[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
 ACCESS (ADA COMPLIANCE FOR CUSTOMER ENTRY TO STORES AND SERVICES) ACT

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 3356

                               __________

                             JUNE 27, 2012

                               __________

                           Serial No. 112-133

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                    TRENT FRANKS, Arizona, Chairman

                   MIKE PENCE, Indiana, Vice-Chairman

STEVE CHABOT, Ohio                   JERROLD NADLER, New York
J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT, 
                                     Virginia

                     Paul B. Taylor, Chief Counsel

                David Lachmann, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                             JUNE 27, 2012

                                                                   Page

                                THE BILL

H.R. 3356, the ``Access (ADA Compliance for Customer Entry to 
  Stores and Services) Act''.....................................     3

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution...................................................     1

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     6

                               WITNESSES

The Honorable Daniel E. Lungren, a Representative in Congress 
  from the State of California
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25

Lee Ky, Reedley, California
  Oral Testimony.................................................    33
  Prepared Statement.............................................    34

Andrew D. Levy, Partner, Brown, Goldstein & Levy
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37

David Warren Peters, CEO and General Counsel, Lawyers Against 
  Lawsuit Abuse
  Oral Testimony.................................................    45
  Prepared Statement.............................................    48

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution...............     8

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, Ranking 
  Member, Committee on the Judiciary, and Member, Subcommittee on 
  the Constitution...............................................    21

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Chairman, Subcommittee on the Constitution.....................    58

Material submitted by the Honorable Daniel E. Lungren, a 
  Representative in Congress from the State of California, and 
  Member, Committee on the Judiciary.............................    64

Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution...............    66

                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

David Warren Peters, CEO and General Counsel, Lawyers Against Lawsuit 
    Abuse, submitted supplemental materials with his statement that the 
    Committee chose not to print. However, the materials are on file in 
    the official hearing record. Please contact the House Committee on 
    the Judiciary's Subcommittee on the Constitution for that 
    information.


 ACCESS (ADA COMPLIANCE FOR CUSTOMER ENTRY TO STORES AND SERVICES) ACT

                              ----------                              


                        WEDNESDAY, JUNE 27, 2012

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 1:40 p.m., in 
room 2141, Rayburn Office Building, the Honorable Trent Franks 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Chabot, Lungren, King, 
Nadler, Scott, and Quigley.
    Staff present: (Majority) Zach Somers, Counsel; Sarah 
Vance, Clerk; (Minority) Heather Sawyer, Subcommittee Chief 
Counsel, and Veronica Eligan, Professional Staff Member.
    Mr. Franks. Good afternoon. We have called today's hearing 
to examine H.R. 3356, the ``ACCESS Act,'' which Mr. Lungren of 
California introduced to make a minor, but very important, 
change to the Americans with Disabilities Act, the ADA.
    The ACCESS Act is a common sense proposal to require 
plaintiffs to provide defendants with written notice and an 
opportunity to correct an alleged ADA violation voluntarily 
before they may file a lawsuit and force a business owner to 
incur legal costs.
    This legislation, which applies to cases involving physical 
barriers to entry in public accommodations, would both improve 
public access for disabled individuals and eliminate thousands 
of predatory lawsuits.
    When the ADA was signed into law by President George H.W. 
Bush in 1990, the goal was to provide the disabled with equal 
access to public facilities. And in large part, the ADA has 
worked. Unfortunately, enterprising plaintiffs and their 
lawyers have abused the law by filing tens of thousands of ADA 
lawsuits aimed at churning out billable hours and extracting 
money from small businesses rather than improving access for 
the disabled as the ADA intended.
    These predatory lawsuits are possible for two chief 
reasons. First, 100 percent compliance with the ADA is very 
difficult to achieve. Even through good faith efforts, such as 
hiring an ADA compliance expert, a business can still find 
itself subject to a lawsuit for the most minor and 
unintentional of infractions.
    According to one compliance specialist, ``I rarely, if 
ever, see instances where there is not an access violation 
somewhere. I can find something wrong anywhere.'' This makes 
compliance a challenge even for those with the very best of 
intentions.
    Second, unlike Title II of the Civil Rights Act, the ADA 
does not currently require any notice before lawsuit can be 
filed. This has led to thousands of lawsuits being filed for 
issues of relatively minor noncompliance, such as a sign being 
the wrong color or having the wrong wording.
    Abuse of the ADA has been noted by Federal judges in 
numerous cases throughout the country, who have referred to the 
proliferation of ADA lawsuits as a ``cottage industry.'' These 
judges have recognized that the explosion of private ADA 
litigation is driven primarily by the ADA's attorneys' fees 
provision. One Federal court explained that ``the ability to 
profit from ADA litigation has led some law firms to send 
disabled individuals to as many businesses as possible in order 
to have them aggressively seek out all violations of the ADA.'' 
Then rather than notifying the businesses of the violations and 
attempting to remedy them, lawsuits are preemptively filed 
since settlement prior to filing a lawsuit does not entitle 
plaintiff's counsel to attorney's fees under the ADA. As one 
Federal judge observed, the result is that ``the means for 
enforcing the ADA attorney's fees--have become more important 
and desirable than the end--accessibility for disabled 
individuals.'' But the ADA was enacted to protect disabled 
individuals, not to support a litigation mill for entrepreneur 
plaintiffs' attorneys hunting for ADA violations to justify 
lawsuits.
    The ACCESS Act would help eliminate predatory ADA lawsuits 
and increase compliance with the ADA by giving businesses the 
opportunity to fix ADA violations instead of dragging them into 
litigation. Lawsuits would be reserved for those instances in 
which offenders are truly unwilling to make appropriate 
changes. This would also allow legitimate claims to move 
through the legal system sooner and faster.
    Moreover, requiring notification before filing an ADA 
lawsuit will benefit our economy. Many small businesses have 
been forced to close because of accessibility lawsuits and 
others have unnecessarily spent thousands of dollars in 
litigating claims. Small businesses are critical to America's 
economic recovery and should not be burdened by unnecessary or 
predatory litigation. The ACCESS Act whould protect the 
interests of the disabled and of America's small businesses and 
ensure that ADA violations can be remedied without the need to 
file a lawsuit, if possible.
    The ACCESS Act preserves the rights of the disabled and 
fixes the ADA so that professional plaintiffs are not able to 
exploit this landmark civil rights law for their own private 
gain rather than for the benefit of the disabled.
    And with that, I would now yield to the Ranking Member of 
the Subcommittee, Mr. Nadler, for his opening statement.
    [The bill, H.R. 3356, follows:]

    
    
    
    
    
    
                               __________

    Mr. Nadler. Thank you, Mr. Chairman. We have been here 
before. Twelve years ago, movie star and California business 
owner, Clint Eastwood, testified in support of legislation that 
would require pre-suit notification before a claim could be 
filed under Title III of the ADA. And we have had legislation 
on this introduced in every Congress since then, including this 
one.
    Mr. Eastwood testified passionately about the need for pre-
suit notification to prevent business owners, like himself, 
from being victimized by unscrupulous lawyers. The plaintiff 
and lawyer in his case actually had notified him of the alleged 
violations at his resort before filing suit.
    Proponents of pre-suit notification ignore the fact that, 
as in Mr. Eastwood's case, a demand letter does not always 
work. Not every business owner will gladly make changes to 
increase accessibility. Nor is it clear why a letter should be 
required where a violation is obvious or where 22 years after 
enactment of the ADA, a public accommodation has taken 
absolutely no steps to bring itself into compliance with the 
law.
    Pre-suit notification is a virtual get out of jail free 
card for every public accommodation in America. By requiring a 
person with a disability to notify a public accommodation 
before bringing legal action to enforce the law, bills like 
H.R. 3356 remove the only incentive for voluntary compliance 
with the ADA, namely the risk of being sued and having to fix 
the problem and pay reasonable attorney's fees.
    Title III of the ADA does not allow private parties to sue 
for money damages. Only an order to remedy the ADA violation 
and reasonable attorney's fees are possible, and then only if 
the plaintiff is a prevailing party; that is to say, that the 
defendant is found to have violated the law.
    By removing the risk of litigation, H.R. 3356 would send a 
clear and devastating message to every public accommodation in 
America that there is no need to comply voluntarily with the 
ADA. Instead, wait and see if you ever get a demand letter.
    Twenty-two years after passage of the ADA, many businesses 
remain inaccessible to persons with disabilities. Yet instead 
of talking about how to improve compliance, here we are again 
considering a bill that further excuses noncompliance.
    Proponents claim that pre-suit notification is needed to 
stop unscrupulous lawyers who have made a so-called cottage 
industry out of filing lawsuits in order to force businesses 
into quick cash settlements, and who have no intention of 
increasing access for persons with disabilities. But let us be 
clear about one thing. There simply is nothing unethical or 
inappropriate about suing a business that is violating the law.
    The filing of a single or even multiple suits alleging 
violations of the ADA or State disability laws says nothing 
about the underlying merits of that, or those suits, or the 
intent of the parties involved. Moreover, there is absolutely 
no reason that the mere filing of a lawsuit should result in 
years of costly litigation. A defendant who is sued under Title 
III of the ADA responds to a summons by agreeing to remedy the 
problem, as we are assured would be the case of only pre-suit 
notification were required, faces only the cost of the repair 
itself and reasonable attorney's fees. Courts decide every day 
whether a fee request is reasonable, and will not approve an 
award that is disproportionate to the actual work done.
    While some might prefer that attorneys who enforce the law 
were to get nothing for their work, thus eventually forcing 
them out of business entirely and reducing the possibility that 
those who violate the law will ever be brought to justice, 
Congress decided to allow reasonable attorney's fees with the 
understanding that doing so is necessary to enable private 
lawyers to help enforce the ADA.
    Where, as may sometimes be the case, the lawyer actually 
does engage in affirmative misconduct, for example, by 
providing misleading information, by making factual or legal 
arguments in bad faith, or by unreasonably and vexatiously 
prolonging the matter, courts have the tools they need to 
sanction this misconduct, and often do so. Courts in California 
and Florida, for example, have sanctioned lawyers who have 
brought ADA and States law claims where the underlying 
allegations were not sufficiently supported or where the 
lawyers misled defendants. The courts have required these 
lawyers to pre-file any future suits with the courts or in 
other cases have denied attorney's fees and damages available 
under some States' laws.
    It is an unfortunate reality that some lawyers may act 
inappropriately at least some of the time, but this is not 
limited to lawyers who represent plaintiffs. One of our 
witnesses here today, Mr. Peters, whose practice consists of 
defending against ADA and States disability lawsuits, was found 
to have ``acted intentionally in bad faith with an improper 
purpose and with an intent to harass the plaintiffs'' in one 
case. Explaining why sanctions against him were warranted, the 
district court explained that Mr. Peters, ``unreasonably and 
vexatiously multiplied the litigation, which resulted in excess 
costs, expenses, and attorney's fees to the other litigants,'' 
and that, ``this is the essence of frivolous and bad faith 
litigation.''
    I would like to submit the District Court's ruling in that 
matter, along with the 9th Circuit's order affirming sanctions 
against Mr. Peters for the record.
    Mr. Franks. Without objection.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                              ----------                              





