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Americans with Disabilities Act (ADA): Is your website ADA – Compliant?

Americans with Disabilities Act (ADA): Is your website ADA – Compliant?

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AMERICANS WITH DISABILITIES ACT (ADA): IS YOUR WEBSITE ADA – COMPLIANT? 

In recent years we have witnessed an increase of lawsuits involving claims of discrimination or a lack of reasonable accommodation as required under the Americans with Disabilities Act (ADA).   

The new trend of these lawsuits targets the ADA compatibility of websites.  

Under the ADA requirements, certain websites need to be accessible to persons with disabilities that affect their hearing, vision, or physical capacities.  

The reason for this is simple: websites act as the central hub of a business.  

Clients use websites for virtually everything, from researching to making purchases or reservations. As a result, business owners need to ensure that their website is accessible to persons with disabilities and ADA compliant to avoid potential fines, penalties, or lawsuits.  

A successful plaintiff under the ADA is entitled to an award of attorney’s fees. While oftentimes ADA plaintiffs will settle upon a showing that you brought your website in compliance with the ADA requirements once you learned of the lawsuit, it is advisable to make your website compliant in advance and defeat any lawsuits before they come.  

In 2020, we have helped many of our clients (including a restaurant and a hotel owner) both regarding legal actions and ADA compliance.  

Feel free to reach out to our office to discuss more on this topic. 

Some significant examples of ADA cases include:

National Association of the Deaf v. Harvard 

“In 2015, four deaf and hard of hearing students partnered up with the National Association of the Deaf (NAD) to file two class action lawsuits against MIT and Harvard University. These federal lawsuits stated that the schools didn’t caption online content, including massive open online courses (MOOCs). They claimed that because of this, the schools were discriminating against hard of hearing and deaf people. The plaintiffs asserted that Title III of the ADA, Section 504 of the Rehabilitation Act was violated.  

This video and audio content was all free and made available to the general public to use, but inaccessible to those with hearing limitations.  

While the universities tried to dismiss the cases originally, in 2019 the plaintiffs and Harvard reached an agreement. The settlement required the University to add high-quality captions or transcripts to all of the video and audio content available publicly online. This includes videos that are live-streamed and content on third-party platforms like YouTube.  Harvard also was responsible for the Class Counsel’s motion for $1,575,000 in attorneys’ costs and fees.”  

(Source: https://www.rev.com/blog/ada-website-compliance-lawsuits-settlements-examples-of-cases) 

National Association of the Deaf v. Netflix  

“The National Association of the Deaf stepped up to bat again in the 2012 lawsuit against the online television and movie streaming giant Netflix. This case was particularly notable, as it was one of the first that established that accessibility should include not only physical businesses but online properties, too. 

They asserted that Netflix violated the ADA by failing to provide equal access to its “Watch Instantly” streaming content, as there had previously been a “refusal” by the streaming company to provide closed captions. They filed the lawsuit, claiming a violation of Title III of the ADA. 

In late 2012, Netflix and the NAD reached a settlement agreement. Netflix would provide closed captions to 100% of their online streaming content within a two-year period. They also had to pay $755,000 in attorney fees and costs, which included fees to monitor the decree”.  

(Source: https://www.rev.com/blog/ada-website-compliance-lawsuits-settlements-examples-of-cases). 

Antoninetti v. Chipotle  

“In 2005, Maurizio Antoninetti filed an ADA lawsuit against Chipotle. He stated that there was a 45-inch barrier at the restaurant that blocked his view of the counter. This prevented him from seeing the food options laid out in front of him. He claimed that it impacted his ability to choose food and watch his meal preparation.  

Chipotle argued that their accommodations were reasonable and that they would bring wheelchair users spoons of their chosen items before preparation to ensure it was what they wanted.  

A federal appeals court in San Francisco ordered removal of the barrier. Chipotle later retrofitted their restaurants with new counters that were accessible to wheelchair users. They also had to pay part of the attorneys’ fees and administrative costs.”  

(Source: https://www.rev.com/blog/ada-website-compliance-lawsuits-settlements-examples-of-cases). 

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Section 1782 as a useful discovery tool in aid of judgment execution for foreign judgment creditors

Section 1782 as a useful discovery tool in aid of judgment execution for foreign judgment creditors

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SECTION 1782 AS A USEFUL DISCOVERY TOOL IN AID OF JUDGMENT EXECUTION FOR FOREIGN JUDGMENT CREDITORS

Section 1782 of the United States Code codifies the international assistance from the United States federal courts in obtaining evidence for use in foreign proceedings. A sometimes-overlooked use of Section 1782 is for foreign judgment creditors with assets potentially available for execution in the United States. Section 1782 is available for discovery in aid of judgment execution and, unlike the execution itself, does not require a judgment domesticated in the United States.

