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SECOND REGULAR SESSION
HOUSE BILL NO. 1755
103RD GENERAL ASSEMBL Y
INTRODUCED BY REPRESENT A TIVE CA TO N.
3870H.01I JOSEPH ENGLER, Chief Clerk
AN ACT
T o amend chapter 537, RSMo, by adding thereto one new section relating to abusive website
access litigation.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 537, RSMo, is amended by adding thereto one new section, to be
2 known as section 537.1250, to read as follows:
537.1250. 1. (1) This section shall be known and may be cited as the "Act
2 Against Abusive W ebsite Access Litigation".
3 (2) As used in this section, the following terms mean:
4 (a) "Access violation", any allegation that a public accommodation does not
5 pr ovide sufficient access under the federal Americans with Disabilities Act or under
6 state law or any other similar allegation under state or federal law;
7 (b) "Public accommodation", the same as defined in 42 U.S.C. Section 2000 et
8 seq. For the purposes of this section, "public accommodation" includes a website
9 operated by a res ident of this state;
10 (c) "Resident of this state", any person res iding in Missouri and any entity that
11 has filed with the Missouri secr etary of state's office under chapter 351.
12 2. (1) The attorney general, on behalf of a class of res idents of this state, under
13 section 507.070 who ar e subject to litigation that alleges any website access violation,
14 and any res ident of this state who is subject to litigation that alleges any website access
15 violation may file a civil action in any court of competent jurisdiction within this state
16 against the party , attorney , or law firm that initiated such litigation for a determination
17 as to whether such litigation alleging a website access violation is abusive litigation.
EXPLANA TION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
intended to be omitted from the law . Matter in bold-face type in the above bill is proposed language.
18 (2) In determining whether any litigation that alleges any website access
19 violation constitutes abusive litigation, the trier of fact shall consider the totality of the
20 cir cumstances to determine if the primary purpose of the litigation that alleges a website
21 access violation is obtaining a payment fr om a defendant due to the costs of defending
22 the action in court. For the purposes of making this determination, the trier of fact may
23 assess the following factors and any other factors the trier of fact deems rel evant:
24 (a) The number of substantially similar actions filed by the same plaintiff,
25 lawyer , or law firm and any history of such plaintiff, lawyer , or law firm bringing
26 frivolous litigation or other litigation declar ed by a court to be abusive litigation in the
27 past ten years;
28 (b) The number of full-time employees employed by the defendant and the
29 r esources available to the defendant to engage in the litigation;
30 (c) The re sources available to the defendant to correct the alleged website access
31 violation;
32 (d) Whether the jurisdiction or venue wher e the action is bro ught is a substantial
33 obstacle to defending against the litigation;
34 (e) Whether the filing party or lawyer filing the litigation is a res ident of this
35 state or is licensed to practice law in this state;
36 (f) The natur e of settlement discussions and the rea sonableness of settlement
37 offers and re fusals to settle. The application of such settlement information shall be
38 used only as pr ovided by this section and shall not otherwise alter the rules of evidence
39 applicable to such court; and
40 (g) Whether any factors under Missouri supre me court rule 55.03(c) exist in the
41 litigation and whether sanctions ar e appr opriate under Missouri suprem e court rule
42 55.03(d).
43 (3) Except as provi ded further , if the defendant in any litigation that alleges a
44 website access violation in good faith attempts to corr ect the alleged violation within
45 thirty days after being prov ided written notice or being served a petition or complaint
46 with sufficient detail to identify and corr ect the alleged violation, ther e shall be a
47 r ebuttable presum ption that the subsequent initiation or continuance of litigation that
48 alleges a website access violation constitutes abusive litigation. There shall not be a
49 r ebuttable pr esumption that such litigation is abusive litigation if the alleged website
50 access violation is not corr ected, as determined by the court, within ninety days after
51 being prov ided written notice or being served a petition or complaint with sufficient
52 detail to identify and corr ect the alleged violation. The trier of fact shall not determine
53 whether such litigation is abusive litigation until after such ninety-day period expir es or
54 the alleged violation is corr ected, as determined by the court, whichever occurs first.
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55 3. If the attorney general determines in writing that the litigation alleging a
56 website access violation is not abusive and such written determination is attached to the
57 petition in the litigation alleging a website access violation, ther e shall be a r ebuttable
58 pr esumption that such litigation is not abusive.
59 4. If the trier of fact determines that an initiator of an action under subsection 2
60 of this section is a defendant in abusive litigation, the court may award reas onable
61 attorney's fees and costs in bringing the action under subsection 2 of this section as well
62 as defending against the abusive litigation to be paid by the party bringing the abusive
63 litigation. In addition, the court may award punitive damages or sanctions not to exceed
64 thr ee times the amount of attorney's fees awarded by the court.
65 5. At the conclusion of the litigation alleging a website access violation, the court
66 shall r eview any determination that such litigation is abusive and any award of
67 attorney's fees under the Missouri rules of pro fessional conduct to determine the
68 r easonableness of the award before issuing a judgment. The res ults obtained in the
69 litigation alleging a website access violation shall be weighed heavily , particularly if the
70 litigation was res olved in favor of the plaintiff.
71 6. If the federal Department of Justice issues standards concerning website
72 accessibility under T itle III of the federal Americans with Disabilities Act, the attorney
73 general shall notify the rev isor of statutes that such standards have been issued. Upon
74 r eceipt of such notification by the rev isor , the pr ovisions of this section shall expir e.
✔
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