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July 10, 2017

New Law Requires Notice and Cure Period Before Commencement of MHRA Public Accommodation Litigation

In response to a growing number of “drive-by” accessibility lawsuits filed in Minnesota in recent years, and after an unsuccessful attempt to remedy the problem last year, the Minnesota legislature recently passed amendments to the Minnesota Human Rights Act (MHRA). The new legislation requires that before commencing any litigation alleging that a place of public accommodation is not in compliance with state accessibility requirements, a represented plaintiff must first provide that place of public accommodation with written notice of any alleged legal noncompliance and allow a reasonable time (at least 60 days) for the identified deficiency to be remedied. The cure period will automatically be extended an additional 30 days if a notice recipient responds in writing that it intends to remove an architectural barrier but weather prevents it from doing so immediately. A represented plaintiff (the notice requirement does not apply to pro se litigants) may not proceed with litigation if the notice has not been provided, and remediation within the notice period can be used as an affirmative defense in the event that a plaintiff still chooses to proceed with litigation. 

Governor Dayton signed the legislation (which amends Minn. Stat. § 363A.331), on May 23, 2017, and the new law went into effect the following day. The amendments do not apply to lawsuits that were commenced before that date.

This legislation responds to the fact that Minnesota businesses have been hard hit with lawsuits filed by a small number of aggressive plaintiffs’ lawyers alleging accessibility violations of the Americans with Disabilities Act (ADA) and MHRA on behalf of recurring plaintiffs. These lawsuits have been referred to as “drive-by” lawsuits because of the perception that the plaintiffs in those lawsuits merely drove around looking for accessibility violations without any intention of actually entering the business. Typically, the attorney bringing the lawsuit will only drop it if the business agrees to issue a settlement payment of several thousand dollars. Often, businesses have felt that the violations cited were minor, and that these attorneys were seeking an inappropriate windfall.

The Minnesota Legislature sought to amend the MHRA to implement a mandatory notice and cure requirement in 2016. However, the mandatory nature of this requirement was removed in conference before passage, and the resulting legislation was permissive only. As such, while the amendments set forth what a pre-suit notice must look like, the amendments did not actually require that the notice be sent before litigation could commence.

The legislative changes impact only claims alleging violations of the MHRA. Nevertheless, they should have a chilling effect on predatory litigation because the ADA does not allow a plaintiff alleging accessibility violations to recover damages. Rather the ADA allows a private plaintiff the right to pursue injunctive relief and, if successful, reasonable attorneys’ fees and costs.

Minnesota businesses that receive a notice of accessibility violations are advised to take the notice seriously and consult counsel. Timely action could avoid litigation altogether. Similarly, businesses that are served with a lawsuit alleging violation of the MHRA’s accessibility requirements should consider whether they may move to dismiss the claim altogether on the grounds that the plaintiff did not provide the requisite pre-lawsuit notice and opportunity to cure.

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