Category: Uncategorized

Wage the Battle to Win the War: Expert Challenges at Class Certification [PANEL]

Please join MoginRubin partner Jennifer Oliver in Chicago on September 24th as she joins other prominent legal and economic advisors as a panelist at McDermott Will & Emery’s “Wage the Battle to Win the War: Expert Challenges at Class Certification.” The discussion will focus on the panelists’ analysis of the current legal and economic state of class certification. Titled “Wage the Battle to Win the War: Expert Challenges at Class Certification,” Jennifer will be joined by fellow panelists from McDermott Will & Emery, Berkeley Research Group, LLC, and NERA Economic Consulting. 

Certifying an antitrust class under Rule 23 has become a battle. In the last 20 years, courts have been changing the game around Rule 23 interpretation, and rigorous analysis at class certification has made briefing voluminous and expensive. Plaintiffs and defendants have had to respond accordingly by leveraging the legal tools at their disposal, wondering if there is a way to get out of the trenches and streamline the process.

On September 24, join us in Chicago for a panel discussion on the state of class certification. Seasoned legal and economic advisors will first analyze the various legal maneuvers that have caused class certification to evolve into the lengthy and expensive process we see now. They will then discuss how courts can curtail this trend in various ways, including by giving Daubert motions due consideration at class certification—a move that would pave the way for cases to be resolved early if granted, by considering the denial of those motions a route to fast-track expert issues to trial, or by dialing back and bringing the class certification process closer to its procedural roots.

Our agenda includes insights and recommendations on the following topics:

  • Definition of “rigorous analysis”
  • Daubert motions and how they can be used to streamline litigation
  • Recent class certification opinions to see how courts are applying rigorous analysis and reacting to Daubert motions at the class certification stage
  • How to work within litigation realities to curb the time, money and effort expended in an antitrust class action

Speakers:

Jennifer Oliver, Partner at MoginRubin LLP

Katharine O’Connor, Partner at McDermott Will & Emery

Michelle Lowery, Partner at McDermott Will & Emery

Dr. Shireen Meer, Associate Director at Berkeley Research Group, LLC

Dr. Lauren Stiroh, Managing Director & Chair, Antitrust & Competition Practice at NERA Economic Consulting

Click here to register.

© 2019 McDermott Will & Emery

For more upcoming legal events, see the National Law Review Upcoming Legal Education Events page.

Your Firm Is Walking the Walk on Diversity, But Are Your Leaders Talking the Talk?

When it comes to getting the word out about their firm’s gender diversity, many marketing directors focus on publicizing stats that demonstrate progress. Using external communications to spotlight an evenly split associate class, a new equity partner who is a woman or the contributions of women attorneys on marquee cases is a great way to promote your firm’s commitment to gender equality.

But statistics are only one piece of the story about how your firm supports its women lawyers. And that full story may already be on display for prospective clients and recruits, whether you realize it or not. Your overall messaging comes across not just in the communications you produce — on your website, on social media, in ads and thought leadership pieces — but also in who speaks for your firm in the media and what they say. There’s nothing worse than launching an ambitious information campaign to modernize your firm’s image, only to have it undermined by comments to a reporter that are way off message.

Let’s look at two hypothetical cases of law firm leaders quoted in a legal media story on the lack of women represented in banking and finance law.

Law leader A describes his firm’s talent-driven effort to bring in the best women attorneys as well as a robust mentoring and sponsorship program focused on advancing them to leadership positions. “It’s important to us to promote top women attorneys,” he says. “But inclusion isn’t something the firm is embracing out of social correctness or benevolence. Instead, we know, and research shows, that more diverse teams of lawyers are better problem solvers, which means they provide better service to clients. More women in leadership is good for the firm and good for our clients.”

Law leader B talks about his firm’s efforts in a different way. He notes that he’s pretty sure the firm won the business on a $30 billion deal because they included a woman on the team at the pitch meeting, though he doesn’t say whether that woman will play a significant role on the work itself. On the matter of advancing women attorneys in this practice area, he says, “We’re trying, but this job is just inherently demanding and unpredictable, and it’s tough for someone with childcare responsibilities to fully participate.”

Leader A’s comments underscore the marketing department’s work to get the word out about the progress the firm is making on gender diversity. He skillfully articulates not just what the firm is doing but why, and how these initiatives will ultimately benefit clients.

Leader B’s comments, however, will make most marketing directors break into a sweat. He talks about diversity as a legal obligation but also a burden on the firm. And while he seems genuinely to believe that a lack of women in power is a loss for those women, he does not articulate an understanding that the firm and its clients are worse off without the unique contributions those women attorneys would make to the work. Comments like these to a reporter are off message and undermine the firm’s overall goal to demonstrate that it is willing to change things like work processes and schedules to prioritize gender diversity.

Marketing directors don’t always have control over who takes a reporter’s call or what that person chooses to say. But as much as possible, marketers must take proactive steps to harness the power of these media opportunities and make sure they work in service of the firm’s overall communications strategy. Here are three ways you can start this work today:

Integrate messaging across internal and external communications. Has your firm articulated how its gender-equality initiatives line up with its stated values or mission statement? Your internal communications are the place to begin distributing those talking points. All members of the firm should understand not just what you are doing to support the advancement of women but why, and how the initiatives serve clients. This messaging should be consistent across your internal and external outreach.

