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. Your entire 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 accomplice 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 numerous types of litigation.
Beardbrand was the goal of a very common lawsuit involving the People with Disabilities Act. Yours was one in every of 4,000 to five,000 new circumstances annually. These lawsuits stem from a collection of legal guidelines designed to guard disabled people, comparable 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 need to do.
Plaintiffs’ attorneys choose a person to signify a category, claiming {that a} web site doesn’t present sufficient lodging for disabled folks. This can be a grey space as a result of no concrete regulation specifies what constitutes enough accessibility. There are tips, however nothing definitively says, “You could meet this customary.”
In your case, the plaintiff filed the lawsuit in a New York state courtroom, which is frequent for these circumstances. Your choices for dealing with the lawsuit fluctuate relying on whether or not you’re in federal or state courtroom.
Bandholz: Why is that?
Berkowitz: It will depend on the statute they use to sue. In federal courtroom, lawsuits are sometimes filed beneath Title III of the People with Disabilities Act. This statute doesn’t present financial damages however can maintain you accountable for litigation prices. The menace in federal circumstances 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 courtroom, nonetheless, notably in New York, they’re suing beneath state and metropolis legal guidelines, which permit for financial damages. A few of these damages may be vital. One key distinction in state courtroom circumstances 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 strategy is frequent sense — if that they had contacted you, you could possibly have helped them. This argument has been accepted in different circumstances, 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. Once they tried to amend the criticism, they nonetheless didn’t deal with this problem. We pushed even more durable at that time, displaying they had been being litigious with out advancing the case. Ultimately, they gave up.
Some folks would slightly have fast finality, pay a set quantity, and be carried out with it. Not everyone has the abdomen for what you probably did. If you happen to’re keen and capable of combat, the plaintiff will ultimately hand over.
Bandholz: As ecommerce operators, we’re keen to combat for our companies, however these predatory attorneys will not be 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 combat more durable out of precept.
Berkowitz: Precisely. They got here right down to a sure level, however it was clear that they had a ground 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 folks, it’s simpler simply to pay and transfer on, however for these keen to combat, the plaintiff’s attorneys typically hand over after they notice you’re not backing down.
Bandholz: What can ecommerce operators do to keep away from these lawsuits?
Berkowitz: The very best follow is to make your web site as compliant as attainable. Most companies intention for the WCAG 2.0 customary on the intermediate stage. Your developer ought to know these tips and find out how to modify your web site accordingly.
Some basic practices embrace making certain 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 at all times be one thing a plaintiff can level to as a flaw. You need to use a dozen web site scanners — they’ll at all times discover one thing flawed.
Bandholz: Is it attainable to get better legal professional charges or counter-sue these plaintiffs?
Berkowitz: Sadly, no. There’s no actual option to counter-sue in these circumstances. You may theoretically get better legal professional charges for those who took the case to trial and received, however that may take years and price tons of of 1000’s 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 attorneys 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. Generally, they could not know what occurred behind the scenes. In some circumstances, 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 develop into a goal after they try this.
Bandholz: How do these plaintiff attorneys determine which ecommerce companies to focus on?
Berkowitz: They seemingly use numerous instruments to establish profitable corporations. 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 might be getting a lot consideration.
Your organization, Beardbrand, had quite a lot 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 development or success on social media.
Bandholz: What makes for a great lawyer-client relationship?
Berkowitz: It’s essential to work with a lawyer who understands your state of affairs and objectives. Be upfront about what you’re keen to spend and the way far you wish to take the case. Transparency on either side is vital to a great relationship.
As a shopper, be trustworthy about any previous points together with your web site, whether or not or not you’ve tried to make it accessible. Surprises may be detrimental to your case. As attorneys, we are saying, “Dangerous details, no drawback” so long as we learn about them. Simply be clear about what you wish 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.
