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The intricacies of the Americans with Disabilities Act (ADA) defenses become apparent when we dig into recent case law. A compelling example is a recent case where the Court dismissed the plaintiff's claims due to their failure to satisfy the standing requirement. This examination will explore the facets of Suris v. Crutchfield New Media, LLC, 2023 U.S. Dist. LEXIS 96603, including a discussion on the standards of standing and mootness in ADA cases, essential considerations for an effective ADA defense strategy.

Understanding the Standing Requirement in ADA Defense

To establish standing, a plaintiff must show that they suffered an actual, concrete, and particularized injury that is either imminent or has already occurred. They also need to demonstrate that the injury was likely caused by the defendant and would likely be redressed by judicial relief (TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203, 210 L. Ed. 2d 568 (2021)).

In the ADA context, a plaintiff seeking injunctive relief has suffered an injury in fact when they can allege past injury under the ADA, that the discriminatory treatment would likely continue, and they intended to return to the subject location (Calcano, 36 F.4th at 74).

In the case at hand, the plaintiff's claim failed on the third prong of the Calcano test: intent to return. Their failure to offer any "non-conclusory factual allegations" demonstrating a plausible intention to return to the defendant's website due to barriers of access was the determining factor.

The Importance of Concrete Facts in ADA Defense

The absence of concrete facts regarding the plaintiff's intention to return to the website was a significant element leading to the dismissal. A successful ADA defense strategy should carefully scrutinize the plaintiff's allegations for factual context, especially their intention to return to the site or location in question.

Cases where district courts found an intent to return adequately pled, plaintiffs typically alleged more concrete facts (Walters v. Fischer Skis U.S., LLC; Chalas v. Barlean's Organic Oils, LLC). By contrast, courts have dismissed cases for lack of standing where plaintiffs raised conclusory allegations, as seen in Velazquez v. Everlast Worldwide, Inc. and Tavarez v. Moo Organic Chocolates, LLC.

Mootness as a Key Element in ADA Defense

Beyond the standing requirement, mootness also emerged as a critical element in this case. The defendant successfully demonstrated that the plaintiff's claims were moot, arguing that they had corrected the error that led to the identified videos lacking closed captioning, making it unreasonable to expect the discriminatory treatment to recur.

This scenario highlights the importance of proactive measures in an ADA defense strategy. Demonstrating a commitment to remedying identified accessibility issues can effectively render ADA claims moot.

Conclusion

In ADA defense, understanding and applying standing and mootness concepts can mean the difference between dismissal and proceeding to trial. This case underscores the importance of these elements in an ADA defense strategy, emphasizing the need for concrete facts to back plaintiff's claims and proactive measures from defendants to address accessibility issues. For effective ADA defense, these factors are crucial.

In the realm of American jurisprudence, the case of Adams v. 336 Knickerbocker Realty, LLC stands as a significant juncture in upholding the Americans with Disabilities Act (ADA). This case, filled with nuanced legal implications, sheds light on the fundamental rights of disabled individuals and the vital role of ADA in safeguarding those rights. This blog post aims to dissect this landmark case in a reader-friendly manner, making the complexities of law accessible to all.

The Second Circuit's Stand on Default Judgments

The Second Circuit, within its judicial purview, has persistently cautioned against resorting to default judgments as a primary means of resolving disputes. The court has always emphasized that a default judgment, an extreme remedy, must be used sparingly and as a "weapon of last, rather than first, resort." This viewpoint upholds the importance of providing every litigant with a fair chance of being heard, and echoes the preferential treatment towards resolving disputes on the merits, rather than default.

Key Factors in Granting Default Judgments

The Court possesses considerable discretion when deciding whether to grant a default judgment. It takes into account several factors, including whether the grounds for default are well established, if the allegations were included in the original complaint, and the potential amount of money involved. Essentially, the larger the sum of money, the more scrutinized the justification for a default judgment.

Case Analysis: Adams v. 336 Knickerbocker Realty, LLC

In this specific case, the defendants were indisputably in default as they failed to respond to the complaint or appear in court. Despite receiving proper service, they did not file an answer, nor did they react to the plaintiff's motion for a default judgment or the Court's order regarding attorney's fees.

The plaintiff, a person with cerebral palsy and reliant on a wheelchair, alleged violation of his rights under the ADA by the defendants, the owners of a public accommodation facility. The plaintiff faced numerous ADA violations, including architectural barriers that impeded his access to the property.