Advocate for media training. High-quality media training will prepare your firm’s leaders to speak knowledgably about the firm’s diversity initiatives and stay on message. It will also help to create a plan for which leaders should speak on which topics to maximize credibility.

Broker relationships between key reporters and select attorneys. You can influence who becomes the face of the firm in the media by taking proactive steps to match reporters with your best spokespeople and steering them away from less reliable partners. To maximize the effectiveness of these introductions, prepare both parties for the conversation: help your firm representative understand the reporter’s specific interests, and provide the reporter with background on the attorney’s expertise and roles within the firm. Don’t leave anything to chance.

Your efforts to promote your firm’s diversity initiatives will only be successful if your messaging is consistent across all channels. Get proactive to ensure that your firm’s media opportunities support your communication strategy and build the firm’s brand overall.

© 2019 Page2 Communications. All rights reserved.

For more information, see the National Law Review Law Office Management page.

DHS Proposes Fee of $10 to File H-1B Petition

Department of Homeland Security (DHS) has proposed a fee of $10 per H-1B petition. The agency considers this to be an “appropriate, nominal fee” to recover some costs involved.

In January 2019, DHS published the rule establishing an H-1B electronic registration system. At that time, no fee was proposed, but the “door was left open.” In mid-August, DHS announced that there would be a fee.

As to what information will be required, that is still a bit up in the air – again, the door is left open by DHS. The agency wants enough information to be able to check for fraud, duplicate registrations filed by the same company, and to ensure that those selected during the registration period ultimately file H-1B petitions. In addition to company identification, each registration would include the beneficiary’s:

  • Full name
  • Date of birth
  • Country of birth
  • Gender
  • Passport number

Each registration also will require the petitioner to complete an attestation about the “bona fides” of the registration. Frivolous registrations, DHS warns, “may be referred to appropriate federal law enforcement agencies for investigation and further action as appropriate.” Under a “catch-all,” DHS could require: “any additional basic information requested by the registration system to promote certainty.”

Some concerned about frivolous registrations suggested that information include job title, worksite address, salary offers, SOC code, LCA wage level, and specific educational qualifications. Others suggested including disclosure of any recent labor violations or disputes and EEOC complaints and whether the petitioner is H-1B dependent. DHS rejected these ideas (for now), noting that much of that information would be used to review eligibility once an H-1B petition is filed.

Questions remain about what DHS does with the information it gathers during the electronic registration. In accordance with the Administration’s “Buy American, Hire American” Executive Order,  DHS is already gathering and sharing much information on its H-1B Data Hub. The public can search the number of H-1B approvals and denials by company and by year. The public also can see, by employer, the number of approved H-1B petitions by salary and degree type. In addition to making the information public, DHS has stated in a description of the H-1B registration tool that it “may share the information with other Federal, State, local and foreign government agencies” and “may also share [the] information, as appropriate, for law enforcement purposes or in the interest of national security.” The full scope of this statement is not yet known.

It is unclear whether the electronic registration will be ready in 2020 or when the promised trial period for stakeholders will occur.

Jackson Lewis P.C. © 2019

ARTICLE by Amy L. Peck of Jackson Lewis P.C.
For more on DHS filing, see the National Law Review Immigration Law page.

Mode of Operation Potentially Creates New Theory of Liability Against Retailers for Premises Liability

This article will address the use of “mode of operation” theory in so-called negligent stacking cases against retailers for premises liability. Adding mode of operation analysis into the mix creates new considerations for retailers in defense of cases of falling merchandise. While many courts look solely to the method of stacking standing on its own in making this determination, some have introduced the concept of mode of operation into the analysis. By introducing this consideration, courts invite inquiry into the reasonably foreseeable interference of customers. Being on the lookout for this issue is important early in the pleading process as well as during the presentation of evidence at trial.

Typically, in premises liability cases, including those involving falling merchandise, a retailer is not the insurer of the safety of its customers. See, e.g. Garvin v. Bi-Lo, Inc., 343 S.C. 625 (2001); Mounsey v. Ellard, 363 Mass. 693 (1973); Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 806 A.2d 546 (2002). However, a plaintiff may recover if she can show that the manner of stacking a shelf was dangerous. “The merchant must use reasonable care in placing goods on the store shelves. Merchandise must not be stacked or placed at such heights, widths, depths, or in such locations which would make it susceptible to falling.” See e.g. Pullia v. Builders Square, Inc., 265 Ill.App.3d 933, 937, appeal denied, 158 Ill.2d 565, 645 N.E.2d 1368 (1994); Dougherty v. Great Atlantic & Pacific Tea Co., 221 Pa.Super. 221, 289 A.2d 747 (1972). The jury also may consider the method of stacking, the presence or absence of lateral support, and the stacked item’s dimensions and center of gravity. Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467 (2002); Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d 412 (Tex. App. 1999); Fleming v. Wal-Mart, Inc., 268 Ark. 241 (1980).

