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The Unintended Consequences Of ADA Compliance Laws

Introduced in 1990, the Americans with Disabilities Act (ADA) was created to legally protect disabled people from being discriminated against by businesses and organisations.

Since its launch, there have been many amendments to this legislation to ensure that it keeps up with the modern world and provides disabled people with as many rights as possible.

You’d think that these amendments were largely a positive thing, but for some people, they can have devastating consequences.

Though this act is all about making reasonable accommodations for disabled people to help them fully access society, many smaller businesses and those with premises based in older buildings are finding themselves facing an increasing amount of lawsuits and litigations.

These can cost companies tens and even hundreds of thousands of dollars to fight against, and this is without mentioning the potential costs to change things if they lose.

In reality, these costs are simply too much for old and small companies to keep up with. Even locally established businesses are coming under fire, and for some, the constant threat of litigations is too much.

One such company that have crumbled under the pressure of ADA compliance laws is Jason’s Café in Menlo Park, California.

A small business who had operated in the area for 11 years with a large proportion of regular and appreciative customers, the own was forced to close after three lawsuits were filed against him.

These lawsuits reflected on the building his café resided in, despite the fact that the building was built 40 or 50 years ago, before the ADA even existed.

The first lawsuit he received stated that the café’s parking lot wasn’t up to scratch as the painted lines and accompanying access aisles for the disabled parking spaces had faded, making it difficult for them to see. They also alleged that the door to the front of the building was too heavy for disabled people to open.

Before Jason Kwan, the owner, could arrange to remedy these changes, he was given another lawsuit. This one claimed that the bathroom door at the restaurant was too narrow for a wheelchair to get through, and even if a wheelchair user managed it, they would find it difficult to navigate the room in their chair.

Not only were the changes that Kwan felt he had no choice but to comply with extremely expensive for a small business, but he also had to account for the legal costs, which he was liable to pay. After a third lawsuit, he had to admit defeat and close his business for good.

When questioned about why he thinks ADA compliance lawsuits were made against his business, Kwan said that people target businesses in older buildings because it’s a guaranteed win, and easy money for the instigator.

Obviously the Americans with Disabilities Act has to primarily consider the rights of disabled people, but could they have gone too far and ended up unfairly penalising small businesses and those who work in older businesses?

To understand this, we need to look at the Americans with Disabilities Act and what it actually entails.

Essentially, to comply with the ADA, all establishments must provide reasonable accommodations to enable everyone to fully access an environment.

These reasonable accommodations often fall into measures like fitting ramps into the building for wheelchair users, or making sure that furniture is spaced out enough that a blind person can navigate said environment without difficulty.

Unfortunately, this legislation can also lead to people requesting that structural differences should be made to a building in order to accommodate disabled people, regardless of the cost this might cause a business.

This can involve inputting lifts, creating larger bathrooms—as was the request with Jason’s Café—or fitting larger doors to accommodate wheelchair users.

While it would be great for all companies to be able to make these changes, the truth is that it is simply not within the budget of most companies, who would struggle massively with such a large sum of money coming out at once.

As if this wasn’t bad enough, the ADA has also been amended in recent years to target online businesses.

The latest of these amendments was Title ||| in 2018, which Digital Authority Partners explains as something that was put into place to ensure that no digital property discriminates against people with disabilities.

Alongside other legislation protecting disabled people from being discriminated against online, this part of the ADA can be broken down into four different categories.

The first is perceivable, which is all about providing text alternatives for any non-text content, like images and videos. This is so that it can be changed into any format people may desire, including large print, braille, speech, symbols or simpler language.

The second category is operable, which is all about making sure that your website functions are all completely accessible from a keyboard as some disabled people are unable to use a computer mouse.

The third category is readable, which means that all your content should be clearly readable and understandable. This involves avoiding complex, jargon language and that a mechanism is made available for identifying specific definitions of unusual words or phrases.

The fourth and final category is compatibility, which is about maximising compatibility with current and future user agents, including assistive technologies.

If you want to read about these four categories and cover your back when it comes to being ADA compliant online, you can do so over on the dedicated website.

For those who don’t, you’re probably looking at what you’ve read and have been left wondering how anyone could be compliant when things are so complicated.

The truth is, so many companies aren’t compliant—and it’s not just smaller companies that are too blame.

Earlier this year, HealthcareWeekly reported that four big healthcare companies including WellPoint Inc and Tenet Healthcare have faced lawsuits due to a failure to abide by online ADA compliance laws.

If these large, corporate companies within a sector supposed to support large proportions of disabled people are struggling, how are smaller businesses expected to cope?

Is it fair that these smaller businesses are pushed to breaking point, with owners left with no choice but to close their services down, when ADA compliance laws have never seen so complicated—and expensive?

Personally, we don’t think so.

While we agree that every effort should be made to make sure that disabled people can access buildings and online websites as much as non-disabled people, we think there also needs to be a level of common sense to understand that larger, structural changes are not always possible.

Of course, every company should do what they can to make their services accessible, and they should absolutely be held responsible if they’re making no effort at all, but is it time that we give those who do try a break?

