Archive for the 'Business Law' Category

Is It Necessary to Create User Friendly Websites for Americans with Disabilities?

When people think of Americans with Disabilities Act (ADA) compliance, they typically think of a building with ramps to make it easier for wheelchair-bound individuals to access a particular building, or widening doorways to accommodate wheelchairs. But now, real estate professionals are faced with the task of updating their websites to make them user friendly to those with disabilities.

In today’s market, so much commerce is being conducted online. An estimated 48.9 million Americans are disabled. Given the amount of disabled people in America, many courts are finding that websites must be accessible to those with visual disabilities and other impairments. These findings are requiring many real estate brokerages and association websites to completely revamp their websites.

What is the American with Disabilities Act?

The Americans with Disabilities Act (ADA) became law in 1990. It is a civil rights law that prohibits discrimination in employment, transportation, public accommodation, communications, and governmental activities of individuals with disabilities. The purpose of the Act is to ensure people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life. Laptop

One must have a recognized disability in order to be protected by the ADA. A disability is defined as a physical or mental impairment that substantially limits one or more major life activities. A person who has a history or record of impairment or one who is perceived by others to be impaired is also covered by the ADA. The ADA does not have an exhaustive list of disabilities that are covered. However, cerebral palsy, cancer, heart disease, mental retardation, and emotional illness are all considered disabilities covered by the ADA.

Does the ADA Have Any Regulations on Online Content?

The short answer is “no,” mainly because the ADA was passed in 1990, which predates the widespread use of the internet. Since there are no clear regulations requiring online accommodations for individuals with disabilities pursuant to the ADA, consumers and businesses look to the courts to determine the answer. In general, courts are split on the question of whether businesses are required to create an accessible website to individuals with disabilities. Nevertheless, there has been an accumulation of case law which asserts accommodations must be made.

Further, the U.S. Justice Department, which enforces the Act, has indicated it is only a matter of time before a clear mandate of web accessibility under the ADA will be issued.

How Do I Make My Website Accessible to People with Disabilities?

If you want to make sure your website is ADA accessible now, there are several things you can do. If you have someone developing the content of your website, contact your website provider and inquire about the accessibility of your website. Ask your website provider if they are doing anything to create or improve accessibility to disabled individuals.

If you operate your own website, consult a website technician who has experience creating or improving accessibility on websites. This would include creating more alternative texts accompanying images, transcripts for audiovisual content, descriptive links and resizable text, and voice-overs that read text aloud, among various other features. Such features would allow handicapped individuals to shop for absorb content like viewers without such handicaps.

Can Donald Trump Legally Require Judge Gonzalo Curiel to Recuse Himself?

Donald Trump is making headlines again for making controversial statements. This time, his statements refer to Judge Gonzalo Curiel’s ethnicity. Judge Gonzalo Curiel is the judge overseeing the fraud case against the now defunct Trump University in San Diego. Trump has made several statements indicating the judge cannot rule impartially.

In a recent interview in the Wall Street Journal, Trump said, “U.S. District Judge for the Southern District of California Gonzalo Curiel has an ‘absolute conflict’ in presiding over the litigation given that he was ‘of Mexican heritage’ and a member of a Latino lawyers’ association.” Throughout Trump’s presidential campaign, he repeatedly and unapologetically claims he will build a wall to seal off the border between Mexico and the United States if elected president.

Trump’s statements have sparked outrage from Democrats and Republicans alike, and Trump hasn’t backed down. He asserts that his statements were “justified” and were “misconstrued.” Trump claims that Judge Gonzalo Curiel’s heritage alone does not make him incapable of being impartial, “but, based on the rulings that [he has] received in the Trump University civil case, [Trump] feel(s) justified in questioning whether [he is] receiving a fair trial.”

Regardless of the validity of Trump’s statements, it calls into question when a party to lawsuit can win a motion to remove a judge from his or her case.

Grounds for Judge Recusal

Motions to recuse or disqualify judges have been made for various reasons, but most often, they are predicated upon a claim that the judge is biased in favor of one party or against another. Other reasons to challenge a judge’s appointment include when the judge has an interest in the subject matter, bias because of the judge’s background or experience, personal knowledge about the parties or the facts of the case, or inappropriate conduct. Judge Gonzalo Curiel

In most jurisdictions, a judge can be disqualified “for cause.” This requires that the party who wants a new judge must show either a basis for disqualification exists by statute or that a reasonable person would question the judge’s ability to be impartial in presiding over the case.