These cases, relying on a simple formulation of negligent stacking present clear areas for the defense to emphasize. Any deficiency in the plaintiff’s presentation as to orientation, heights, and weights must be highlighted for the finder of fact. Unless the case is brought in a jurisdiction that sanctions res ipsa loquitur liability in these situations, the plaintiff cannot simply rely on the occurrence of the accident to support a case. In addition to highlighting deficiencies in the plaintiff’s case, the defense may also benefit from the right expert. Testimony from a structural engineer or other qualified expert to affirmatively establish the stability of the retailer’s chosen display and compliance with industry standards.

In some jurisdictions, courts have employed a mode of operation analysis to allow a plaintiff to establish liability for falling merchandise. For example, in Meek v. Walmart, 72 Conn. App. 467, 806 A.2d 546 (2002), the Connecticut Appellate Court held that “the store’s mode of operation may be taken into account by the fact finder when it considers whether the method of display was unsafe.” Consequently, “one of the factors to be considered in establishing and maintaining a display in a department store is that the merchandise is going to be inspected by the customers.” This ruling extended the mode of operation analysis to Connecticut in line with the more than twenty other states. See Kelly v. Stop and Shop, Inc., 281 Conn. 768 (2007).

Adding mode of operation analysis into the mix creates new considerations for retailers in defense of cases of falling merchandise. Although the jurisdictions that allow mode of operation liability employ different tests, generally speaking, there needs to be a business model that encourages customers to handle merchandise making a “particular resultant hazard readily foreseeable.” See e.g. Fisher v. Big Y Foods, Inc., 298 Conn. 414, 428, 3 A.3d 919, 928 (2010). Such modes of operation typically concern a particular method of operation within the self-service context, rather than the self-service model itself. See Jasko v. F.W. Woolworth Co.,supra, 177 Colo. at 420, 494 P.2d 839 (“defendant’s method of selling pizza” created dangerous condition); Gump v. Wal-Mart Stores, Inc., supra, 93 Hawai’i at 418, 5 P.3d 407 (specifically limiting application of rule to circumstances of case, i.e., when “a commercial establishment, because of its mode of operation, has knowingly allowed the consumption of ready-to-eat food within its general shopping area”). The fact that customers are allowed to select merchandise off of a shelf typically will not satisfy a mode of operation analysis. See e.g. Fisher v. Big Y Foods, Inc., 298 Conn. 414, 428, 3 A.3d 919, 928 (2010).

Therefore, when confronted with a claim of mode of operation case for falling merchandise, the defense should initially consider a motion to contest the sufficiency of the allegation if the mode of operation alleged is merely that customers are allowed to select and carry away their own merchandise. Without identifying a specific practice within a self-service context, the plaintiff’s allegation may be legally insufficient.

If unable to dispense of such an allegation through a pre-trial motion, it will be incumbent upon the defense to present evidence at trial negating the mode of operation claim. A well-prepared defense witness on compliance with internal standards and practices showing proper stacking methods and inspections will go a long way towards a successful defense. Further, evidence showing lack of injury from the merchandise display method at issue will bolster the defense. This can be done through presenting evidence as to industry practice as well as demonstrating an absence of regularly occurring falling merchandise. Retailers can best achieve this by regularly documenting any claims and having in place a system for monitoring such accidents. By showing that the practice at question was not peculiar to a particular aspect of the retailer’s operation or that the hazard was not so regularly occurring as to be foreseeable, a defendant should be able to avoid liability.

© 2019 by Raymond Law Group LLC.

For more on legal liability, see the National Law Review Products Liability law page.

Is Your Iphone Spying on you (Again)?

In the latest installment of this seemingly ongoing tale, Google uncovered (for the second time in a month) security flaws in Apple’s iOS, which put thousands of users at risk of inadvertently installing spyware on their iPhones. For two years.

Google’s team of hackers – working on Project Zero – say the cyberattack occurred when Apple users visited a seemingly genuine webpage, with the spyware then installing itself on their phones. It was capable of then sending the user’s texts, emails, photos, real-time location,  contacts, account details (you get the picture) almost instantaneously back to the perpetrators of the hack (which some reports suggest was a nation state). The hack wasn’t limited to Apple apps either, with reports the malware was able to extract data from WhatsApp, GoogleMaps and Gmail.

For us, the scare factor goes beyond data from our smart devices inadvertently revealing secret locations, or being used against us in court – the data and information the cyberspies could have had access to could wreak absolute havoc on the everyday iPhone users’ (and, the people whose details they have in their phones) lives.

We’re talking about this in past tense because while it was only discovered by Project Zero recently, Apple reportedly fixed the vulnerability without much ado in February this year, by releasing a software update.

So how do you protect yourself from being spied on? It seems there’s no sure-fire way to entirely prevent yourself from becoming a victim, or, if you were a victim of this particular attack, to mitigate the damage. But, according to Apple,  “keeping your software up to date is one of the most important things you can do to maintain your Apple product’s security”. We might not be ignoring those pesky “a new update is available for your phone” messages, anymore.

Copyright 2019 K & L Gates

ARTICLE BY Cameron Abbott and Allison Wallace of K&L Gates.
For more on device cyber-vulnerability, see the National Law Review Communications, Media & Internet law page.

