Final 12 months my firm, Beardbrand, was sued for alleged violations of New York legal guidelines much 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 finally dropped the case.
I requested Mark to recap the method. Your 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 lawyer 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 lawyer and litigator. Over time, I shifted towards trademark litigation and finally 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 one in all 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. 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, although no authorized requirement outlines what they need to do.
Plaintiffs’ legal professionals choose a person to characterize a category, claiming {that a} web site doesn’t present enough lodging for disabled individuals. This can be a grey space as a result of no concrete legislation specifies what constitutes ample accessibility. There are tips, however nothing definitively says, “You will need to meet this commonplace.”
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 usually filed underneath Title III of the Individuals 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, nevertheless, significantly in New York, they’re suing underneath state and metropolis legal guidelines, which permit for financial damages. A few of these damages will be important. One key distinction in state courtroom circumstances 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 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 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 problem. We pushed even more durable at that time, exhibiting they have been being litigious with out advancing the case. Finally, they gave up.
Some individuals would reasonably have fast finality, pay a set quantity, and be executed with it. Not everyone has the abdomen for what you probably did. In the event you’re keen and in a position to struggle, the plaintiff will finally hand over.
Bandholz: As ecommerce operators, we’re keen to struggle for our companies, however these predatory legal professionals aren’t honorable. They began at $75,000. We would have settled in the event that they’d began decrease, however their excessive supply pushed me to struggle more durable out of precept.
Berkowitz: Precisely. They got here all the way 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 individuals, it’s simpler simply to pay and transfer on, however for these keen to struggle, the plaintiff’s legal professionals usually hand over once they understand 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 purpose for the WCAG 2.0 commonplace on the intermediate degree. Your developer ought to know these tips and how one can alter 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 readers to navigate the positioning successfully. Nevertheless, 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 improper.
Bandholz: Is it attainable to recuperate lawyer charges or counter-sue these plaintiffs?
Berkowitz: Sadly, no. There’s no actual solution to counter-sue in these circumstances. You may theoretically recuperate lawyer charges if you happen to took the case to trial and received, however that will take years and price a whole lot of 1000’s of {dollars}. It’s normally not value 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’ll see that the corporate was sued, and a dismissal was filed. They’re going to imagine {that a} settlement was reached. Usually, they might not know what occurred behind the scenes. In some circumstances, 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 turn into a goal once they do this.
Bandholz: How do these plaintiff legal professionals resolve which ecommerce companies to focus on?
Berkowitz: They possible use numerous instruments to determine profitable firms. There are public databases that present estimates of gross sales volumes for particular web sites. They in all probability additionally monitor social media and the information for companies which are getting a lot consideration.
Your organization, Beardbrand, had quite a 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 progress or success on social media.
Bandholz: What makes for 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 essential to 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 info, no downside” 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: You will discover us at TarterKrinsky.com or contact me on LinkedIn.
