November 08, 2017

NAFCU presses Senate Judiciary to curb frivolous ADA lawsuits

The Senate Judiciary Committee took a deep dive into the impact of lawsuit abuse on America's small businesses during a hearing Wednesday – specifically mentioning frivolous lawsuits filed under the Americans with Disability Act (ADA). Ahead of the hearing, NAFCU informed the committee how these ADA lawsuits are impacting credit unions and asked that it further examine the issue.

In his opening statement, committee Chairman Chuck Grassley, R-Iowa, used an example of a "drive by" ADA lawsuit as frivolous. Sen. Jeff Flake, R-Ariz., also made a large example out of the frivolousness of highly technical ADA lawsuits during the hearing.

NAFCU Vice President of Legislative Affairs Brad Thaler, in a letter Wednesday, asked that leaders of the committee take steps to curb the rise in frivolous lawsuits that are occurring under the ADA, specifically in regards to unclear website access requirements.

"A number of lawsuits and dozens of demand letters have been received by credit unions over accessibility of their websites," Thaler wrote Grassley and Ranking Member Dianne Feinstein, D-Calif.

Thaler explained that credit unions want to ensure their members can access the services they need, "however abusive frivolous lawsuits can have a chilling effect forcing an institution to cut services due to litigation risk."

National Federation of Independent Business Senior Executive Counsel Elizabeth Milito, a witness in Wednesday's hearing, testified that ADA lawsuits are one of the largest instances of frivolous lawsuits faced by small businesses. Skadden, Arps, Slate, Meagher & Flom LLP Partner John Beisner, who testified on behalf of the U.S. Chamber of Commerce Institute for Legal Reform, said that ADA lawsuits are often about a quick payout and not even about actually correcting the violation.

NAFCU has been incredibly active on ADA, urging members of Congress to take legislative action. A NAFCU-supported bill – the ADA Education and Reform Act of 2017 (H.R. 620) – would set conditions for filing civil actions over the failure to remove an architectural barrier to an existing public place, among other things. The bill cleared the House Judiciary Committee in September. NAFCU is actively working to expand the bill's protections to also cover website lawsuits. The association also sent a letter to the committee last month urging members to support additional legislation to clarify website access requirements under the ADA in order to curb frivolous lawsuits.

The association is also monitoring the Department of Justice's approach to the ADA – NAFCU commented on its rulemaking efforts related to "public accommodations" last year.

In addition, NAFCU has been offering several different resources to our members on this issue, including webcasts, guidance and counsel from in-house compliance and legal experts, as well as monthly publications to help member credit unions identify the risks involved so they can make informed business decisions.

NAFCU Executive Vice President of Government Affairs and General Counsel Carrie Hunt and Vice President of Regulatory Compliance Brandy Bruyere have reached out to credit unions facing litigation to offer guidance and solutions. Bruyere also covered the issue in the association's compliance publication earlier this year; the article is available on NAFCU's website.