> TELEPHONE US 212.355.5710

Why Does Our Legal System Allow This?

April 23, 2019

A few months ago we received an email from a writer at ArtNet asking if we wanted to comment on a lawsuit that was filed claiming our website (and those of over 100 other dealers) was not ADA compliant. What?  Whoever heard that a website had to be ADA compliant?  Not us, and no one we spoke with in our industry.

What happened next?

First, we contacted our insurance broker to see if we had coverage and received the following reply:

We have received several of these emails from several other galleries and have forwarded a request for coverage analysis to Chubb Group, the insurer for your General Liability Insurance.  They are reviewing this suit per the attached confirmation, but we do not believe there is any coverage for this as this policy is designed to provide bodily injury/property damage. 

Traditionally there may be limited coverage under an Employment Practices Liability policy for legal expenses only, which would be subject to the policy deductible.  We have offered this coverage in the past, however, it was not purchased.  Additionally, we believe the resolution of this complaint will most likely fall under a standard policy deductible, and no insurance payment would be made anyway. 

There are opportunities to join other art galleries facing the same complaint and prepare a joint response, thus reducing costs.

After that, I knew this was going to cost us a chunk of change!

Then we called our webmaster, Frank Imburgio, to discuss the matter.  Frank had recently dealt with the ADA matter for another client, in a different industry, who was hit with a similar suit. Within a month, our website was brought up to “code.”  Now, the worst part of all this is that there are no specific guidelines, from our government, as to what makes a website compliant!  Because of that, every industry is now a target for these lawsuits.

As I am sure you can guess, our next step was to hire an attorney and start the legal process.  Initially, we spoke with Judith Wallace (Carter Ledyard & Milburn LLP), Douglas Rowe (Certilman Balin Adler & Hyman, LLP), and Joseph DiPalma (Jackson Lewis P.C.).  All three gave us great advice and could have easily handled the case; however, in the end, we decided to hire DiPalma since he was already representing about 20 galleries and had past dealings with the plaintiff’s lawyers (the idea was power in numbers).  All three attorneys explained that these cases are brought by a select group of attorneys who are just looking to ‘make money’.  They know that the cost to defend a case can run into the six figures (yes, over $100,000), so people settle.  What I found most interesting, is that the plaintiff is only entitled $500 for each action, while the attorney gets their fees (or the balance of the money received) … and depending on the industry, settlements have run $10,000, $15,000, $25,000 and more. Now multiply any of those numbers by 100 … SICK!

While I was dealing with this, Lance started doing a little research and came across a study by the Lawsuit Reform Alliance of New York released last year titled “Serial Plaintiffs: The Abuse of Title III” — something I recommend everyone read.

Here is my question — When will our government enact laws to prevent this abuse? Oh wait, I just did a Google search and discovered that – According to the Congressional Research Service 170 members of the House and 60 Senators are lawyers. Out of a total of 435 U.S. Representatives and 100 Senators (535 total in Congress), lawyers comprise the biggest voting block of one type, making up 43% of Congress. Sixty percent of the U.S. Senate is lawyers. Guess they are in no rush!

Source: As ‘Serial Plaintiffs’ Target Art Gallery Websites for Disability Act Violations, Some Are Settling—or Scrambling to Get Up to Code