                              ----------                              

    Mr. Nadler. Thank you. This makes clear that the courts can 
and do handle complaints about attorney misconduct, and the 
notion that the mere filing of lawsuits alleging noncompliance 
with the ADA is itself an indicator of bad faith or frivolous 
litigation should be rejected. Indeed, as courts that have 
imposed sanctions against vexatious litigants have been careful 
to recognize, given the fact of widespread noncompliance with 
the ADA, lawsuits themselves are not an evil to be avoided, but 
the only way of enforcing the ADA and, thus, of achieving its 
goals.
    As the 9th Circuit said in Mosley v. Evergreen Dynasty, 
``For the ADA to yield its promise of equal access for the 
disabled, it may indeed be necessary and desirable for 
committed individuals to bring serial litigation, advancing the 
time when public accommodations will be compliant with the 
ADA.''
    To the extent that continued noncompliance with the ADA is 
leaving businesses vulnerable to litigation, the appropriate 
solution is to beef up technical assistance or otherwise 
determine what more is needed to ensure affirmative voluntary 
compliance. We should not enact legislation like H.R. 3356, 
which seeks to excuse every public accommodation whether large 
or small, and even when knowingly and deliberately violating 
the law, from taking any steps to comply with the law until and 
unless it receives a specific enough demand letter.
    With that, I look forward to hearing from our witnesses and 
yield back the balance of my time.
    Mr. Franks. Thank you, Mr. Nadler. And without objection, 
other Members' opening statements will be made part of the 
record.
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, Ranking Member, Committee on 
      the Judiciary, and Member, Subcommittee on the Constitution

    Today we revisit the question of enforcement of the Americans with 
Disabilities Act. Although we have long had a bipartisan consensus in 
favor of vigorous ADA enforcement--going back to the administration of 
the first President Bush--the legislation we will examine today would 
undermine the most effective enforcement mechanism Congress created: 
the private right of action.
    We have been through this before. I have had to sit though numerous 
hearings in which some members have ignored the widespread non-
compliance with the ADA and the exclusion of persons with disabilities 
from too many places in our society, and instead preoccupy themselves 
with the complaints of businesspeople who, by their own admission, have 
violated the law.
    We live in a topsy-turvy world, and the rights of those least able 
to defend their rights, rather than the law-breakers, have become the 
target. That's wrong.
    Compliance with the ADA is largely voluntary. While the Justice 
Department does have enforcement power, it lacks the resources to reach 
the many facilities that are out of compliance, and the law grants them 
the power to enforce the act in a limited number of cases.
    As a result, according to the National Council on Disability, 
``many public accommodations are not in compliance with Title III and 
are not, in fact, accessible.''
    Too many businesses are simply unwilling to comply with the law, 
which requires businesses to remove architectural barriers that are 
``structural in nature, in existing facilities . . . where such removal 
is readily achievable.'' The ADA defines ``readily achievable'' as 
``easily accomplishable and able to be carried out without much 
difficulty or expense.'' This ``readily achievable'' standard has been 
the governing legal principle for increasing access to existing 
facilities since the ADA's passage 22 years ago. It ensures that, 
rather than having a one-size-fits-all requirement, businesses have 
flexibility to determine what steps are possible based on their size 
and resources and the prospective cost of an improvement. A small, 
family-owned business does not have to take the same steps as a large 
commercial chain.
    I recall that businesses fought for this standard during passage of 
the ADA because of its flexibility; with flexibility also comes 
responsibility for determining, with guidance and rules from DOJ, what 
steps are possible.
    After 22 years, the fact that many businesses have not undertaken 
that basic step is simply intolerable, and legislation that would 
further undermine the promise of the Americans with Disabilities Act is 
simply unacceptable.
    As we discuss this issue, I hope we can keep these points in mind.
    First, providing property owners with this kind of get-out-of-jail 
free card simply means that they can ignore the law with impunity. If 
they ever are caught, they can simply do what they should have done all 
along. There is absolutely no down side to failing to comply. You will 
more than likely get away with it--as the report of the National 
Council on Disability and other research on non-compliance 
demonstrate--and if you get caught, your only cost is to comply.
    Second, this legislation is unnecessary. The much-touted problem of 
``drive-by law suits'' is overblown. To the extent that it is a 
problem, it is limited to a few states that allow for monetary damages. 
That is an issue for the states with those laws, and does not demand 
radical changes to the ADA.
    Many of the examples of fraudulent suits and other misconduct has 
nothing to do with the ADA or with the notification law. Those are 
problems that can come up in all civil litigation, and are not limited 
to ADA cases. Existing law does, however, provide remedies when parties 
lie, or engage in abusive conduct.
    When faced with this problem courts have sanctioned parties found 
to be ``vexatious litigants,'' have refused to award attorneys fees 
where a lawyer failed to serve a defendant with a demand letter prior 
to filing suit, and have dismissed cases for a lack of standing where 
the plaintiff cannot allege harm.
    It is, again, not a question of notification, but of enforcing the 
basic rules governing conduct in all civil cases as the attorneys on 
the panel are, no doubt, well aware.
    Third, there are ample resources to assist those businesses that 
genuinely want to comply with the law. There are substantial tax 
credits and deductions--up to 50% in credits for eligible expenditures 
to increase accessibility in a year, up to a maximum each year of 
$10,250. Section 190 of the Internal Revenue Code provides a tax 
deduction of up to $15,000 per year for removal of architectural 
barriers. Small businesses can use these incentives in combination if 
they qualify under both sections.
    The Justice Department, as well as many state and local 
governments, and non-governmental organizations, provide technical 
assistance so that those who, in good faith, wish to comply, can do so. 
Compliance with the law should not be a guessing game. The point of the 
ADA is not to encourage litigation, but to encourage compliance.
    We should never forget that the reason Congress enacted the ADA, 
and why it has enjoyed such broad bipartisan support over the last 22 
years, is that we are committed as a Nation to promoting inclusion. Too 
often, access to jobs, stores, restaurants, and other facilities that 
the rest of us simply take for granted are denied to those with 
disabilities.
    When we fail to guarantee access to the disabled, they remain 
excluded from society and marginalized. There is no longer any question 
about the consequences of this exclusion, and a decent society must 
never tolerate it.
    So, we should be working to promote greater compliance, not to 
undermine one of the few mechanisms available to assure greater 
compliance. To the extent that there are bad actors out there, we 
should be looking to the existing mechanisms available to punish 
misconduct in, and misuse of, our courts. If we need to ensure that 
those mechanisms are more effective, we can and should certainly 
discuss that. But undermining the available remedies for disabled 
people everywhere in all situations by giving property owners in 
violation of the law a free ride is not the way.
    I join the distinguished Chairman in welcoming our witnesses today, 
and I look forward to their testimony.
    I yield back the balance of my time.

                               __________
    Mr. Franks. Our first witness is Representative Dan Lungren 
of California. Mr. Lungren represents California's 3rd 
Congressional District. He was first elected to Congress in 
1978.
    From 1991 to 1999, Mr. Lungren served as Attorney General 
of California. In 2005, he returned to Congress and is 
currently the Chairman of the Committee on House Administration 
and is a Member of the Judiciary and Homeland Security 
Committees.
    Mr. Lungren, your witness statement will be entered into 
the record in its entirety. And I would now recognize 
Representative Lungren for 5 minutes to make an opening 
statement.

TESTIMONY OF THE HONORABLE DANIEL E. LUNGREN, A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Lungren. Thank you very much, Mr. Chairman. Thank you, 
Mr. Ranking Member and other Members of the Subcommittee. Since 
my statement will be entered into the record, let me just say a 
couple of things.
    One is that my staff and I have spoken with dozens of small 
business owners in California, restaurants and other small 
business enterprises. And the number one fear that they 
expressed to me is the fear of abusive ADA lawsuits. They tell 
me that they want as many customers as possible to come to 
their store. It is not in their business interest to put up 
barriers of entry for people to come in.
    But, in fact, the practice in California, and especially my 
district, where you have had thousands of lawsuits that have 
been filed, in most cases, without any specificity. And the 
claim that is being made or the grievance that is being 
presented without specificity gives no opportunity for the 
owner/operator to be able to respond in a meaningful way and 
thereby do what we really want this law to do, actually result 
in access.
    My bill does nothing to change the underlying ADA. Rather, 
it requires that the grievant put in writing with sufficient 
specificity that the reasonable owner/operator understands he 
is in violation of the ADA. It then gives that individual an 
opportunity to respond, in writing, within a specific period of 
time, with specificity as to how they are going to handle it. 
And then the third part is that there would be a period of time 
in which the owner/operator can actually make those physical 
changes.
    Now if the owner/operator does not do these things, it 
seems to me the grievant is in a remarkably enhanced position 
as they go to court. If I am a Federal judge, the fact that the 
owner/operator basically did not take this seriously, and if 
there is any basis whatsoever for finding that there is a 
violation of the ADA, that puts the defendant, I think, in a 
very, very poor position. In fact, that would be the best 
mechanism by which you could achieve access sooner rather than 
later.
    I am aware of a sandwich shop that was a defendant in an 
ADA lawsuit in which the litigant never visited the shop, but 
used Google maps to determine that the disability or handicap 
signage was missing. The plaintiff in this case sued for trauma 
and embarrassment as a consequence of not being able to access 
a business that the plaintiff never visited.
    In another case that has come to my attention recently, a 
locksmith owner in my district, who himself has a disability, 
closed his shop in mid-April 2012 to undergo surgery. When he 
came back a month later to reopen, he learned that a generally-
stated ADA lawsuit had been filed against his business. His 
attorney advised him that at his age it would probably take a 
number of years for them to resolve it. The cost would be 
excessive. He never opened his doors again. The business owner 
called this extortion. Other tenants in the building may be 
told that they have to move as well. That is not what the ADA 
was intended to do.
    Now, the Ranking Member referred to this as a Republican 
proposal. There is bipartisan concern about the ADA. In April 
2012 letter, U.S. Senator Dianne Feinstein wrote to California 
Senate President Pro Temporary Darrell Steinberg and stated, 
``Today we are still witnessing an alarming rate of demand 
letters that are being sent to small business owners demanding 
settlements in the range of $5,000 to $8,000. The payment of 
this settlement amount, combined with the cost of hiring a 
lawyer to respond to a demand letter, can easily add up to more 
than $15,000 in costs for a small business owner. As you know, 
these unforeseen costs can be devastating to the mom and pop 
stores that are struggling to remain in business.''
    It is not, therefore, a partisan issue. There is an effort 
going on at the State level in California to try and respond to 
this in some enlightened way.
    So, I hope this not viewed in a partisan way. I hope that 
Members will understand that there is a need to tweak this law 
to make it more effective to reach what I think we all, on a 
bipartisan basis, want. And that is access that has been 
established, not long litigation.
    The abuse falls disproportionately on small businesses. In 
my State, it falls disproportionately on minority-owned 
businesses, which happen to be, in most cases, the ones that 
have less capital than others. Oftentimes, it falls on those 
operators whose first language is not English, and frankly, 
they have difficulty responding to a generalized letter of 
complaint. And really the demand that they get is pay up or you 
will suffer, and that is what we are trying to get away from.
    Again, we do not in any way change the underlying 
proposition of ADA. We attempt to try and change the process so 
that there will be more expeditious resolution of problems 
which exist. Everybody admits that there are too many 
violations out there, technical and otherwise. The question is 
how do you handle that? How do you provide incentives for 
people to move toward access as opposed to a standoff? And if 
you require a specificity such that there can be, under the 
reasonable person standard, notice as to what the problem is, 
there is a far greater chance that you are going to have a 
resolution of that problem.
    Simply, that is what this bill does. And I would say it has 
strong support from the small business community. I hope that 
we can reach a bipartisan accord on this. And I thank you for 
listening.
    [The prepared statement of Mr. Lungren follows:]

        Prepared Statement of the Honorable Daniel E. Lungren, 
       a Representative in Congress from the State of California