Generally, “any interested person” can apply for judicial assistance under Section 1782 in seeking documents, testimony, or other types of evidence.

The “foreign proceedings” to which Section 1782 applies traditionally include conventional court proceedings, but exclude purely commercial arbitration.[1] Applicants can seek discovery from to-be parties to the “reasonably contemplated” future proceedings, as well as from third parties that might otherwise not be subject to the foreign courts’ compelling powers.

Section 1782 can also prove useful to judgment creditors in the executory phase of the foreign proceeding. For example, a judgment holder may wish to obtain documents from or depose a third party in the United States to whom a foreign debtor transferred assets to analyze any fraudulent transfers.

While debtors will argue that such discovery is impermissible because it is the actual judgment enforcement, this is a red herring. In the case In re Clerici, 481 F.3d 1324 (11th Cir. 2007), the defendant from whom discovery was sought argued that a Section 1782 request was inappropriate where the applicant attempted to discover the defendant’s assets and other financial information to assist in executing the applicant’s judgmentin Panama.

The Eleventh Circuit rejected the argument and explained:

“As to the second statutory requirement–that the request must seek evidence—[defendant] argues that [applicant] is not seeking evidence, but rather is attempting to enforce its judgment through a § 1782 request. We disagree because [applicant] asked for assistance in obtaining only [defendant’s] sworn answers to questions regarding his assets and other financial matters. The district court recognized this key distinction and properly concluded that the request for assistance was limited to seeking evidence from [defendant], and therefore, was proper under § 1782.”

See also In re Application for Discovery Pursuant to 28 U.S.C. § 1782, No. 1:19-mc-0102, 2020 U.S. Dist. LEXIS 10243, at *13 (N.D. Ohio Jan. 22, 2020) (“The Court finds no fault with the fundamental content of the requests — they are properly aimed at uncovering assets that could be levied against to execute on the Italian court’s judgment for damages.” […] The applicants also correctly point out that Pocci is confusing discovery in preparation for execution with the actual execution.”)

This distinction is significant in that Section 1782 discovery does not require that the foreign judgment be domesticated, which, if met with resistance, may prove to be a lengthy process. Section 1782 discovery also gives foreign parties access to the federal enforcement powers in obtaining otherwise unavailable evidence. Feel free to reach out to our office to discuss obtaining discovery in the United States under Section 1782.

[1] However, recent decisions from the Fourth and Sixth Circuit Court of Appeals have ruled that Section 1782 applies to commercial arbitration, indicating a circuit split. Comp. NBC v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999) (not applicable) with Servotronics, Inc. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020); Abdul Latif Jameel Transp. Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710 (6th Cir. 2019) (applicable).

In-re-Clerici_-481-F.3d-1324-1Download
In-re-Application-for-Discovery-Pursuant-to-28-U.S.C.-_Download
NBC-v.-Bear-Stearns-Co._-165-F.3d-184Download
Republic-of-Kazakhstan-v.-Biedermann-Int_l_-168-F.3d-880Download
Servotronics_-Inc.-v.-Boeing-Co._-954-F.3d-209Download
Abdul-Latif-Jameel-Transp.-Co.-v.-FedEx-Corp.-In-re-ApDownload

Tereza Horáková sworn in by the New York Bar

TEREZA HORÁKOVÁ SWORN IN BY THE NEW YORK BAR

Moris & Associates is proud to announce that Tereza Horáková, Moris & Associates’ senior litigation associate, was successfully sworn in by the New York Bar.

The ceremony took place on June 25, 2020 via Zoom and was delayed numerous times because of the coronavirus pandemic’s devastating impact.

In fact, Tereza took the New York bar exam in July 2019 and now she is officially licensed to practice law in the State of New York.

This represents another important milestone for Tereza and for Moris & Associates. Moris & Associate now has two attorneys admitted in New York and continues to expand its corporate and litigation practice in New York, where last year it successfully defended from a multi-million-dollar breach of contract action in Federal and State Court and has now helped the client re-structure their distribution network.

Tereza is an outstanding attorney taking care of Moris & Associates’ litigation practice in Florida and New York. Tereza graduated in the top 5% of her class (class rank 8 out of 173) and we are proud that she decided to work with us instead of pursuing a career in big law. It is because of people like Tereza that justice is being served, affordably, to our clients.

Originally from Prague, Czech Republic, Tereza earned two JDs and passed two bar exams; now she is admitted in Florida and New York.