Based on the defendants' alleged ADA violations, the Court recommended a default judgment in favor of the plaintiff. This case serves as a potent reminder of the critical importance of the ADA in ensuring accessibility and fair treatment for all individuals, irrespective of their physical abilities.

In Askins v. Santos, a pro se plaintiff filed a wrongful death lawsuit against his sister for her role as a caretaker of their mother. The plaintiff claimed that his Constitutional Rights, Civil Rights, Human Rights, and ADA Rights had been violated. However, the court found that the plaintiff did not identify any federal law under which his claim arose and that his factual allegations did not suggest a federal cause of action.

It is important to note that ADA public accommodations play a crucial role in ensuring that people with disabilities have equal access to goods and services. However, it is equally important to understand the legal framework surrounding ADA claims. Pro se plaintiffs can file complaints that will be construed liberally, but if the court lacks subject matter jurisdiction, if the claim is frivolous or malicious, or if it fails to state a claim upon which relief can be based, the case may be dismissed.

Askins v. Santos serves as a reminder of the importance of understanding the legal framework surrounding ADA public accommodations claims. Pro se plaintiffs may file complaints that will be construed liberally, but they must still meet the legal requirements for a federal cause of action. By familiarizing themselves with the relevant legal rules, people with disabilities can better protect their rights and access the goods and services they need.

Woods v. Kasztl Walsh, LLC is a recent case that highlights the importance of establishing standing to seek injunctive relief under the Americans with Disabilities Act (ADA). The plaintiff in this case sued an inaccessible apartment complex for ADA Title III, NYSHRL, and NYCHRL violations. However, the court dismissed the ADA claim, citing the plaintiff's vague and conclusory allegations of wanting to return to the subject location.

The court explained that to establish standing, a plaintiff must show a past injury under the ADA, a reasonable inference that the discriminatory treatment will continue, and a real and immediate threat of future injury based on concrete plans to return to the subject location. The plaintiff's "someday intentions" of wanting to return are not sufficient to establish standing.

In conclusion, Woods v. Kasztl Walsh, LLC highlights the importance of understanding and meeting the ADA standing requirements when filing a claim. Plaintiffs must provide specific and concrete plans to return to the subject location to establish a real and immediate threat of future injury. This case serves as a reminder that vague and conclusory allegations are not enough to establish standing under the ADA.

Introduction

For anyone interested in the complex legal field of website accessibility, and particularly how it intersects with both the Americans with Disabilities Act (ADA) and the Garden City Human Rights Law (NYCHRL), we've got an intriguing case to analyze: Velazquez v. Nextphase, Inc., No. 22 Civ 07967 (CM), 2023 U.S. Dist. LEXIS 105152, at *4 (S.D.N.Y. June 16, 2023).

In this case, the defendant, Nextphase, Inc., made a motion to dismiss under rules 12(b)(1) and 12(b)(6), alleging the plaintiff lacked standing and that their website was not a "place of public accommodation" under Title III of the ADA or the NYCHRL.

Understanding the Legal Jargon

To make sense of this, let's first understand a couple of crucial legal terminologies. Standing refers to the right of a party to bring a legal claim. Subject matter jurisdiction relates to a court's authority to adjudicate a particular type of dispute. Title III of the ADA mandates that all places of public accommodation (like a website) should be accessible to individuals with disabilities. NYCHRL is a set of laws that protect individuals from discrimination in Garden City.

The Issue of Standing

In this case, the court ruled that the plaintiff, Mr. Velazquez, did not have standing. That's a key term in the realm of civil litigation and website accessibility. It means that the court did not find Mr. Velazquez had suffered an 'injury in fact', there was no causal connection between the injury and the conduct complained of, and that there wasn't a likelihood that a favorable decision would redress the injury.

An Important Precedent

In the case of website accessibility, a plaintiff must make non-conclusory, plausible factual allegations to prove they intend to return to the website - something that Mr. Velazquez failed to do. This was significant because the Second Circuit Court has established that vague claims about intending to visit a website "in the near future if it is made accessible" are insufficient to demonstrate intent to return.

Takeaways

This case highlights some key considerations in the realm of ADA and website accessibility litigation. First, it reminds us of the importance of standing, and how crucial it is for plaintiffs to demonstrate concrete and imminent injury to establish it. Secondly, it underscores the intricacy of website accessibility law and the nuanced understanding required to navigate it successfully.

