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Gibbons Law Alert Blog

“Winn’s of Change?” The Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc. Holds That Websites Are Not Places of Public Accommodation Under the ADA

On April 19, 2021

The landscape of ADA website accessibility claims, which have inundated courts throughout the country for years, may be changing with the issuance, on April 7, 2021, of a long-awaited decision by the Court of Appeals for the Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc. In a decision that marks only the second time a Federal Circuit Court of Appeals has addressed the parameters of website accessibility claims based on the Americans With Disabilities Act (ADA), a majority of the panel held that websites are not “places of public accomodation” under Title III of the ADA and thus, the plaintiff’s inability to access certain services provided by Winn-Dixie’s website is not a violation of Title III. While this decision runs counter to many District Court decisions, as well as the Ninth Circuit’s decision in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), the Eleventh Circuit was clear – absent congressional action, the court cannot broaden the definition of “places of public accommodation” beyond the physical places of business enumerated in Title III. Thus, the court reversed the district court, which had found, following the only full trial to occur in these matters, that Winn-Dixie violated the ADA by offering a website that fails to meet the accessibility standards that have been accepted...

Employers and the American Rescue Plan Act of 2021 (ARPA)

by Richard S. Zackin

Posted in Employee Benefits

On April 16, 2021

The recently enacted American Rescue Plan Act of 2021 (ARPA) is an economic stimulus bill that will inject $1.9 trillion into the American economy to accelerate the recovery from the economic downturn and health emergency caused by the COVID-19 pandemic. Of special interest to employers, the ARPA in a number of respects expands legislation enacted in 2020 to address the COVID-19 crisis, such as the CARES Act and Families First Coronavirus Response Act (FFCRA). Perhaps the most publicized aspect of the ARPA is the direct $1,400 stimulus checks to individuals. However, other aspects of the ARPA are more directly of interest to employers. Non-Mandated Extension of FFCRA-Related Tax Credits Employers are not required to, but may voluntarily provide to employees Emergency Paid Sick Leave and Emergency Family and Medical Leave that previously had been mandated under the FFCRA. This program will terminate on September 30, 2021. This means employers may grant leave under the FFCRA to employees with eligible leave remaining and continue to receive the corresponding tax credits for those leave payments until that date. Otherwise, this program would have expired on March 31, 2021. While the emergency leave extensions under the ARPA are voluntary, employers should also consider any state or local leave requirements. Under the new legislation: Employers who provide up to...

Negligent Deletion of Meeting Notes Does Not Warrant Adverse Inference Sanctions

by Brittany E. Grierson

Posted in Litigation Preparedness and Strategies

On April 15, 2021

Recently, in the District Court for the Southern District of California, Magistrate Judge Karen Crawford declined to impose adverse inference sanctions against the defendants, despite the defendants’ negligent destruction of relevant evidence. Instead, the court found that the plaintiffs were not severely prejudiced by the defendants’ spoliation of relevant handwritten notes from meetings pertaining to the subject matter of the litigation. Therefore, the court opted for the “least burdensome sanction” and recommended that the defendants be precluded from offering testimony or other evidence about the discussions at the meetings, during which the handwritten notes at issue were taken, in support of their defenses during the trial. In Al Otro Lado, Inc., et al. v. Chad v. Wolf, Acting Secretary, U.S. Department of Homeland Security, et al., the plaintiffs claimed that the U.S. Department of Homeland Security (the “Department”) implemented a policy, known as the “Turnback Policy,” at the U.S.-Mexico border that discouraged individuals from seeking asylum in the U.S.. The plaintiffs requested that adverse-inference sanctions be imposed against the Department due to the admitted destruction of handwritten notes by two senior officials within the U.S. Customs and Border Protection (CBP) made during the Department’s daily operation meetings where the Turnback Policy would be discussed. Essentially, the plaintiffs sought an adverse inference finding (to be adopted...

