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Archive for August, 2012

Most Georgia Local Governments Fail to Comply with State E-Verify Law

Posted on: August 22nd, 2012

By: Kelly Morrison

A recent AJC article reported that many cities and counties across the state still are not in compliance with Georgia’s E-Verify mandates, and as a result, are at risk for losing funding for state community development block grants.

Click here to read about the status of E-Verify compliance by Georgia municipalities.

Eleventh Circuit Says No to ACLU’s Standing on Ten Commandments Monument Challenge

Posted on: August 21st, 2012

By: Dana Maine

The Eleventh Circuit issued an opinion last week which clearly delineates elements of standing in First Amendment symbolic speech cases. In American Civil Liberties Union of Florida, Inc. v. Dixie County, Florida, decided on August 15, 2012, the Eleventh Circuit concluded that the trial court erred in finding the plaintiff had standing to challenge the constitutionality of the existence of a Ten Commandments monument on county courthouse property. The Eleventh Circuit sent the matter back to the trial court for an evidentiary hearing. In an interesting opinion concurring in part and dissenting in part, Judge Edmondson disagreed with the remand. Instead, he explained that the Eleventh Circuit should have decided the plaintiff lacked standing based on the record before the Court.

ADA Lawsuits Plaguing Property Owners

Posted on: August 14th, 2012

By: Ben Mathis

Title III of the Americans with Disabilities Act (ADA), which covers “public accommodations,” is not widely known to the general public.  Property owners, however, are becoming too familiar with its requirements as they confront an avalanche of lawsuits for non-compliance.

Title III includes the ADA’s implementing Accessibility Guidelines that essentially set building standards and architectural requirements.  The Guidelines are designed so that a facility is “accessible” and has no “barriers” to disabled people.  Most new facilities are built to meet the Guidelines in effect at the time of construction.

The Guidelines continue to change, however, so that even newer buildings may no longer be compliant.  Also, few older facilities are even minimally compliant if they were constructed before the ADA was enacted in 1990.  In this regard, there is no “grandfathering” of buildings regardless of how old they are.  Today, all buildings, no matter when constructed, have to meet the current ADA standards if doing so is “readily achievable,” which is a relatively low threshold that can require significant compliance obligations.

While states like California and Florida have seen a number of Title III suits in recent years, Georgia property owners now are experiencing ADA lawsuits by “serial” filers.  With no warning, an allegedly disabled person, using the same lawyer in case after case, files a federal lawsuit against the owner of a shopping center, retail store, hotel, or restaurant.  (i.e. a “place of public accommodation”).  The lawsuit typically claims that the disabled person encountered ADA violations such as insufficient handicap parking, lack of curb cuts or ramps, toilets that are too low, hotel rooms with improper door knobs, etc.

These lawsuits commonly seek an injunction to force the owner to comply with the ADA Guidelines and attorney’s fees for the cost of bringing the lawsuit.  Not surprisingly, given the threat of having to comply with all ADA requirements, most cases settle quickly with an agreement to make some changes to the facility and a fairly significant payment of attorney’s fees to the lawyer bringing the suit.  Often the plaintiff is himself a lawyer who can “share” in the attorney fee award.

One example of a serial filer in Georgia is an individual plaintiff who has filed 51 lawsuits since 2009.  Each time this person uses the same out of state lawyer.  In fact, there are several law firms around the country that are filing hundreds of these lawsuits, often using the same plaintiff and making almost identical factual allegations.

Not surprisingly, property owners (and their insurers) who encounter multiple lawsuits of this type (particularly from the same plaintiff and lawyer) are highly frustrated with these cases. They believe that, if the plaintiff was sincere about correcting “barriers,” he would at least approach the owner before filing the lawsuit.  Since payment of the plaintiff’s attorney’s fees is always a condition of settlement, property owners feel like the cases are merely a “set up” driven solely by lawyers seeking a quick and unjustified payment of fees to “drop the case and move on.”

Under the current Guidelines, property owners are highly vulnerable to these suits if they have not made some efforts at complying with obvious ADA issues.  Where clear ADA violations are present, owners know it is not cost effective to fight these claims.  Even where the violations are arguable, owners who have not undertaken specific actions in anticipation of these suits find the cost of defense exceeds the cost of making a few of the changes sought and paying the plaintiff’s attorney to settle.

As these cases continue to mount, however, property owners, and particularly owners of multiple facilities, are finding it cost effective and necessary to take preventive steps.  By doing so, they can put themselves in a far stronger position to defend what is seemingly an inevitable ADA claim and also send the serial filer a message that they will not “roll over” every time a suit is brought.

Essential steps property owners can take include the following:

1)     Understand the ADA Requirements

The Department of Justice updated the ADA’s Accessibility Guidelines recently and they became enforceable in March of 2012.  However, it cannot be overemphasized that the Guidelines do not require full compliance with every single rule for structures which existed prior to the rules.  Instead, properties only must remove “architectural barriers” if the removal of these barriers is readily achievable, which requires a balancing test of the cost of removing the barrier, the wealth of the property owners, and related factors.

The first key preventive step for property owners is to review the Accessibility Guidelines.  Owners should determine when the property was built or updated and understand the obvious ADA compliance issues.  Owners cannot assume that simply because a property was built long ago that there are not compliance challenges.  Likewise, even relatively new properties may now be out of compliance with the latest ADA Guideline changes.

