Proposed Colorado law will cause explosion in predatory disability lawsuits (Opinion)

A bill now under consideration in the Colorado Senate threatens an explosion of drive-by disability lawsuits in Colorado courts.

House Bill 1239 was originally presented as a mere 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 damage claims that do not otherwise exist.

For example, the bill (introduced by state representatives Yara Zokaie and Andrew Boesenecker, both Democrats from Fort Collins) allows a plaintiff to bring a lawsuit against a business for a violation of CADA and entitles a successful plaintiff to $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.

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 have never even visited the businesses they’re suing. Worse still, they file lawsuits by the dozen.

The Denver Post editorial board in 2017 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 court because damage provisions are more lucrative.

Two years ago, several small-business owners testified to a legislative committee that Americans with Disabilities Act plaintiffs’ lawyers filed spurious complaints, alleging what appeared to be a random list of violations in an attempt to frighten and intimidate the business owner. In these cases, plaintiffs’ lawyers offered to make their complaints go away for $15,000 with little concern about whether the alleged ADA violations were corrected or not.

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 seeking a $5,000 fine per violation, can sue together. Six plaintiffs alleging five violations at $5,000, each, 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.

Originally, this bill expanded the time that plaintiffs could 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. Miraculously, those same analysts are oblivious to 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, the Colorado Civil Rights Division’s most recent annual report shows that of 1,254 public accommodation complaints in 2022-23, only nine were determined 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 state codes as well, including ADA. To their credit, legislators passed House Bill 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 issue 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 productive relationship to the benefit of everyone involved.

Bill sponsors will claim to be giving businesses 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 only to apply only to $50,000 in 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 the Colorado Civil Justice League (www.ccjl.org).

Sign up for Sound Off to get a weekly roundup of our columns, editorials and more.

To send a letter to the editor about this article, submit online or check out our guidelines for how to submit by email or mail.