By Whitney R. Brown, Esq.
Below are four steps you need to take immediately if your business receives one of these lawsuits or is threatened with one of these lawsuits.
Determine if anyone else should share the costs. Although these claims are not covered by most types of insurance, you will first want to review your own policies or contact your agent to see if you might have coverage that would cover either the costs of defense, repairs or a settlement. Also, your lease may accord some responsibility to a landlord to provide compliant conditions; or, you may have a similar agreement with a builder or architect. These protections are unusual, and, if they exist, they probably require you to provide notice within an extremely short period of time.
Decide if you need an attorney. You will also want to determine early on whether you need an attorney. You will definitely need an attorney if a lawsuit has been filed because corporations and other entities can’t represent themselves in court. The time to make a responsive filing in federal court is also short — 21 days — so be sure to move quickly.
If a lawsuit has not been filed, you may still want to consult with an attorney. An attorney can help you:
- Evaluate whether or not the conditions at the location actually violate the ADA. We have seen demand letters and lawsuits that misstate what the ADA requires (for example, by relying on an older version of the ADA regulations).
- Evaluate alternatives for remediation. It is easy to bring an uninsulated pipe into compliance; but, if your location appears to require costly or impossible repairs, an attorney can help you brainstorm alternatives or, if applicable, argue to the other side that another solution is feasible.
- Protect these evaluations with the attorney-client privilege or work product confidentiality. Communication between you and your attorney for the purpose of seeking legal advice are privileged. And, if your attorney decides an expert — like an architect — should be hired, the attorney can hire the expert and receive the expert’s report, and it will be considered confidential. That means you can get and receive candid advice and not worry about it coming back to bite you. (Just be careful not to copy or forward those communications to outsiders or non-managers who don’t share the privilege).
- Provide a sounding board. Chances are you haven’t had to deal with this before. An attorney with experience in these matters will have a good idea of what practices and prices are reasonable and unreasonable.
Decide on a goal. Do you want to avoid being sued or get out of a lawsuit as quickly as possible? Do you have other stores that could be discovered or targeted if a lawsuit occurs or if you respond with hostility? These lawsuits are typically resolved quickly and inexpensively by the parties agreeing on what changes will be made. The only damages that the plaintiffs can collect from these lawsuits are the attorneys’ fees, so the dollar amounts paid are relatively low as long as resolution is quick. As you would in any negotiation, consider the initial demand for attorneys’ fees as a starting point for negotiations, not the be-all, end-all. While most businesses opt to negotiate the best resolution they can, there are procedural maneuvers that, in some cases, could eliminate or severely limit plaintiffs’ attorneys’ ability to collect these fees, but these maneuvers do require (1) that the business retain legal counsel at the outset to map out the strategy; (2) that the business delay final resolution of the matter for weeks or months longer than settlement negotiations would take; (3) often, that the business incur more legal fees than the amount the other side is seeking; and (4) that the business accept the risk that a court may disagree with their position.
Whitney Brown is a shareholder with Birmingham labor and employment law firm, Lehr Middlebrooks & Vreeland, P.C., which provides information for Alabama Retail’s Employment Law Resource Center. The firm represents employers exclusively regarding workplace matters. As an Alabama Retail member, another benefit of your membership is access to the Employment Law hotline operated by LMV.