Congratulations to Tereza.

Moris & Associates is proud of you.

Non-resident foreign investors may claim Florida homestead exemption from property tax through their dependents

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Non-resident foreign investors may claim Florida homestead exemption from property tax through their dependents

Florida Constitution provides appealing benefits to owners of Florida real estate under the so-called homestead exemptions. Generally, a foreigner without a green card or a United States citizenship will not qualify because the foreigner’s visa will expire at one point and the foreigner cannot establish the intent to permanently reside on the property. Juarrero v. McNayr, 157 So. 2d 79 (Fla. 1963).

However, a temporary visa holder, such as a foreign investor, may claim the homestead exemption from property tax through a dependent. Fla. Const. Article VII, §6(a). In Garcia v. Andonie, 101 So. 3d 339, 347 (Fla. 2012), the Florida Supreme Court held that if the resident children of a foreign non-resident reside on a Florida property owned by the non-resident, the property may qualify for the property tax exemption. The homestead exemption decreases the property’s taxable value by as much as $50,000.

Mr. and Mrs. Andonie, citizens of Honduras, owned a condominium in Key Biscane, Florida, where they resided with their three minor children. Unlike their parents, who held an investor visa (E-2) and could not remain in the United States indefinitely, the minor children were United States citizens. When the parents applied for a homestead property tax exemption, the property appraiser denied the exemption and argued that the parents needed to reside in the United States indefinitely to qualify for the exemption.

Under Florida Constitution, every person who (1) has the legal or equitable title to real property in Florida and (2) who maintains on the property the permanent residence of the owner, or the permanent residence of the owner’s dependent, is entitled to the ad valorem exemption. Fla. Const. Article VII, §6(a). However, the Florida statute that implemented the exemption added an extra requirement that the owner must reside on the property and make the property the permanent residence of the owner or the owner’s dependents. Fla. Stat. § 196.031(1)(a) (2011). The Court invalidated the extra requirement because it was unconstitutional.

The Andonies qualified for the exemption because their minor children permanently resided on the property. Unlike the citizen children, the parents would not have been able to show that the property was their permanent residence because their visa did not entitle them to stay in the United States indefinitely.

The Andonie decision is important because it extends the definition of a homestead. The homestead benefits do not end with saving money in property tax, but, importantly, cover also the right to prevent a forced sale of a property to satisfy a creditor. However, the two categories are not treated the same, and each case must be carefully analyzed. Feel free to reach out to our office to see if your property could qualify as a homestead.

Contact us for a free consultation

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Remote Online Notarization for foreign individuals

On June 7, 2019 Florida passed its House Bill 409. This law is in effect as of January 1, 2020, allowing any Florida notary public to register with the Department of State of Florida as an online notary, and to execute real estate closings remotely.

Remote Online Notarization (RON) means that a signer and a notary public no longer have to be in each other’s physical presence. Instead, RON allows the performance of a notarial act using electronic means where the signor appears before the notary public by means of audio-video communication technology, such as a webcam.

Requirements

The notary must be physically present in Florida when they perform an online notarization, but the signer may be anywhere around the world.

This means that contractual notarizations can be performed completely online, including real estate closings.

However, there are a few things that you should know before notarizing documents electronically:

Foreign individuals

Fla. Stat. §117.265(4) establishes two methods by which a Notary can verify an online identity:

  1. By personal knowledge of each principal
  2. Or by all of the following methods:
  • Remote presentation of a government-issued identification credential (viewing IDs via webcam);
  • Credential analysis of each government-issued identification credential; and
  • Knowledge-based authentication, known as KBA or another method of identity proofing that conforms to the standards of this chapter.

With KBA the signer must answer a set of questions related to their life, credit and financial history. However, this presents a drawback to KBA because it cannot be used to identify foreign individuals who lack a Social Security number. We are exploring an alternative solution for individuals who are known by the realtor, who is known by the closer, but who do not have a social security number to be identified through KBA. Feel free to contact us for more information.

Therefore, identities of foreign individuals lacking a Social Security number can only be identified by the Notary’s personal knowledge of the signer or through the oath or affirmation of a credible witness. Moris & Associates has been able to confirm that at least some foreign individuals with an ITIN are in fact able to be authenticated through KBA, but it depends on whether they have previously obtained credit in the United States.

Real estate closings

In real estate closings, prior to the execution and notarization of documents electronically, all parties must consent to using a RON (seller, buyer, and lender).

Witnesses

Ron can be used for documents requiring witnesses. The witness can be in the physical presence of the signor or remote from the signor, so long as the witness conforms to the statutory requirements for using audio-video communication technology.