2)     Retain an Expert Before Litigation

While it sounds expensive, consulting with an ADA compliance expert and having the expert do an audit of the property can be very cost effective.  Audits can be completed for relatively small cost, especially considering the cost of a single ADA lawsuit.  An expert can identify obvious ADA issues that are easily correctable so that the property is not blatantly in violation.  An expert also can help justify not making more expensive changes because they are not “readily achievable.”

By having an expert audit and justify not making ADA changes, a property owner is in a far stronger position to resist serial filer lawsuits.  In our experience, serial filers are not interested in pursuing cases where owners have legitimate pre-litigation reports by qualified experts.  These cases are often dismissed when the owner can show pro-active efforts of this type.

3)      Correct Obvious Non-Compliance Issues

Clearly, the serial ADA lawsuit filer is more prone to sue property owners who have apparent violations.  By “advertising” non-compliance, owners send the message that they are an easy target.  Visible signs of good faith compliance will deter serial filers who will move on to easier defendants.

4)      Develop a Plan For Compliance

Virtually every property owner has a plan for regular maintenance and renovation. In light of the threat of ADA lawsuits, ADA compliance should be a part of every owner’s business plan.  By identifying ADA issues before litigation, owners can make reasonable business judgments and build accommodation upgrades into a multi-year budget.  This alone helps justify that changes are being made on a “readily achievable” basis.  Owners should document the entire process and update the compliance plan after each change is made.

In summary, while there may be no way to entirely avoid a Title III lawsuit, clearly there are steps owners can take to minimize the likelihood and better position themselves for a positive outcome.  By doing so, the owners can minimize their long term costs and avoid the unpleasant position of having no viable defense to the ambush ADA lawsuit.

Using the Common Interest Doctrine to Protect Information from Disclosure

Posted on: August 14th, 2012

By: Kamy Molavi

Various methods are used in litigation to limit the disclosure of information and documents to opposing parties.  One is to invoke a privilege.  The most common privileges are the work product doctrine and the attorney-client privilege.

Some jurisdictions have adopted a principle related to the work product doctrine and the attorney-client privilege.  This doctrine is most often known as “common interest” or the “joint defense” doctrine, but other names have been used to describe the concept.  Common interest and joint defense have separate origins, the former having its roots in criminal law, whereas the latter first arose in civil litigation.  At present the two phrases are often used interchangeably.  The former is used in this article.

As its name implies, the common interest doctrine may come into play where two or more parties find it useful to share information that they consider otherwise privileged.  It allows the confidential sharing of privileged information.  Such sharing generally must occur either through or in the presence of their counsel.  The exchange must take place for the purpose of formulating a common strategy, usually among defendants.

Some commentators have suggested that the purpose of the common interest doctrine is to encourage the free flow of information and also to enhance the quality of legal advice.  Naturally the beneficiaries are the parties who claim protection under the doctrine, and not the parties seeking the information at issue.  For this reason, and because it impedes the free flow of information among all parties, courts often favor a narrow construction of the common interest doctrine.

Some describe the common interest doctrine as a variant or extension of the work product doctrine or the attorney-client privilege, but it is typically utilized to prevent the waiver of those exclusionary rules.  In other words, the common interest doctrine provides an exception to the general rule that a party waives either the work product doctrine or the attorney-client privilege by sharing protected information to a third party.

Courts applying the common interest doctrine generally require a showing that (a) the information is protected by an underlying privilege; (b) that the parties shared the information when they also shared a common legal (not merely commercial) interest; (c) they shared the information in order to advance that common interest; and (d) the parties have not otherwise waived the underlying privilege.  The burden of proving those elements generally is imposed upon the party invoking the common interest doctrine.

The common interest principle has not been adopted in all jurisdictions, and those that have adopted it do not apply it uniformly.  In some states, the interest among the sharing parties must be pristinely identical, whereas others impose a less stringent standard, allowing the use of the doctrine among parties who may have (or later develop) some conflicting adverse interests at the time of the exchange.  Some courts require a case to be pending or anticipated at the time of the information sharing, but others do not.  Before engaging in an exchange of information with other parties, attorneys must review the laws of the controlling jurisdiction to determine whether the principle has been recognized, and if so, identify its requisite elements.

An express agreement among the parties is not required, but in most states it is recommended, given the limited guidance available as to the operation of the doctrine. To ensure the intended protection, at the outset of the litigation (i.e., before sharing any information) participants should consider asking the court to expressly recognize the privilege and preclude discovery into certain matters.  Further, communication of confidential information should be limited to matters within the common interests of the participants, and the parties to the common interest should take reasonable steps to maintain the confidentiality of the information.

Ban on Guns in Church Upheld

Posted on: August 13th, 2012

By: Sun Choy

In v. Georgia, the Eleventh Circuit upheld Georgia’s 2010 ban on guns in places of worship. The Baptist Tabernacle of Thomaston and, a gun rights group, claimed that the ban violated their constitutionally protected religious freedoms and their right to bear arms. In rejecting plaintiffs’ argument that guns were necessary to protect the congregation, the court noted:

At various points, Plaintiffs allege that they would like to carry a handgun in a place of worship for the protection either of themselves, their family, their flock, or other members of the Tabernacle. Plaintiffs conclude by alleging that the Carry Law interferes with their free exercise of religion by prohibiting them from engaging in activities in a place of worship when those activities are generally permitted throughout the State. That Plaintiffs “would like” to carry a firearm in order to be able to act in “self-defense” is a personal preference, motivated by a secular purpose…

Given the passionate views of plaintiffs, I would not be surprised if they are considering an appeal to the Supreme Court of the United States.