Professional Liability Magazine - Fall 2019

FALL 2019

PUT THE SMILEY FACE DOWN AND STEP AWAY PAGE 8

Emojis are popping up in everything from sexual-harassment claims to murder cases, leaving attorneys and judges to grapple with an odd new kind of legal language.

ALSO INSIDE:  Watch What You Say About Your Clients in Public; Short Attack of Litigation Funding Firm Could Change Third-Party Financing; Attorney Advertising.

The New Accessibility

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PLM | FALL 2019

Contents CASE NOTE A quarterly magazine on emerging developments, decisions, and defenses in professional-negligence law and claims management

EDITORS Management and Professional Liability Co-Chairs

Jonathan S. Ziss 267.519.6820 jziss@goldbergsegalla.com Peter J. Biging 646.292.8711 pbiging@goldbergsegalla.com

TEAM LEAD Colleen M. Murphy cmurphy@goldbergsegalla.com

CONTRIBUTORS Whitney L. Allen wallen@goldbergsegalla.com Andrew P. Carroll acarroll@goldbergsegalla.com Reshma Khanna rkhanna@goldbergsegalla.com Seth L. Laver slaver@goldbergsegalla.com Joanne J. Romero jromero@goldbergsegalla.com

MANAGING EDITOR Robert L. Kaiser

COPY EDITOR Nicolette Clark

ART DIRECTOR Jeremy Dolph

DESIGNER Darren Canham

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4 | Watch What You Say About Your Clients in Public INSIGHT 5 | Short Attack of Litigation Funding Firm Could Change Third-Party Financing Q&A 6 | A New NY Law Greatly Expands the Legal Standard for Workplace Discrimination and Harassment Here’s What You Need to Know

CASE NOTE 7 | Texas Appellate Court Finds City of San Antonio Given Immunity Prematurely in Suit over Deaths Resulting from High-Speed Police Chase COVER STORY 8 | Put the Smiley Face Down and Step Away

Emoji’s are popping up in everything from sexual-harassment claims to murder cases.

CROSSOVER 10 | Confronted with Social Media Evidence Impugning Key Witness, Plaintiff Discontinues Liability Case 11 | Workers’ Compensation Case Swings in Favor of Employer SPOTLIGHT 12 | The New Accessibility Today’s ADA lawsuit is just as likely to be about navigating a website.

Fall 2019 | 3

CASE NOTE

Watch What You Say About Your Clients in Public

BY JOANNE J. ROMERO In May 2018, a Philadelphia defense attorney sat for an interview for #FreeMeek, a documentary series on the rapper Robert Rihmeek Williams, better known as Meek Mill. Then, thinking the interview was over and his comments no longer were being recorded, the attorney made critical comments about the judge who had ordered the musician back to prison for violating his parole.

“That was hard to do,” the attorney said, apparently referring to the interview, “because defending the judge is now becoming— why doesn’t (the judge) just grant this f------ thing?”

But the attorney still was being recorded, and the judge he had criticized was his client. So, upon discovering his comments on the Internet, he sued an entertainment company involved in making the documentary to have the recording destroyed, citing federal and Pennsylvania wiretap laws that prohibit the intentional interception of any wire, oral, or electronic communication without the consent of all parties involved and disclosure of that communication.

The attorney’s lawsuit hit a roadblock this year when a judge dismissed his claims against the documentary makers. The statutory term “oral communication” requires a justifiable “expectation that such communication is not subject to interception,” and has been interpreted narrowly, in Agnew v. Dupler, to include only communications where “the speaker possessed a reasonable expectation of privacy in the conversation.”

The court stated it was not enough for the attorney to prove he did not expect to be recorded; he must show that he exhibited an expectation of privacy and that the expectation was reasonable.

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Too, the court found that the attorney may have had and exhibited an expectation of privacy given the interview was concluded, the camera was turned away, he attempted to remove his microphone, the content of the statements, his abrupt shift in tone, the dramatic difference from his on-camera remarks, and the sudden candor.

