Final 12 months my firm, Beardbrand, was sued for alleged violations of New York legal guidelines just like the Individuals 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 lawyer our refusal to pay the declare. The lawyer ultimately dropped the case.
I requested Mark to recap the method. The whole audio of our conversion is embedded under. The transcript is edited for size and readability.
Eric Bandholz: Give us a rundown of your work.
Mark Berkowitz: I’m an lawyer and associate 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 lawyer and litigator. Over time, I shifted towards trademark litigation and ultimately started working extensively with ecommerce retailers, together with Amazon sellers, dealing with numerous types of litigation.
Beardbrand was the goal of a quite common lawsuit involving the Individuals with Disabilities Act. Yours was considered one of 4,000 to five,000 new instances annually. These lawsuits stem from a sequence of legal guidelines designed to guard disabled people, resembling those that are blind or use wheelchairs. Sooner or later, 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, despite the fact that no authorized requirement outlines what they have to do.
Plaintiffs’ legal professionals choose a person to signify a category, claiming {that a} web site doesn’t present ample lodging for disabled folks. This can be a grey space as a result of no concrete regulation specifies what constitutes adequate accessibility. There are tips, however nothing definitively says, “It’s essential to meet this customary.”
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 fluctuate relying on whether or not you’re in federal or state court docket.
Bandholz: Why is that?
Berkowitz: It depends upon the statute they use to sue. In federal court docket, lawsuits are usually filed below Title III of the Individuals 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, notably in New York, they’re suing below state and metropolis legal guidelines, which permit for financial damages. A few of these damages will be vital. One key distinction in state court docket instances is that you would be able to 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 strategy is frequent sense — if that they had contacted you, you might have helped them. This argument has been accepted in different instances, and we used it in Beardbrand’s protection. We identified that the grievance didn’t specify what the plaintiff did past visiting the web site and suing. After they tried to amend the grievance, they nonetheless didn’t tackle this difficulty. We pushed even more durable at that time, exhibiting they had been being litigious with out advancing the case. Ultimately, they gave up.
Some folks would moderately have fast finality, pay a set quantity, and be completed with it. Not everyone has the abdomen for what you probably did. In the event you’re keen and capable of struggle, the plaintiff will ultimately quit.
Bandholz: As ecommerce operators, we’re keen to struggle for our companies, however these predatory legal professionals should not honorable. They began at $75,000. We would have settled in the event that they’d began decrease, however their excessive provide pushed me to struggle more durable out of precept.
Berkowitz: Precisely. They got here right down to a sure level, nevertheless it was clear that they had a ground they didn’t need to go under — 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 folks, it’s simpler simply to pay and transfer on, however for these keen to struggle, the plaintiff’s legal professionals typically quit after they understand you’re not backing down.
Bandholz: What can ecommerce operators do to keep away from these lawsuits?
Berkowitz: The perfect observe is to make your web site as compliant as doable. Most companies goal for the WCAG 2.0 customary on the intermediate stage. Your developer ought to know these tips and modify your web site accordingly.
Some fundamental practices embrace guaranteeing good distinction for textual content, utilizing accessible fonts and colours, including correct web page titles, and enabling display readers to navigate the location successfully. Nonetheless, even with all these measures, there’ll all the time be one thing a plaintiff can level to as a flaw. You need to use a dozen web site scanners — they’ll all the time discover one thing flawed.
Bandholz: Is it doable to recuperate lawyer charges or counter-sue these plaintiffs?
Berkowitz: Sadly, no. There’s no actual solution to counter-sue in these instances. You possibly can theoretically recuperate lawyer charges should you took the case to trial and gained, however that may take years and price lots of of hundreds of {dollars}. It’s often not price it. If the plaintiffs again down, it’s typically finest 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’ll see that the corporate was sued, and a dismissal was filed. They’re going to imagine {that a} settlement was reached. Generally, they might not know what occurred behind the scenes. In some instances, plaintiff attorneys have been capable of get consent judgments, the place the defendant admits that their web sites weren’t compliant and would make them compliant sooner or later. Retailers turn 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 numerous 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 are getting a lot consideration.
Your organization, Beardbrand, had lots of media protection, and also you had 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 progress or success on social media.
Bandholz: What makes for a superb lawyer-client relationship?
Berkowitz: It’s essential to work with a lawyer who understands your scenario and objectives. Be upfront about what you’re keen to spend and the way far you need to take the case. Transparency on either side is vital to a superb relationship.
As a consumer, be trustworthy about any previous points together 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, “Dangerous info, no downside” so long as we find out about them. Simply be clear about what you need to obtain and any obstacles you’ve confronted.
Bandholz: The place can folks discover you?
Berkowitz: You’ll find us at TarterKrinsky.com or contact me on LinkedIn.