    Mr. Chairman, first, I would like to thank you for this opportunity 
to speak on behalf of my legislation--H.R. 3356, the ACCESS Act.
    The Americans with Disabilities Act (ADA) is a landmark civil 
rights law. The passage of the ADA was a watershed moment in American 
history because our nation stood up to protect and defend the dignity 
of persons with disabilities and their rights to accessibility in our 
Nation. This is what the ADA was intended to do--to ensure that public 
accommodations will be accessible to all Americans.
    Unfortunately, however, across the nation and especially in my 
district in California, thousands of lawsuits have been filed under the 
ADA in which litigants have the sole intent of obtaining settlement 
money from small business enterprises. These litigants usually have no 
intent whatsoever of obtaining increased accessibility for persons with 
disabilities. In these lawsuits that abuse the Americans with 
Disabilities Act, litigants routinely make general allegations against 
businesses about non-compliance with the ADA. Business owners all too 
often find themselves unaware of the specific nature of the allegations 
against them. The litigants then quickly seek to settle for thousands 
of dollars while usually not pursuing that business' actual compliance 
with the ADA. These kinds of abusive lawsuits are based upon a desire 
to achieve financial settlements. In the vast majority of these cases, 
they do not seek to achieve the facility modifications necessary to 
provide equal access to places of public accommodation.
    What is the impact of these lawsuits that abuse the Americans with 
Disabilities Act? Professional litigants make money. ADA compliance is 
not truly enforced because these cases often never make it to court. 
Unsuspecting businesses in my state are forced to close or temporarily 
shut down because of the inability to pay settlements or insufficient 
time to make the necessary improvements. Nobody wins. In one 
particularly egregious example, one plaintiff has filed over 2,000 of 
these kinds of lawsuits. The ADA was never intended to be a money 
making machine for the few while failing to increase accessibility for 
the many.
    My staff and I have spoken with dozens of small business owners in 
California--restaurants and other small business enterprises. What is 
the number one threat they fear--abusive ADA lawsuits. They tell me 
they want as many customers as possible. They tell me they try hard to 
comply with the ADA because they do not want to turn anyone away, 
especially in this economy. But they believe these abusive ADA lawsuits 
are not what the ADA was intended to do.
    With thousands of these lawsuits nationwide and in my district in 
particular, the number of egregious lawsuits are too numerous to count. 
I have been told of a music store that was the defendant in an ADA 
lawsuit in which the complaint failed to state any violations specific 
to that store. What was the primary issue of the lawsuit? The number of 
handicapped parking spaces in the parking lot despite the fact that the 
plaintiff had not ever visited the music store. I am aware of a 
sandwich shop that was the defendant in an ADA lawsuit in which the 
litigant never visited the shop but used Google maps to determine that 
the handicapped signage was missing. The plaintiff in this case sued 
for trauma and embarrassment as a consequence of being unable to access 
a business that the plaintiff never visited. In another case, a 
locksmith owner, who himself has a disability, closed his shop in Mid-
April 2012 to undergo surgery. His shop is located in a building that 
is approximately 100 years old. When he came back a month later to 
reopen he learned that an abusive ADA lawsuit had been filed against 
his business. His attorney advised the owner, age 66, to never open his 
doors again. The business owner calls it ``extortion.'' Other tenants 
in the building may be told they have to move. This is not what the 
Americans with Disabilities Act was intended to do. It was intended to 
increase accessibility for all Americans with disabilities not to 
enrich the few.
    There is bipartisan concern about abuse of the ADA. In an April 
2012 letter, U.S. Senator Dianne Feinstein wrote to California Senate 
President pro Tempore Darrell Steinberg and stated:
    ``[t]oday, we are still witnessing an alarming rate of demand 
letters that are being sent to small business owners demanding 
settlements in the range of $5,000-$8,000. The payment of this 
settlement amount, combined with the cost of hiring a lawyer to respond 
to the demand letter, can easily add up to more than $15,000 in costs 
for a small business owner. As you know, these unforeseen costs can be 
devastating to the ``moms and pop shops'' that are struggling to remain 
open for business.''
    Though discussing state legislation and not commenting on my ACCESS 
Act specifically, Senator Feinstein agrees that a new right to cure 
approach is needed to solve this problem. She continues:

        ``Thus, I believe it is critical that a 90-day right to cure be 
        enacted to help small businesses respond to this problem and, 
        once and for all, to end these abuses by certain aggressive 
        attorneys and predatory plaintiffs. I strongly urge you to 
        reconsider your position on this approach. A business owner's 
        ability to cure an ADA violation within 90 days would give that 
        owner the opportunity to comply with the law without the 
        wasteful expense of a lawsuit, which in my view would represent 
        a win both for people with disabilities and for California 
        small businesses.''

Mr. Chairman, I would like to submit Senator Feinstein's April 13, 2012 
letter for the record.
    My legislation, H.R. 3356, the ACCESS (ADA Compliance for Customer 
Entry to Stores and Services) Act of 2011, ensures greater compliance 
with the Americans with Disabilities Act while protecting small 
businesses from abusive lawsuits.
    The ACCESS Act would serve the underlying purpose of the ADA by 
creating a legal structure which enhances the prospects for real 
corrective action. Under my legislation, any person aggrieved by a 
violation of the ADA would provide the owner or operator with a written 
notice of the violation specific enough to allow the owner or operator 
to identify the barrier, make the needed changes, and thus become 
compliant. Within 60 days the owner or operator would be required to 
provide the aggrieved person with a description outlining improvements 
that would be made to address the barrier. The owner or operator would 
then have 120 days to remove the infraction. The failure to meet any of 
these conditions would allow the suit to go forward.
    The ACCESS Act will refocus the ADA on what it was meant to do--
ensure that public accommodations will be accessible to all Americans. 
Increasing public accommodations for persons with disabilities is not 
inconsistent with the need to protect small business owners from 
lawsuits that abuse the purpose of the Americans with Disabilities Act. 
The ACCESS Act demonstrates that we can indeed do both.
                               __________