Disclaimer. This website is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Moris & Associates through this site does not form an attorney-client relationship. This site can be construed as legal advertising. Please review the full disclaimer for more information.

Contact us for a free consultation

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SBA Relief Programs Cheat Sheet

SBA Relief Programs Cheat Sheet

 

In response to the COVID-19 crisis, the United States Small Business Administration adopted two significant relief programs:

  1. the Paycheck Protection Program, and
  2. the Economic Injury Disaster Loan. 

You are not obligated to hire lawyers or any other professionals to apply. For the EIDL program, you can apply online. For the PPP program, you can pre-fill a sample application and apply through a participating lender.

To get you up to speed, we created a cheat sheet to help you understand which program may be the right one for your business:

SBA Relief Programs Cheat Sheet

 

However, the technical terms and legalese can be confusing, especially on top of fighting a global pandemic. For the Emergency Injury Disaster Loan, you should seek help from a Certified Public Accountant. If the owners of the business are foreign individuals, additional layers of complexity may come into play. 

 

To navigate the complexity of these options and to maximize the available benefits, we are here to help.  

Signing

Not quite RON yet. Florida Supreme Cort AOSC20-16 simplifies remote deposition and testimony, but muddies the waters?

As of March 18, 2020, all Florida notaries may swear in a witness remotely via audio and video confirmation, regardless of whether the witness is located within or outside of Florida.

In its Administrative Order No. AOSC20-16, the Florida Supreme Court ordered that all Florida notaries and other persons qualified to administer an oath may:

  1. remotely swear in a witness located in Florida, provided they can positively identify the witness; and
  2. remotely swear in a witness located outside of Florida, provided the witness consents.

The administrative order suspends all rules of procedure, court orders, and opinions applicable to remote testimony, depositions, and other legal testimony. 

However, according to a leading title insurance underwriter, The Fund, the administrative order does not apply to signature notarization at real estate closings:
“No, the SC AO does not impact the use of online notarization for deeds, mortgages and real estate instruments. It is aimed towards the remote swearing-in of witnesses in depos and other court proceedings.”
Thus, to conduct remote closings, Florida notaries will still need to complete the certification required under Section 117.201 et seq., Florida Statutes, which implemented the online notary bill HB 409 that came into effect as of January 1, 2020. 

Disclaimer. This website is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Moris & Associates through this site does not form an attorney-client relationship. This site can be construed as legal advertising. Please review the full disclaimer for more information.

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Moris & Associates Attorney Giacomo Bossa competes in the 5th Annual Chattajack SUP race in Chattanooga, Tennessee.

Moris & Associates is proud to announce that Giacomo Bossa, an attorney at the firm, successfully completed in the 31-mile long Chattajack stand up paddleboard (SUP) race in Chattanooga, Tennessee.
The setting of the Chattajack annual race is the Tennessee River Gorge, which provides the perfect arena for competitors to push their limits. The competitors joined in the Gorge to take on an exhausting 31-mile course; that makes Chattajack the second longest paddleboard race in the U.S., with more than 450 people trying to make it across the finish line.
This year presented the roughest conditions, with over 10 miles of headwind, 7 of which at the end of the race. At the end of the 31-mile course on the windy river, competitors were required to sprint while the public was cheering.
“You look around, you see other people who are going to make it and you decide that you are going to be one of them at the finish line. It’s that simple and it’s that powerful. A commitment not to give up an inch as long as you can stand.” This attitude allowed Giacomo to compete against professional athletes and to place 35th out of 156 participants in his category.
Giacomo’s perseverance, motivation, and passion represent perfectly the principles embodied by Moris & Associates and its attorneys.

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Come evitare FIRPTA (o come gestirla al meglio)

Cos’è? In termini laici, FIRPTA è una ritenuta d’acconto sul prezzo lordo della vendita di un immobile locato negli Stati Uniti ma posseduto da un soggetto di diritto fiscale straniero.

Quanto “costa”? Il 15% del prezzo di vendita lordo dell’immobile o il 35% dello stesso prezzo se il soggetto straniero è una società. É però importante ricordare che FIRPTA è solo una ritenuta d’acconto che il governo federale utilizza per garantirsi che ci siano fondi per pagare la capital gain tax al momento in cui sia dovuta. La capital gain tax è dovuta unicamente sui profitti conseguiti in seguito alla vendita e potrebbe anche essere pari a $0.

A chi si applica? Si applica sia a persone fisiche non residenti che a LLC che siano tassate come “trasparenti.” Semplicemente avere una LLC non è sufficiente ad evitare che si applichi la ritenuta. Ci sono anche altri enti che sono soggetti a FIRPTA, come per esempio società di capitali che possiedono beni immobili come unico scopo e le cui azioni vengono trasferite da soggetti non residenti.