However, the court concluded this was not a reasonable expectation of privacy, given he never affirmatively sought to “go off the record”; did not wait until he had fully removed his microphone; did not ensure it was off before disparaging his client’; and spoke freely in front of a room full of strangers with recording equipment that had just been active.

Moreover, the attorney’s sophistication in press dealings made his expectation of privacy less reasonable given that: •• He knew he was disparaging his client to journalists working on a documentary series about a controversy in which public opinion was hostile to his client •• He signed a release •• He never confirmed he was off the record The court also rejected the claim that defendants acted with the intent to commit the tort of false light invasion of privacy by selectively publishing true information “in a fashion which renders the publication susceptible to inferences casting one in a false light.”

Accordingly, the federal wiretap’s one-party consent rule was not subject to any exception based on intent to commit a tortious act and was properly subject to dismissal given defendants had consented to the recording.

INSIGHT

Short Attack of Litigation Funding Firm Could Change Third-Party Financing

BY ANDREW P. CARROLL The world of litigation financing has exploded in recent years, moving from small lawsuit loans funding personal-injury cases to multimillion-dollar investments in major commercial disputes. Litigation funders therefore have increasingly found themselves in the spotlight, with some of them subsequently targeted by an unwanted beast in the world of publicly traded companies: the short attacker.

A short attacker essentially places a bet that a company is overvalued and then publicizes its analysis to convince the market the short attacker is correct. The first such short attack on litigation financiers affected U.K.-based Burford Capital (Burford).

This summer, according to Reuters, short-seller Muddy Waters sparked a 2 billion pound slump in shares of Burford Capital (BURF.L), a London-listed fund that finances lawsuits in return for a cut of any payouts, after criticizing its accounts and saying it had bet on its shares falling.

Muddy Waters, known in financial markets for regularly declaring short equity positions on the basis of its in-house research, claimed, concluding that its “operating expenses, financing costs, debt, and funding commitments ... put it at a high risk of a liquidity crunch.”

Muddy Waters went so far as to compare Burford’s method of valuing its assets to that used by Enron because lawsuit litigation is “an illiquid and esoteric asset class.” It further claimed that Burford fails to take into account uncollectible judgments, delays reporting trial losses under the guise of an impossible appeal, and fails to properly account for non-cash settlements. Finally, Muddy Waters notes that just four cases accounted for 66 percent of Burford’s net realized gains from 2012 through 2019, despite published figures that suggest a more balanced portfolio of returns.

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One of the most revealing aspects of these allegations is that, to most plaintiff-side law firms, they are nothing particularly noteworthy. Lawsuits are obviously illiquid, valuations are subject to constantly changing circumstances, and predicting when—or if —recovery will be obtained can be quite volatile. Although the figures certainly vary from firm to firm, and year to year, it also is quite normal for the majority of profits to come from a few big winners while the remaining cases tread water or lose. These are just some of Muddy Waters’ criticisms of Burford, but their disclosure as damning evidence of overstated balance sheets shows that the marriage between hedge funds and litigation may not be such a match made in heaven.

Nevertheless, Burford has raised a staggering $2 billion in capital over the past two years, and more middle-market financiers are opening every day. As capital raises increase, along with general litigation costs that push settlement, an increase in all types of litigation seems inevitable. Simply put, Burford and its brethren must employ the capital they receive. That means finding new suits to file or continue that would have otherwise been deemed too financially risky. At least according to Muddy Waters, this also means using massaged reporting numbers to perpetuate abnormally high investment returns, which yields even more capital raises, and the completion of a vicious litigation circle.

The outcome of the Muddy Waters-Burford short attack, and a recently filed lawsuit based on the analysis, will therefore be a harbinger of litigation finance’s future. If most of the claims are shrugged off as a reality of plaintiff-side litigation, we can be sure that new players and funding find their way into the market and flood every corner of the litigation world. If the investment world instead views these issues as incompatible with investment evaluation, perhaps a slowdown in litigation finance may be in the future. The stock price of Burford suggests the investment world is watching, and litigators should too as the dispute will certainly rage for years to come.