    Mr. Franks. Well, thank you, Mr. Lungren. And I will now 
begin the questioning by recognizing myself for 5 minutes.
    Mr. Lungren, you have been an attorney in private practice. 
You served as an attorney general of California. And I am not a 
lawyer, but it would seem to me that as a matter of 
professionalism and courtesy, a lawyer should at least make 
some attempt to work out a dispute prior to going to the 
trouble of filing a lawsuit.
    Does your bill require anything more than the common 
courtesy of asking a business to fix a violation so that a 
lawsuit does not need to be filed?
    Mr. Lungren. The only thing I would say is that it requires 
a level of specificity so that under a reasonable person 
standard, one would be put on notice as to what the violations 
of the ADA are. And that would be my only addendum to your 
statement.
    Mr. Franks. Well, I think your legislation is a common 
sense solution to predatory ADA lawsuits, and it is consistent 
with other civil rights laws that require notice before 
lawsuits can be filed. However, those opposed to your 
legislation argue that if this bill becomes law, the rights of 
the disabled will be threatened. Do you believe that your bill 
will threaten the rights of disabled individuals to use public 
accommodations?
    Mr. Lungren. If my bill in any way changes the underlying 
proposition of the ADA, you might be able to make that 
argument, but it does not. What it does is change the process 
and provide an incentive for resolution of the problem in a 
specific, practical way. And it seems to me rather than 
undercutting the rights of anybody, it enhances the rights of 
individuals who are disabled in one fashion or another.
    I guess I would call it a common sense approach to 
improving the underlying bill such that you can resolve the 
problem rather than extend the problem or never get 
satisfaction to a complaint.
    Mr. Franks. Well, thank you, Mr. Lungren. And I am going to 
now yield to Mr. Nadler for 5 minutes.
    Mr. Nadler. Thank you. I understand and somewhat even 
sympathize with what you are saying in some cases, I suppose. 
My problem is we do not permit damages here. If someone has not 
complied for 20 years and is found not have complied, the only 
remedy we have is comply. Spend the money to make your business 
accessible.
    Now in various other things we allow damages. Here we do 
not. But if that is the only remedy--get into compliance now--
order an injunctive action, in effect, to get into compliance 
now. And you cannot bring a lawsuit even to do that until you 
have had a letter, which presumably has not been reacted to 
adequately, what incentive is there for someone, other than 
pure good will, what incentive, what legal or monetary 
incentive is there for a business owner to get into compliance 
before he gets a demand letter?
    Mr. Lungren. Well, thank you for the question. I would say 
a couple of things. One is right now there are demand letters 
oftentimes made, but they are of a general nature. They do not 
put the person on notice as to how they could take care of it 
so that there is not the incentive to try and take care of it 
with a sense of immediacy.
    Secondly, I would argue, having been a litigator for a 
number of years, that if a business called me up and said we 
had this letter that told us what we needed to do, we have 
ignored this letter, frankly, I do not want to take it 
seriously. I would either tell them find another attorney, or I 
would say, let me tell you what your circumstance is. You are 
going into Federal court, and the first thing the judge is 
going to read in the file is that you were put on notice with a 
degree of specificity so that any reasonable person could 
figure out what the problem was, and you ignored it. I am going 
to tell you, you are in trouble here.
    So I would suggest it actually gives the plaintiff an upper 
hand in a case where there has not been a good faith attempt to 
try and resolve the problem. And, again, I say that as someone 
who has litigated----
    Mr. Nadler. I understand that. And certainly if I were the 
attorney for a plaintiff, I might very well start with such a 
letter. But, again, what incentive, if your bill passed, would 
there be for anyone to bother with compliance at all until he 
received such a letter?
    And let me ask you one other question as you answer that. 
What would you think of a proposal to say, okay, we will enact 
your bill, but we will amend it to include some sort of 
sanction, maybe monetary sanctions, if you should have brought 
yourself into compliance, if you did not have to be a genius 
not to know that you were not in compliance and you did not do 
it before the letter.
    In other words, the problem right now is that your letter, 
I think, would completely eliminate any incentive for someone 
to spend money to bring himself into compliance before that 
letter was received. And maybe if we had the letter, but we 
still had some sort of sanction for not having acted if you 
knew you should have acted beforehand, that would be more 
reasonable. What would you think of that?
    Mr. Lungren. Well, first of all, I would just say we are 
talking about my bill versus the status quo. For the status quo 
now, one would have to ask what is the incentive for someone to 
try and take care of a violation of ADA prior to legislation 
being filed. Ours is a predicate to the litigation, but it does 
not stop the litigation from going forward.
    Mr. Nadler. Excuse me, Dan. The incentive now under the 
status quo is that you may be sued and be responsible not only 
for the expense of getting into compliance, but for attorney's 
fees.
    Mr. Lungren. Sure.
    Mr. Nadler. That is a fairly weak incentive perhaps, but it 
is an incentive.
    Mr. Lungren. Well, you still have that as it exists now. 
Mine, I think, actually puts some robustness behind the threat 
of a lawsuit because you have got to take seriously if, in 
fact, they have given you notice. So I would say it adds to an 
incentive.
    The fact of the matter is, and I think you will hear this 
testimony, there are, for instance, 100 specific standards that 
deal with a disabled restroom. There are, I believe, something 
like 2,400 or 2,500 separate standards, physical standards, 
that deal with operating a business that comes under the aegis 
of this statute.
    To suggest that people are sitting around consciously 
violating these things, I think is incorrect. And the idea that 
they have 20 years to do this--oftentimes we are talking about 
businesses that have just set up. Someone goes in. They are 
starting a small business. And this happens to be the case, and 
it goes to one of the points you made earlier about a lack of 
full information. They may have, and we have had instances of 
this, people going to the local building department of their 
local jurisdiction and being told, oh, yeah, you have met the 
standards, or, you know, under the law, there is a grandfather 
clause, which there is not.
    And I remember when I was attorney general, one of the 
things we attempted to do was to try and help local 
jurisdictions in California understand precisely what the laws 
were. We had a case where the City of Pasadena and the Rose 
Bowl were undergoing a major renovation of the Rose Bowl. Part 
of it was actually a replacement of their press box. And what 
they intended to do with respect to accommodation for disabled 
was insufficient for the law.
    We had to go down as the office that has overall 
responsibility in our State and basically demand that they make 
the change and make it within a very short time period. They 
were gearing up for either the World Cup in soccer or the Super 
Bowl, I forget which. But we did that. Now, if you are going to 
ask me did they intend to violate the law? No, they did not 
understand even with their own building department, even with 
the information they had.
    So, in many cases you have these businesses that, frankly, 
are unaware. And I am not saying they are all that way, but I 
am saying the vast majority, in my experience, are that way. 
So, how do we get from there to doing what we want to do, which 
is to get access to places of public accommodation?
    It seems to me creating a path where there is a greater 
incentive to work it out sooner rather than later is the way to 
do it. Now that is my approach to my bill. You may disagree 
with me, but that is the intent behind it.
    Mr. Franks. Thank you, Mr. Nadler. And I now recognize the 
distinguished gentleman from Iowa, Mr. King, for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. I want to thank the 
gentleman from California for bringing the bill. This seems 
like such pure common sense to me, it is a little amazing that 
we have sat around here for over 2 decades before something as 
simple as this has come forward.
    But I am curious, and I may be missing it in your 
testimony, how does that first notice come? If you have a 
disabled individual who is aggrieved by this, how does that 
first notice come to their attention?
    Mr. Lungren. They would send a written notice, most likely 
a letter, to the individual owner or operator of the place of 
public accommodation. And in there, they would be required to 
have sufficient specificity such that the person receiving it, 
under a reasonable person standard, which is a common law 
notion, reasonable person standard would be able to determine 
what the violation of the Act is. And then that person would be 
given a 60-day period of time to provide the aggrieved person 
with a description outlining the improvements to address the 
barrier. And then they would have 120 days in which to take 
care of it, then actually go forward.
    Mr. King. Would this likely be the form of a letter from 
the attorney of the aggrieved person then?
    Mr. Lungren. It would not have to be an attorney. It could 
be an individual so that they could describe, as I say, with 
particularity, as to what the violation is.
    Mr. King. I am just wondering because I do some of my own 
work that way without going to the attorney. But if I sent a 
letter to someone and they ignored that letter, then is it 
likely it would be a certified letter in order to prove that 
they received it? I am just trying to figure out how do you 
establish how the clock starts to tick on the first 60 days.
    Mr. Lungren. Upon receipt of the letter. I suppose if you 
wanted to be careful, you could make sure it was certified. You 
could also hand it to them. I mean, there are any number of 
ways of doing it.
    Mr. King. Okay. But you have determined that, and that has 
already been a legal pattern, so I understand that.
    I am just thinking about the statement that you made about 
the proprietor who got back from his surgery and decided that 
he could not continue his business because the cost to recover 
the loss of the investment was too great. And I am just 
thinking of a community in my district that had about a lot and 
a half alongside a lake. For years they provided a dock for 
public access in a tiny little town with hardly any tax base, 
but it was a convenience thing.
    And there was a little accident down alongside that 
resulted in just a few stitches. And in the ensuing litigation 
that came, the city council just decided that is it, we are not 
going to allow access to this any longer because the liability 
is too great.
    I just add that to your statement on what are we missing in 
this country, that we do not even know we are missing, because 
of the heavy burden of unnecessary litigation, among other 
things, and heavy regulation, and a whole list of things.
    I just think the richness of the life that we have in this 
country could be greater if we were not intimidating and 
discouraging people, especially small business folks. I started 
a business up in 1975, and my biggest fear then was how do I 
meet with all the risks of regulation and potential litigation? 
My oldest son owns that company today. We are in our 37th 
season. But, it has gotten greater and greater.
    The country has changed. The culture has shifted. We have 
fewer entrepreneurs per capita because of the weight of 
regulation, the weight of the threat of litigation. I just 
would point out that I think in those days, when Mr. Lungren 
and I and many others in this room were growing up, we would 
have an idea, and someone might say, well, I have checked my 
moral compass now, but there is no law against it, let us go 
ahead. And today it is entirely different. Now young people 
say, no one else is doing this, we have to get permission to go 
ahead, so let us just forget it.
    I just think our society is not as rich as it might have 
been otherwise. I think we are losing entrepreneurs. We are 
losing competition in business. Our costs are going up, and we 
have a lot of burden in this economy that is not productive, 
that does not help the quality of life. It just churns dollars, 
and intimidates people, and reduces the quality of life.
    I think this bill adds to our quality of life, and anybody 
that can resolve this issue within 60 to 120 days is a well-
intentioned person. I do not see a down side to it at all, and 
I fully support it. I would yield to the gentleman to say 
anything he would further like to say.
    Mr. Lungren. Well, I just say there is a famous case in 
California dealing with this. The Salary Shop made saddles. I 
think it was also a feed store. And they had actually been 
pioneers in working with those who suffered from disabilities 
in using horseback riding as a therapy. They were sued because 
it was an older store, and they had a handicapped access in the 
side of the back, not in the front. They were sued, and yet 
they could never get the person suing them to tell them 
precisely what it was they wanted them to fix.
    If you question the good faith of those folks, you know, 
were they folks that were not interested in assisting the 
disabled? Well, I mean, they had been pioneers in helping with 
therapeutic riding, which would suggest that they wanted to 
assist.
    That may be an extreme example, but that is an example of 
the kind of thing that I think most of us would say is contrary 
to common sense. What I am trying to do here is to figure out a 
common sense process change that does not change the underlying 
law, but would get us to resolution sooner rather than later.
    Mr. King. It is common sense. Thanks, Mr. Lungren. Thanks 
for bringing it. I yield back.
    Mr. Franks. Thank you, Mr. King. And I would now yield to 
Mr. Scott from Virginia.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Lungren, you know, if we are going to live in a society 
where those with disabilities have access to public 
accommodations, there is going to be some inconvenience to 
people. And obviously, as you have suggested, it ought to be 
with common sense.
    What should the standard be? The present standard is that 
any change, in order to get into compliance, that would be 
required has to be easily accomplishable and able to be carried 
out without much difficulty or expense. Is that the standard 
that put your constituent out of business?
    Mr. Lungren. That is a standard that has been interpreted 
by a number of different courts, and some refer to that as a 
small business exception. It has not proven to be a small 
business exception.
    If someone makes that claim, as I understand it, it then 
makes it relevant in discovery for the plaintiff to be able to 
see the books of the operating entity, perhaps going back any 
number of years to prove that relative to the amount of money 
they have, this would fall within that definition. And, that 
often leads to a tremendous amount of litigation.
    I think we all agree that it ought to be something that is 
reasonably achievable, that it is not unduly costly. So, I 
think that is a common sense portion of the law, but it does 
not appear, at least in the experience of those people that 
have come to my attention in California, to have worked in the 
way that we all would have thought it would have worked.
    Mr. Scott. Well, if easily achievable and able to be 
carried out without much difficulty and expense is too 
stringent a standard, what kind of standard would you suggest?
    Mr. Lungren. I am not suggesting to change the standard. 
What I am suggesting is that we have preliminary litigation as 
an opportunity to resolve the issue such that the priority is 
not put on litigation, but the priority is put on 
accommodation.
    Mr. Scott. So you are not suggesting we change the standard 
at all.
    Mr. Lungren. No, I am not suggesting we change the 
standard.
    Mr. Scott. And the bill, as I read it, only applies to 
entry. What about everything else that is covered by the ADA?
    Mr. Lungren. Excuse me, I am sorry. I cannot hear you.
    Mr. Scott. As I read your bill, it only speaks to the 
barrier to entry into a public accommodation. How about 
anything else that is covered by the ADA?
    Mr. Lungren. This is supposed to deal with the issue of 
removing structural barriers to entry as the ADA requires 
because that seems to be the locus of complaints that we have 
received, claims of structural barriers without specificity as 
to what they are.
    I mean, you and I would talk about structural barriers. It 
goes to those standards that have been established, as I said. 
I believe there are 2,400, 2,500 of them in various regulations 
with respect to physical requirements. And they are generally 
known as structural barriers.
    Mr. Scott. Thank you, Mr. Chairman. I yield back.
    Mr. Franks. I thank the gentleman. Well, Mr. Lungren, we 
are out of questions here. And I want to thank you again for 
testifying today. You are excused if you would like, but 
otherwise you are certainly welcome to join us on the dais 
here. And I would like to go ahead and invite you to do that, 
and also invite the members of our second panel of witnesses to 
come forward.
    I want to thank all of you for appearing before us today. 
Our first witness on this panel is Lee Ky. Ms. Ky operates and 
manages two donut shops owned by her mother in Reedley and 
Stockton, California. Ms. Ky was born with cerebral palsy and 
has been in a wheelchair her entire life. Her family's two 
business have both been the subject of abusive ADA lawsuits. In 
2010 her family's Reedley shop, where Ms. Ky regularly works 
alongside her employees, was sued for alleged violations of the 
ADA that were substantially, but not exclusively, based on 
signage not being placed in exactly the right position or the 
failure to have the exact number of signs called for under the 
applicable statute. Ms. Ky was not given any notice of the 
alleged ADA violations before the lawsuit was filed.
    Our second witness is Andy Levy, a named partner with the 
law firm Brown, Goldstein & Levy, where his practice focuses on 
civil, criminal, and appellate litigation. He is a fellow of 
the American College of Trial Lawyers, and is listed in Best 
Lawyers in America in 5 categories. Mr. Levy is a longtime 
member of the adjunct faculty at the University of Maryland 
School of Law, and his publications include the books, Maryland 
Evidence: A Courtroom Manual and Appellate Practice for the 
Maryland Lawyer.
    And our final witness is David Peters, CEO and general 
counsel at Lawyers Against Lawsuit Abuse. Mr. Peters has been 
consulted in more than 900 ADA accessibility lawsuits 
throughout the United States and has served as lead counsel in 
over 300 in California alone. Through his work he has exposed 
over 600 false and/or inappropriate claims in ADA accessibility 
lawsuits. Mr. Peters has written extensively and has appeared 
in numerous national television and print news features on the 
problem of litigation abuse.
    Each of the witness' written statements will be entered 
into the record in its entirety, so I would ask that each of 
you summarize your testimony in 5 minutes or less. To help you 
stay within that time, there is a timing light on the table. 
When the light switches from green to yellow, you will have 1 
minute to conclude your testimony. When the light turns red, it 
signals that the witness' 5 minutes have expired.
    And before I recognize the witnesses, it is the tradition 
of the Subcommittee that they be sworn, so please raise your 
right hand to be sworn.
    [Witnesses sworn.]
    Mr. Franks. Thank you. And I would now recognize our first 
witness for 5 minutes. And, Ms. Ky, if you will make sure that 
that microphone is on before you start speaking.

            TESTIMONY OF LEE KY, REEDLEY, CALIFORNIA

    Ms. Ky. Hi. My name is Lee Ky, and I do live in Reedley, 
California. I am here to express my concern regarding the 
Americans with Disabilities Act and how it is being used toward 
all businesses.
    I understand that all businesses must be accessible for all 
customers. I have been disabled all my life, and I am grateful 
for the President George Bush who recognized the needs for 
accessibility for the disabled community when he signed ADA 
into the law in 1990.
    Public buildings should have accessible entrance doors for 
both wheelchairs and stroller users. Public facilities that 
have an eating area and restrooms should be accessible with 
tables wide enough and high enough for a wheelchair to fit. The 
eating area should not be designated just for the disabled 
people. I am going to add something right now. At this table 
here does not have a sign that say for wheelchair only.
    Accessible buildings allow people with disabilities to 
become more independent and self-sufficient. As for me, I 
appreciate businesses that have accessible facility. But 
personally, I do not care if the grab bar is 40 inches or 32 
inches on either side as long as it is provided and is there 
when I need it.
    All business owners have to recognize the needs for all 
customers. For example, many businesses provide carpet or 
rubber mat at the entrance outside or inside to prevent able-
bodied customers from slipping.
    Many business owners are not aware of the changes or new 
regulations related to ADA. Not all businesses are up to code 
with the ADA guidelines. My mother has to donut shops and has 
been sued at both locations for alleged ADA violations. It is 
not fair for business owners to receive a lawsuit package not 
knowing what it was for, being asked for a certain amount of 
money and still having to pay for the corrections.
    Prior to filing a lawsuit, notification should be sent to a 
business if their facility is not compliant with the ADA. All 
businesses should have 30 days to correct minor violations and 
120 days for constructional barriers.
    In my experience, the carpet or the mats have never become 
entangled in my wheelchairs. If the ADA regulations remain the 
same and require businesses to remove carpets or mats for the 
inconvenience of the disabled people, then the ADA will be 
creating a hazard for the able-bodied person. We, the disabled 
community, should not be able to feel segregated from the rest 
of society. This will create bitterness between the customer 
and the business. I do not need a sign to inform me that I am 
disabled or where I should sit.
    The ADA should concentrate on accessible curbs and ramps 
that do not wrap around the building with back door access 
only. Generally, when I enter through the back door, I feel 
like businesses are embarrassed or ashamed to associate with me 
because of my physical limitations. This is understandable to a 
point because there are a few disabled individuals, including 
lawyers, that make it their personal mission in life to collect 
money from businesses that they have never been to. It seems 
this handful of people feel that small businesses owe it to 
them because of their current situation. This makes the rest of 
disableds, who are trying to earn an honest living, look bad.
    Throughout my life, people in general are very helpful. 
Whenever I am out and about by myself, people offer their 
kindness to assist me. Whether I accept or decline is up to me. 
I also have a voice. If I need assistance, I can ask for help. 
I do not want business owners to cringe when they see me enter 
their establishment whether to purchase or to simply use the 
restroom.
    I would like to see the ADA regulation or Federal laws to 
be fair and not be taken advantage of or misused. I believe our 
elected officials and city inspectors should inform all 
businesses in their district of all new laws and changes.
    If this frivolous, nitpicky, and unnecessary money hungry 
ADA laws will continue, many businesses will be forced to shut 
down because they do not have the money to pay for the lawsuit. 
To me, it is reminiscent of mobsters requesting protection 
money.
    Thank you.
    [The prepared statement of Ms. Ky follows:]