IRS Provides Guidance on the Full Deductibility of Restaurant Meals

by Steven H. Sholk

Posted in Corporate / Tax

On April 12, 2021

One of the sensual and ineffable pleasures of life is a satisfying meal, whether prepared at home or partaken of at a restaurant. The Consolidated Appropriations Act, 2021 (CAA) temporarily expanded the pathway to this pleasure by providing for the full deductibility of business expenses paid or incurred from January 1, 2021 to December 31, 2022 for food or beverages provided by restaurants. Full deductibility is set forth in Section 274(n)(2)(D) of the Internal Revenue Code of 1986, as amended (the “Code”). Prior to the CAA, the deductibility of restaurant meals, like all other food and beverage business expenses, was subject to a 50 percent limitation. Since the CAA did not define “restaurant,” the precise scope of full deductibility remained uncertain. In Notice 2021-25, the IRS defined “restaurant,” and its definition removes a significant degree of this uncertainty. A restaurant means a business that prepares and sells food or beverages to retail customers for immediate consumption, regardless of whether the food or beverages are consumed on the business’s premises. A restaurant does not include a business that primarily sells pre-packaged food or beverages not for immediate consumption, such as a beer, wine, or liquor store; convenience store; drug store; grocery store; kiosk; newsstand; specialty food store; or vending machine. The 50 percent deduction continues to...

New York Appellate Court Allows Top Floors of Upper West Side Condo Building to Remain

by Howard D. Geneslaw

Posted in Development/Redevelopment

On April 7, 2021

The New York City development community was alarmed by a trial court decision in February of last year that would have required removal of the top floors of a 55-story condominium building under construction at 200 Amsterdam Avenue on the Upper West Side of Manhattan. On appeal, the Appellate Division, First Department, issued a decision in early March reversing the trial court, which means that, absent any further appeal, the building can be completed and the condominium units offered for sale. The case, In the Matter of Committee for Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates LLC, 2021 NY Slip Op. 01228 (“Amsterdam Avenue”), serves as a high-profile, high-stakes reminder of the importance of two well-settled principles of New York zoning law: Administrative agencies like planning and zoning boards, which are charged with administering technical regulations with which they have substantial experience and technical expertise, are entitled to substantial deference and cannot disregard past precedent without good reason, such as differences in facts or changed circumstances; A party seeking to overturn a permit or approval must avail itself of all opportunities to seek a stay that halts construction or risk having its case dismissed as moot, and a developer seeking to defeat an appeal can do so by taking the risk of diligently proceeding...

“It Wasn’t My Fault”: Court Rejects Attempts by Client and Attorney to Duck Responsibility and Sanctions Both Jointly

by Brielle A. Basso

Posted in E-Discovery: Legal Decisions and Court Rules

On April 6, 2021

This blog has previously discussed the importance of cooperation among parties in a litigation to effectuate a comprehensive discovery framework; however, a recent decision from the District Court for the Northern District of California exemplifies the importance of joint responsibility and collaboration between attorneys and their clients when dealing with e-discovery matters, including preservation, collection, and production of electronically stored information (ESI). In a case that ultimately settled and involved both foreign and domestic parties, the court granted a motion for monetary sanctions pursuant to its inherent authority and Rule 37, after finding that the plaintiff’s discovery misconduct “not only forced [defendant] to incur additional attorneys’ fees but … also forced the court to expend considerable resources beyond what was necessary.” Because both the plaintiff and its former counsel “failed in their responsibilities,” the court imposed sanctions jointly and severally against them. In Optrics Inc. v. Barracuda Networks Inc., the plaintiff, a Canadian engineering firm, filed suit in August 2017 against the defendant, an American company, “bringing trademark, contract, and other claims stemming from allegedly unfair and deceptive business practices by [defendant] during the parties’ thirteen-year business relationship.” Beginning in June 2019, discovery disputes and “discovery violations” by the plaintiff plagued the litigation. In February 2020, “with discovery still mired in disputes,” the parties stipulated...

Amateur Hour Is Over! DR Distributors LLC Offers Crash Course on the Importance of E-Discovery Compliance

by Charlotte Howells and Scott J. Etish

Posted in General Litigation

On March 29, 2021

In DR Distributors, LLC v. 21 Century Smoking, Inc., et al., United States District Judge Iain D. Johnston issued a scathing 256-page opinion, dropping the proverbial hammer on the defendant and its counsel for repeated and egregious e-discovery failures – a veritable Keystone Kops series of discovery errors and misrepresentations spanning several years. The court imposed sanctions pursuant to Federal Rules of Civil Procedure 26(g) and 37, as well as monetary sanctions, and required the defendants’ former counsel to participate in continuing legal education on electronically stored information (ESI). In sum, Judge Johnston put all attorneys on notice that it “is no longer amateur hour” for attorneys grappling with e-discovery – compliance is not merely “best practices,” but required under the Rules, and courts will address incompetence accordingly. The dispute arose from alleged trademark infringement claims involving electronic cigarettes with confusingly similar marks. The case was initiated in 2012 and assigned to Judge Johnston in 2014, who immediately held a case management conference. At this conference, the court asked counsel if litigation holds were issued, and defense counsel neglected to inform the court that no litigation holds had been issued at that point. Defense counsel also affirmatively stated that the defendant, Brent Duke, the principal of 21 Century Smoking, was generally knowledgeable about ESI, including...