Commercial PACE Works: National Study Shows Only One Default Out of 1,870 Deals

A recent study by the US Department of Energy’s Lawrence Berkeley National Lab shows that commercial property assessed clean energy loans (PACE) are growing in popularity and are a good bet for lenders and property owners. Through 2017, projects worth $887 million have been completed, creating more than 13,000 jobs.1 The study found just one default on a PACE loan out of 1,870 deals nationwide since 2008.2

PACE is an innovative program that enables property owners to obtain low-cost, long-term loans for energy efficiency, renewable energy, and water conservation improvements. Projects financed using PACE can generate positive cash flow upon completion with no up-front, out-of-pocket cost to property owners—eliminating the financial barriers that typically prevent investment in revitalizing aging properties. The term of a PACE Financing may extend up to the useful life of the improvement, which may be as high as 20 years or more, and can result in cost savings that exceed the amount of the PACE financing. The result is improved business profitability, an increase in property value, and enhanced sustainability. PACE financing is also available for new construction under Wisconsin law.

Along with the Wisconsin Counties Association, Slipstream and other partners, von Briesen had a leadership role in creating PACE Wisconsin, a joint powers commission comprising a consortium of Wisconsin counties. von Briesen’s vision of a uniform PACE program throughout the state was implemented through creation of a joint powers commission open to any county that wishes to join. PACE is now available in 43 Wisconsin counties, representing 85% of the state’s population.

The recent PACE study also showed that most jurisdictions adopting PACE programs are using a model similar to the one adopted in Wisconsin, because it is easy for local governments to administer.3 Midwestern states are leading the way in expanding PACE. Wisconsin now ranks 11th in PACE financing deals completed, according to PACENation data through 2017.4 In 2019 PACE Wisconsin closed an $8.8 million deal on a historic hotel renovation in Green Bay, financed with a taxable bond offering by the Public Finance Authority. PACE Wisconsin has $15 million in total closings so far in 2019, and over $10 million in the pipeline for the rest of the year.

PACE Wisconsin has registered more than 80 contracting firms that are ready to make buildings more efficient and more comfortable, and has 17 capital providers available to finance building upgrades and new construction. PACE Wisconsin is also supporting legislation to improve the program by reducing paperwork requirements and making financing available for electric vehicle charging equipment. More information about PACE Wisconsin can be found on its website, www.pacewi.org.

1 PACE Market Data, PACENation website, https://pacenation.us/pace-market-data/(accessed August 4, 2019)
2 Commercial PACE Financing and the Special Assessment Process: Understanding Roles and Managing Risks for Local Governments, Greg Leventis and Lisa Schwartz, Lawrence Berkeley National Laboratory, June 2019, http://eta-publications.lbl.gov/sites/default/files/final_cpace_brief_1_ 112308-74205-eere-c-pace-report-arevalo-fz.pdf (accessed August 4, 2019).
3 Commercial PACE Financing and the Special Assessment Process: Understanding Roles and Managing Risks for Local Governments, Greg Leventis and Lisa Schwartz, Lawrence Berkeley National Laboratory, June 2019, http://eta-publications.lbl.gov/sites/default/files/final_cpace_brief_1 _112308-74205-eere-c-pace-report-arevalo-fz.pdf (accessed August 4, 2019).
4 Study: Nonpayment risk remote for commercial clean energy loans, Frank Jossi, Midwest Energy News, July 31, 2019, https://energynews.us/2019/07/31/national/study-nonpayment-risk-remote-for-commercial-clean-energy-loans/ (accessed August 4, 2019) (citing PACE Market Data, PACENation website, https://pacenation.us/pace-market-data/ (accessed August 4, 2019)).

©2019 von Briesen & Roper, s.c

Giving It Your Best Shot: Maintaining a Compliant Vaccination Program in the Healthcare Sector

Workplace vaccination programs are not new. While many focus on influenza, healthcare employers often impose more robust requirements to protect employees and vulnerable patient populations. The Centers for Disease Control and Prevention (CDC) recommends healthcare workers receive several vaccinations, including: hepatitis B; influenza; measles, mumps, and rubella (MMR); varicella (chickenpox); tetanus, diphtheria, and pertussis (Tdap); and meningococcal. Many states have enacted laws requiring such vaccinations for healthcare workers. (The CDC maintains a list of state requirements.) Indeed, because healthcare workers can be at a heightened risk for both exposure and transmission of disease to patients, families, and coworkers, prominent medical groups such as the Infectious Diseases Society of America (IDSA) recommend mandatory vaccinations consistent with CDC recommendations as part of an effective infection prevention and control program.

Recent outbreaks of vaccine-preventable diseases, such as measles and pertussis, have focused public attention on the need for employee vaccine programs. For example, the CDC reports that between January 1, 2019 and August 8, 2019, there were a total of 1,215 confirmed cases of measles in the United States, the highest number since 1994. This is despite the fact that measles was eliminated in the United States in 2000, due to an effective MMR vaccination program. The World Health Organization (WHO) reports that the rise of measles cases is likely due to a decline in people getting the vaccine. (The CDC has additional information about measles and the safety and efficacy of the MMR vaccine.)

