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The 3 bills that are the subject of today’s hearing would institute a “notice and cure” requirement under Title III of the Americans with Disabilities Act of 1990.  Specifically, these measures would prohibit a lawsuit from being commenced unless the plaintiff first gave the business owner “specific” notice of an alleged violation and an opportunity to fix or make “substantial” progress toward remedying such violation. 

Let me begin by stating again what I stated previously when similar proposals were considered by our Committee.

I am adamantly opposed to any effort to weaken the ability of individuals to enforce their rights under Title III’s  public accommodations provisions.

And, here are just some of the reasons for my opposition to these initiatives.

First, the “notice and cure” requirement will generate numerous litigation traps for the unwary and, ultimately, dissuade many individuals from pursuing their legitimate claims.

For example, 2 of these bills would require a complainant provide “specific” notice of the alleged violation before he or she may file suit, but fail to define what constitutes specific notice.

Nor do they define what is “substantial” progress towards compliance.

As a result, courts will have to struggle to determine what these inherently vague terms mean, thereby creating an open invitation for well-financed business interests to engage in endless litigation that would drain the typically limited resources of a plaintiff.

In addition, these measures would undermine a key enforcement mechanism of the Americans with Disabilities Act and other civil rights laws.

The credible threat of a lawsuit is a powerful inducement to businesses to proactively take care to comply with the Act’s requirements.

Yet, a pre-suit notification requirement would create a disincentive to engage in voluntary compliance as many businesses would simply wait until receiving a demand letter before complying with the law.

This requirement also would discourage attorneys from representing individuals with claims under Title III because attorney fees may only be recovered if litigation ensues.

Thus, an individual with a Title III claim would not be entitled to recover such fees if the extent of the attorney’s representation was limited to drafting the demand letter.

Pre-suit notification would make it even more difficult for disabled persons with valid Title III claims to obtain legal representation to enforce compliance with the Act.