Nearly three years after the economic crisis of 2008, Bank of America is still plagued with the aftermath of issuing risky mortgage securities to investors. That year, former chief executive Kenneth D. Lewis acquired  Countrywide Financial Corp.  for the price of $2.5 billion. Despite its state of near bankruptcy it was expected to be replete with opportunity and dreams of dramatically enhancing the bank’s profitability. Now, after Bank of America’s recent announcement that it will take a loss of $20.6 billion in pretax charges for mortgage issues, after already swallowing $15.9 billion in mortgage losses since 2008, the deal is revealing itself to be one of the worst in history. Of these losses, billions are directly connected with angry investors demanding that Bank of America buy back the loans Countrywide mishandled.

The bank has paid three hefty settlements in just the past six months, the most recent of which left Bank of America dishing out $8.5 billion to investors claiming they were sold bonds based on below average home mortgages. While this payout will quiet its 22 investor-recipients, the bank continues to fight other investment groups seeking similar outcomes.  Lawsuits remain in the balance from the  Federal Home Loan Bank of Boston ,  Syncora Holdings  and  Municipal Bond Insurance Association  (MBIA).

Since the bank’s announcement of its intent to acquire Countrywide in January 2008, Bank of America’s stock price has plummeted more than 70%. With its shareholder value turning into a permanent forfeiture and future losses certain to befall the banking giant, last week’s settlement can come as only a minor relief from this three year battle.

Loadholt v. Herbs, 2023 U.S. Dist. LEXIS 59116 (SDNY 2023) is an ADA website case that sheds light on the issues of personal jurisdiction and forum non conveniens. In this case, the defendant, who does most of its business from a brick-and-mortar store in Colorado, argued that it had almost no contacts with New York, and therefore, lacked personal jurisdiction in the state. However, the court disagreed and held that selling items to New York-based customers through a website constitutes purposeful availment, and thus, confers personal jurisdiction.

The defendant also argued for a transfer based on forum non conveniens, but the court denied it, citing that the plaintiff's choice of forum is generally entitled to great deference when the plaintiff has sued in their home forum. Additionally, the court found that the nearly identical facts to the ADA website case Paguda v. Washington Music Sales Ctr., Inc. (2022 U.S. Dist. LEXIS 16064 (SDNY)), where a venue transfer was denied, supported its ruling.

Overall, this case is significant for people with disabilities because it reinforces the importance of ADA compliance for businesses, even if they do not have a physical presence in the state where the lawsuit is brought.

The Loadholt v. Herbs, 2023 case highlights the importance of ADA compliance for businesses, especially in the context of websites that allow for the purchase and exchange of goods. The court's ruling on personal jurisdiction and forum non conveniens reinforces the need for businesses to ensure that their websites are accessible to people with disabilities, even if they do not have a physical presence in the state where the lawsuit is brought. This case serves as a reminder that businesses must take the necessary steps to ensure that their online services are accessible to all, in order to avoid potential legal liabilities.

As a corporate entity in New York, protecting your intellectual property is crucial for maintaining a competitive edge in the market. However, with the rise of digital technologies and globalization, intellectual property protection has become increasingly complex and challenging. In this blog post, we will provide you with tangible and valuable tips for protecting your intellectual property in New York.

Conduct a Comprehensive IP Audit

Before protecting your intellectual property, you need to know what you have and where it is. A comprehensive IP audit can help you identify your trademarks, copyrights, patents, and trade secrets. This will enable you to develop a strategy for protecting your intellectual property and ensure that you are not infringing on the rights of others.

Register Your Trademarks and Copyrights

Registering your trademarks and copyrights with the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office is an essential step in protecting your intellectual property. Registration provides you with legal rights and remedies in case of infringement. It also makes it easier to enforce your intellectual property rights and protect your brand identity.

Implement Strong Contracts and Agreements

Contracts and agreements are essential tools for protecting your intellectual property. They can include non-disclosure agreements, non-compete agreements, licensing agreements, and assignment agreements. These agreements should be drafted by experienced attorneys and tailored to your needs and goals.

Monitor Your Intellectual Property

Monitoring your intellectual property is crucial for identifying potential infringement and taking prompt action. You can use online tools, such as Google Alerts and social media monitoring, to track your trademarks and copyrights. You can also work with an experienced attorney to monitor your patents and trade secrets.