Healthcare institutions are increasingly mandating that employees receive vaccinations, such as Tdap and MMR. But, while mandatory vaccination programs are on the rise, so are challenges from employees. Employee objections to vaccines (strengthened by misinformation about vaccines such as MMR), and thus litigation, have increased in recent years. While employers may not always have to accommodate generalized or unfounded objections to vaccinations, employees do have legally cognizable objections to being vaccinated under certain circumstances. Specifically, the Equal Employment Opportunity Commission (EEOC) takes the position that Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) require employers to provide exemptions from mandatory vaccination policies or other accommodations to employees with religious objections and disabilities.

Just as wise employers seek to immunize their workforces from harmful pathogens, employers may also seek to immunize their vaccination programs from common legal claims. Employers may want to take into consideration the following issues:

Is the vaccination program mandatory?

Will the vaccination program be voluntary, mandatory, or a hybrid based on employee classification and work setting? Voluntary programs are attractive from the standpoint of avoiding employee objections and ADA/Title VII accommodation issues, but compliance rates may be inadequate or the healthcare setting may favor a mandatory program for some or all healthcare workers. Employers may want to consult the CDC’s recommendations, review applicable state vaccination laws, and assess the risks posed in their facilities in coordination with their infection prevention and control programs.

Is the workforce unionized?

Are nurses or other employees represented by a labor union? Employers with unionized workforces generally must bargain with the unions before imposing mandatory vaccination programs.

Who is covered?

In deciding whether to adopt a mandatory program, what is the scope of the mandate? Is it necessary to require vaccines for all employees (including clerical workers, etc.), or is it more appropriate to reserve the mandatory program for healthcare workers involved in direct patient contact or healthcare workers in vulnerable patient settings, such as the neonatal intensive care unit (NICU), pediatric intensive care unit (PICU), emergency department, or operating room? Some employers may find it more effective to implement a mandatory program with respect to a subset of healthcare workers in patient-contact roles, while offering an incentivized voluntary program to others.

Will the program permit exceptions or accommodations?

What accommodations will be permitted, and what is the process for evaluating such requests? In particular, employers should consider having a process to receive and evaluate employee requests for exemption or accommodation due to disability or sincerely held religious beliefs.

  • Under the ADA, a reasonable accommodation may be required for an employee with a disability, unless it would result in an undue hardship or a direct threat to the safety of the employee or the public. In these cases, employers can work with their infection-control team to determine the risks of exposure and transmission. For example, with employees objecting to a Tdap or MMR vaccine, the risk for a nurse working in the NICU may be very different than that of an office assistant in the back office. The ADA analysis for undue hardship and direct threat are fact specific and complicated.
  • Under Title VII, an accommodation may be required for sincerely held religious beliefs, unless doing so would pose an undue hardship. Employers should be aware that the EEOC and courts interpret “religion” broadly, and the term is not limited to major faiths but may include “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Under Title VII, an undue hardship may exist where there is more than a de minimis cost or burden. The EEOC has considered several factors when determining whether an undue hardship exists, such as (1) the assessment of the public risk at that time, (2) the availability of other means of infection control, and (3) the number of accommodation requests.
  • Employers must maintain medical information and vaccination records collected from employees as confidential files in accordance with ADA requirements.
  • State vaccination laws—including where certain vaccines are mandatory for certain categories of healthcare workers—may also be relevant in designing and implementing a workplace vaccination policy.

What types of accommodations would be permitted?

Where an employer decides, after a case-by-case analysis, that an accommodation is required, it may consider is viable in the healthcare setting. Some common options include the following:

  • Requiring an employee to wear a mask, gown, or other safety gear. This option may depend on the nature of the risk, as a mask may be a reasonable accommodation for influenza in some settings, but it may not be sufficient in a setting with particularly vulnerable patients or with other pathogens that have multiple means of transmission.
  • Modifying an employee’s duties to remove at-risk activities, such as direct patient contact.
  • Temporary or permanent transfers to other positions or work areas that do not contain the same risks to patient safety.
  • Providing alternative vaccines. For example, some employees might have religious objections based on the contents of a vaccine itself, such as its use of swine products or fetal cell lines. In some cases, it may be possible to provide an alternative vaccine from a different manufacturer that does not contain the objectionable ingredient.

Healthcare employers may have legitimate reasons for requiring employee vaccinations and may want to give thoughtful consideration to federal and state employment law protections, as well as the objective medical risks applicable to specific employee groups, healthcare settings, and patient populations, before imposing sweeping mandatory policies. Such organizations may consider reviewing their vaccination programs to avoid unnecessary exposure to discrimination claims.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more vaccination legal considerations see the National Law Review Biotech, Food, Drug law page.

Practical Tips and Tools for Maintaining ADA-Compliant Websites

Title III of the American with Disabilities Act (ADA), enacted in 1990, prohibits discrimination against disabled individuals in “places of public accommodation”—defined broadly to include private entities that offer commercial services to the public. 42 U.S.C. § 12181(7). Under the ADA, disabled individuals are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, and accommodations offered by a place of public accommodation. Id. § 12182(a). To comply with the law, places of public accommodation must take steps to “ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals.” Id. § 12182(b)(2)(A)(iii).

