Op-Ed by: Anthony Phan & Victor Gomez
First, it was the coronavirus that crushed small businesses. Then it was the supply chain disruptions and inflation that drove up the cost of all goods and services. Add in the challenge of finding workers in a state with a very high unemployment rate and you can start to get a taste of what small business owners have had to overcome over the last 2 years. Unfortunately, the only thing business owners can consistently count on these days are legal attacks from trial attorneys, especially ADA lawsuit abuse that has plagued Silicon Valley.
California business owners, large and small, are trying to hang on. Our business community can survive temporary economic challenges, they are resilient. But these challenges are nothing compared to just one potential shakedown lawsuit that could wipe them out entirely– leaving business owners and their employees without a job and without a future. What we need now are resources that business owners can count on. AB 2164 provides exactly that.
Every day, California businesses face abusive, unwarranted lawsuits based on innoxious violations related to the Private Attorney General Act (PAGA) and Americans with Disability Act lawsuits (ADA). Even if you don’t own a business, these abusive lawsuits impact all Californians through lost jobs, weakened productivity, and higher prices.
California is seeing lawsuit abuse inflation with the rise in Americans with Disability Act lawsuits increasing by 22 percent in California, while nationally filings have decreased. In fact, plaintiffs took no time off during the pandemic in looking for ADA violations such as filing suit up to $4,000 per violation for a mirror that is a quarter of an inch too high, toilet too low or the blue striping on a parking lot starting to fade.
A recent report from The Perryman Group shows how an unbalanced justice system results in increased costs, disincentives for innovation, and decreased economic productivity and output. The report calculates job losses of 748,775 due to excessive tort litigation in California. It also highlights how the benefits of tort reform can lead to substantial economic benefits and can help stem the tide of businesses leaving the state.
If AB 2164 is signed into law, small businesses will have the financial resources needed to make those necessary ADA improvements to their stores. This will result in fewer ADA lawsuits, allowing business owners to focus on serving their customers, hiring more employees, and expanding their business customer base.
Please join us in urging California legislators to support AB 2164 and put it on the Governor’s desk for his signature.
Anthony Phan is a Milpitas City Councilmember, and Victor Gomez is Executive Director of Citizens Against Lawsuit Abuse.
While I agree with the authors that AB 2164 deserves our support, I disagree with their logic. The bill’s sponsor, Assemblymember Alex Lee, made the case succinctly: “Helping small businesses become compliant [with ADA rules] is critically important because barriers prevent Californians with disabilities from accessing important goods and services, while depriving our local businesses of much-needed patronage.” https://a25.asmdc.org/press-releases/20220215-assemblymember-lee-introduces-bill-increase-ada-compliance-and-disability
The logic presented in this Op-Ed sounds like it came from some right-wing think tank that cherry-picks data, posits plausible but unrealistic scenarios, and distracts from the real causes leading to problems like those addressed by AB 2164. Phrases like “tort reform”, “lawsuit abuse inflation”, and “businesses leaving the state” are all tip-offs. And the “recent report from The Perryman Group” must be the expensive version rather than the one online that says nothing about “job losses”. https://www.perrymangroup.com/media/uploads/report/perryman-economic-benefits-of-tort-reform-02-01-22.pdf
Scott Johnson, an attorney from Sacramento, has been filing these types of lawsuits for years. He targets older businesses who may not be aware of updates to ADA requirements that likely will settle instead of expensive litigation. Some of these updates are minuscule and don’t prevent disabled people from entering a business. He started filing lawsuits in the Bay Area last year after being charged with tax evasion related to his revenue from these lawsuits in Sacramento. He has able-bodied people working for him that go into businesses to photograph potential violations to get evidence for a lawsuit, even though the law permits lawsuits only against businesses that he has tried to enter himself. This is why legislation such as AB 2164 is needed.
“while federal law doesn’t provide for damages, California state law does….under California’s Unruh Act, civil rights law plaintiffs can also claim up to $4,000 dollars per visit. And they can visit the same business multiple times.” The people that file these suits deliberately target the micro-businesses that are most vulnerable – we lack the funds to fight back and we have the least to gain from actual ADA improvements. We don’t need financial assistance to make a 1/4-inch adjustment to our grab bars – that’s not a reasonable expectation for anyone, wheelchair bound or otherwise. What we truly need is a low-threshold exclusion from the damages clause of the Unruh act so the bad-actors abusing the law can’t go after the most vulnerable at the bottom. That’s all we need. You can still sue us for being out of compliance, but you can’t automatically collect $4,000 every time. We’ll only be worth suing over VALID grievances at that point. CITED: https://www.cbsnews.com/sanfrancisco/news/serial-plaintiff-turns-california-ada-lawsuits-into-lucrative-cottage-industry/