Still, many other jurisdictions have laws on the books which allow parties to seek disqualification on a “peremptory” basis, without making any showing of cause. It is often referred to as “peremptory challenge” or “peremptory disqualification.” In these jurisdictions, the judge is disqualified automatically so long as the challenge is timely filed and the proper procedure is followed. In other words, the judge can be disqualified without making any showing for cause.

It is important to note that California allows peremptory challenges of judges. In that regard, it is possible for Trump’s attorneys to file a peremptory challenge of Judge Ganzalo Curiel so long as it is timely filed in accordance with procedure.

Can A Judge’s Heritage Qualify as “For Cause” Disqualification?

Trump’s legal team has not yet filed a motion to recuse Judge Ganzalo Curiel. Even if they do, it is unclear whether their motion would be timely filed to qualify for a peremptory challenge. If he did not timely file a peremptory challenge, Trump’s attorneys must file a motion to recuse “for cause.”

Assuming Trump files a motion for recusal and bases it on Trump’s allegations that Judge Ganzalo Curiel is inherently unable to rule fairly because of his Mexican heritage, the motion likely would not be granted. A judge may be removed if they demonstrate an inherent bias toward one party.

At this time, Trump’s main assertion of bias is based on Judge Ganzalo Curiel’s heritage alone. He does not allege a pattern of unfair and unfounded rulings against him, or that the judge has made any affirmative statements that lead Trump to believe there is a bias. Further, because Trump’s statements have been made so public, any motion claiming bias would carry an underlying tone of racial prejudice. Recusal will not be granted simply because one party believes the judge’s heritage could play a role in the ruling without additional evidence.

Blind Man Claims McDonald’s Drive-Thru Policy Discriminates Against Visually Impaired

Ever notice how you can’t use a drive-thru at a fast-food restaurant if you’re on foot? A blind man is suing McDonald’s in a class-action suit for violating Title III of the Americans with Disabilities Act of 1990 (ADA) because he was unable to use their drive-thru during late-night hours.

Scott Magee is a blind Louisiana resident who, when he tried to order food from McDonald’s, claims he was laughed at and refused service when he tried to order the food from the drive-thru window. The basis for his claim?  Well, that McDonald’s doesn’t allow equal access to the goods and services they provide during late-night hours.  The only reason Magee was using the drive-thru window was because the indoor portion of the restaurant was closed for the evening.

McDonald’s has a standing policy that walking pedestrians are not able to use the drive-thru windows, which is presumably for employee safety reasons. Now, you might be thinking this lawsuit sounds crazy, but the man may actually have a point. McDonald's

Magee claims the policy is discriminatory because, since a customer cannot physically enter McDonald’s restaurants during late-night hours, the drive-thru is the only means upon which a customer can order and purchase McDonald’s products. Further, he argues the drive-thrus offer no meaningful accommodations for visually impaired customers.  Since a customer cannot physically enter a McDonald’s restaurant during late-night hours, the blind are excluded from accessing McDonald’s products during late-night hours.

Does It Really Deny Equal Access?

Technically, yes. We all know the ADA prohibits discrimination on the basis of a disability, but if you’re not familiar with the specifics, Title III of the ADA prohibits denying equal enjoyment of goods and services of any place of public accommodation. If you take a look at the appropriate section of Title III with respect to providing equal access to all, it further says:

“…failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, services, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.”

Currently, McDonald’s has not taken any steps to accommodate visually impaired individuals to access their goods and services during late-night hours. Although McDonald’s doesn’t have policies in place facially discriminating against the blind, in application, Magee has a legitimate claim that the policy does actually discriminate. When you consider that Magee would otherwise be able to enjoy the benefits and services of McDonald’s but for his visual impairment, then the policy does in effect deny him equal access.

Here’s Why

Customers that have no visual impairment can look, order, and purchase McDonald’s products during late-night hours without having to rely on the assistance of others. A blind person, however, must rely on another person to 1) drive them to and through the drive-thru and, 2) assist them in selecting and purchasing the food.

Magee claims that because of the size of the McDonald’s corporation, the company has the ability to utilize some of the advanced technology that is available in today’s society to make the appropriate accommodations for the blind and visually impaired.

A Reasonable Solution

Obviously, there are thousands of McDonald’s across the country and any change, even a relatively small one in nature, could have an impact on the company. In order for McDonald’s to get out of this one, the company needs to prove any changes would be an undue burden or that any of the changes needed to be made to the drive-thru in order to accommodate the visually impaired would actually alter the goods and services offered.  The latter would be a pretty hard argument to make. So, would it be an undue burden?