In the years immediately following the enactment of the ADA, the majority of lawsuits alleging violations of Title III arose as a result of barriers that prevented disabled individuals from accessing brick-and-mortar businesses (i.e., a lack of wheelchair ramps or accessible parking spaces). However, the use of the Internet to transact business has become virtually ubiquitous since the ADA’s passage almost 30 years ago. As a result, lawsuits under Title III have proliferated in recent years against private businesses whose web sites are inaccessible to individuals with disabilities. Indeed, the plaintiffs’ bar has formed something of a cottage industry in recent years, with numerous firms devoted to issuing pre-litigation demands to a large number of small to mid-sized businesses, alleging that the businesses’ web sites are not ADA-accessible. The primary purpose of this often-effective strategy is to swiftly obtain a large volume of monetary settlements without incurring the costs of initiating litigation.

Yet despite this upsurge in web site accessibility lawsuits—actual and threatened—courts have not yet reached a consensus on whether the ADA even applies to web sites. As discussed above, Title III of the ADA applies to “places of public accommodation.” A public accommodation is a private entity that offers commercial services to the public. 42 U.S.C. § 12181(7). The First, Second, and Seventh Circuit Courts of Appeals have held that web sites can be a “place of public accommodation” without any connection to a brick-and-mortar store.1 However, the Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals have suggested that Title III applies only if there is a “nexus” between the goods or services offered to the public and a brick-and-mortar location.2 In other words, in the latter group of Circuits, a business that operates solely through the Internet and has no customer-facing physical location may be under no obligation to make its web site accessible to users with disabilities.

To make matters even less certain, neither Congress nor the Supreme Court has established a uniform set of standards for maintaining an accessible web site. The Department of Justice (DOJ) has, for years, signaled its intent to publish specific guidance regarding uniform standards for web site accessibility under the ADA. However, to date, the DOJ has not published such guidance and, given the agency’s present priorities, it is unlikely that it will issue such guidance in the near future. Accordingly, courts around the country have been called on to address whether specific web sites provide sufficient access to disabled users. In determining the standards for ADA compliance, several courts have cited to the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA (or its predecessor, WCAG 2.0), a series of web accessibility guidelines published by World Wide Web Consortium, a nonprofit organization formed to develop uniform international standards across the Internet. While not law, the WCAG simply contain recommended guidelines for businesses regarding how their web sites can be developed to be accessible to users with disabilities. In the absence of legal requirements, however, businesses lack clarity on what, exactly, is required to comply with the ADA.

Nevertheless, given the proliferation of lawsuits in this area, businesses that sell goods or services through their web sites or have locations across multiple jurisdictions should take concrete steps to audit their web sites and address any existing accessibility barriers.

Several online tools exist which allow users to conduct free, instantaneous audits of any URL, such as those offered at https://tenon.io/ and https://wave.webaim.org/. However, companies should be aware that the reports generated by such tools can be under-inclusive in that they may not address every accessibility benchmark in WCAG 2.1. The reports also can be over-inclusive and identify potential accessibility issues that would not prevent disabled users from fully accessing and using a site. Accordingly, companies seeking to determine their potential exposure under Title III should engage experienced third-party auditors to conduct individualized assessments of their web sites. Effective audits typically involve an individual tester attempting to use assistive technology, such as screen readers, to view and interact with the target site. Businesses also should regularly re-audit their web sites, as web accessibility allegations often arise in connection with web sites which may have been built originally to be ADA-compliant, but have fallen out of compliance due to content additions or updates.

Companies building new web sites, updating existing sites, or creating remediation plans should consider working with web developers familiar and able to comply with the WCAG 2.1 criteria. While no federal court has held that compliance with WCAG 2.1 is mandatory under Title III, several have recognized the guidelines as establishing a sufficient level of accessibility for disabled users.3 Businesses engaging new web developers to design or revamp their sites should ask specific questions regarding the developers’ understanding of and ability to comply with WCAG 2.1 in the site’s development, and should memorialize any agreements regarding specific accessibility benchmarks with the web developer in writing.

1 See Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) (“By including ‘travel service’ among the list of services considered ‘public accommodations,’ Congress clearly contemplated that ‘service establishments’ include providers of services which do not require a person to physically enter an actual physical structure.”); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).

2 See Peoples v. Discover Fin. Servs., Inc., 387 F. App’x 179, 183 (3d Cir. 2010) (“Our court is among those that have taken the position that the term is limited to physical accommodations”) (citation omitted); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Haynes v. Dunkin’ Donuts LLC, 741 F. App’x 752, 754 (11th Cir. 2018) (“It appears that the website is a service that facilitates the use of Dunkin’ Donuts’ shops, which are places of public accommodation.”).

3 See, e.g. Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 907 (9th Cir. 2019) (holding that failure to comply with WCAG is not a per se violation of the ADA, but that trial courts “can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.”).

© 2019 Vedder Price
This article was written by Margaret G. Inomata and Harrison Thorne of Vedder Price.
For more web-related legal issues, see the National Law Review Communications, Media & Internet law page.

Trump Administration to Discharge the Federal Student Loan Debt of Totally and Permanently Disabled Veterans

On August 21, 2019, President Trump signed a Presidential Memorandum that streamlines the process by which totally and permanently disabled veterans can discharge their Federal student loans (Federal Family Education Loan Program loans, William D. Ford Federal Direct Loan Program loans, and Federal Perkins Loans).  Through the revamped process, veterans will be able to have their Federal student loan debt discharged more quickly and with less burden.

