Last year, my company Beard Brands was sued for allegedly violating a New York state law similar to the Americans with Disabilities Act. The claim was frivolous.
Resolving bogus claims is not in my nature, so I hired Mark Berkowitz, a New York-based attorney with experience in accessibility issues. We have made it clear to the plaintiff’s attorney that we refuse to pay the amount claimed. The lawyer ultimately dropped the case.
I asked Mark to summarize the incident. The entire audio of the conversion is embedded below. The transcript has been edited for length and clarity.
Eric Bandholz: Please give us an overview of your work.
Mark Berkowitz: I am an attorney and partner at the New York law firm of Tarter, Krinsky & Drozin. I have a background in intellectual property, starting as an electrical engineer and moving on to become a patent attorney and litigation attorney. Over time, I moved into trademark litigation and eventually worked extensively with e-commerce sellers, including Amazon sellers, and handled various forms of litigation.
Beard brand is very common lawsuit Relates to the Americans with Disabilities Act. Your case was one of 4,000 to 5,000 new cases each year. These lawsuits stem from a series of laws aimed at protecting people with disabilities, such as the visually impaired and people who use wheelchairs. At some point, certain courts and the U.S. Department of Justice expanded the definition “Public accommodation” also includes websites. Although there are no legal requirements outlining what websites must do, websites must meet certain accessibility standards.
Plaintiffs’ attorneys argued that the website did not provide reasonable accommodations to people with disabilities and selected individuals to represent the class. This is a gray area as there are no specific laws governing what is sufficient accessibility. Although there are guidelines, there is nothing that clearly stipulates that “this standard must be met.”
In your case, the plaintiff filed suit in New York state court, which is common in these cases. Your options for handling your case vary depending on whether you are in federal or state court.
Bandholz: why is that?
Berkowitz: it depends on laws and regulations They are used to filing lawsuits. In federal court, lawsuits are typically filed under Title III of the Americans with Disabilities Act. Although this law does not provide for monetary damages, it may make you liable for legal costs. The threat of a federal lawsuit is that you will be drawn into a lengthy legal process and be forced to pay large sums of money, which is why many people choose to settle their case.
However, state courts, particularly New York, have brought lawsuits based on state and city laws that allow for monetary damages. Some of these damages may be significant. One of the main differences in state court litigation is that you can claim that the plaintiff did not contact you before filing the lawsuit. They are claiming that they were unable to use your website, but did not attempt to notify you before filing a lawsuit.
That approach is common sense. If they had contacted you, you could have helped them. This argument has been accepted in other cases and was used in Beard Brand’s defense. We noted that the complaint does not specify what the plaintiffs did other than visit the website and file a lawsuit. When they tried to rectify the complaint, they still hadn’t addressed this issue. We argued even harder at that point and indicated they were filing a lawsuit without proceeding. Eventually they gave up.
Some people want to finalize quickly, pay a certain amount and be done with it. Not everyone is angry at what you did. If you are willing and able to fight, the plaintiff will eventually give up.
Bandholz: As e-commerce operators, we are willing to fight for our business, but these predatory lawyers have no honor. Prices started at $75,000. If they had started lower we might have settled, but their higher offer inspired me to fight harder on principle.
Berkowitz: that’s right. They got to a certain point, but it was clear that there was a floor below which they didn’t want to fall, whether it was a firm policy or just the way they operated. We left the incident alone for a bit and then added some moves to end the incident.
For some people, it’s easier to pay and move on, but for those who are willing to fight, plaintiff’s attorneys often give up when they see that you won’t back down.
Bandholz: What can e-commerce operators do to avoid these lawsuits?
Berkowitz: Best practice is to make your website as compliant as possible. Most companies aim to WCAG 2.0 Intermediate level standard. Developers should understand these guidelines and how to adjust their websites accordingly.
some basic exercises This includes ensuring proper text contrast, using accessible fonts and colors, adding appropriate page titles, and ensuring that screen readers can navigate your site effectively. But even with all these steps, there will always be something that the plaintiff can point to as a defect. If you use a dozen website scanners, you’re sure to find something wrong.
Bandholz: Is it possible to recover attorney fees or counter-sue these plaintiffs?
Berkowitz: Unfortunately, this is not the case. There is no real way to counter-sue in such cases. If you go to court and win, you could theoretically recover your legal fees, but that process can take years and cost hundreds of thousands of dollars. Usually worthless. If the plaintiff withdraws, it is often best to take it as a victory and move on.
Bandholz: Will the plaintiff’s attorney understand that the e-commerce defendant has settled?
Berkowitz: To some extent. It turns out that the company has been sued and a dismissal has been filed. They are going to assume that a settlement has been reached. Most of the time, you may not know what happened behind the scenes. In some cases, the plaintiff’s attorney was able to obtain a consent decree in which the defendant acknowledged that the website was not compliant and intended to make it compliant in the future. If you do that, merchants will become your targets.
Bandholz: How do these plaintiffs’ lawyers decide which e-commerce businesses to target?
Berkowitz: They may use a variety of tools to identify successful companies. There are public databases that provide estimates of sales volume for specific websites. You’re probably also monitoring social media and hot business news.
Your company, Beardbrand, has been featured in a lot of media and even appeared on Shark Tank. Even if it was years ago, it’s still a sign of success that might get them noticed. Some companies unintentionally target themselves by boasting about their growth and success on social media.
Bandholz: What does it take to have a successful attorney-client relationship?
Berkowitz: It is important to work with an attorney who understands your situation and goals. Be upfront about how much money you plan to spend and how far you want your case to go. Transparency on both sides is the key to a successful relationship.
As a client, be honest about any past issues you’ve had with your website, whether or not you’ve tried to gain access to it. Surprises can negatively impact your case. As lawyers, we say “bad facts are fine” as long as we know about them. Be clear about what you want to achieve and the obstacles you have faced.
Bandholz: Where can people find you?
Berkowitz: we can be found at TarterKrinsky.com or contact me linkedin.