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Q&A

A New NY Law Greatly Expands the Legal Standard for Workplace Discrimination and Harassment Here’s What You Need to Know

BY RESHMA KHANNA On June 19, 2019, the New York State legislature voted to pass bills A08421 and S06577, new laws that expand the legal standard for workplace discrimination and harassment claims in New York.

all NDAs stating that the employee is not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee.”

The new law will arguably make it easier for employees to plead and prove discrimination and harassment claims.

The new law also expands the 2018 prohibition against mandatory arbitration clauses in sexual harassment settlement so that it also applies to all discrimination claims. And it authorizes the attorney general to prosecute certain civil and criminal cases of discrimination against all protected classes.

Below are some questions and answers to help navigate this new law.

Q: To whom does the new law apply?

Subsequently, on August 12, 2019, Gov. Andrew Cuomo, signed the legislation into law.

Q: When does this legislation go into place?

A: The new law will be effective October 11, 2019.

Q: How has the standard changed?

A: Essentially, the new law provides a much lower burden of proof for employees that have been a victim of discrimination and harassment in the workplace. Prior to this new legislation, the standard for discrimination and harassment was that the behavior had to be “severe and pervasive,” which is consistent with federal law. The new language is now consistent with New York City law.

The law states that it will be unlawful “to subject an individual … to inferior terms, conditions or privileges of employment because of an individual’s membership in one or more of these protected categories … regardless of whether such harassment would be considered sever and pervasive under the precedent applied to harassment claims.”

Moreover, the new law now allows protection for domestic workers and non-employees against discrimination and harassment.

And it eliminates a common defense employers use in discrimination and harassment claims—that the complainant did not previously bring an internal complaint of the harassment or discrimination. This is known as the Faragher/Ellerth defense. Employees now are not required to report internally before bringing a claim.

Instead, an affirmative defense to liability can be used by demonstrating that the harassing conduct does not rise above the level of what “a reasonable victim with the same protected characteristic” would consider “petty slights or trivial inconveniencies.”

The new law also will expand the 2018 prohibition of non-disclosure agreements (NDA) in sexual-harassment claims to all discrimination and harassment claims, unless it is the complainant’s preference to enter into an NDA. A carve-out must also be included in 6 | PLM

A: The New York State Human Rights Law (NYSHRL) now applies to all private employers in New York. Previously, except in matters involving sexual harassment, the NYSHRL was only applicable to employees with four or more employees.

Q: What potential damages do employers now face?

A: Previously, compensatory damages and reasonable attorney fees were recoverable under NYSHRL. Now, the new legislation allows courts to award punitive damages in all cases involving private employers and requires courts to award reasonable attorney’s fees to the prevailing party.

Q: What is the statute of limitations for these claims?

A: The legislation extends the statute of limitations in sexual harassment claims from one year to three years from the date of the alleged discriminatory practice. All other claims arising from discrimination must be brought within one year from the last alleged discriminatory act.

Q: What should employers do to protect themselves?

A: Employers should educate management and their human resources department to be knowledgeable of the new changes in the law. They should also make sure that all training on discrimination and harassment are updated to reflect the new changes in law. Employers should also review all of their current agreements with employees, including separation agreements, employment agreements and settlement agreements, to ensure they are consistent with best practices.

CASE NOTE

Texas Appellate Court Finds City of San Antonio Given Immunity Prematurely in Suit over Deaths Resulting from High-Speed Police Chase

BY WHITNEY L. ALLEN Jimmy and Regina Maspero sued the City of San Antonio in 2014 after two of their children were killed and two others severely injured in a car crash that the Masperos alleged was caused by a highspeed police chase involving a Chevrolet Suburban that ended up colliding head-on with their Volvo.

According to the suit, police began chasing the Suburban when the driver sped off as officers were trying to stop him for not using a turn signal when changing lanes.

San Antonio narcotics detectives saw the Suburban’s driver fail to signal while they were stopping motorists suspected of hauling drugs from a rural property believed to be a drug-distribution center and contacted San Antonio police sergeant Dominic Scaramozi and officer Kimberly Kory to stop the black SUV. Kory, who had been with Scaramozi at a nearby gas station, responded to the call by falling in behind the Suburban and activating her lights. The Suburban slowed and pulled onto the right shoulder but then sped off onto Loop 1604 and Kory gave chase without authorization to do so.