Under federal law, borrowers who have been determined by the Secretary of Veterans Affairs to be unemployable due to a service-connected condition and who provide documentation of that determination to the Secretary of Education are entitled to the discharge of such debt.  For the last decade, veterans seeking loan discharges have been required to submit an application to the Secretary of Education with proof of their disabilities obtained from the Department of Veterans Affairs.  Only half of the approximately 50,000 totally and permanently disabled veterans who qualify for the discharge of their Federal student loan debt have availed themselves of the benefits provided to them.

The Memorandum directs the Secretary of Education to develop as soon as practicable a process, consistent with applicable law, to facilitate the swift and effective discharge of applicable debt.  In response, the Department of Education has said that it will be reaching out to more than 25,000 eligible veterans.  Veterans will still have the right to weigh their options and to decline Federal student loan discharge within 60 days of notification of their eligibility.  Veterans may elect to decline loan relief either because of potential tax liability in some states, or because receiving loan relief could make it more difficult to take future student loans.  Eligible veterans who do not opt out will have their remaining Federal student loan debt discharged.

Copyright © by Ballard Spahr LLP
Article by Stacy H. Rubin of Ballard Spahr LLP.
For more veteran’s affairs, see the National Law Review Government Contracts, Maritime & Military Law page.

Federal Judge Limits the Reach of the WOTUS Rule

Introduction

During the Obama Administration, the Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (collectively, “the Agencies”) adopted a rule amending the regulatory definition of “waters of the United States” (the “WOTUS Rule” or “Rule”).  As explained in a previous alert, the WOTUS Rule has far-reaching implications for project development and landowners across the energy, water, agricultural, construction, and transportation sectors, and it has been the subject of extensive litigation, as well as rulemaking by the Trump Administration.

On Wednesday, August 21, 2019, the United States District Court for the Southern District of Georgia ruled in Georgia v. Wheeler that the WOTUS Rule impermissibly extended the Agencies’ authority beyond the scope of the Clean Water Act (“CWA”) and failed to comply with the Administrative Procedure Act (“APA”). The Court remanded the WOTUS Rule back to the Agencies and extended its preliminary injunction of the Rule.

Background

Since its enactment, the WOTUS Rule has been the subject of many legal challenges, and it was enjoined in numerous states. Additionally, under the Trump Administration, the Agencies proposed a new rule that would have delayed the effectiveness date of the WOTUS Rule for two years (the “Suspension Rule”). As previously discussed, the Suspension Rule was the subject of a nationwide injunction in South Caroline Coastal Conservation League v. Pruitt.  A federal judge in the Western District of Washington then vacated the Suspension Rule in Puget Soundkeeper Alliance v. Wheeler.

After the vacatur of the Suspension Rule, the WOTUS Rule continued to provide fodder for litigation. To date, the WOTUS rule is enjoined in 27 states: Alaska, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, South Carolina, Oregon, South Dakota, Texas, Utah, West Virginia, Wyoming, and Wisconsin.  The Rule remains effective in 22 other states and the District of Columbia.

The Opinion

In Georgia v. Wheeler, the Court—relying primarily on Justice Kennedy’s concurrence in Rapanos v. United States—held that the WOTUS Rule impermissibly extended the Agencies’ jurisdiction beyond their delegated authority under the CWA.

The Court also held that the Agencies’ definitions of interstate waters, tributaries, adjacent waters, and case-by-case waters violated the CWA, and that the Rule significantly interfered with lands and waters that were traditionally under state authority without clear congressional intent.

Additionally, the Court determined that the Rule failed to comply with the APA both procedurally and substantively. These topics are further discussed below.

Definition of Interstate Waters

The Court found that the definition of interstate waters, which considers all interstate waters to be a “water of the United States” irrespective of navigability, disregarded the Supreme Court’s ruling in Rapanos. In particular, the Court found that WOTUS reads the term “navigability” out of the CWA. As such, under the WOTUS Rule, a non-navigable interstate water with no significant nexus to a “water of the United States” would still be regulated. According to the Court, that result extends beyond the Agencies’ authority under the CWA.

Definition of Tributaries

The Court also concluded that the Rule’s definition of “tributaries” was over-inclusive because it used the presence of an ordinary high water mark (“OHWM”) and bed and banks as physical indicators of volume sufficient to create a regulated “tributary.”  The Court took particular issue with provisions in the WOTUS Rule discussing situations in which these physical indicators are “absent in the field,” but are nevertheless determined to be present by “other appropriate means,” such as “lake and stream gage data, elevation data, spillway height, historic water flow records, flood predictions, statistical evidence, the use of reference conditions, or through . . . remote sensing and desktop tools.”  The Court found this approach inconsistent with Justice Kennedy’s concurrence, noting that “the physical indicators that the Agencies assert provide evidence of sufficient volume and flow to adhere to Justice Kennedy’s significant-nexus test need not actually be physically present in a geographic area so long as computer programs can decipher that they exist and need not presently exist so long as those programs can conclude that they have existed at sometime in the past.”

