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ABUSE OF PROCESS AND DEMAND LETTERS

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AMENDMENTS

3     
2019 GENERAL SESSION

4     
STATE OF UTAH

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Chief Sponsor: Norman K. Thurston

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Senate Sponsor: Todd Weiler

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8     LONG TITLE
9     General Description:
10          This bill enacts a cause of action for abuse of process and demands concerning the
11     Americans with Disabilities Act.
12     Highlighted Provisions:
13          This bill:
14          ▸     provides legislative findings;
15          ▸     defines terms;
16          ▸     prohibits abuse of process and payment demands;
17          ▸     establishes remedies;
18          ▸     provides for exceptions; and
19          ▸     provides for severability.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     ENACTS:
26          78B-6-2201, Utah Code Annotated 1953
27          78B-6-2202, Utah Code Annotated 1953

28          78B-6-2203, Utah Code Annotated 1953
29          78B-6-2204, Utah Code Annotated 1953
30          78B-6-2205, Utah Code Annotated 1953
31          78B-6-2206, Utah Code Annotated 1953
32     

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 78B-6-2201 is enacted to read:
35     
Part 22. Abuse of Process Concerning Americans with Disabilities Act

36          78B-6-2201. Title -- Purpose.
37          (1) This part is known as the "Abuse of Process Concerning Americans with
38     Disabilities Act."
39          (2) This part seeks to protect Utah persons, businesses, and property owners from
40     abuse of process when a person wrongfully asserts a violation of the public accommodations
41     protections of the Americans with Disabilities Act and demands settlement compensation by
42     threatening to commence litigation alleging violation of public accommodations protections of
43     the Americans with Disabilities Act by the persons, business owners, or property owners to
44     induce or compel payment of unjust compensation.
45          (3) This part is intended to apply only to public accommodations protections of the
46     Americans with Disabilities Act and is not intended to apply to demands or communications in
47     other areas of the law.
48          Section 2. Section 78B-6-2202 is enacted to read:
49          78B-6-2202. Definitions.
50          As used in this part:
51          (1) "Abusive compensation demand" means a letter, email, or other written
52     communication directed to a target that wrongfully asserts, as determined under Section
53     78B-6-2203, that the target has violated the public accommodations protections of the
54     Americans with Disabilities Act to obtain compensation, in excess of the reasonable attorney
55     fees that the Americans with Disabilities Act allows, as a condition of forbearance of filing
56     threatened litigation.
57          (2) "Disability advocate agency" means an entity that:
58          (a) has as its primary purpose advocating or assisting persons with a disability;

59          (b) is exempt from federal income taxation under Section 501(c)(3), Internal Revenue
60     Code; and
61          (c) is primarily funded from federal grants, charitable contributions, and money from
62     the state.
63          (3) "Protection and advocacy agency" means an entity designated by the governor
64     pursuant to federal law for the protection and advocacy of persons with disabilities.
65          (4) "Public accommodations protections of the Americans with Disabilities Act" means
66     a violation of Title III of the Americans with Disabilities Act, 42 U.S.C. Secs. 12181 through
67     12189.
68          (5) "Sponsor" means a party responsible, in whole or in part, directly or indirectly, for
69     issuance of an abusive compensation demand.
70          (6) "Target" means a person residing in, doing business in, incorporated in, or
71     organized under the laws of this state that receives an abusive compensation demand.
72          Section 3. Section 78B-6-2203 is enacted to read:
73          78B-6-2203. Prohibition against abusive compensation demands.
74          (1) A sponsor may not issue an abusive compensation demand to a target under threat
75     of litigation.
76          (2) A court may consider the following factors as evidence in determining whether a
77     sponsor has issued an abusive compensation demand:
78          (a) whether the demand fails to contain a description of a valid instance that constitutes
79     a violation of the public accommodations protections of the Americans with Disabilities Act in
80     sufficient detail to allow the target to assess the merits of the alleged violation of the public
81     accommodations protections of the Americans with Disabilities Act;
82          (b) whether the demand contains any of the following:
83          (i) an assertion of a violation of the public accommodations protections of the
84     Americans with Disabilities Act that the sponsor knows has been previously adjudicated or
85     settled;
86          (ii) an assertion that a complaint has been filed alleging that the target has violated the
87     public accommodations protections of the Americans with Disabilities Act, when no complaint
88     has been filed;
89          (iii) an assertion of a violation of the public accommodations protections of the

90     Americans with Disabilities Act for which the sponsor does not have the right to file a
91     complaint;
92          (iv) an assertion or threat that the settlement amount will increase if the target retains
93     counsel to defend against the assertions in the demand;
94          (v) a false or misleading statement; or
95          (vi) a demand for payment of compensation within an unreasonably short period of
96     time depending on the number and complexity of the claims;
97          (c) whether the sponsor has shown a pattern or practice of issuing abusive
98     compensation demands in excess of reasonable attorney fees;
99          (d) whether the sponsor received any unjust enrichment; and
100          (e) any other factor the court considers relevant.
101          Section 4. Section 78B-6-2204 is enacted to read:
102          78B-6-2204. Action -- Enforcement -- Remedies -- Damages.
103          (1) (a) A target who receives an abusive compensation demand may bring an action in
104     district court.
105          (b) (i) A court may award or impose any relief the court considers equitable, including
106     the following remedies to a target who prevails in an action brought pursuant to this part:
107          (A) equitable relief; and
108          (B) actual damages.
109          (ii) A court may award reasonable attorney fees and court costs to the prevailing party.
110          (2) A court may dismiss with prejudice an action brought under this section if the court
111     determines that the person bringing the action is doing so for a purpose that violates 42 U.S.C.
112     Sec. 12203 or this part.
113          Section 5. Section 78B-6-2205 is enacted to read:
114          78B-6-2205. Exceptions.
115          The following are exempt from this part:
116          (1) a protection and advocacy agency;
117          (2) a disability advocate agency; or
118          (3) an individual or professional who:
119          (a) acts in good faith; and
120          (b) does not have a pattern of abusive compensation demands.

121          Section 6. Section 78B-6-2206 is enacted to read:
122          78B-6-2206. Severability clause.
123          If any provision of this part, or the application of any provision to any person or
124     circumstance, is held invalid, the invalidity does not affect other provisions or applications of
125     this part that can be given effect without the invalid provision or application, and to this end
126     the provisions of this part are severable.