Enforce Your Intellectual Property Rights

Enforcing intellectual property rights is essential for maintaining their value and preventing infringement. You can take legal action against infringers, such as sending cease and desist letters or filing lawsuits. You can also work with law enforcement agencies and customs officials to prevent the importation and sale of counterfeit goods.

Protecting your intellectual property in New York requires a comprehensive and strategic approach. By conducting an IP audit, registering your trademarks and copyrights, implementing solid contracts and agreements, monitoring your intellectual property, and enforcing your intellectual property rights, you can safeguard your competitive edge.

Contact Bashian & Papantoniou, P.C. if you need assistance protecting your intellectual property!

Under the Dodd-Frank Act, the mandatory “say-on-pay” rules, in which shareholders get to vote on executive compensation levels, are non-binding.  According to the new regulations, which were signed into law in July of 2010, directors and executives are not required to abide by these “say-on-pay” measures, as they are only intended to serve an advisory purpose.  Despite their non-binding nature, half a dozen class action lawsuits have already been brought against directors and officers for ignoring the results of these votes.

These lawsuits can be very problematic for a company.  Not only are the companies typically under pressure to settle claims quickly to keep legal fees down, regardless of whether they are at fault or not, but such suits can also increase the cost of directors and officers liability insurance.

Yet another area of concern stems from the fact that these actions are not just being brought against the companies themselves. Third-party compensation consultants are also being named as defendants in the lawsuits.  As a result, the cost to companies to obtain compensation advice in the future might be prohibitively expensive, as compensation consultants begin to realize they are susceptible to litigation and start to work in potential litigation defense costs into the fees they charge.

In addition to the six suits that have already been filed, class actions law firms have collectively announced that another eighteen investigations are currently underway.  Most of these types of suits, which are typically filed as shareholder derivative suits on behalf of the corporation, charge companies with not changing their practices or allege that the directors breached their fiduciary duties by ignoring the shareholder votes.  Since the enactment of the new regulations, smaller companies have been more likely to lose their say-on-pay votes.  Besides smaller companies (market caps of less than $1 billion), companies involved in the energy, construction and manufacturing industries have thus far experienced the most failed votes.

The complete text of the article can be found  here .

The corporate attorneys at Bashian & Papantoniou advise board of directors and management of companies on virtually every aspect of business law, whether it’s on an individual transaction basis or as their general counsel, including serving as general corporate counsel to supplement already existing in-house counsel.  Please  contact our office  to learn more about our extensive corporate law services.

Perez v. Due Milla Realty Grp. LLC is a recent court case involving a Title III ADA claim. The defendant in this case was closing operations at the subject premises effective April 9, 2023. The court held that when a public accommodation closes, an ADA claim becomes moot, and a private individual may only obtain injunctive relief for violations of a right granted under Title III; he cannot recover damages.

In this case, the district court dismissed all federal claims for lack of subject-matter jurisdiction, and as a result, the district court is precluded from exercising supplemental jurisdiction over the related state-law claims. Therefore, the case was dismissed as moot, and supplemental state law claims were dismissed.

Conclusion: This case highlights the importance of understanding the rules and requirements for pursuing an ADA claim, especially when dealing with a public accommodation that is closing its operations. As this case demonstrates, a plaintiff cannot recover damages in such a situation, and injunctive relief may only be obtained if the plaintiff can establish standing and a real and immediate threat of future injury. Therefore, it is crucial to consult with an experienced attorney who can guide you through the legal process and help you protect your rights as a person with a disability.

One of the most significant legal actions involving Wall Street’s role in the 2008 financial crisis recently ended in settlement.   JPMorgan Chase & Co.   has agreed to pay $153.6 million to settle civil fraud charges brought against it by the  SEC . The SEC lawsuit charged JP Morgan with misleading investors into purchasing complex mortgage securities immediately prior to the collapse of the housing market.  

The case revolves around the need for the sellers of securities to sufficiently disclose all relevant information to potential purchasers. JPMorgan failed to inform investors that the mortgage securities were part of an investment portfolio that a hedge fund helped construct.  More significantly, investors were never told that the same Hedge Fund was betting that the portfolio would fail.  Following the resolution of the lawsuit, SEC Enforcement Chief  Robert Khuzami  stated “the appropriate disclosures would have been to inform investors that an entity with economic interests adverse to their own was involved in selecting the portfolio.”