The Court was also troubled by the application of the “tributaries” definition in the Arid West, citing evidence that the physical indicators of a tributary often appear around water bodies in the Arid West, even when they are wholly isolated from navigable waters. The Court found that the definition of tributaries could inadvertently regulate dry areas that may contain attributes of an OWHM and a bed and bank due to an extreme weather event—a result that Justice Kennedy’s concurrence in Rapanos sought to avoid. Accordingly, Court concluded that the “tributaries” definition extended too far.

Definition of Adjacent Waters

According to the Court, the definition of “adjacent waters” clearly conflicted with Justice Kennedy’s opinion in Rapanos by erroneously including waters adjacent to non-navigable tributaries. The Court recognized that, while adjacency is a permissible factor to consider when determining jurisdiction under the CWA, that factor must still be subject to Kennedy’s significant-nexus test.  The Court reasoned that the definition impermissibly extended jurisdiction over isolated and inconsequential waters.

Case-by-Case Waters

The Court presumed that the case-by-case category was the Agencies’ attempt to implement Justice Kennedy’s significant-nexus test. Because the Agencies relied on impermissible definitions of “interstate waters” and “tributaries” in formulating their criteria for the case-by-case category of waters, the criteria were also invalid to the extent they were the logical outgrowth of these definitions. Because the definitions of “interstate waters” and “tributaries” were already overbroad, the Agencies could not base case-by-case category waters of those definitions, as they too would impermissibly expand federal jurisdiction. Notably, the Court concluded that the Agencies’ reliance on erroneous definitions of “tributaries” and “interstate waters” was the only error in the WOTUS Rule’s case-by-case category under the CWA.

The WOTUS Rule Substantially Interferes with Traditional State Power

The Court also found that the Rule substantially encroached on traditional state power. Recognizing that the CWA permits the federal government to regulate waters in order to protect the biological and physical integrity of the Nation’s waters, the Court also emphasized the Congressional policy in the CWA stating that states should retain primary responsibility over land and water resources. The Court found that the WOTUS Rule as written would result in the federal government regulating immense stretches of intrastate land not contemplated by that CWA.  To support this finding, the Court cited statements made by the Agencies under the Trump Administration in a recently-proposed rule to rescind the WOTUS Rule that the WOTUS Rule “may have altered the balance of authorities between the federal and State governments, contrary to the agencies’ [prior] statements,” and to statistics suggesting the WOTUS rule was estimated to increase the scope of federal jurisdiction over waters by at least two percent — an increase the Court characterized as “a substantial intrusion into lands and waters traditionally left to state authority.” According to the Court, this significant increase in jurisdiction improperly stripped states of their traditional authority to regulate these types of lands and waters.

The Rule failed to comply with APA and was arbitrary and capricious

The Court found that the rule violated the APA in two ways: (1) the final Rule was not the logical outgrowth of the Agencies’ previously-proposed version of the Rule; and, (2) there were parts of the Rule that were arbitrary and capricious. The Rule failed to be the logical outgrowth of the Agencies’ proposed rule for three reasons. First, while the proposed Rule did not include distance limitations when defining “neighboring waters,” the final Rule did. Second, the proposed Rule similarly did not include distance limitations for adjacent waters in the case-by-case categories, while the final Rule did. Lastly, the proposed Rule did not contain any explicit farming exemption, but the final Rule contained a farming exemption for adjacent waters. The Court agreed with Plaintiffs’ argument that, had they known that there was going to be a farming exemption for adjacent waters, they would have also commented that there should be a farming exemption for tributaries.

The Court also determined that portions of the Rule were arbitrary and capricious. The Court found that the Agencies’ inclusion of a farming exemption for adjacent waters but not tributaries was arbitrary and capricious because it failed to treat similar cases in a similar manner without justification. The Court also found that the Agencies’ decision to use FEMA 100-year floodplain maps to define adjacent and case-by-case waters was arbitrary because of the inaccuracies of outdated flood maps, and because the Agencies failed to sufficiently explain why the 100-year floodplain was the proper limit. Lastly, the Agencies’ use of a distance limitation for adjacent waters was arbitrary because the Agencies only gave broad, conclusory reasons why the limit was selected and failed to explain their decision.

Practical Implications

Georgia v. Wheeler represents yet another federal court to examine the merits of the WOTUS Rule and to find it exceeding the Agencies’ statutory authority under the CWA and violating provisions of the APA.  The Court did not vacate the rule, but simply remanded it back to the Agencies, and therefore the Rule remains effective where not enjoined. This case continues the patchwork implementation of the WOTUS Rule, which is now enjoined in 27 states, but is still effective in 22 other states and the District of Columbia.

This patchwork situation may not last long, as appeals will likely be filed challenging the Georgia v. Wheeler decision and other decisions enjoining or declining to enjoin the WOTUS Rule. Additionally, the Agencies under the Trump Administration are expected in the near future to publish a final version of their proposed new WOTUS Rule, which is also very likely to face legal challenges.

As a result on the ongoing litigation and rulemaking processes, the regulated community is unlikely to see true certainty on the question of the geographic scope of the CWA until Congress takes action to clarify its scope or the Supreme Court issues a new substantive decision addressing this issue.

© 2019 Van Ness Feldman LLP