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SECOND REGULAR SESSION
SENATE BILL NO. 1471
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR BERNSKOETTER.
6397S.01I KRISTINA MARTIN, Secretary
AN ACT
To 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 1
one new section, to be known as section 537.1250, to read as 2
follows:3
537.1250. 1. (1) This section shall be known and may 1
be cited as the "Act Against Abusive Website Access 2
Litigation". 3
(2) As used in this section, the following terms mean: 4
(a) "Access violation", any allegation that a public 5
accommodation does not provide sufficient access under the 6
federal Americans with Disabilities Act or under state law 7
or any other similar allegation under state or federal law; 8
(b) "Public accommodation", the same term as described 9
in 42 U.S.C. Section 2000, et seq. For the purposes of this 10
section, the term "public accommodation" includes a website 11
operated by a resident of this state; 12
(c) "Resident of this state", any person residing in 13
this state and any entity that has filed with the secretary 14
of state under chapter 351. 15
2. (1) The attorney general, on behalf of a class of 16
residents of this state under section 507.070 who are 17
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subject to litigation that alleges any website access 18
violation, and any resident of this state who is subject to 19
litigation that alleges any website access violation may 20
file a civil action in any court of competent jurisdiction 21
within this state against the party, attorney, or law firm 22
that initiated such litigation for a determination as to 23
whether such litigation alleging a website access violation 24
is abusive litigation. 25
(2) In determining whether any litigation that alleges 26
any website access violation constitutes abusive litigation, 27
the trier of fact shall consider the totality of the 28
circumstances to determine if the primary purpose of the 29
litigation that alleges a website access violation is 30
obtaining a payment from a defendant due to the costs of 31
defending the action in court. For the purposes of making 32
this determination, the trier of fact may assess the 33
following factors and any other factors the trier of fact 34
deems relevant: 35
(a) The number of substantially similar actions filed 36
by the same plaintiff, lawyer, or law firm or any history of 37
such plaintiff, lawyer, or law firm in bringing frivolous 38
litigation or other litigation declared by a court to be 39
abusive litigation in the past ten years; 40
(b) The number of full-time employees employed by the 41
defendant and the resources available to the defendant to 42
engage in the litigation; 43
(c) The resources available to the defendant to 44
correct the alleged website access violation; 45
(d) Whether the jurisdiction or venue where the action 46
is brought is a substantial obstacle to defending against 47
the litigation; 48
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(e) Whether the filing party or lawyer filing the 49
litigation is a resident of this state or is licensed to 50
practice law in this state; 51
(f) The nature of settlement discussions and the 52
reasonableness of settlement offers and refusals to settle. 53
The application of such settlement information shall be used 54
only as provided by this section and shall not otherwise 55
alter the rules of evidence applicable to such court; and 56
(g) Whether any factors under Missouri supreme court 57
rule 55.03(c) exist in the litigation and whether sanctions 58
are appropriate under Missouri supreme court rule 55.03(d). 59
(3) Except as provided further, if the defendant in 60
any litigation that alleges a website access violation in 61
good faith attempts to correct the alleged violation within 62
thirty days after being provided written notice or being 63
served a petition or complaint with sufficient detail to 64
identify and correct the alleged violation, there shall be a 65
rebuttable presumption that the subsequent initiation or 66
continuance of litigation that alleges a website access 67
violation constitutes abusive litigation. There shall not 68
be a rebuttable presumption that such litigation is abusive 69
litigation if the alleged website access violation is not 70
corrected, as determined by the court, within ninety days 71
after being provided written notice or being served a 72
petition or complaint with sufficient detail to identify and 73
correct the alleged violation. The trier of fact shall not 74
determine whether such litigation is abusive litigation 75
until after such ninety-day period expires or the alleged 76
violation is corrected, as determined by the court, 77
whichever occurs first. 78
3. If the attorney general determines in writing that 79
the litigation alleging a website access violation is not 80
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abusive and such written determination is attached to the 81
petition in the litigation alleging a website access 82
violation, there shall be a rebuttable presumption that such 83
litigation is not abusive. 84
4. If the trier of fact determines that an initiator 85
of an action under subsection 2 of this section is a 86
defendant in abusive litigation, the court may award 87
reasonable attorney's fees and costs in bringing the action 88
under subsection 2 of this section as well as defending 89
against the abusive litigation to be paid by the party 90
bringing the abusive litigation. In addition, the court may 91
award punitive damages or sanctions not to exceed three 92
times the amount of attorney's fees awarded by the court. 93
5. At the conclusion of the litigation alleging a 94
website access violation, the court shall review any 95
determination that such litigation is abusive and any award 96
of attorney's fees under the Missouri supreme court rules of 97
professional conduct to determine the reasonableness of the 98
award before issuing a judgment. The results obtained in 99
the litigation alleging a website access violation shall be 100
weighed heavily, particularly if the litigation was resolved 101
in favor of the plaintiff. 102
6. If the United States Department of Justice issues 103
standards concerning website accessibility under Title III 104
of the Americans with Disabilities Act, the attorney general 105
shall notify the revisor of statutes that such standards 106
have been issued. Upon receipt of such notification by the 107
revisor of statutes, the provisions of this section shall 108
expire. 109
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