Final 12 months my firm, Beardbrand, was sued for alleged violations of New York legal guidelines just like the People with Disabilities Act. The declare was frivolous.
It’s not in my nature to settle a bogus declare, so I employed Mark Berkowitz, a New York-based lawyer skilled in accessibility issues. We made clear to the plaintiff’s legal professional our refusal to pay the declare. The legal professional ultimately dropped the case.
I requested Mark to recap the method. The complete audio of our conversion is embedded beneath. The transcript is edited for size and readability.
Eric Bandholz: Give us a rundown of your work.
Mark Berkowitz: I’m an legal professional and companion at Tarter Krinsky & Drogin LLP in New York. I’ve a background in mental property, beginning as {an electrical} engineer earlier than transitioning right into a patent legal professional and litigator. Over time, I shifted towards trademark litigation and ultimately started working extensively with ecommerce retailers, together with Amazon sellers, dealing with varied types of litigation.
Beardbrand was the goal of a quite common lawsuit involving the People with Disabilities Act. Yours was certainly one of 4,000 to five,000 new instances annually. These lawsuits stem from a collection of legal guidelines designed to guard disabled people, akin to those that are blind or use wheelchairs. In some unspecified time in the future, sure courts and the U.S. Division of Justice broadened the definition of “public lodging” to incorporate web sites. Web sites should meet sure accessibility requirements, regardless that no authorized requirement outlines what they have to do.
Plaintiffs’ legal professionals choose a person to characterize a category, claiming {that a} web site doesn’t present sufficient lodging for disabled individuals. It is a grey space as a result of no concrete legislation specifies what constitutes adequate accessibility. There are tips, however nothing definitively says, “You will need to meet this normal.”
In your case, the plaintiff filed the lawsuit in a New York state court docket, which is frequent for these instances. Your choices for dealing with the lawsuit differ relying on whether or not you’re in federal or state court docket.
Bandholz: Why is that?
Berkowitz: It will depend on the statute they use to sue. In federal court docket, lawsuits are usually filed below Title III of the People with Disabilities Act. This statute doesn’t present financial damages however can maintain you accountable for litigation prices. The risk in federal instances is that they’ll drag you thru a prolonged authorized course of, forcing you to spend some huge cash, which is why many individuals select to settle.
In state court docket, nevertheless, significantly in New York, they’re suing below state and metropolis legal guidelines, which permit for financial damages. A few of these damages will be important. One key distinction in state court docket instances is which you can argue the plaintiff by no means reached out to you earlier than submitting the lawsuit. They declare they couldn’t use your web site, however they didn’t attempt to notify you earlier than suing.
That method is frequent sense — if that they had contacted you, you would have helped them. This argument has been accepted in different instances, and we used it in Beardbrand’s protection. We identified that the criticism didn’t specify what the plaintiff did past visiting the web site and suing. After they tried to amend the criticism, they nonetheless didn’t tackle this difficulty. We pushed even tougher at that time, displaying they have been being litigious with out advancing the case. Ultimately, they gave up.
Some individuals would moderately have fast finality, pay a set quantity, and be accomplished with it. Not everyone has the abdomen for what you probably did. For those who’re keen and in a position to struggle, the plaintiff will ultimately hand over.
Bandholz: As ecommerce operators, we’re keen to struggle for our companies, however these predatory legal professionals are usually not honorable. They began at $75,000. We’d have settled in the event that they’d began decrease, however their excessive provide pushed me to struggle tougher out of precept.
Berkowitz: Precisely. They got here right down to a sure level, however it was clear that they had a flooring they didn’t wish to go beneath — whether or not it was a agency coverage or simply how they function. We let the case run for a bit, after which we hit them with some motions, which introduced it to an finish.
For some individuals, it’s simpler simply to pay and transfer on, however for these keen to struggle, the plaintiff’s legal professionals usually hand over after they understand you’re not backing down.
Bandholz: What can ecommerce operators do to keep away from these lawsuits?
Berkowitz: The perfect apply is to make your web site as compliant as doable. Most companies purpose for the WCAG 2.0 normal on the intermediate stage. Your developer ought to know these tips and methods to regulate your web site accordingly.
Some primary practices embody guaranteeing good distinction for textual content, utilizing accessible fonts and colours, including correct web page titles, and enabling display screen readers to navigate the positioning successfully. Nonetheless, even with all these measures, there’ll at all times be one thing a plaintiff can level to as a flaw. You should utilize a dozen web site scanners — they’ll at all times discover one thing flawed.
Bandholz: Is it doable to get better legal professional charges or counter-sue these plaintiffs?
Berkowitz: Sadly, no. There’s no actual method to counter-sue in these instances. You would theoretically get better legal professional charges should you took the case to trial and received, however that may take years and price a whole lot of hundreds of {dollars}. It’s often not price it. If the plaintiffs again down, it’s usually greatest to take it as a win and transfer on.
Bandholz: Can plaintiff legal professionals see that an ecommerce defendant settled?
Berkowitz: To an extent. They will see that the corporate was sued, and a dismissal was filed. They’re going to imagine {that a} settlement was reached. Typically, they could not know what occurred behind the scenes. In some instances, plaintiff attorneys have been in a position to get consent judgments, the place the defendant admits that their web sites weren’t compliant and would make them compliant sooner or later. Retailers change into a goal after they do this.
Bandholz: How do these plaintiff legal professionals determine which ecommerce companies to focus on?
Berkowitz: They seemingly use varied instruments to establish profitable firms. There are public databases that present estimates of gross sales volumes for particular web sites. They most likely additionally monitor social media and the information for companies which can be getting a lot consideration.
Your organization, Beardbrand, had a whole lot of media protection, and also you have been even on Shark Tank. Even when that was years in the past, it’s nonetheless an indication of success that may catch their consideration. Some companies inadvertently make themselves targets by bragging about their development or success on social media.
Bandholz: What makes for an excellent lawyer-client relationship?
Berkowitz: It’s essential to work with a lawyer who understands your scenario and targets. Be upfront about what you’re keen to spend and the way far you wish to take the case. Transparency on either side is essential to an excellent relationship.
As a consumer, be sincere about any previous points along with your web site, whether or not or not you’ve tried to make it accessible. Surprises will be detrimental to your case. As legal professionals, we are saying, “Unhealthy information, no drawback” so long as we find out about them. Simply be clear about what you wish to obtain and any obstacles you’ve confronted.
Bandholz: The place can individuals discover you?
Berkowitz: Yow will discover us at TarterKrinsky.com or contact me on LinkedIn.