Reaching speeds of more than 100 miles an hour, the Suburban weaved in and out of rush-hour traffic with Kory in pursuit. The officer continued the chase onto I-35 South even though, according to the suit, she did not believe she could catch the Suburban and did not receive necessary authorization from Scaramozi upon notifying him as to what was happening.

The Suburban drove down a grassy median and onto a frontage goldbergsegalla.com

road with Kory following. The officer exited the interstate highway going 94 miles an hour. Soon after that, the driver of the Suburban lost control going through an intersection and spun out, reversing course so that it was headed toward Kory rather than away from her. To avoid colliding with the Suburban, Kory veered off the right shoulder and the Suburban drove past her car and crashed headon into the Masperos’ Volvo, killing two children in the car—the Masperos’ three-year-old and one-year-old sons.

After the family sued the city in 2014, alleging that the officer’s negligent and reckless pursuit had cost them their sons’ lives, a lower court granted the City of San Antonio immunity in the wrongful-death suit, ruling that the city was shielded from liability because the officer was responding to an emergency and there was no clear connection between the chase and the crash.

In 2019, the appellate court in Texas disagreed and ruled that the once stalled wrongful death suit should go forward, ruling that there was evidence the police officer involved in the chase waived immunity by acting recklessly and flouting department policy prohibiting unauthorized chases.

The plaintiffs also showed that the officer failed to activate her siren, traveled up to 100 miles an hour, and weaved between 18-wheelers and other vehicles during rush-hour traffic on two busy highways. The court agreed, noting that the officer had neglected to weigh the benefits of catching the suspect against the public safety risk of a chase.

The appellate court’s reversing the lower court’s finding of immunity has cleared the way for the plaintiffs to pursue their negligence-in-implementation-of-policy claim.

Fall 2019 | 7

COVER STORY

PUT THE SMILEY FACE DOWN AND STEP AWAY Emoji’s are popping up in everything from sexual-harassment claims to murder cases, leaving attorneys and judges to grapple with an odd new kind of legal language.

BY SETH L. LAVER After her employer of 13 years granted Accounting Analyst Elaine Apatoff family medical leave for asthma in November 2010, someone reported seeing her shopping and carrying boxes during a move and her employer, thinking she was faking her illness, fired her.

But the gleeful emojis in text messages that Apatoff’s superiors exchanged about her departure showed they were happy to have any reason to fire her, she argued in a lawsuit alleging her termination violated the Family Medical Leave Act and law against discrimination. And the judge agreed.

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Apatoff’s case isn’t unusual. Emojis are now showing up in everything from sexual-harassment claims to murder cases, including a 2017 trial in Massachusetts in which an accused killer was said to have texted a friend the nickname of his newly dead victim and an emoji with X's for eyes—a detail illustrated in a footnote in the court record consisting only of the emoji.

The number of cases with emojis as evidence has increased each year since 2017 and is at nearly 50 so far in the first half of 2019, according to a Santa Clara University law professor who monitors court opinions. Meanwhile, attorneys have been left to argue over how to interpret the expressive little faces, which often are misunderstood and misused, and judges have been left to struggle with how or whether to admit them into evidence. While one judge might describe an emoji to jurors rather than allow them to see it for themselves, another might not even admit emojis as evidence.

Not a universal language Emojis popping up in legal matters is a new wrinkle for attorneys and judges trained in the importance of words. Attorneys know the importance of words as well as their context and how others interpret them. But technology has simplified communication

tools through email, texts and other means of electronic correspondence, and in many ways that has created problems.

As yet no court guidelines exist on how to approach emojis. Like many developing areas of the law, particularly when it comes to technology, attorneys may have to wait for develop further before the law is defined. Based upon the cases reported to date, however, there are some notable takeaways.

Emojis are most prevalent in sexual harassment and criminal cases. They’re found in workplace lawsuits, too. The District Court of New Jersey recently denied summary judgment to Apatoff’s employer. The court also gave guidance on the criteria for barring expert medical testimony in denying the defendants’ motion to bar this testimony.