            Prepared Statement of Lee Ky, Reedly, California

    My name is Lee Ky and I live in Reedley, Ca. I am here to express 
my concerns regarding the Americans with Disabilities Act and how it's 
being used toward all businesses. I understand that businesses must be 
accessible for all customers. I have been disabled all my life and I am 
grateful that President George H. W Bush recognized the needs for 
accessibilities for the disabled community when he signed the ADA into 
law in 1990.
    Public buildings should have accessible entrance doors for both 
wheelchair and stroller users. Public facilities that have an eating 
area and restrooms should be accessible, with tables wide enough and 
high enough for a wheelchair to fit. The eating area should not be 
``designated'' just for disabled people. Accessible public buildings, 
allow persons with disabilities become more independent and self-
reliant. As for me, I appreciate businesses that have accessible 
facilities. But, personally, I don't care if the grab bar is 48'' or 
32'' on either side, as long as it's provided and it's there when I 
need it.
    All business owners have to recognize the needs of all customers. 
For example, many of businesses provide a carpet or rubber mat at the 
entrance outside or inside to prevent able-bodied customers from 
slipping. In my experience, the carpet or the mat has never become 
entangled in my wheels. If the ADA regulations remain the same and 
require businesses to remove carpets or mats for the convenience of the 
disabled people, then the ADA will be creating a hazard for the able-
bodied person. We (the disabled community) should not be made to feel 
segregated from the rest of society. This will only create bitterness 
between customers and businesses. I don't need a sign to inform me that 
I am a disabled or where I should sit.
    The ADA should concentrate on accessible curbs and ramps that do 
not wrap around the building with back door access only. Generally, 
when I enter through the back door, I feel like businesses are 
embarrassed or ashamed to associate with me because of my physical 
limitations. This is understandable to a point, because there are a few 
disabled individuals (including lawyers) that make it their personal 
mission in life to collect money from businesses that they have never 
been to. It seems this handful of people feel that small businesses owe 
it to them because of their current situation. This makes the rest of 
the disabled who are trying to earn an honest living look bad.
    Many business owners are not aware of the changes or new 
regulations related to the ADA. Not all businesses are up to code with 
ADA guidelines. My mother has two donut shops and has been sued at both 
locations for alleged ADA violations. It's not fair for business owners 
to receive a lawsuit package not knowing what it is for, being asked 
for certain amount of money, and still having to pay for corrections. 
Prior to filing a lawsuit, notification should be sent to businesses if 
their facilities are not compliant with the ADA. All businesses should 
have 30 days to correct minor violations and 120 days for construction 
barriers.
    Throughout my life people in general are very helpful; whenever I 
am out and about by myself, people offer their kindness to assist me 
whether I accept or decline is up to me. I also have a voice and if I 
need assistance I can ask for help. I don't want business owners to 
cringe when they see me entering their establishment whether to 
purchase or to simply use the restroom. I would like to see the ADA 
regulations or Federal laws be fair and not be taken advantage of or 
abused. I believe our elected officials and city inspectors should 
inform all businesses in their districts of all new laws and changes.
    If these frivolous, nit-picky, unnecessary money hungry ADA 
lawsuits continue, many businesses will be forced to shut down because 
they don't have the money to pay for the lawsuit or correct the 
facility. To me it's reminiscent of mobsters requesting protection 
money.
                               __________

    Mr. Franks. Thank you, Ms. Ky.
    And I would now recognize Mr. Levy for 5 minutes. And you 
have got that microphone on, sir.

                 TESTIMONY OF ANDREW D. LEVY, 
                PARTNER, BROWN, GOLDSTEIN & LEVY

    Mr. Levy. Thank you. Mr. Chairman, Members of the 
Subcommittee, thank you for giving me the opportunity to 
testify on H.R. 3356. It would amend the ADA to require that 
individual defendants be sent a letter before they could be 
sued for violating the ADA, even if they had been violating it 
for years, and even if the nature of their violations were open 
and obvious to all, such as a few steps that could easily be 
ramped.
    It is particularly ironic that Congress is considering this 
bill now when we have thousands of newly disabled veterans who 
need the protections promised by the ADA now more than ever.
    Passage of the bill will make enforcement of the ADA more 
cumbersome and more expensive. Worse, it will eliminate much of 
the existing incentive businesses have to attempt to comply 
with the law voluntarily. The net result of this is that there 
will be much less voluntary compliance.
    The dirty little secret of the ADA is that its enforcement 
provisions, particularly those relating to public 
accommodations, are relatively weak. Virtually alone, among 
Federal statutes, the law currently provides no damages for its 
violations. Since there are no damages for past violations and, 
if this bill becomes law, you cannot be sued until you get 
notice, there is zero incentive to comply with the ADA until 
you get a letter, if you get one. And then you can comply 
without risking any sanction for the many years you waited to 
comply. Thus, the proposed amendment effectively creates a 
blanket nationwide exemption to the ADA.
    In addition, Congress correctly recognized that the Federal 
Government does not have the resources to enforce the civil 
rights laws entirely on its own. The ADA, like other civil 
rights statutes, relies primarily on private individuals for 
its enforcement. Lawyers who bring ADA cases already assume the 
risk that they will lose and be paid nothing. By making the ADA 
increasingly difficult and cumbersome to enforce, you create 
additional disincentives for lawyers to take these cases. It is 
basic economics. The greater the incentive, the greater the 
participation.
    The ADA is already a chronically under enforced statute, 
and it benefits a group that already has difficulty accessing 
legal services. If Congress further reduces these incentives 
that do exist, the result will inevitably be less enforcement 
of the ADA. If you make enforcement of the ADA rely on charity, 
the ADA will die.
    One should not need a special invitation to comply with the 
law, particularly one that has been on the books for more than 
20 years. Moreover, the notion that the epidemic of 
noncompliance with the ADA could easily be cured by sending a 
letter is, in my experience, a myth. Implicit in the idea of 
notification is the idea that most violators are genuinely 
unaware that they are violating the ADA, and that upon getting 
a letter, they will immediately bring themselves into 
compliance. And yet, they cannot or will not take those same 
steps after they are sued, that once sued, they are mired in 
the courts for years.
    In truth, this hypothetical violator, the one who would 
have complied if only someone had bothered to let him know that 
there were a couple of steps preventing wheelchair access to a 
store, assuming he exists, can just as easily comply with the 
law after being sued. And under the Supreme Court's Buckhannon 
precedent can do so without incurring liability for any 
attorney's fees.
    Particularly disappointing is the claim that this amendment 
is needed to help small business. Nothing in this bill is 
limited to small business. Large companies, who routinely 
employ lawyers to advise them on what other Federal statutes 
require, can certainly do the same with respect to the ADA. As 
for small business, the ADA already has several provisions that 
protect small businesses from unreasonable requirements, which 
Mr. Scott in his questions earlier pointed out.
    It is a flexible law. The flexibility was purposely 
included as a bipartisan compromise so that businesses of 
different sizes and circumstances could be treated differently. 
But with flexibility comes responsibility. One cannot fairly 
complain that the law's requirements are vague and imprecise on 
the one hand and not lift a finger to investigate what it 
requires on the other.
    In closing, I respectfully submit that passage of this ill-
advised bill is unnecessary and will do far more harm than good 
to the cause of equality and accessibility. Thank you.
    [The prepared statement of Mr. Levy follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Franks. Thank you, Mr. Levy.
    Mr. Peters, you are now recognized for 5 minutes, sir.