Magee’s solution, according to his attorney Roberto Luis Costales, is for McDonald’s to allow customers to call in their orders and allow employees to deliver the food to the callers outside. Now, McDonald’s could argue it would be an undue burden to allow all customers to call in their orders, but if the policy only applies to those that cannot use the drive-thru via motor vehicle, then the impact would be relatively small, even if it was expanded to others with disabilities that prohibit them from driving.

Adding auxiliary aides to the drive-thru windows or perhaps changing their policy slightly would not change the nature of McDonald’s business, nor the goods and services they offer and, further, despite the thousands of stores across the country, it wouldn’t be an undue burden to make a few small changes for the visually impaired.

3D Printing Pharmaceuticals: The Changing Legal Landscape

3D printing, perhaps more than any other invention since the internet,has the potential to completely change the face of business.  It could change how things are made and how they are bought.  3D printing has already shaken the medical profession to its core by opening up the potential for 3D printing prosthetics and even human tissue.  A few months back, the Food and Drug Administration (FDA) approved the first 3D printed drug—Spritam.

The drug is created by layering incredibly thin sheets of powdered medication using an aqueous fluid—resulting in a pill that dissolves extremely easily.  Beyond how easily it dissolves, however, the drug is currently no more efficient than a drug produced by normal mean.  The creator of the process, AppreciaPharmaceudicals, speculates that someday the process could allow for drugs customized to the person who takes them.

As 3D printing becomes more available to the public—3D printers are already available for less than $400—the implications of printing drugs become even greater.  Instead of giving prescriptions, doctors might simply 3D print your medication at their hospitals 3D printer.  They may even give you algorithms to allow you to print your pharmaceuticals in the comfort of your own home.

The Usual Suspects: Common Legal Issues with 3D Printing

This raises some clear legal issues, such as regulating the 3D printing of drugs and protecting the intellectual property of pharmaceutical companies.

Beyond restricting the sale of materials necessary to print drugs, it becomes awfully hard to regulate the quality of a drug when the patient is printing it at home with purchased materials—or even if it’s being printed at hospitals across the country.  The FDA will need to regulate not only when somebody print a drug, but also how they and be printed, on what kind of 3D printers, and more.  If private citizens are allowed to 3D print pharmaceuticals, there will obviously also need to be regulations that prevent 3D printers from printing drugs just any old time.  The potential headaches for the FDA are countless.

3D printing also has manufacturers fearing for their intellectual property rights.  Many have likened the availability of 3D printers to the digitization of music and fear the potential of a Napster for physical products.  One leaked design could undercut an entire physical product line by allowing anybody with the internet and a 3D printer to download the design and print the product for the cost of the materials.  This sort of infringement of intellectual property, much like music pirating today, would be extremely hard to trace and cut easily reach a scale that could put a manufacturer out of business. 3D Printing

There is not really a system in place to handle infringing designs posted online.  The safe harbor policies outlined in the Digital Millennium Copyright Act (DMCA) provides a well-known and important (albeit often criticized for its misuse) tool for quickly and cheaply having material which infringes copyright taken off of a website.  The DMCA has already been used to try and take down a 3D printing design at least once already—a design allowing the user to print a physical version of an optical illusion known as the Penrose Triangle.  It has also been discussed in a take down request from HBO over a 3D printing design of a phone charger based on the “Iron Throne” from their television show “Game of Thrones.”

Unfortunately, copyright is not really a good fit for 3D printing designs.  Copyright provides no or very little protection to useful articles.  The CAD files for a 3D printing design would likely fall under this umbrella in most cases.  This means that the designs may be limited to weak copyright protection or patent protection—losing the protection of the DMCA take down.  There is no similar system in place to deal with take downs of designs that might infringe a patent.  This would leave a pharmaceutical company with little recourse if an infringing design of a drug they spent years developing hit the web then spread like wildfire.

Intellectual property and regulation are legal issues which flow fairly logically from the sort of technological leap 3D printing represents.  However, an issue that a layperson might not expect is the potential issues that 3D printing could create for product liability.

Whose Product is It Anyway?

Products liability is an area of law dealing with a party trying to recover for damages caused by a defective product.  Such a claim can generally be brought by a purchaser of the product, somebody who uses the product, or a bystander injured by the product.

A product is considered defective in three situations: where the product is unsafe by design, where the manufacture of the product is defective, or where the product does not have sufficient warnings about its use.

These types of suits can be brought against the defective product’s designer, distributor, or manufacturer.  However, once 3D printing becomes readily available, who exactly is going to be the manufacturer?

