Last year, my company Beardbrand was sued for allegedly violating New York laws similar to the Americans with Disabilities Act. The claim was frivolous.
Resolving false claims is not in my nature, so I hired Mark Berkowitz, a New York attorney experienced in accessibility issues. We have explained to the plaintiff’s attorney our refusal to pay the claim. Ultimately, the lawyer dismissed the case.
I asked Mark to summarize the entire process. The entire audio of our conversion is embedded below. The transcript has been edited for length and clarity.
Eric Bandholz: Tell us about your work.
Marek Berkowitz: I am an attorney and partner at Tarter Krinsky & Drogin LLP in New York. I have experience in the field of intellectual property, starting as an electrical engineer and then becoming a patent attorney and lawyer. Over time, I began working on trademark disputes and eventually began working extensively with e-commerce sellers, including Amazon sellers, handling various forms of litigation.
Beardbrand has been the target of a very common Americans with Disabilities Act lawsuit. Yours was one of 4,000 to 5,000 new cases each year. These lawsuits stem from a number of laws designed to protect people with disabilities, such as those who are blind or use wheelchairs. At some point, some courts and the U.S. Department of Justice expanded the definition of “place of public accommodation” to include websites. Websites must meet certain accessibility standards, even though there is no legal requirement that specifies what they must do.
Plaintiff’s lawyers are selecting someone to represent the class, arguing that the website does not provide reasonable accommodations for people with disabilities. This is a gray area because no specific law defines what constitutes sufficient accessibility. There are guidelines, but nothing definitively says, “You must meet this standard.”
In your case, the plaintiff filed a lawsuit in a New York state court, which is common in these types of cases. Your options for resolving your lawsuit vary depending on whether you are filing in federal or state court.
Bandholz: Why is this so?
Berkowitz: It depends on the statute they use to sue. In federal court, lawsuits are typically filed under Title III of the Americans with Disabilities Act. This law does not provide for monetary damages, but it may make you liable for the costs of legal proceedings. The danger in federal cases is that they will drag you through a long legal process, forcing you to spend a lot of money, which is why many people choose to settle.
However, in state court, particularly in New York, they sue under state and city laws that allow for monetary damages. Some of this damage can be significant. One key difference in state court cases is that you can argue that the plaintiff never contacted you before filing the lawsuit. They claim they couldn’t use your site, but they didn’t try to notify you before filing a lawsuit.
This approach is common sense – if they contacted you, you could help them. This argument has been adopted in other cases and we used it in Beardbrand’s defense. We noted that the complaint did not specify what the plaintiff did beyond visiting the website and filing the lawsuit. When they tried to amend the complaint, they still did not address the issue. At this point we pushed even more, showing that they were taking the matter to court without initiating proceedings. They finally gave up.
Some people prefer to have a quick ending, pay a fixed amount and be done with it. Not everyone has the courage to do what you did. If you are willing and able to fight, the plaintiff will eventually give up.
Bandholz: As e-commerce operators, we are ready to fight for our businesses, but these predatory lawyers are not honorable. They started with $75,000. We might have agreed if they had started lower, but their high offer basically forced me to fight harder.
Berkowitz: Exactly. They had reached a certain point, but it was clear that they had a floor below which they did not want to go – whether it was a rigid policy or simply a way of operating. We left it for a while and then hit them with some moves and that ended it.
Some people find it easier to just pay and move on, but for those willing to fight, plaintiffs’ lawyers often give up when they realize you won’t budge.
Bandholz: What can e-commerce operators do to avoid these lawsuits?
Berkowitz: It is best practice to ensure that your website is as compliant as possible. Most enterprises are aiming for the WCAG 2.0 standard at an intermediate level. Your developer should be familiar with these guidelines and how to customize your site accordingly.
Basic practices include ensuring good text contrast, using available fonts and colors, adding appropriate page titles, and allowing screen readers to navigate the site effectively. However, even with all these measures, there will always be something that the plaintiff can point to as a defect. You can use a dozen or so website scanners – they will always find something incorrect.
Bandholz: Is it possible to recover attorney fees or file a counterclaim against the plaintiffs?
Berkowitz: Unfortunately not. In such cases, there is no real possibility of filing a counterclaim. Theoretically, you can recover your attorney’s fees if you take your case to court and win, but it will take years and cost hundreds of thousands of dollars. Usually not worth it. If the plaintiffs withdraw, it is often best to consider it a victory and move on.
Bandholz: Can plaintiff’s lawyers see that an e-commerce defendant has settled?
Berkowitz: To some extent. They see that the company has been sued and a motion to dismiss has been filed. They will assume that an agreement has been reached. In most cases, they may not know what happened behind the scenes. In some cases, plaintiff’s lawyers have been able to obtain consent judgments in which the defendant has admitted that its websites are not compliant and will make them compliant in the future. Merchants become targets when they do this.
Bandholz: How do plaintiff lawyers decide which e-commerce companies to target?
Berkowitz: They likely use a variety of tools to identify successful companies. There are public databases that provide sales volume estimates for specific websites. They also likely monitor social media and news for companies that are getting a lot of attention.
Your company, Beardbrand, has received extensive media coverage and you have even been on Shark Tank. Even if it happened many years ago, it is still a sign of success that can catch their attention. Some companies inadvertently become targets by bragging about their growth or success on social media.
Bandholz: What constitutes a good attorney-client relationship?
Berkowitz: Working with a lawyer who understands your situation and goals is extremely important. Be honest about how much you are willing to spend and how far you want to go. Transparency on both sides is the key to good relationships.
As a customer, be honest about any previous issues you’ve had with your site, whether you’ve tried to share it or not. Surprises can hurt your case. As lawyers, we say, “Bad facts, no problem,” as long as we know about them. Just be clear about what you want to achieve and what obstacles you have faced.
Bandholz: Where can people find you?
Berkowitz: You can find us at: TarterKrinsky.com or contact me LinkedIn.