New Jersey Guidance Establishes That Employers Can Require That Employees Receive COVID-19 Vaccine to Enter Workplace

by Elizabeth Cowit and Brittany E. Grierson

Posted in Policies and Handbooks

On March 26, 2021

With COVID-19 vaccinations becoming more accessible to individuals, the question on many employers’ minds is whether the employer can now require its employees to be vaccinated in order to return to the workplace. On March 19, 2021, the New Jersey Department of Health (DOH) addressed this question and published guidance stating that an employer can require that its employees receive the COVID-19 vaccine to return to the workplace. The DOH guidance, however, does include exceptions to mandatory vaccination policies implemented by employers as follows: if an employee cannot get the COVID-19 vaccine because of a disability that precludes him or her from being vaccinated; where an employee’s doctor has advised the employee not to get the vaccine while pregnant or breastfeeding; or where an employee has a sincerely held religious belief, practice, or observance that precludes him or her from receiving the vaccine, an employer must provide a reasonable accommodation from its mandatory vaccine policy – unless doing so would impose an undue burden on its operations. In the event an employee seeks to be exempt from a mandatory vaccination policy for medical reasons (described above), his or her employer may request medical documentation from the employee to confirm the employee (i) has a disability precluding him or her from vaccination, or (ii) has been...

New York State Enacts Law Providing Paid Time Off for COVID-19 Vaccination

by Elizabeth Cowit and Liana R. Abreu

Posted in Discrimination / Employee Benefits / Policies and Handbooks

On March 25, 2021

Governor Andrew Cuomo recently signed legislation S2558A/A3354-B granting all public and private employees in New York paid leave to obtain a COVID-19 vaccine. The new legislation, which is effective as of March 12, 2021 and expires on December 31, 2022, amends the New York Civil Service Law (with respect to public employees), along with the New York Labor Law, and provides public and private employees with up to four hours of paid leave per vaccine injection. In connection with this legislation, the New York Labor Law was amended to add Section 196-c, which provides that: New York employees must receive paid COVID-19 vaccine leave of up to four hours per vaccine injection. Thus, employees receiving a two-injection COVID-19 vaccine (such as those currently offered by Pfizer and Moderna) will receive up to eight hours of paid leave to obtain the vaccine. The “four hour” maximum does not apply to an employee subject to a collective bargaining agreement (CBA) providing a greater number of hours of leave to obtain the vaccine or where an employer authorizes additional time off for employees to receive the vaccine. The leave must be paid at an employee’s regular rate of pay. The leave cannot be charged against “any other” employee leave. Accordingly, employers cannot require employees to use other available...

Getting Your Ducks in a Row: Court Stresses High Evidentiary Threshold for Rule 37 Sanctions and Cautions Against Precipitous Motions

by Kevin H. Gilmore

Posted in General Litigation

On March 22, 2021

A recent case out of the Middle District of Florida illustrates the importance for parties contemplating motions under Fed. R. Civ. P. 37 to first understand the high threshold required for the court to grant their motions and impose sanctions. Examining a barrage of sanction motions, the court highlighted that a party needs to present a strong factual record when seeking charges of spoliation, as it takes more than simple allegations of destruction or non-retention of evidence to find sanctions appropriate under Fed. R. Civ. P. 37. Further, the decision provides a clear-cut example of unnecessary costs incurred and wasted judicial resources resulting from the failure of the parties to cooperate throughout the discovery process. As discussed below, while a number of the parties in the litigation entered into an electronically stored information (ESI) protocol, it appears that many of the discovery disputes could have been avoided if certain key areas, including the temporal scope of the documents to be produced, were addressed in that protocol. In Centennial Bank v. ServisFirst Bank, Inc., several former employees allegedly violated non-compete provisions of their employment agreements with the plaintiff, Centennial Bank (“Centennial”), when they left to work for the defendant, ServisFirst Bank. Beginning in 2016, the protracted discovery in this litigation involved countless disputes ranging from the...