May 18, 2000

Mr. Chairman, and members of the Subcommittee:

Thank you for giving me the opportunity to testify on HR 3590, the ADA Notification Act.

My name is Andrew D. Levy. I am a practicing trial lawyer based in Baltimore, Maryland. For nearly twenty years I have represented a wide range of individuals and businesses – large and small, plaintiffs and defendants – in a variety of matters. Because I myself use a wheelchair as a result of a central nervous system infection I developed during my first semester of law school, ADA litigation has been an important part of my practice since the passage of the Act ten years ago.

I am here to tell you that the proposed amendment will make enforcement of the ADA cumbersome, much more expensive, and from a practical standpoint, frequently impossible. 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 with the law’s requirement that places of public accommodation be accessible to all. The proposed amendment will give the overwhelming advantage to those who would choose to violate the law, and in most cases will allow them to violate the law with impunity. Mr. Eastwood’s screen alter egos would never have tolerated such an outrageous situation, and this Congress shouldn’t either.

To understand why this seemingly modest notification provision would do such harm one needs to understand a very unusual aspect of Title III of the ADA: virtually alone among federal statutes, the law currently provides no damages for its violation. With respect to public accommodations there is only one true incentive built in to the law: the desire not to get sued and having to pay attorney’s fees. If the proposed amendment becomes law, however, people will not have to even consider complying with the law until (and unless) they get a letter. Since there is no risk that they will have to pay damages as a result of not complying, the effect of prohibiting lawsuits unless they get 90 days notice is to allow – indeed, encourage – them to do nothing until they get a letter. Thus, the proposed amendment effectively creates a blanket, nationwide exemption to the ADA.

Consider the practical consequences of adding a notice requirement to two statutes, one with a provision for damages, and one without. A statute providing for damages theoretically allows a person to wait to comply until he gets notice – but he would do so at his own risk, for if he is eventually sued, he faces the prospect of paying damages for his entire period of noncompliance (these laws typically provide that damages begin to accrue at the time the violation occurs). In effect, he would be sitting there asking himself, in those words Clint Eastwood made so famous: "Do I feel lucky?" In a statute that requires violators to pay damages a rational actor does not wait until he gets notice before investigating what the law requires, and complying with it.

On the other hand, if this amendment is passed, the combination of notice and no damages would cause a rational actor to act in precisely the opposite way. Since there are no damages for a violation, and he can’t be sued until he gets notice, the rational actor needn’t bother to ascertain the requirements of the ADA until he gets a letter. Once he gets a letter – if he gets one – he can comply without risking any sanction for all of the time he waited to comply. A law without sanctions for its violations is no law at all.

There is another important consideration, and it relates to the enforcement mechanism Congress built in to the ADA. Congress recognized that the federal government does not have the resources to enforce the civil rights laws entirely on its own. While the Department of Justice plays an important role, the ADA, like other civil rights statutes, relies primarily on private individuals for its enforcement. Congress created incentives for private individuals – acting as "private attorneys general" – to enforce the law. Usually these incentives take two forms: damages – both compensatory and punitive – that a wronged individual can obtain for the violation of his statutory rights, and the payment of the plaintiff’s attorneys fees if he is successful. In the case of Title III, however, Congress chose not to allow damages to private parties for violations.

Although Congress did not provide for damages, it understood that if it was going to rely on private parties to enforce the ADA, it had to have some provision encouraging the private bar to take the cases. As a result, Congress provided that a successful plaintiff could ask the Court to order the defendant to pay him a reasonable attorney’s fee.

Keep in mind, that there are important limitations on payment of attorney’s fees. First, plaintiffs’ attorneys are only entitled to be paid if they win. Thus, there is no incentive for bringing frivolous lawsuits, because if you do, you’re going to end up having worked for free. And, federal court rules provide that the defendant can recover its own attorney’s fees if the plaintiff’s lawsuit was frivolous or brought in bad faith.

Second, even if you win, you are only entitled to a fee that the judge finds is "reasonable" – usually calculated by the lawyer’s normal hourly rate (that is, the rate that his private clients in non civil rights cases pay) – multiplied by the number of hours the judge finds the case reasonably should have taken to litigate.

It’s not a complicated arrangement nor is it a system calculated to make anyone rich. It’s just basic economics. The greater the incentive, the greater the participation. Lawyers who bring ADA cases already assume the risk that they will lose and be paid nothing, with their only upside being that they simply get their normal hourly rate if they win. By making it even more difficult to get paid for enforcing the ADA, the amendment builds into the statute more disincentives to enforcement, resulting in less compliance and accessibility. If Congress further reduces those incentives that do exist, the result will inevitably be less enforcement of the ADA. Just as cutting a horse’s hay with straw eventually kills the horse, continuing to water down the incentives for enforcing the ADA will eventually kill the ADA.

There is a premise underlying this bill that I do not understand. It is the idea that people need a special invitation to comply with a law passed by Congress and signed by the President – in this case, a Republican President. July will be ten years since the ADA was passed. Anyone who truly cares about accessibility has had ample opportunity to find out what the law requires and to conform their conduct to the law. The State of Maryland is not required to send me a letter informing me that I am speeding before its stops my car. There is no reason that someone who is violating the ADA should need notice either. Not only is ignorance of law no excuse, but in the case of the ADA there is no excuse for being ignorant of the law. Who by now has not heard of the ADA?