           TESTIMONY OF DAVID WARREN PETERS, CEO AND 
         GENERAL COUNSEL, LAWYERS AGAINST LAWSUIT ABUSE

    Mr. Peters. Thank you, Mr. Chairman, Members of the 
Subcommittee. Thank you for the opportunity to address these 
issues. While I have only been consulted in about 900 ADA cases 
around the country, I am in touch with attorneys who have 
handled a far larger number than that, so I have knowledge of a 
larger group of cases. And I am here to tell you about some of 
the troubling practices that we have seen occurring in hundreds 
of cases around the country, which have, not surprisingly, 
required a number of businesses to close. And I would add that 
that should never need to occur in one of these cases.
    H.R. 3356 would change all that in that it would require an 
almost immediate agreement to make changes with the knowledge 
that if those changes were not quickly made, the pre-litigation 
notice letter it requires would almost certainly exhibit A to a 
costly Federal lawsuit. I think that is about the worst way to 
get on the wrong side of a Federal judge is to have such an 
exhibit in your lawsuit showing that you were asked to make a 
change and you were not willing to make it.
    In these very difficult financial times, we need to give 
individuals confidence to step forward and create jobs, but 
hundreds of my clients have received inaccurate information 
from their local building departments, city leaders, and even 
legislators being told that they were grandfathered and that 
their business did not need to make these changes. Of course, 
grandfathering applies to building codes, and these laws 
involve civil rights at businesses that are open to the public.
    So while it is certainly not true that they were 
grandfathered, the answer is that these businesses need 
information, not to be blindsided by a lawsuit for changes that 
most would gladly make if they only knew of the requirements. A 
lawsuit should not be the first notice they get.
    In 2005, I personally witnessed at least 7 small businesses 
close very quickly in the small mountain community of Julian, 
California after an attorney demanded $200,000 as an unlawful 
investigation fee after he had spent a weekend there from about 
67 businesses in the name of an organization that he created 
and represented. The demands were calculated to increase every 
day during which they were not accepted.
    Since then, we have seen dozens of other businesses close 
as a direct result of these lawsuits, in many cases after 
making all appropriate changes, just because they never wanted 
to deal with the nightmare of another ADA lawsuit.
    But more troubling is the fact that many hundreds, if not 
thousands, of these cases are concluded without any changes 
ever being made, which undermines the important public policy 
objectives of the ADA. Exhibit D is just one example of 
standard terms offered by one law firm known to have filed over 
2,000 ADA accessibility lawsuits. Basically, if you pay the 
right price, you can obtain a settlement agreement wrapped in a 
strong confidentiality clause, which is, for practical 
purposes, all but unenforceable.
    Note that the agreement only requires that the defendant do 
what its consultant recommends, but does not require that the 
consultant be qualified or even that the items mentioned in the 
complaint be fixed. In many cases, hundreds of cases, they 
simply are not. Many attorneys deliberately leave information 
about conditions which may need to be changed out of their 
lawsuits for fear defendants will make all of the changes and 
moot the case. But since so many of these cases are settled 
informally, many defendants never learn about all the changes 
they need to make.
    The 9th Circuit Court of Appeals recently commented that a 
filer of thousands of these lawsuits admitted that he rarely 
mentioned all conditions which could limit accessibility for 
his clients in the complaints he filed because, and I quote, 
``Otherwise, a defendant could remove all the barriers prior to 
trial and moot the entire case.'' We are citing Oliver v. 
Ralphs, which is in Exhibit E. So if one of the purposes of the 
ADA was that these lawsuits would operate to prompt changes for 
others, practices like these directly undermine that objective.
    But not all lawyers conceal claims. A discreet selling of 
noncompliance is far more common. I have been told that if my 
client pays the right amount, the plaintiff's attorney will 
agree with my access plan whether it is appropriate or not. And 
if that amount is not paid, they will find a way to object to 
it, no matter how meritorious it is.
    At one struggling charity thrift store, which was only 
months from being taken by eminent domain, I was told that if 
my client did not pay $50,000, the plaintiff's attorney would 
contend that a power door should be installed, even though the 
business only had 8 months left to operate.
    In the same way noncompliance is often overlooked in these 
cases, conditions which are completely compliant will provide 
no protection. In the case of Kohler vs. Flava, we had to 
litigate for 17 months to prove that each of the claims made by 
plaintiff's counsel were meritless. This required over $100,000 
in legal expense for which we could not bill this very small 
client, and for which the court declined to award us fees, as 
shown in your exhibits.
    As you probably are aware, there is a one-way fee statute 
in these cases by which prevailing plaintiffs almost always 
recover their legal fees, while prevailing defendants are lucky 
to ever recover a fraction, if any, of them. These have been 
described as the cases you cannot afford to win, and creates a 
situation where inappropriate positions can easily be taken 
without accountability.
    The Flava case was unusual because we had photographic 
proof that two of the three sole claims in the complaint were 
false. The property had previously been sued by the same 
attorney, and the changes had been photographed, text messaged, 
and e-mailed in 2009. So there could be no question that they 
did not exist in 2010 when the plaintiff claimed he had 
visited. As to the third claim, the attorney had sued 105 
defendants on that same claim, which is basically that a bench 
longer than 48 inches, a dressing room bench, would cause 
problems for people with disabilities. And he failed in every 
adjudication, but he nevertheless advanced litigation against 
my client on that claim for 17 months and failed in that case 
as well.
    In that case, what made it unusual was that this attorney 
has falsified the signatures of a deceased client of his on 
documents which were first prepared weeks after the client's 
death. When we reported this to the court, that attorney sued 
each of the defendants that had reported the signature forgery 
to the court. And so my client had not one, but 2 lawsuits to 
deal with. Another defendant had several lawsuits to deal with.
    Worst of all, the attorney felt that he was entitled to 
falsify those signatures 3 weeks after his client had died. And 
every judge who has considered the matter has disagreed with 
him. But that did not help my small business client at all. To 
date, we probably have about a half million dollars in fees 
that we cannot bill the client, and we will probably not see 
from the court.
    The ADA does not need to be a game where only the attorneys 
win and people with disabilities too often are the losers. As 
you may know, vast numbers of these cases are concluded without 
appropriate changes ever being made. One of the reasons for 
this is that it can take 2 years or more to litigate a case, 
and during that time attorneys must often advise their clients 
not to make changes for fear they will be accused of destroying 
evidence, as one of my clients was when making the very changes 
that the plaintiffs sought. In that case as well, two of the 
three sole claims were adjudicated in the defendant's favor, 
and as to the third, the plaintiff failed in every known 
adjudication, but prolonged the litigation even beyond the 
summary judgment phase.
    Moving on, in Pinnock v. Michelin, even though the 
plaintiff's attorney could find no problem at a site meeting 
with attorneys, witnesses, and experts, they nevertheless 
converted the lawsuit to a class action and litigated for an 
additional 8 months against my client.
    Mr. Franks. Mr. Peters, I have got to ask you to wrap up 
here.
    Mr. Peters. Understood. I wholeheartedly support H.R. 3356. 
It gives a plaintiff the power to have a change made 
immediately rather than maybe after 2 years and maybe not at 
all. Thank you.
    [The prepared statement of Mr. Peters follows:]

           Prepared Statement of David Warren Peters, Esq., 
        CEO and General Counsel, Lawyers Against Lawsuit Abuse*
---------------------------------------------------------------------------
    *Mr. Peters submitted supplemental materials with his statement 
that the Committee chose not to print. However, the materials are on 
file in the official hearing record. Please contact the House Committee 
on the Judiciary's Subcommittee on the Constitution for that 
information.
---------------------------------------------------------------------------
    I've been consulted in over 900 ADA/accessibility lawsuits 
throughout the United States, and defended over 400 such claims as lead 
counsel. I urge your support of H.R. 3356 because it will stop some 
widespread, troubling practices in these cases, reduce the number of 
businesses which close as a direct result and accelerate improvements 
for disabled access which are currently not being made in a very large 
number of these cases.
    H.R. 3356 would require an almost immediate agreement to make 
changes with the knowledge that, if changes were not quickly made, the 
pre-litigation notice letter it requires would most likely be ``Exhibit 
A'' to a costly lawsuit where the business could be forced to make 
those same changes and pay the plaintiff's attorney. In these very 
difficult financial times, we need to give individuals confidence to 
step forward and create jobs. But hundreds of my clients received 
inaccurate information from their local building departments, city 
leaders and even legislators that they were ``grandfathered'' and only 
needed to make improvements if they made significant structural changes 
at their business. While that's certainly not true, the answer is that 
businesses need information--not to be ``blindsided'' by lawsuits for 
changes most would gladly make if they only knew of the requirements. A 
lawsuit should not be the first notice they get.
    In 2005, I personally witnessed at least seven (7) small businesses 
close very quickly in the small mountain community of Julian, 
California after an attorney demanded a $200,000 (Exhibit ``A'') as an 
unlawful ``investigation fee'' (Exhibit ``B'' page 7 paragraph 2) from 
about 67 businesses in the name of an organization he created and 
represented, which demands increased every day his terms were not 
accepted (Exhibit ``C''). Since then, we've seen dozens of other 
businesses close as a direct result of these lawsuits, in many cases 
after making all appropriate changes, just because they never wanted to 
deal with the nightmare of another ADA lawsuit.
    But more troubling is the fact that many hundreds, if not thousands 
of these cases, are concluded without any changes ever being made, 
which undermines the important public policy objectives of the ADA. 
Exhibit ``D'' is just one example of the standard terms offered by one 
law firm known to have filed over 2,000 ADA/accessibility lawsuits. 
Basically, if you pay the right price, you can obtain a settlement 
agreement wrapped in a strong confidentiality clause which is, for 
practical purposes, all but unenforceable. Note that the agreement only 
requires the defendant to do what its consultant recommends, but does 
not require that the consultant be qualified or even that the items 
mentioned in the complaint be fixed.
    Many attorneys deliberately leave information about conditions 
which may need to be changed out of their lawsuits for fear defendants 
will make all the changes and moot the case; but since so many of these 
cases are settled informally, many defendants never learn about all the 
changes they need to make. The Ninth Circuit Court of Appeals recently 
commented that a filer of thousands of these lawsuits admitted that he 
rarely mentioned all conditions which could limit accessibility for his 
clients in the complaints he filed because ``. . . otherwise a 
defendant could remove all the barriers prior to trial and moot the 
entire case'' (see footnote 7 on page 10888 of Exhibit ``E''--Oliver v. 
Ralphs). So if one of the purposes of the ADA was that these lawsuits 
would operate to prompt changes for others, practices like these 
directly undermine that objective.
    But not all lawyers conceal claims--a discrete selling of 
noncompliance is far more common--I've been told that if my client pays 
the right amount, the plaintiff's attorney will agree with my access 
plan whether it is appropriate or not, and if that amount is not paid, 
they will find a way to object to it no matter how meritorious it is. 
At one struggling charity thrift store which was only months from being 
taken by eminent domain, I was told that if my client didn't pay 
$50,000, the plaintiff's attorney would contend that a power door 
should be installed to prolong the case and increase defense expense.
    In the same way noncompliance is often overlooked in these cases, 
conditions which are completely compliant still provide no protection. 
In the case of Kohler v. Flava we had to litigate for 17 months to 
prove that each of the claims made by plaintiff's counsel were 
meritless (Exhibit ``F''). This required over $100,000 in legal expense 
for which we could not bill this very small client and for which the 
Court declined to award us fees, as shown in Exhibits ``G1'' and 
``G2''. As you are probably aware, there is a one-way fees statute in 
these cases by which prevailing plaintiffs almost always recover their 
legal fees while prevailing defendants are lucky to ever recover a 
fraction, if any, of them. These have been described as ``the cases you 
can't afford to win'' and creates a situation where inappropriate 
positions can easily be taken without accountability.
    The Flava case was unusual because we had photographic proof that 
two of the three sole claims in the complaint (Exhibit ``H'') were 
false--the property had previously been sued by the same attorney, and 
the changes had been photographed, text messaged and emailed in 2009, 
so there could be no question that they did not exist in 2010 when the 
plaintiff testified he'd first visited. As to the third claim, the 
attorney had sued 105 defendants and failed in every known adjudication 
(Exhibits ``M'', ``N'' and ``F''), but kept demanding and receiving 
nuisance settlements from defendants who found it would cost them less 
to settle than to prove their innocence. The real reason my client was 
sued is shown in Exhibits ``I'' and ``J''--because we reported to the 
court that this attorney falsified several signatures of a deceased 
client on documents which were first prepared weeks after her death. 
This attorney then filed a handful of new lawsuits against each of the 
defendants who'd reported the signature falsification to the court. 
Even though the falsity of many of the claims was documented in 
considerable detail, the judges were never willing to consider the 
evidence about the various cases together because it could create the 
impression that they were not limiting their focus to the case in 
question.\1\
---------------------------------------------------------------------------
    \1\ Each of the foregoing decisions has already been appealed or is 
shortly expected to be thus requiring even more work for which we can't 
bill out clients.
---------------------------------------------------------------------------
    But the ADA does not need to be a game where only the attorneys win 
and people with disabilities too often are the losers. As you may know, 
vast numbers of these cases are concluded without appropriate changes 
ever being made. One of the reasons for this is that it can take two 
years or more to litigate a case, and during that time attorneys must 
often advise their clients not to make changes for fear they will be 
accused of destroying evidence, as one of my clients was when making 
the very changes the plaintiff sought (Exhibit ``K'' at 2:7). In that 
case as well, two of the three sole claims were adjudicated in the 
defendant's favor (Exhibit ``L''), and as to the third, the plaintiff 
failed in every known adjudication (Exhibits ``M'', ``N'' and ``F'')--
basically, the plaintiff contended that a dressing room bench longer 
than 48 inches in length somehow limited accessibility for people with 
disabilities. While every judge we know of has disagreed, if this 
attorney received similar amounts in each of the cases in which he made 
these claims, he would have received $500,000 or more for advancing 
claims which consistently failed.
    In T3Pinnock v. Michlin even though the plaintiff's attorney could 
find no problems whatsoever at a site meeting with a number of 
witnesses (Exhibit ``O''), they still converted the claim to a class 
action (Exhibit ``P'') and litigated for over 8 months against this 
small picture frame shop shown in Exhibit ``Q''. In the end, the sole 
picture they produced by court order of the condition on which their 
claim was based showed a compliant counter which had existed unchanged 
for decades (Exhibit ``R'').
    In Pinnock v. Coles, that same law firm filed a complaint which 
represented that their client had visited a carpet store on two 
specific dates (Exhibit ``S''); but when confronted with video footage 
from the 10 high definition cameras which covered every area of the 
store and that the plaintiff did not appear in it for a week before and 
after each date, they filed another lawsuit (Exhibit ``T'') in the name 
of one ``Robin Member.'' When reminded that pseudonyms were 
inappropriate for adult plaintiffs (and few kids buy carpet), they 
indicated that the Plaintiff's true name was Robin Lavender but that 
they could no longer contact her. We decided to help but one of the 
best private investigators in the area could find no record of anyone 
named Robin Lavender ever having lived anywhere in the county (and most 
people who buy carpet tend to have property ownership or leasing 
information in credit records). Unable to produce plaintiff number two, 
the lawfirm filed a third lawsuit--this time a statewide class action 
lawsuit (Exhibit ``U'') for a failure to provide Braille and wheelchair 
access. But when the plaintiff in that case finally arrived in court, a 
courtroom full of witnesses and two Federal judges saw that she needed 
neither Braille nor wheelchair access, because she walked in without 
assistance and was seen reading an ordinary book (Exhibits ``V'' and 
``W'').
    But the dozens of false claims this lawfirm filed in the name of 
Plaintiff Lissa Hayes were just the beginning. As you can see on the 
news video I am showing, the KABC news copter caught their client Jim 
Cohan hiking up a hill with his dogs, even though they had filed 
countless claims in his name alleging a lack of Braille and wheelchair 
access (Exhibit ``X'' is just one example). Their former client Noni 
Gotti recently testified to the California State Senate on video 
(available on request) that she Googled her name and was shocked to see 
that they filed as many as 243 lawsuits about a lack of Braille, 
wheelchair accessibility and numerous other conditions which had never 
been a problem for her, against many places she's never visited 
(Exhibits ``Y1'' through ``Y4''). While it is true that one of the 
attorneys who worked on her cases fled the country and tried to resign; 
the State Bar opposed his resignation and pressed charges--the problem 
is that the charges had almost nothing to do with the false claims 
discussed above, and to date, there has been almost no accountability 
for any of the small businesses sued in these cases, many of which 
closed immediately.
    But H.R. 3356 can put a stop to all that, and can restore the ADA 
to its original intent and the dignity and respect it was intended to 
have. What defendant would not immediately change out a round door knob 
or remove an unsecured floormat--even if the plaintiff did not need 
really those things? Almost any small business would make the change 
immediately with its ``first dollars'' instead of putting them toward 
litigation, where too often they are never made once a settlement is 
paid.
    I personally visited, photographed and documented 100 properties in 
4 cities which had been sued in ADA/accessibility lawsuits at least 5 
years earlier, so the time for appeals and reconsideration would have 
passed long before. 98 of those properties had significant conditions 
which would immediately support a new ADA/lawsuit, and at many, no 
changes whatsoever had been made. H.R. 3356 would have had changes made 
at every one of those properties within weeks. After 20 years of 
lawsuits and only a fraction of the progress we owe our citizens with 
disabilities, it's time to adopt a system which would guarantee 
immediate changes and stop the inappropriate use of these noble laws 
for improper purposes. I respectfully urge your strong support and 
swift passage of H.R. 3356.
                               __________

