipal government. The stipulation is 174 pages long. It
treats
 >every building of the city as though it was a Title III facility. The
lawyer
 >has no understanding of the requirements of Title II. He is asking for
 >$130,000 in legal fees for using the same complaint he has used
against
 >other cities and for drafting a settlement that is unrelated to the
 >requirements of the ADA. This lawyer is known for his high fees and
his
lack
 >of interest in whether his lawsuits result in improved access. Some of
you
 >are familiar with the high fees charged by Mr. Potter in California
for
the
 >"drive by" ADA lawsuits he files for his client - over 100 per year at
no
 >less than $3,000 in legal fees for each case.
 >
 >I am giving these examples to demonstrate that there is a real problem
that
 >Reps. Foley and Shaw are trying to address. They just do not really
 >understand the problem and they are a bit misguided in how they are
trying
 >to solve the problem. I believe that if they hear from enough of us
they
 >will be more than willing to address this issue in a way that is not
 >offensive to the community of people with disabilities. So that our
voice
is
 >as strong as the voices of the businesses complaining about being sued
we
 >all need to contact the staff at Rep. Shaw's and Rep. Foley's offices.
 >
 >You need to write and clearly state that you are opposed to House Bill
HR
 >3590, opposed to a requirement of a written notice as a condition of
filing
 >a lawsuit under the ADA, opposed to a 90 day waiting period before
 >litigation can be filed. You also need to state that you are concerned
that
 >other members of the House will try to amend this bill to weaken other
 >provisions of the ADA. I am asking each of you to send an e-mail to
Rep.
 >Shaw's aid, Michael Harrington at [log in to unmask]
and to
 >Rep. Foley's Legislative Director, Elizabeth Nicolson at
 >[log in to unmask]
 >
 >Both legislative aids seem to understand the concern of such a bill
opening
 >the ADA to various hostile amendments. I agree with them that if a
bill
can
 >be produced that addresses the problem of abuse without harming the
rights
 >of people with disabilities that no amendments should be allowed. The
bill
 >should only address this one issue. Even though many of us would like
to
see
 >some changes in the ADA opening our law at this time would leave us
open
to
 >loosing far more than we would gain.
 >
 >In my conversations with them I proposed a bill that would require the
 >D.O.J. to maintain a data base of all ADA litigation so that the
advocacy
 >community could track cases and lawyers to identify patterns that
appear
to
 >be legal profiteering on the ADA. I would rather see us police our own
ranks
 >than to see Congress limit our rights to enforce our civil rights.
That
idea
 >received positive responses.
 >
 >Because of my history of working with Congress on the original passage
of
 >the ADA both Representatives are willing to listen to my ideas and to
work
 >with me. Those of you who are comfortable with the positions I am
taking
can
 >include in your letters a statement that you would like them to
continue
 >working with me to resolve this matter. Ms. Nicolson suggested this so
that
 >they don't end up trying to amend a bill with a hundred or more people
 >trying to communicate their ideas and wanting their language in the
bill.
 >Those of you who are not comfortable with me working for all of us
should
 >say so in your letters and you should establish your own communication
with
 >these Representatives so that your ideas are heard.
 >
 >What is most important is that both Representatives hear from every
one of
 >us. Business owners are making a lot of noise and they all have money
to
 >give to campaigns. People can speak louder than campaign donations as
long
 >as we all speak and make sure that our voices are heard. Please also
write
 >to me if you have ideas as to how to solve this problem caused by a
small
 >number of lawyers.
 >
 >Sincerely yours,
 >
 >Fred
 >
 >
 >--
 >Frederick A. Shotz
 >ADA Consulting Associates
 >
 >Leading The Way To Equal Access
 >For People With Disabilities

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