As with any law, there may be occasional ambiguities, but most of the violations I see are not ambiguous. It is as clear as can be that places with steps to get in, and bathrooms too narrow for a wheelchair to pass are not accessible. You shouldn’t need a letter informing you of the obvious.

Also, there is an abundance of free technical assistance available to the public on how to comply with Title III’s requirements. The ADA itself expressly requires the Department of Justice, in consultation with other agencies, to assist small and large businesses alike in understanding Title III’s requirements. The Department of Justice has developed a large number of publications on Title III’s requirements, including a compliance manual, and it maintains a telephone information line to respond to public inquiries and operates a web site with a full complement of technical assistance materials. If there is a lack of understanding within the business community about the ADA’s requirements, which is leading to non-compliance, the answer is to beef up the Government’s technical assistance activities – not to diminish the rights of persons with disabilities through this notice requirement.

I am also genuinely confused as to how the notice mandated by this bill would have changed Mr. Eastwood’s situation. The assumption seems to be that had he gotten a letter notifying him of the problems he would have quickly and graciously made the changes the plaintiff sought. But, because he got a summons instead, he was forced to spend several years defending the case, incurring hundreds of thousands of dollars of attorney’s fees. That’s nonsense. Nothing stopped Mr. Eastwood from building a ramp or widening his bathroom doors at anytime during the lawsuit, including the day he got served with the complaint. Had he done so, plaintiff’s fees would have been in the hundreds of dollars, rather than the hundreds of thousands. Are we to seriously believe that had he rece1ived a letter instead of a summons he would have voluntarily complied immediately? That seems quite unlikely given the manner in which he defended the lawsuit.

The fees could only have grown to the size they did because of his refusal to comply with the law voluntarily and the scorched earth manner in which his lawyer conducted the defense. I’ve been trying cases for a long time, and I can’t ever recall amassing a bill the size that Mr. Eastwood is complaining about in a relatively simple ADA case. That Mr. Eastwood’s opponent did so suggests that Mr. Eastwood vigorously contested his obligation to comply with the ADA. Indeed, I understand that Mr. Eastwood’s counsel may have engaged in a great deal of pre-trial maneuvering, and that opportunities to settle the case at an early stage were ignored. This was certainly their right. But defending a case in that manner has consequences, and one of them is that if you lose you end up with a big bill. That is a function of Mr. Eastwood’s conduct, not some flaw in the ADA.

Particularly disappointing is the claim that this amendment is intended to help small businesses. The fact is, the ADA already has several provisions that protect small businesses from unreasonable requirements. Title III, for example does not require any action with respect to existing buildings in that would cause an "undue burden" or that is not "readily achievable."

It is also the case that the proposed notice requirement would have a particularly onerous impact where the violations pose a threat to one’s health or deny access to critical services. Persons with disabilities must be able to invoke the jurisdiction of the courts to ensure their access to doctors’ offices, hospitals and other medical services, and in some cases, requiring a 90-day waiting period may place their health in jeopardy. Likewise, individuals with disabilities should not be required to wait 90 days before resorting to the enforcement power of the courts to ensure access to critical educational or financial services (e.g., insurance and mortgage services). Indeed, this bill would effectively rob individuals of their right to seek a preliminary injunction (which the courts will grant when there is the risk of irreparable harm if the court does not act promptly). Depending on the type of violation involved, moreover, and the specific circumstances of the aggrieved party, many lawyers routinely provide notice in an effort to settle Title III actions voluntarily. In many cases, however (such as where there is a need for prompt injunctive relief), there is a need to dispense with longs delays before proceeding to court. This option should not be denied in situations where the attorneys has determined that speed is of the essence.

The specifics of the proposed notice provision are troublesome on a technical level. For example, the bill requires a detailed description of the alleged violation. But a plaintiff often does not know the full extent of the violations until after he files suit, nor could he, since the defendant controls access to the premises. It is the defendant who is in the best position to know the extent of the problem, not the plaintiff.

Take the example of a hotel. If there are steps to get in, all a wheelchair user knows is that he can’t get in. He obviously can’t know anything about other violations (although he might suspect that they exist). Even if he gets in, he will likely only know the specifics of one room – the one he was in. As written, however, the law would prohibit a lawsuit to correct anything but the steps, or that one room. The law thus encourages piecemeal litigation, which wastes everybody’s time, including the judge’s and the defendant’s. Courts have an interest in resolving all related matters at the same time. Once at least one violation exists, a plaintiff ought to be entitled to challenge all violations that he finds exist at the same location.

Similarly, as written, the amendment not only requires ninety-days notice, but it requires the plaintiff to allege that after 90 days the problem has not been corrected, without providing the plaintiff any mechanism for finding this out. The defendant, who is obviously in the best position to know the situation, has no obligation under this law to tell the plaintiff anything. Moreover, the defendant is given the benefit of the doubt under the law, even though as recently as 90 days ago he was in violation of a law that has already been on the books for ten years. Why should such a defendant be given the benefit of the doubt? Why shouldn’t the defendant have the burden of demonstrating compliance. Unless what you’re trying to do is stop people from disabilities from enforcing the ADA?

I do not question the motives of the people who are supporting this amendment. But I am positive that its passage will turn back the clock more than a decade, and continue the historic exclusion of people with disabilities from the mainstream of society.

Thank you.