Reportedly, there are more than 2,800 emojis ranging from expressions, to activities, to food, and games. But many of these emojis are easy to misinterpret without context. Among the most commonly misunderstood or misused emojis, according to lifewire.com, are the one with X’s for eyes, which most people interpret as standing for someone who is dead or dying but actually means shock or astonishment.

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To be sure, emojis should not be considered a universal language. For example, the thumbs up gesture is considered by some to be offensive in the Middle East. A smiley face emoji is taken as sarcasm in China. And, whereas in the Western world the palms-pressed-together emoji often is used to signify prayerfulness, it actually was intended to represent the Japanese meaning of “please” or “thank you.”

To make matters more complex, different device manufacturers often modify existing emojis so they look different on separate platforms. For example, the pistol emoji looks like a functional weapon on some devices and a water toy on others. Thus, depending on the device, an emoji could be perceived as a joke or as a threat.

Like any new technology, there is a necessary adjustment period.

Courts handling emojis are no different. In the interim, employers and all professionals would be wise to remind colleagues of the risks associated with emojis and the very real risk of misinterpretation. A general rule of thumb: Do not utilize an emoji to convey a message that you would not feel comfortable expressing in person or if there is a possibility to be misconstrued.

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CROSSOVER

Success stories about Goldberg Segalla attorneys in other areas of practice

Confronted with Social Media Evidence Impugning Key Witness, Plaintiff Discontinues Liability Case In cross-examination that had jurors on the edge of their seats, Goldberg Segalla partner Michael E. Appelbaum sought to discredit the plaintiff’s star witness in an automotive liability case this month with a relatively new kind of evidence: Social media.

Posts, photos, and videos Mike found on the witness’s Facebook page cast doubt on the man’s claim that the defendant was to blame for a two-vehicle accident involving the plaintiff because they seemed to show the witness was friends with the plaintiff, whom he claimed not to know.

Though legally risky, Mike’s strategy paid off in a resounding victory for his client as he prepared to show the jury videos of the witness and plaintiff fishing together. Don’t bother, the opposing attorney said; the plaintiff is discontinuing the case. The development brought jurors bursting from the jury room to high-five Mike, he says.

“They did not want that to end,” Mike says of his cross-examination of the recalcitrant witness, a UPS driver who denied he knew the plaintiff right up until the fishing videos were ready to roll.

“I have never met a juror in 20 years who did not want a trial to end. This was TV-movie drama that played out in real life—and it involved a hot evidentiary topic.”

That hot topic is social media as evidence. Though still so new it’s little more than experimental—“There is a limited amount of case law on the subject,” Mike says, “though there’s more and more each day”—the use of Facebook, Twitter, and other social media in litigation is big and growing, affecting everything from family to criminal law.

use of social media one week only to have another judge allow it the next.

“This is an evolving area of law and this case is a win for the defense and our desire to use social media to impeach witnesses.”

Though social media-based evidence doesn’t work in every case—“If the witness denies that he has the account or denies that the photos are accurate, there is little an attorney can do unless you have a Facebook representative live in court to authenticate the page and posts,” Mike says—the strategy proved effective in the automotive liability trial.

“The UPS driver was a significant challenge for us,” Mike says. “If credible, he would most assuredly tip the scales in the plaintiff’s favor.”

That Mike knew little about the witness at first added to the challenge. “This witness was only made part of the case by the plaintiff in the weeks before the trial,” he says.

When that happened, Mike began searching online for information about the man. Though the witness had no criminal history, he did have a Facebook page, and Mike found it. Then the real work began.

“I spent hours digging through his and his friends, posts, photos, and videos and his friends’ friends’ posts, photos, and videos,” Mike says. “Eventually I found several photos and videos which appeared to show the UPS driver with the plaintiff. They were seen at parties together and fishing together. I found two Facebook live videos which showed the witness and plaintiff in a friendly dialogue with each other.