JPMorgan itself has produced statements showing that it lost $900 million on the investment.  Incidentally, just two weeks earlier, JPMorgan CEO  Jamie Dimon  complained to Federal Reserve Chairman  Ben Bernanke  that new financial regulations put in place following the financial crisis placed too high a burden on banks. 

The investors who were harmed, mostly large financial institutions, will be reimbursed for all of their losses as part of the settlement.  The remaining portion of the settlement, consisting of approximately $30 million, will go to the U.S. Treasury. In addition, JPMorgan, while neither admitting nor denying wrongdoing, agreed to improve its procedures for reviewing and approving mortgage securities transactions.  Just a year earlier, similar charges were brought against Goldman Sachs & Co., resulting in a $550 million settlement, the largest penalty against a Wall Street firm in SEC history. 

The Appellate Division, First Department recently held that a defendant who is not a party to an agreement may rely upon the merger clause and parole evidence rule to avoid the introduction of prior drafts of the agreement, negotiations and other communications from being considered when determining whether or not it was the intended obligor. A merger clause or the parole evidence rule is a doctrine that generally renders evidence of a prior understanding between the parties of an agreement to be inadmissible when it is offered to change or contradict the terms of a written contract. The exception is when evidence is offered to prove fraud, duress, mistake, misrepresentation or illegality.   Here, the First Department disagreed with the plaintiff and allowed the defendant, a non-party to the agreement, to invoke the merger clause and parole evidence rule because the plaintiff, as a party to the agreement, sought to alter or contradict the terms of the agreement.

See Underhill Holdings, LLC v. Travelsuite, Inc., 2016 NY Slip Op 01760 [1st Dept Mar. 15, 2016]

In the complex landscape of business transactions, contracts serve as the backbone of legal agreements. However, disputes can arise, leading to the filing of breach of contract lawsuits. For businesses facing such legal challenges, understanding effective defense strategies is crucial. In this blog post, we will explore key considerations and strategies to mount a strong defense against a breach of contract lawsuit.

1. Thorough Contract Review: Before crafting your defense, conduct a meticulous review of the contract in question. Identify and understand the specific terms, obligations, and conditions outlined in the agreement. A comprehensive understanding of the contract forms the basis for a solid defense.

2. Proving Lack of Breach: One of the primary defenses against a breach of contract claim is demonstrating that no actual breach occurred. This involves establishing that your actions were in compliance with the terms and conditions stipulated in the contract. Collect evidence, such as correspondence, invoices, and performance records, to support your case.

3. Challenging Contract Validity: If there are doubts about the validity of the contract itself, it can be a powerful defense strategy. This may involve proving that the contract lacks essential elements, such as mutual assent, consideration, or legal capacity. Engage legal experts to assess the contract's enforceability.

4. Asserting Affirmative Defenses: Explore affirmative defenses that may be applicable to your situation. Common affirmative defenses include duress, fraud, mistake, impossibility of performance, and frustration of purpose. Each of these defenses requires a detailed examination of the circumstances surrounding the alleged breach.

5. Performance Excuses: Certain situations may excuse performance under a contract. Force majeure clauses, for example, can be invoked if unforeseen circumstances beyond your control hindered your ability to fulfill contractual obligations. Highlighting these factors can strengthen your defense.

6. Mitigation of Damages: Demonstrate that you took reasonable steps to mitigate any damages suffered by the other party. This can include showing that you made efforts to find alternative solutions or fulfill contractual obligations through other means.

7. Counterclaims and Setoffs: Evaluate the possibility of filing counterclaims against the plaintiff. If you have legitimate grievances arising from the same contract, presenting counterclaims can shift the balance in your favor. Setoffs, where you reduce the amount owed based on the other party's breaches, are also worth exploring.

8. Negotiation and Settlement: Consider exploring negotiation and settlement options. Resolving the dispute amicably through negotiation or alternative dispute resolution mechanisms can save time, resources, and protect your business reputation.

Conclusion: Facing a breach of contract lawsuit can be challenging, but a well-prepared defense strategy is key to protecting your interests. By thoroughly reviewing the contract, presenting evidence of compliance, and strategically applying legal defenses, businesses can navigate these legal challenges with confidence. Engaging experienced legal counsel is essential to ensure a comprehensive and effective defense strategy.