SB2090 104TH GENERAL ASSEMBLY

LRB104 08505 JRC 18557 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
SB2090

Introduced 2/6/2025, by Sen. Erica Harriss

SYNOPSIS AS INTRODUCED:

New Act

Creates the Stop Abusive Website-Access to Litigation Act. Authorizes the Attorney General to file a civil action in a State court against a party, attorney, or law firm that initiated the litigation that alleges any website-access violation for a determination as to whether it is abusive litigation. Provides that in determining whether the litigation alleging a website-access violation constitutes abusive litigation, the trier of fact shall consider the totality of the circumstances to determine if the primary purpose of the litigation that alleges a website-access violation is obtaining a payment from a defendant because of the costs of defending the action in court. Creates criteria for the trier of act to determine if the litigation is abusive under the Act. Provides that if the trier of fact determines that the litigation qualifies as abusive litigation under the Act, the court may award reasonable attorney's fees and costs to the defendant. Provides that the court may also award punitive damages not to exceed 3 times the amount of attorney's fees awarded by the court.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Abusive Website-Access to Litigation Act.

Section 5. Legislative findings and purpose. The purpose of this Act is to restrict abusive litigation while allowing for meritorious litigation. It is the policy of this State that people with disabilities must be ensured equal opportunities to full access to public accommodations, and that they are empowered to enforce the right to equal access through litigation, if necessary. Unfortunately, the General Assembly recognizes that in a small minority of cases, the use of litigation to assert the right to equal access is being abused for the primary purpose of obtaining an award of attorney's fees for the plaintiff instead of remedying the alleged access violation. This small minority of cases often involves an alleged lack of equal access to a public accommodation's internet site and are often filed in another state's court system against smaller Illinois businesses. In most cases, the litigation is filed without notifying the defendant of the alleged violation, without attempting to resolve the issue prelitigation, and without providing a reasonable opportunity for the public accommodation to revise its website to remedy the alleged access violation. To address this issue, the State intends to provide a process to curb abusive litigation to mitigate the harms that abusive litigation perpetuates. The State does not intend that this process in any way is to be used to preclude a person with a disability from asserting a right in good faith to equal access to a public accommodation under the law either individually or through a class through litigation in a State court.

Section 10. Definitions. As used in this Act:

"Access violation" means any allegation that a public accommodation does not provide sufficient access under the federal Americans with Disabilities Act of 1990, or comparable State law.

"Public accommodation" has the meaning given to that term in the federal Americans with Disabilities Act of 1990. "Public accommodation" includes a website operated by a resident of this State.

"Resident" means any person residing in this State and any entity that has filed with the Secretary of State's office requirements to do business in this State.

Section 15. Procedure under this Act.

(a) The Attorney General is authorized, on behalf of a resident or a class of residents, who have been sued as defendants alleging a website-access violation, to file a civil action in a State court against the party, attorney, or law firm that initiated the website-access violation litigation for a determination as to whether the litigation is abusive under this Act.

(b) In determining whether litigation that alleges any website-access violation constitutes abusive litigation, the trier of fact shall consider the totality of the circumstances to determine if the primary purpose of the litigation is for obtaining a payment from a defendant because of the expense of defending the action in court. For the purposes of making this determination, the trier of fact may assess the following factors and any other factors the trier of fact deems relevant:

(1) the number of substantially similar actions filed by the same plaintiff, lawyer, or law firm or the history of such plaintiff, lawyer, or law firm in bringing frivolous litigation or other litigation declared by a court to be abusive litigation in the past 10 years;

(2) the number of full-time employees employed by the defendant and the resources available to the defendant to engage in the litigation;

(3) the resources available to the defendant to correct the alleged website-access violation;

(4) whether the jurisdiction or venue where the action is brought is a substantial obstacle to defending against the litigation;

(5) whether the filing party or lawyer filing the litigation is a resident of this State or is licensed to practice law in this State;

(6) the nature of settlement discussions, the reasonableness of settlement offers, and refusals to settle. The settlement information may be used only as provided by this Section and may not otherwise alter the applicable rules of evidence; and

(7) whether any factors under State law exist in the litigation and whether sanctions are appropriate.

(c) If the defendant in the litigation alleging a website-access violation in good faith attempts to cure the alleged violation within 30 days after being provided written notice or being served a complaint with sufficient detail to identify and correct the alleged violation, there is a rebuttable presumption that a later initiation or continuance of the litigation constitutes abusive litigation. There is no rebuttable presumption that such litigation is abusive if the alleged website-access violation is not corrected, as determined by the court, within 90 days after the defendant was provided notice as under this subsection of the alleged violation. The trier of fact may not determine whether such litigation is abusive litigation until after such 90-day period expires or the alleged violation is corrected, as determined by the court, whichever occurs first. If the Attorney General determines in writing that the access violation litigation is not abusive, that determination is a rebuttable presumption that the litigation is not abusive.

(d) At the conclusion of the litigation alleging a website-access violation, if the court determines that the litigation is abusive, it may award to the defendant attorney's fees and costs as appropriate under the Code of Civil Procedure and Supreme Court Rules. The court may also award to the defendant punitive damages not to exceed 3 times the amount of attorney's fees awarded to the defendant.