“Few transformations have affected litigation and litigators as swiftly and as profoundly as social media,” according to the American Bar Association site. “Social media have become a big part of the way litigators do business, and they pose problems in the litigation process from the first time lawyers meet with their clients until after judgment is rendered.”

“While it appeared that I had stumbled onto a smoking gun, I was not convinced that the photos were actually the plaintiff. Nor could I be sure that the Facebook page belonged to the UPS driver, since I had never seen him before.”

Today evidence for a legal case can come in a variety of electronic as well as physical forms, writes Jason Park on Law Technology Today. “These days the average person keeps much … information online, including posting on social media, which is why more and more cases are bringing posts from Facebook, Twitter, and other platforms into the evidence mix.” According to a survey by the staffing agency Robert Half, more than half of lawyers have reported an increase in lawsuits related to social media over the past few years.

The trial was the culmination of a case stemming from a February 18, 2015, accident at the intersection of Franklin and West Tupper in Buffalo, where both drivers claimed they had a green light. The UPS driver claimed he witnessed the accident; he testified that he saw Mike’s client, who was driving a panel truck belonging to his employer, run a red light while driving fast and talking on his cell phone. In truth, Mike’s client had a green light and no cell phone.

“Questions about what information is discoverable, what information is admissible, and when, if at all, information must be disclosed to the other party are all critical issues,” Mike says. “There are attorneys at [Goldberg Segalla] that have had a judge deny 10 | PLM

But as soon as the driver walked into court, Mike knew he had the right guy.

The win marks another success for Mike, a leader of Goldberg Segalla’s General Liability practice group and a seasoned litigator who tries cases in the state, federal, and appellate courts of New York—cases involving personal injury, sexual torts and abuse, truck and motor-vehicle accidents, and the sports and entertainment industry.

The stories on this page were published originally on goldbergsegalla.com.

CROSSOVER

Workers’ Compensation Case Swings in Favor of Employer An Illinois workers’ compensation case that hinged on which way a factory-floor gate swung culminated in victory for the employer, a Goldberg Segalla client, after the claimant failed to prove the incident in which he allegedly was injured happened the way he said.

The 33-year-old employee alleged he was rushing up some stairs to unjam a paper-corrugator machine when a coworker told him he wasn’t needed, causing him to stop suddenly, grab the post of a gate, and sustain a “jarring” injury to his neck and arm. Seeking $50,000 in disability benefits and reimbursement for unpaid medical bills and legal fees, the man filed a workers’ compensation claim in April 2017. But a subsequent investigation by his employer—a leading global producer of fiber-based packaging, pulp, and paper—revealed that he grabbed the gate, not the post, and that it swung away from him, making a jarring injury virtually impossible.

Tapped to defend the paper company was Goldberg Segalla partner Emily E. Borg, a member of the firm’s Workers’ Compensation practice group, whose mission is to achieve significant and sustainable reductions to the overall expense of each client’s workers’ compensation program.

Emily has dedicated her nearly 15-year legal career to workers’ compensation defense, providing proactive counsel to clients goldbergsegalla.com

who rely on her to vigorously defend their claims while ensuring their overall business objectives are met. Highly knowledgeable in all facets of workers’ compensation claims, their litigation, and their management, she is a trusted counselor to clients in manufacturing, distribution, staffing, facility management, construction, financial services, and other industries. That experience—including extensive Illinois Appellate Court argument experience—has translated into a 90-percent success rate before the Illinois Workers’ Compensation Commission and Illinois courts.

Working with fellow partners Jennifer Y. Weller and John M. Allen in the paper-company case, Emily mounted a successful defense of the client during a trial beginning on August 22, 2019, with testimony by the plant supervisor and shift supervisor corroborating the employer’s investigation and a co-worker saying he didn’t witness an accident on the date cited in the claim. On September 18, an arbitration ruling was issued in favor of the employer, signaling a victory for the Goldberg Segalla team. According to the arbitrator, the petitioner had failed to prove an accident had occurred and was not a credible witness at trial. The ruling was an impressive turn of events given that the same arbitrator had recommended a less-than-ideal, pre-trial settlement rejected by the client.