    Mr. Franks. Thank you, sir. Thank you very much.
    I will now begin by recognizing myself for 5 minutes for 
questions.
    And, Ms. Ky, I will begin with you, if I could. Mr. 
Lungren's bill requires a plaintiff to give a business owner 
notice of an alleged ADA violation and the opportunity to fix 
that violation before a lawsuit may be filed. So I ask you the 
rather obvious, but I think critical, question since you are 
uniquely credible to answer. Do you believe that it is fair to 
the disabled to require notice and an opportunity to fix a 
violation before a lawsuit can be filed?
    Ms. Ky. Yes, I do. The reason is that many of this is not 
updated. For example, in this building, if I go around, this 
building is not compliant with ADA, and the law is written by 
you guys. So how can you expect the general population to be 
aware what is being written if it is not being publicized? For 
example, using a speed limit, it is posted every, what, half a 
mile? Say, speed limit 45. If you go over it, you get a ticket. 
You choose to go over it. But we did not choose not to comply.
    So minor violations, 30 days, perfect. If I need Braille 
stickers, 60 inches above from the ground, I will go to the 
store to get it. But if the concrete needs to be removed and 
redo it because it is 3.8 percent because it is not 2.8 
percent, we have to find construction. We have to find people 
that know how to do concrete. And that gave me 120 days to do 
that.
    It is only fair. It is for the community. It is for 
everybody. You cannot just give me a sue packet and say, you 
sue. What did we do? Well, because you are not complying. Well, 
I did not know the law changed every 5 years or every 3 years. 
Was it announced? Was it publicized? Is it 3 strikes, you are 
out? No.
    So we need some notice whether from the lawyer, from the 
plaintiff, from somebody. Give me the list.
    Mr. Franks. Well, thank you. I am just curious, did I hear 
you say that this building or where you are sitting now is not 
ADA compliant as we have written it?
    Ms. Ky. I am sorry, say that again?
    Mr. Franks. Maybe I misunderstood. Did you say that the 
building that we are in now or that the table that you are at 
is not ADA compliant as you understand it?
    Ms. Ky. Yeah, your table here, I do not see a disabled 
symbol because, you know, on the list that we were cited for, I 
believe in the ADA regs or policy is that a business owner 
needs to put a universal word symbol on their table to signify 
saying, oh, this section is for you, and you only sit in here.
    So as you can see, I am looking around, I do not see that 
in here. This is a public place, so why is it not in your 
building?
    Mr. Franks. Thank you. I hope somebody gives us notice on 
that.
    Ms. Ky. Yeah, that would be great. May I go around how 
accessible you are?
    Mr. Franks. All right. Thank you. Thank you, Ms. Ky.
    Mr. Peters, I would like to ask you, the ACCESS Act would 
require a plaintiff to send the owner or operator of a public 
accommodation notice of an alleged ADA violation before the 
plaintiff may file a lawsuit. I keep repeating the obvious, but 
it is important to understand really the simplicity, if I am 
getting it right here. The owner/operator then has up to 120 
days to make necessary repairs.
    Given your experience with ADA lawsuits, is this 120-day 
time period a significant delay for plaintiffs? Do ADA lawsuits 
usually get resolved more quickly than 120 days under current 
law?
    Mr. Peters. A hundred and twenty days----
    Mr. Franks. Make sure your microphone is on, sir.
    Mr. Peters. Yes, I think it is.
    Mr. Franks. All right.
    Mr. Peters. I did a study of 100 properties that had been 
sued in ADA lawsuits in Federal court as far as 5 years back, 
so that the time for appeals or permits, et cetera, should all 
have been behind by then. Ninety-eight of those properties 
still had conditions which would support a lawsuit only, and at 
many of them no changes whatsoever had been made. And only 2 
could I say I really did not see things that would lead to 
another claim.
    And so you asked about 120 days. That would be a dream come 
true for many members of my family, and many clients and 
plaintiffs that I have met that tell me that they have asked 
for months, if not years, for changes to be made, and the 
changes are never made. With this bill, if you do not agree to 
make the change and quickly make the change, you are going to 
have one angry Federal judge on your case. And that is the last 
thing any of these small businesses can afford.
    Mr. Franks. Well, opponents of the bill also argue that if 
a plaintiff has to provide notification of alleged ADA 
violation before they can file a suit, then business owners 
will have no incentive to make their buildings accessible until 
they receive notice. Based on your experience, do you believe 
that that argument has merit?
    Mr. Peters. No, not at all. There are a variety of States 
laws in which a business can still be sued. Actions can still 
be brought by the attorneys general, State or Federal. Frankly, 
the ADA is still the law. This does not change that. It is what 
needs to be done. There are massive tax credits for making ADA 
changes, and many businesses will obey the law because it is 
the law.
    The overwhelming majority of defendants who have contacted 
me simply did not understand that it was required. Sadly, they 
got bad information from their building departments or their 
city officials. But the minute they understood that it applied 
to them, they gladly made the changes.
    Mr. Franks. Thank you, Mr. Peters. Thank all of you.
    Mr. Nadler, I recognize you for 5 minutes for questioning, 
sir.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Levy, if lawyers sometimes send demand letters before 
suing, what is the harm in making that a statutory requirement 
for everyone?
    Mr. Levy. There are cases in which the lawyer representing 
a particular client may choose to do so for any number of 
reasons. The problem with making it a statutory requirement is 
that it creates an exemption from the law to anyone who has not 
gotten such a letter, regardless of how long the violation has 
occurred. The clock does not start at all until they get the 
letter.
    Mr. Nadler. Okay. So, in fact, that is no incentive to 
comply with the law until you get the letter.
    Mr. Levy. No incentive at all. You are not going to have to 
pay damages because Title III does not provide for damages. So 
it does not matter how long the violation----
    Mr. Nadler. Well, let me ask you a question that I asked 
our colleague, Mr. Lungren. Let us assume that statute provided 
that you cannot be sued until receipt of the letter, but also 
provided for damages. Would that be reasonable?
    Mr. Levy. I think that would be a good starting point, 
Congressman. I think that if you had a law that provided for 
damages, it changes the dynamic, and no longer notification--
just like administrative exhaustion in Title I no longer 
provides for an exemption because damages will be running for 
violation if there are violations.
    Mr. Nadler. So if the proposal said you are responsible for 
violations as you are now. You are supposed to comply with the 
law. But you cannot be sued until you get a demand letter, but 
once you get a demand letter, or whatever you call this letter, 
you can be sued for violations going back.
    Mr. Levy. I think that would be----
    Mr. Nadler. You can get damages rather for violations.
    Mr. Levy. That would be a much better bill than the one 
that is proposed.
    Mr. Nadler. It would be better than the current law?
    Mr. Levy. This one solves a problem that basically does not 
exist in my experience.
    Mr. Nadler. Would such a bill be better than the current 
law?
    Mr. Levy. The current bill.
    Mr. Nadler. No, no. What I just suggested.
    Mr. Levy. I think that the availability of damages in Title 
III would be much better than the existing status quo. How that 
would be structured in terms of notification or exhaustion, 
clearly that is a much more even way to begin the discussion 
than the existing bill.
    Mr. Nadler. Thank you. Mr. Levy again, the bill requires 
notice that is ``specific enough,'' for a defendant to remedy 
the problem. What do you take this to mean, and might this 
simply foster litigation over whether a letter was ``specific 
enough?''
    Mr. Levy. You already have someone who goes and hires Mr. 
Peters and brings this letter to him. If he is a capable 
defense lawyer, as I know he is, the first thing he is going to 
do is quarrel with the specificity in the notice. He is going 
to say the notice is not specific enough. Here are all the 
things it does not tell us. Here are all the things we need to 
know. It creates issues. Issues are the mother's milk of 
lawyers in terms of billing time. It is going to make 
enforcement of this law all the more----
    Mr. Nadler. So this is a trial lawyer's bill?
    Mr. Levy. For the defense it is because they get paid 
whether they win or lose.
    Mr. Nadler. So this would be a measure to foster more 
litigation. Mr. Peters----
    Mr. Levy. Would have that----
    Mr. Nadler. What is your reaction to that? Would, in fact, 
a requirement of a letter ``specific enough'' lead to 
litigation over what is ``specific enough?''
    Mr. Peters. Well, for us to take a case, first of all, we 
require that the client be willing to make all required changes 
within 30 days. And, in fact, if it can be done in 10 days, it 
needs to be.
    Mr. Nadler. No--yeah.
    Mr. Peters. I am getting to your answer.
    Mr. Nadler. Okay.
    Mr. Peters. Since Mr. Levy referred to our office, if a 
letter like that comes into our office, we are going to require 
the client to be making all the changes immediately. If the 
letter is not ``specific enough,'' we can get an investigator 
to go--I usually visit the property and meet the client and 
talk about the changes that----
    Mr. Nadler. But do you think there would be more litigation 
over whether it is specific enough? You say it was not. Someone 
would say it was.
    Mr. Peters. I really do not. I must tell you, though, I 
have seen a small number of letters, a very small number, where 
someone said I had difficulty in your parking area.
    Mr. Nadler. Okay. Mr. Levy, since I am running out of time, 
my last question. There are reported claims of businesses 
routinely having to shut down because of ADA. If the required 
changes for existing structures under the ADA only need be made 
``readily achievable,'' why is this happening, or this, in 
fact, happening?
    Mr. Levy. It is not happening in my experience. I hear 
these anecdotes. They are not consistent with any universe in 
which I live or I practice. In fact, much more common is all 
you need to do is drive down the street and look at the number 
of storefronts with a couple of steps into them that, 20 years 
after the ADA has been the law, no one has bothered to install 
a ramp.
    They do not need notification. What we need are stronger 
enforcement provisions so people will be worried enough about 
complying with the law that they, in fact, go and do so.
    Mr. Nadler. Thank you.
    Mr. Franks. Thank you, Mr. Nadler. And, let us see. I guess 
we go to Mr. Scott here. I keep looking for Mr. Quigley here. I 
am not forgetting your name, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Franks. Yes, sir.
    Mr. Scott. Mr. Levy, you suggested that if this bill goes 
into effect, there would be no incentive for any business to 
get into compliance with the ADA until such time as they have 
statutory notice of a specific violation. Is that right?
    Mr. Levy. Yes, sir.
    Mr. Scott. Now what kind of voluntary compliance has 
occurred since 1990?
    Mr. Levy. Well, everyone who has looked at this has 
recognized that the ADA is a notoriously under enforced and un-
complied with law. I mean, I am from Baltimore. We could take a 
walk 2 blocks from my office, see the number of stores that 
still had steps to get into them. And these are not, you know, 
flights of stairs. These are a small number of steps that could 
easily be ramped.
    And it is the case that not only has there not been 
voluntary compliance up to now, there has been widespread just 
ignoring of the requirements of the law that is on the books. 
If we put further obstacles in the way of plaintiffs seeking to 
enforce this law, it is not complicated. There is going to be 
less compliance. There is going to be less accessibility. You 
know, it is a simple game, as they say.
    Mr. Scott. Mr. Peters, did I understand you to say that you 
could be in compliance with building codes and still be in 
violation with the ADA?
    Mr. Peters. Absolutely. In fact, there are a number of 
direct contradictions. Speaking only for California, which is 
where I am from, there are about 2,400 points between the ADA 
and the California Building Code. And with some you do ADA, 
with some you do California. It is really hard for a small 
business owner to know.
    And there are at least 7 points where they directly 
conflict. We get 3 experts in a room, and they cannot even 
agree on what needs to be done at a particular business.
    Mr. Scott. Well, would it make sense to work with the 
building code and the ADA rather than inflict this kind of bill 
on the public that would discourage anyone from coming into 
voluntary compliance?
    Mr. Peters. That is what has been happening. There is an 
effort to reconcile the building codes with ADA standards. It 
has been going on for, I think, way over a decade. And the 
progress is commendable, but it is the uncertainty that often 
drives these cases.
    Mr. Scott. Thank you. I have no further questions. Mr. 
Chairman, parliamentary inquiry.
    Mr. Franks. Sir.
    Mr. Scott. Mr. Lungren is a Member of the Committee. If I 
yielded time to him, would he be able to ask questions?
    Mr. Franks. I am afraid, Mr. Scott, the rules do not allow 
the august Mr. Lungren the opportunity to speak or ask 
questions from the dais.
    Mr. Nadler. Mr. Chairman.
    Mr. Franks. And I am going to ahead, given the past 
enforcement of that rule, we are going to enforce that.
    Mr. Nadler. I would ask unanimous consent that he be 
permitted, if he is still here.
    Mr. Franks. And with loving deference my friend, and he 
understands why I would object. However, I will take the 
Chairman's prerogative to say that I think he has done a 
wonderful thing here today. [Laughter.]
    And that this is a very good bill, and I hope that it 
succeeds.
    And I thank all the witnesses for being here today.
    Without objection, all of the Members will have 5 
legislative days to submit to the Chair additional written 
questions for the witnesses, which we will forward and ask the 
witnesses to respond as promptly as they can so that their 
answers may be made part of the record.
    Without objection, all Members will have 5 legislative days 
within which to submit any additional materials for inclusion 
in the record.
    And with that, again, I thank the witnesses, and I thank 
the Members and observers. Thank all of you for being here. And 
this hearing is adjourned.
    [Whereupon, at 2:56 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