Si può evitare? Sì, MA. C’è un procedimento chiamato “Certificate of Withholding” attraverso il quale la ritenuta può venire evitata. Si tratta, in termini laici, di richiedere all’IRS di pronunciarsi anticipatamente sull’eventuale tassa dovuta sui capital gain e di pagare contestualmente al rogito la tassa dovuta. I tempi per una pronuncia dell’IRS sono di qualche mese. Per questo, è necessario che, immediatamente appena firmato il contratto di vendita, il venditore faccia richiesta all’IRS senza attendere oltre. Inoltre, si può evitare anche nel caso in cui si decide di acquistare beni simili a quelli venduti, attraverso l’utilizzo di un 1031 exchange (che verrà discusso in un articolo successivo).

Ci sono eccezioni? Sì. La più usata è quella in cui il prezzo di vendita è meno di $300,000 e il compratore è intenzionato a usare la proprietà come residenza abituale per almeno i due anni successivi al momento dell’acquisto. Tuttavia, se il venditore intende avvalersi di questa eccezione, è bene che il contratto di acquisto sia rivisto da un avvocato qualificato prima della firma, per evitare che contenga accordi sfavorevoli al venditore.

Chi è responsabile? Il venditore o il compratore? Mentre il compratore è responsabile nei confronti dell’IRS del pagamento della ritenuta (da scontare o trattenere dal prezzo lordo) sarà il venditore a dover pagare eventualmente la tassa sui profitti di vendita.

Quali sono le sanzioni? La sanzione più grave è il carcere per spergiuro, nel caso in cui il venditore abbia dichiarato falsamente che la vendita non era soggetta a FIRPTA. Inoltre, è necessario pagare penali molto care per tutti i giorni di “non-compliance,” le quali andranno a ricadere invece sul compratore.

Cosa fare? La cosa in assoluto più importante è rivolgersi ad un avvocato prima della firma del contratto. Una volta firmato il contratto sarà difficile sgusciare fuori dai requisiti imposti da FIRPTA, ma sarà importante avere un avvocato e una title company (compagnia di rogito) competente per adempiere correttamente e non ritardare il rogito né il rimborso delle cifre non dovute.

Per maggiori informazioni, si può consultare il sito dell’IRS qui.

 

Moris & Associates ha gestito decine di transazioni soggette a FIRPTA ed è pronto ad assistere compratori e venditori nell’attività di compravendita in Florida. La sua title company, Secure Title & Trust, è riconosciuta come leader a Miami, Broward, Tampa e dintorni, ed è guidata da Ross Kulberg, Esq. riconosciuto da “Super Lawyers” come esperto in diritto immobiliare. Se avete domande specifiche, non esitate a contattare l’avvocato Bossa qui.

 

Disclaimer. Questo articolo ha solamente uno scopo di natura informativa, le informazioni qui riportate non possono essere considerate pareri legali applicabili a casi specifici e non creano  rapporto professionale di rappresentanza. Nel caso l’utente abbia necessità legate ad un caso specifico, si consiglia di rivolgersi ad un avvocato competente in materia. Questa comunicazione può essere considerata Attorney Advertising secondo le regole del Bar di New York.

DOING BUSINESS ONLINE: DO I NEED A LAWYER?

The Internet has become the primary source of information, most entrepreneurs use internet to advertise their businesses and to carry on their activities. Although the Internet bears limitless possibilities, it is strongly advised that you meet with an attorney to create policies and procedures that will help you to act transparently and building trust with your costumers. The creation of such policies and procedures will help you protect your business as well as your clients.

Privacy policies are simple legal disclosure documents, with the purpose of educating the consumers about data gathering practices and disclosure of information. The use of privacy policies helps your business in building trust with your costumers while providing transparent services. One of the most common errors is to “cut and paste” boilerplate language form other website’s privacy policies without consulting an attorney. Do not make this mistake; standard boilerplate policies may not be applicable to your situation and may have been drafted for the benefit of a third party.  A lawyer can help you in assessing the needs and risks related to your business and to design customized privacy policies that will protect you from future and costly litigation.

In addition, an attorney will help you in complying with all the relevant laws in the State of Florida. For example, Florida law requires that any data breach affecting 500 or more individual to be notified to Department of Legal Affairs within 30 days after a breach. Failure to comply with such regulation could result in civil penalties up to $500,000. An attorney will assist you in the notification process and will make sure that you comply with all requirements and deadlines.