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SPOTLIGHT

The New Accessibility While many still think of wheelchair ramps when they think of access for the disabled, today’s ADA lawsuit is just as likely to be about navigating a website.

Recently, Goldberg Segalla associate attorney Joanne J. Romero of the firm’s Management and Professional Liability practice group started working on an Americans with Disabilities Act (ADA) case involving a disabled Brooklyn man who sued a limousine and bus service because he was having trouble accessing the business.

But it wasn’t a high curb, narrow entryway, or other physical obstacle that stood in the man’s way; it was, rather, a problem the man was having navigating the company’s website. He was blind, and he alleged that the limo service’s website had been engineered with few if any voice prompts or other accommodations to help a visually impaired customer purchase tickets or ticket packages, contact the company, learn stop locations, or view maps or schedules.

The online accessibility of businesses to consumers with sensory impairments is a new twist on an old issue, one that most Americans likely still think of in terms of wheelchair ramps and wide restroom stalls. The number of internet ADA suits has nearly tripled over the past five years to a projected 11,000 new filings in 2019.

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More accessibility lawsuits were filed in federal court during the first six months of 2018 than in all of 2017.

Figuring prominently in these numbers is a rise in website accessibility cases driven by the proliferation of e-commerce platforms and of the absence of any federal guidelines explaining how businesses need to structure or modify their websites in order to comply with the ADA. The vacuum has spawned a new sector of ADA litigation that’s changing the legal landscape despite unfolding largely outside the public consciousness.

“This area of the law is largely unknown to those outside of the industry,” says Jeffrey S. Matty, a partner with the firm's Cybersecurity and Data Privacy practice, a multidisciplinary team of attorneys working across the country to counsel, train, and defend clients facing all conceivable cybersecurity and data-related risks.

“The proliferation of website ADA lawsuits has certainly helped to bring about some discussion on the topic, but most owners and operators of businesses that have an online retail component are caught completely off-guard when a claim letter or lawsuit is received.”

Accessing Winn-Dixie The first online-accessibility ADA case to go to trial and the first in which a business was directed to modify its website to comply with a particular standard was a Miami lawsuit over a grocery website, Gil v. Winn-Dixie.

Miami resident Juan Carlos Gil had long shopped at Winn-Dixie because the prices were low and the chain’s grocery stores house pharmacies where he could have prescriptions filled. But some of his needs Winn-Dixie hadn’t been able to meet because the chain’s website was 90 percent inaccessible to him.

Juan, who is legally blind, and prefers shopping on the web because it affords more independence and privacy than brickand-mortar stores, requires screen-reader software to navigate a website. But he found Winn-Dixie’s site didn’t work with his industry-standard software, JAWS, which translates visual images and text on a computer screen into audible speech, so that Juan knows what’s happening on a site and what he needs to type to navigate it. Because Winn-Dixie’s website did not allow him to use this technology to conduct his online shopping, he sued the company for violating the ADA, claiming that Winn-Dixie’s website did not comply with the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), standards for website accessibility developed by the World Wide Web Consortium (W3C). In June 2017, a judge sitting in the U.S. District Court for the Southern District of Florida ruled in Juan’s favor, and ordered Winn-Dixie to modify its website to comply with WCAG 2.0.

Juan’s suit is currently under review in the U.S. Court of Appeals for the Eleventh Circuit, but what it started isn’t about to stop.

ADA-based lawsuits span cybersecurity, retail, and employment-and-labor law. They also can involve management and professional-liability exposure, says Goldberg Segalla partner Jonathan S. Ziss, chair of the firm’s Management and Professional Liability practice group.

‘People don’t think about it’ Small stores without sophisticated legal counsel are especially unaware of the legal issues surrounding website accessibility and unprepared for related lawsuits, says Los Angeles- and Orange County-based partner Peter J. Woo. But even some larger businesses in the retail and hospitality industry get caught unaware.

Peter recently fielded a new website accessibility case from a hotel that professed ignorance of the issue until being sued, he says.

The hotel’s owners wanted to know how to prevent such lawsuits.