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               Material Submitted for the Hearing Record

 Material submitted by the Honorable Trent Franks, a Representative in 
 Congress from the State of Arizona, and Chairman, Subcommittee on the 
                              Constitution









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Material submitted by the Honorable Daniel E. Lungren, a Representative 
in Congress from the State of California, and Member, Committee on the 
                               Judiciary







                                

Material submitted by the Honorable Jerrold Nadler, a Representative in 
 Congress from the State of New York, and Ranking Member, Subcommittee 
                          on the Constitution

        Policy Statement of the National Council on Disability 
                    Regarding the ACCESS Act of 2011

    The National Council on Disability (NCD) is an independent federal 
agency that makes recommendations to the President and Congress on 
disability policy. In this role, NCD is responsible for advising on the 
implementation, impact and effectiveness of the Americans with 
Disabilities Act. NCD first proposed the concept of the ADA in 1986 
during the Reagan Administration, and in 1990 it was signed into law by 
President George H.W. Bush. Congress relied on and acknowledged the 
influence of NCD, its reports, and its testimony throughout the 
legislative process. Since passage of the ADA, NCD has remained 
actively involved in monitoring its impact and advising federal 
entities on policy issues.
    NCD is deeply concerned about the proposed ADA Access Act of 2011. 
The Act proposes to amend the ADA to require that an individual 
alleging a business is inaccessible provide written notice to the 
business about the specific ADA violation before bringing suit.
    Title III of the ADA was intended to balance the interests of small 
businesses along with the accessibility concerns of people with 
disabilities. It is a myth that the ADA's requirements are too hard on 
small businesses. The legislative history of the ADA is rife with 
concern about the burden on small businesses and as a result, Title III 
does not require any action with respect to existing buildings that 
would cause an undue burden or that is not readily achievable. The 
approach of the ADA was not to exempt small businesses from the 
requirements of the bill, but rather to tailor the requirements of the 
Act to take into account the needs and resources of small businesses- 
to require what is reasonable and not to impose obligations that are 
unrealistic or debilitating to businesses. Each of the major sections 
and requirements of the ADA takes into account the fact that some 
businesses are very small local enterprises that may have very limited 
resources. The following are some of the ways in which the provisions 
of the ADA provide great deference for the characteristics and needs of 
small businesses:

      the exemption for small employers;

      the undue hardship limitation;

      the readily achievable limit on barrier removal in 
existing public accommodations;

      the undue burden limitation regarding auxiliary aids and 
services; and

      the elevator exception for small buildings, among others.

    NCD addresses this in its policy brief series, Righting the ADA, 
found at http://www.ncd.gov/publications/2003/Feb202003.
    In addition, businesses have had almost a quarter of a century to 
comply with the provisions of Title III. DOJ has published and 
distributed multiple technical assistance documents- all of which are 
available 24 hours a day through DOJ's home page on the Internet. The 
National Institute on Disability and Rehabilitation Research 
established regional centers on the ADA, the Disability and Business 
Technical Assistance Centers (DBTACs), to provide technical assistance 
to businesses. Clearly, businesses have been put on notice of this 22-
year-old landmark law.
    An amendment to the ADA such as the proposed ADA Access Act of 
2011, is superfluous. While at first impression the proposed 
amendment's notice requirement does not appear to be an imposing burden 
for an aggrieved individual to correct an ADA violation, this provision 
will have the drastic effect of creating a nationwide exemption to the 
ADA. It encourages businesses to do nothing until they get a letter of 
notification- no other civil rights law has a notice provision like 
this.
    NCD recommends that Congress follow its own careful considerations 
when enacting the ADA--and not pass this unnecessary amendment.

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      Prepared Statement of the National Disability Rights Network

    The National Disability Rights Network (NDRN) would like to thank 
Representative Franks, Representative Nadler, and the House 
Subcommittee on the Constitution for the opportunity to submit 
testimony on the important issue of accessibility for people with 
disabilities. NDRN is a nonprofit membership organization for the 
federally mandated Protection and Advocacy (P&A) and Client Assistance 
Program (CAP) systems, created by Congress in the 1970's to protect the 
rights of children and adults with disabilities and their families. 
With a presence in every state and U.S. territory and the District of 
Colombia, the P&A/CAP network is the largest provider of legal services 
for people with disabilities in the United States. The P&As and CAPs 
offer an advocacy and legal voice to individuals with disabilities by 
uncovering and eliminating maltreatment and ensuring compliance with 
laws designed to protect the rights of individuals with disabilities, 
including the Americans with Disabilities Act.
    We need to start with the recognition that even though the 
Americans with Disabilities Act was signed into law almost twenty-two 
years ago, people with disabilities still face barriers to many places 
of public accommodation. Although NDRN appreciates the interest in 
ensuring that places of public accommodation have an incentive to 
comply with the provisions of the ADA, we are opposed to the ``ACCESS'' 
Act because it would limit the ability of people with disabilities to 
efficiently obtain remedy to ADA violations.
    The ACCESS Act would force people with disabilities to wait between 
sixty (60) and one hundred eighty (180) days to pursue legal action 
based on a violation of the ADA. This would delay the ability of people 
with disabilities to gain critical access to public accommodations 
ranging from restaurants to retail stores and lawyers', accountants' 
and doctors' offices. People with disabilities have had to wait decades 
to obtain access to these places, and no other civil rights law allows 
people to remain in non-compliance for so long.
    While NDRN understands the concerns behind the desire to pass the 
ACCESS Act, behind the lawsuits filed under the ADA are legitimate 
concerns regarding lack of accessibility. The solution to the perceived 
problem that is the topic of today's hearing is not to prevent 
legitimate lawsuits from moving forward and the rights of people with 
disabilities from being promptly addressed.
    Federal law and the Federal court system already have numerous 
protections in place to prevent attorneys from filing frivolous 
lawsuits, and often impose sanctions against attorneys who file these 
lawsuits. Rule 11 of the Federal Rules of Civil Procedure requires 
attorneys to certify that a pleading is not being filed for an improper 
purpose and is supported by the law and facts. If an attorney violates 
this rule, they may be subject to monetary or other sanctions. Although 
courts will award attorneys' fees under Title III of the Americans with 
Disabilities Act, these fees will not go to a party that does not 
prevail, and when an attorney does win attorneys' fees, courts examine 
closely the amount of time that an attorney spent on a case and only 
award a reasonable amount of attorneys' fees based on the effort an 
attorney put into the case. Some courts have even limited repeat 
``frequent flyers'' by requiring them to get the court's leave before 
filing a lawsuit in certain courts. In especially egregious cases, like 
when an attorney requests monetary payment in exchange for not filing a 
lawsuit, an aggrieved party can file a complaint with the State Bar 
Association.
    Most importantly, there is little that an amendment to the Federal 
ADA would do to remedy the issues raised today. There are currently no 
monetary damages available under Title III of the ADA, and only some 
state statutes provide monetary damages for plaintiffs in accessibility 
suits, but that is only under STATE law. To the extent that plaintiffs' 
attorneys file perceived frivolous lawsuits to gain monetary damages 
through civil damage settlements, amending the federal ADA statute 
would change nothing.
    Current practice is already tilted toward the business community 
since many people with disabilities are on a limited income, and an 
award of attorneys' fees is never certain. So plaintiffs' attorneys 
tend to only work on cases where the plaintiff will likely prevail, 
which limits access to attorneys for people with disabilities.
    Again, thank you for the opportunity to submit testimony today. For 
the reasons stated above, we oppose the ACCESS Act because it would 
require people with disabilities to wait even longer than they already 
have to obtain equal access to public accommodations.
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