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But the business isn’t in compliance, right? The “shakedown” doesn’t work if the building is compliant, right?

by jonathankoren 7y ago

Dylan16807 7y ago
Why 'but'? It's not like any of that money goes toward making the business compliant.
- jonathankoren 7y ago
  Well that's not the point of damages. Compensatory damages are paid the the person that suffered in compensation of the suffering caused. Punitive damages are punishment. Remedial action isn't always ordered (You can always roll the dice on enforcement again, and probably get even worse punitive damages for being a repeat offender.), but remedial action is always separate, and it's not up the court to decide how much you're going to spend on compliance. That's your job.
  - mlyle 7y ago
    The whole point of qui tam and pseudo-qui tam statutes like the ADA (with regimes of minimum damages, recovery of legal fees, etc) -- is to encourage private parties to do enforcement that will compel the desired behavior.
    - jonathankoren 7y ago
      Well I would have thought the pain of having to pay damages would have been enough to encourage remedial action to avoid a similar situation in the future. Especially since the damages would be even higher the second time since it would be flagrant violation.
      - mlyle 7y ago
        In this case, the remedial action is not economically possible, and the business is closing the location instead. A court would likely agree that there was no violation-- but at how much cost of legal fees? And the potential downside of the court disagreeing is even greater. It's no-win for someone facing one of these dubious actions. You can: A) fight and incur huge costs coupled with unreasonable amounts of risk, B) capitulate and settle and try to remediate, or C) just fold entirely.
mlyle 7y ago
The business is likely in compliance. The appropriate language of the ADA is: > (iv) a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; Is the removal of the barrier of the steps in a 100 year old building "readily achievable" if it takes $100k in construction? Probably not. But if you don't do it, and someone sues you-- the lawyer suing you has a chance of a $200k payday; the disabled plaintiff may get $4k; you will have to spend $100k to defend; and if you lose, you'll have to pay the $100k in construction or face the next person doing this too. The potential downside in litigating is too high to bear the risk-- even if you're right you're incurring a massive cost. This is a big issue with qui tam statutes where private claimants can bring actions to enforce the policy. The upside is they often encourage enthusiastic enforcement at low cost to the state... the downside is they often encourage very enthusiastic and unfair enforcement at high cost to society.

But the business isn’t in compliance, right? The “shakedown” doesn’t work if the building is compliant, right?

Dylan16807 7y ago

Why 'but'? It's not like any of that money goes toward making the business compliant.

jonathankoren 7y ago
Well that's not the point of damages. Compensatory damages are paid the the person that suffered in compensation of the suffering caused. Punitive damages are punishment. Remedial action isn't always ordered (You can always roll the dice on enforcement again, and probably get even worse punitive damages for being a repeat offender.), but remedial action is always separate, and it's not up the court to decide how much you're going to spend on compliance. That's your job.
- mlyle 7y ago
  The whole point of qui tam and pseudo-qui tam statutes like the ADA (with regimes of minimum damages, recovery of legal fees, etc) -- is to encourage private parties to do enforcement that will compel the desired behavior.
  - jonathankoren 7y ago
    Well I would have thought the pain of having to pay damages would have been enough to encourage remedial action to avoid a similar situation in the future. Especially since the damages would be even higher the second time since it would be flagrant violation.
    - mlyle 7y ago
      In this case, the remedial action is not economically possible, and the business is closing the location instead. A court would likely agree that there was no violation-- but at how much cost of legal fees? And the potential downside of the court disagreeing is even greater. It's no-win for someone facing one of these dubious actions. You can: A) fight and incur huge costs coupled with unreasonable amounts of risk, B) capitulate and settle and try to remediate, or C) just fold entirely.

mlyle 7y ago

The business is likely in compliance. The appropriate language of the ADA is: > (iv) a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; Is the removal of the barrier of the steps in a 100 year old building "readily achievable" if it takes $100k in construction? Probably not. But if you don't do it, and someone sues you-- the lawyer suing you has a chance of a $200k payday; the disabled plaintiff may get $4k; you will have to spend $100k to defend; and if you lose, you'll have to pay the $100k in construction or face the next person doing this too. The potential downside in litigating is too high to bear the risk-- even if you're right you're incurring a massive cost. This is a big issue with qui tam statutes where private claimants can bring actions to enforce the policy. The upside is they often encourage enthusiastic enforcement at low cost to the state... the downside is they often encourage very enthusiastic and unfair enforcement at high cost to society.