“There has been press on brick-and-mortar ADA public-accommodation lawsuits, particularly in California,” Peter says.

Businesses aren’t alone in lacking knowledge about the legal issues surrounding website accessibility; the average consumer is also largely unaware, says the Philadelphia-based Madeline Baio, a member of Goldberg Segalla’s full-service Retail and Hospitality practice and a board member of the National Retail and Restaurant Defense Association (NRRDA). “People don’t think about it, unless you have an impairment that prevents you from gaining access to a website,” she says.

Awareness of these issues amongst members of the public and business owners alike will continue to grow as more lawsuits are filed and covered by the news media, says Jeff, who works out of Manhattan and Raleigh. He and other Goldberg Segalla attorneys routinely handle web- and software-based accessibility claims, which in turn involve not only the firm’s Cybersecurity and Retail practices but also its Employment and Labor group. Those attorneys represent employers in a strategic partnership aimed at protecting the enterprise and its leaders while helping an organization advance its management philosophy and maintain its company culture.

“We have been routinely defending these cases for the past two years,” says Manhattan-based Goldberg Segalla partner Marc S. Voses, the chair of the firm’s Cybersecurity practice. “It’s a trend that’s been on the increase, and, frankly, there’s no stopping it.

In addition to the flood of formal lawsuits, we have seen a dramatic increase in the number of pre-suit claim letters where federal court litigation is threatened if a business does accede to the claimant’s demands.”

In 2019, Goldberg Segalla defended a retailer of motorized vehicles sued in U.S. District Court for the Southern District of New York. “We opted to promptly engage with plaintiff’s counsel and explain the issues with their case, including the fact that our client’s website was in substantial compliance with WCAG 2.0, and were able to negotiate a settlement with the plaintiff, dismissing the action,” Marc says. “We then guided the client through the process of increasing their compliance with WCAG guidelines.”

In the end, Goldberg Segalla helped the retailer avoid hundreds of thousands of dollars in discovery and trial expenses associated with a potential class-action suit, Marc says.

Defending clients against these website-based ADA claims is challenging because the Department of Justice (DOJ) retains exclusive authority to issue regulations explaining what it means to be ADA-complaint, yet despite years of study and consideration, there remain no federal guidelines on the topic, only industry recommendations such as WCAG. ‘It’s hard to keep up’ Though the U.S. Department of Justice was to provide more direction on such cases, it has failed to do so under the current administration, Peter says. “Currently, we are relying on recommendations made by the prevailing accepted guidelines under WCAG. However, this is not binding law.”

Although the DOJ published several Advance Notices of Proposed Rulemaking with regard to website accessibility between 2010 and 2016, inviting public and industry comment on prospective regulations and indicating that specific guidance would be forthcoming, the notices were withdrawn on December 26, 2017, leaving consumers, businesses, and the legal community alike to continue to wonder what makes a website ADA-compliant.

“As opposed to ensuring ADA compliance from a structural or architectural standpoint, there are no definitional terms for what a business has to do to meet its obligations to eliminate barriers to continued on next page

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disabled patrons’ access to and enjoyment of an online retailer’s goods and services," says Jeff.

“The threshold factor for the ADA to apply to any particular business or entity is that it has to be a ‘place of public accommodation,’ and the ADA lists 12 specific categories of what types of places fall within that spectrum," Jeff says. "No surprise, the legislation enacted in 1990 doesn’t specifically list websites as within that category, so the federal district courts were initially left to grapple with the concept of whether a website constitutes ‘a place of public accommodation.’

Any time individual district courts are asked to decide threshold issues of applicability and scope of a broad statute in the absence of any regulatory or departmental guidance, you’re going to end up with conflicting decisions.”

“These sorts of claims provide a broad opportunity not only to advise clients on their responsibilities to the public at large, but also as to how they can better protect themselves when entering into engagements with web-hosting and site development vendors. And by maintaining an insurance portfolio that may provide businesses with a source of protection in the event they find themselves the target of a technology-related ADA claim.”

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A major underlying problem, Madeline says, is the breathtaking pace of new developments in the internet and digital communication.

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