Considering the risk inherent in creating pharmaceuticals, very small mistakes in design could have drastic consequences, this is an issue that is going to leave those injured by 3D printed pharmaceuticals scratching their head.  It may well be that whoever 3D prints medication is the manufacturer.  If this is the case we may never see hospitals 3D printing their own medication, despite potential saved costs and convenience, out of fear of the liability they may open themselves up to.

Law Catching Up to Science

3D printing will change the world—full stop.  As 3D printing becomes cheaper and more accessible, 3D printers have the potential to become as much a fixture in the home as a refrigerator.  As this happens, the technology around how 3D printers work will also likely see drastic strides.

Law has historically lagged behind technology; decades after its invention we still haven’t found perfect solutions for matching law to a world where the internet exists.  3D printing will test our courts once again.  The potential for advancement in medical science through inventions such as Spritam is tremendous, but so too are the legal challenges that such advancements bring with them.

Serving Alcohol To Pregnant Women: Discrimination or a Crime?

New York City’s Commission on Human Rights just issued new guidelines that state refusing to serve alcohol to pregnant women is sex discrimination. The Commission is the city agency in charge of enforcing the New York City Human Rights Law, which prohibits discrimination in employment, public accommodations, and housing.  It offers more protections than its federal counterpart, the Civil Rights Act.

Currently, the Commission is investigating over 40 cases of pregnancy-related discrimination, most of which are related to the workplace, but there are cases where pregnant women are specifically singled out outside of the workplace, like in restaurants and bars. It’s because of this that the Commission felt there was a need for specific guidelines protecting pregnant women.

In terms of incidents related to restaurants and bars, the Commission is investigating a case where a pregnant woman was denied entry to a bar and another that was denied entry to a concert because she was told it was an unsafe environment for a pregnant woman.

Not allowing entry into a bar or concert is an unnecessary and excessive policy, more so than one that allows a refusal to serve alcohol.  So, the question becomes, where do you draw the line?  Some states already make it a crime to drink while pregnant, but now it’s discrimination to refuse service?

Refusing Alcohol To Pregnant Women As Sex Discrimination?

According to the Commission, pregnancy discrimination is protected under the gender umbrella. Their guidelines state, “Treating an individual less well than others because of their Pregnant Women and Winepregnancy, or perceived pregnancy, is discrimination…”  While the guidelines are mostly geared towards discrimination in the workplace, they do specifically lay out guidelines providing that any policies singling out pregnant women constitute discrimination.

Businesses can demonstrate it has a non-discriminatory justification for any policies that single out a specific gender. However, the Commission also specifically stated using maternal or fetal safety as a pretext for discrimination was unlawful. Wouldn’t maternal and, more specifically, fetal safety be at the top of the list for a legitimate non-discriminatory justification?

Drinking Alcohol While Pregnant Is a Crime?

At least 18 states have laws on the books that deem the use of intoxicants by pregnant women child abuse, but Tennessee is the only state with specific statutory laws making substance abuse during pregnancy a crime under child endangerment and/or chemical endangerment laws.

In the case of Cornelia Whitner, who was charged with child abuse for using cocaine while pregnant, South Carolina high courts officially made it a crime to use any legal or illegal substance that could harm the baby while pregnant. Alabama courts have followed suit, but nearly every state has tried prosecuting women for drug use during pregnancies, most of which have failed to land a conviction.

Does Either Policy Have Merit?

New York’s new law puts restaurants and bars in an awkward position. The law requires restaurants and bars to post signs that warn about the dangers of alcohol to fetuses, but also requires them to refuse to serve a visibly intoxicated patron.  When should they make the distinction?  This is a slippery slope to head down, because now there’s an added risk of a sex-discrimination claim if a restaurant wants to cut off a pregnant patron from excessive drinking.

It’s obviously a big issue of personal autonomy to regulate what a woman can do with her body and the problem arises with the idea that the woman is potentially harming her unborn baby by drinking while pregnant. Significant amounts of alcohol, and arguably even little amounts, have been proven to be health risks to a baby. Fetal alcohol syndrome can cause premature births and developmental problems that can significantly affect the life of a child. If any laws are going to regulate the issue, they should be criminal in nature rather than discrimination based.

Sex discrimination involves treating someone unfavorably because of that person’s sex, but policies regarding serving pregnant women alcohol seem to be more about protecting the safety of the fetus rather treating the woman differently because of her gender and, therefore, that isn’t discrimination. If men could get pregnant, the policies would likely remain the same—so the issue shouldn’t be about discrimination, but rather about personal autonomy and whether consuming intoxicating substances while pregnant is a crime.



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