By Mark Hillman, from the Denver Post
A bill now under consideration in the Colorado Senate threatens an explosion of drive-by disability lawsuits in Colorado courts.
House Bill 25-1239 was originally presented as a re-organization of the Colorado Anti-Discrimination Act (CADA), but the bill doesn’t merely modify or update remedies. Instead, it creates, through legislative fiat, new “damages” that do not otherwise exist.
For example, the bill (introduced by Reps. Yara Zokaie and Andrew Boesenecker, both D-Fort Collins) entitles a plaintiff with a successful CADA claim to collect $50,000 in damages for pain and suffering, inconvenience or emotional stress.
That’s just the tip of the iceberg. To further fuel litigation, the bill allows a fine of $5,000 per plaintiff for each violation.
These are damages paid by a local business, usually for a simple oversight.
Colorado has a history of laptop plaintiffs – some from out-of-state – who file drive-by lawsuits against our local businesses. Court records often show that these plaintiffs never even visited the businesses they’re suing. Worse still, they file lawsuits by the dozen.
The Denver Post previously criticized “those exploiting this important law for personal gain” and called drive-by lawsuits “predatory.” If HB 1239 becomes law, many lawsuits, once filed under federal law, will now shift to state courts because damage provisions are more lucrative.
Two years ago, several small-business owners testified to a legislative committee that ADA plaintiffs’ lawyers had filed spurious complaints, alleging what appeared to be a random list of violations in an attempt to frighten and intimidate them. In these cases, plaintiffs’ lawyer offered to make their complaints go away for $15,000 with little concern about whether the alleged ADA violations were corrected or not.
One of those businesses, a Conifer restaurant, closed as a result, putting all its employees out of a job.
If HB 1239 becomes law, the price of settling these dubious lawsuits won’t be $15,000. Instead, add $50,000 for “inconvenience” and “emotional stress.” Then instead of one plaintiff, a group of plaintiffs, each claiming $5,000 per violation, can sue together. Six plaintiffs, each alleging five violations at $5,000 apiece, could claim $150,000 in additional fines.
Earlier this year, Chief Justice Monica Marquez asked the legislature for 28 new judgeships, citing the courts’ increased workload which she politely attributed, at least in part, to bills passed by the legislature in recent years.
No wonder!
Originally, this bill expanded the period to first bring complaints to the Colorado Civil Rights Division from 60 days to one year. Legislative analysts said that would cost the state up to $2.2 million a year. Amazingly, those same analysts ignore the cost of diverting dozens of cases from federal courts into our state court system and creating juicy financial incentives for lawsuits to multiply.
For anyone who scoffs at complaints about frivolous lawsuits, CCRD’s most recent annual report shows that out of 125 public accommodation complaints in 2022-23, only nine were found to show probable cause for further action.
Many business owners and managers believe that when they receive a certificate of occupancy, that means their facility complies with local zoning ordinances and other relevant codes as well. To their credit, legislators passed HB 1030 (sponsored by Reps. Junie Joseph, D-Boulder, and Rebekah Stewart, D-Arvada) to require local governments to conform their building codes to accessibility standards.
Often, the first time business owners learn of an accessibility problem is when they are notified of a lawsuit. That’s just crazy. Someone with a legitimate grievance can surely put themselves in the business owner’s shoes long enough to recognize a much more productive strategy is to first advise the owner of the problem without filing a lawsuit.
Admittedly, a polite letter or phone call won’t always bring about action, but when it does, disability advocates have created a cooperative relationship to the benefit of everyone involved.
Bill sponsors will claim to be giving business a break because the bill purports to give a 50% reduction in damages to a business that makes a good-faith effort to resolve the problem. But that language in the bill is a garbled mess that appears to apply only to $50,000 in newly-created non-economic damages and is contradicted elsewhere in the bill.
In the last decade, the cost of litigation to Colorado consumers has become one of the worst in the nation, according to the U.S. Chamber of Commerce. House Bill 1239 and others like it, all relentlessly based on a “lawsuit first” mentality, will only make matters worse.
Mark Hillman is executive director of Colorado Civil Justice League.