Let us know what you think and share your thoughts of the consequences of the ADA compliance laws below.

NJ Standout, Pricilla Saraf, Defending The Most Vulnerable

Pricilla Saraf is president and founder of Mori Law, a New Jersey-based law firm specialising in immigration law. In her practice, she advises clients on establishing and refining immigration programs, compliance, and complex immigration matters. Pricilla is a member of the American Immigration Lawyers Association, licensed to practice law in New Jersey, and speaks Portuguese and Spanish. She is an attorney who cares immensely about her clients and local community.

While she currently focuses her practice primarily on business immigration, Pricilla Saraf began her career assisting low-income Latino clients with family-based immigration matters. Motivated by her own journey as a young immigrant from Brazil who resettled in New Jersey, Pricilla regularly volunteers her time with the local Latino community in Newark, NJ that first welcomed her own family all those years ago. Pricilla also regularly works with organisations such as Legal Services of New Jersey to provide pro bono immigration law services to low-income residents across the state.

As pro bono counsel she has represented detained individuals, successfully argued before immigration judges, and obtained permanent residence for asylees and refugees, including an African refugee being persecuted for sexual orientation. In 2017, Pricilla volunteered at Newark International Airport serving families and passengers impacted by the Muslim travel ban.

Pricilla has represented clients in the areas of DACA, Citizenship, U Visas, VAWA petitions, and family-based humanitarian matters. “My lawyer, Pricilla Saraf, gave me hope and comfort. My case was complicated, took a long time but she remained confident and provided her services for free. I was so happy she was by my side when I received my green card in September 2021,” says Dayse R.

Pricilla received her Bachelor of Science in Communications from the University of Florida, and her Juris Doctor from the University of North Carolina. In Law School, Pricilla was honoured for her service with the Immigration Clinic by the Carolina Public Interest Law Organisation at UNC School of law.

Pricilla feels fortunate to volunteer her time to compassionately defend and protect the most vulnerable.

Navigating Arbitration and Specialised Courts in IP Matters

IP is a category of property that includes intangible creations of the human intellect. There are many types of IP, and some countries recognise more than others. The best-known types are copyrights, patents, trademarks, and trade secrets.

Enforcement of IP in Nigeria is saddled with loop holes, bureaucratic bottlenecks, lack of technical knowledge, skills and lack of public awareness. These have led to the prevalence of piracy, counterfeiting, unauthorised, unlicensed use and infringement of IP rights.

Though there have been laudable developments in recent times, there is still a wide gap in the enforcement of Intellectual Property Rights.

Regulatory Framework & Institutions

The principal types of Intellectual Property rights in the Nigeria Legal System are Copyrights, Patents, Trademarks and Industrial Designs. The regulatory frameworks include by the Copy Right Act Cap C28, Trade Marks Act Cap T13, Patent & Design Act P2 and the Merchandise Marks Act Cap M10.

These laws are enforced by the Nigerian Copyright Commission, The Trademark, Design and Patents Registry which is a subdivision of the Ministry of Industry, Trade & Investment, The National Agency for Food and Drug Administration Control, The Nigerian Police and The Nigerian Custom Service.

Nigeria is also a signatory to numerous international treaties on Intellectual Property. These include the World Intellectual Property Convention of 1970, Agreement on Trade-Related Aspects of Intellectual Property Rights, Berne Convention and Rome Convention for the Protection of Performers, Producers of Phonograms &Broadcasting Organisation etc.

The Current Situation

Enforcement of IP rights in Nigeria have been slow, largely ineffective and ladled with obstacles and loopholes.

We shall consider the causative factors:

  • Obsolete and Weak Laws: The principal laws in force were adopted from the Laws of England and date back as far as the 19th Century with no review since enactments. Intellectual Property is a steadily evolving concept and these laws do not also take into consideration, these dynamic changes in IP including the advancements in Technology. These Laws are also weak and cannot effectively control issues like piracy and counterfeiting.
  • Non Implementation of International Treaties: Section 12 of the Constitution of the Federal Republic of Nigeria 1999 as amended provides that before an International Treaty can be implemented in Nigeria, it must be ratified and enacted by the Legislative. Though Nigeria is a signatory to numerous International Treaties on IP, which can be a supplement to our laws, these cannot be implemented because they haven’t been ratified and enacted according to the CRFN.
  • Lack of Awareness and Inadequate Finance & Staffs of the Regulatory Agencies: Regulatory Agencies charged with enforcing IP rights in Nigeria are greatly understaffed; lack the necessary equipment, training and knowledge to effectively carry out their duties. . These culminate in a slow and inefficient enforcement of IP rights.
  • Lack of Uniformity and Cooperation amongst enforcement Agencies: Intellectual Property is a broad and technical area. Its enforcement cannot be carried out by one regulatory agency alone; the agencies need to work together. However in Nigeria, there is no such cooperation, they also lack a uniform public domain between the agencies to access the data of each agency in enforcing Intellectual property rights.
  • Judicial Enforcement: The Nigerian Judicial System is slow and t cases take an inordinate amount of time before coming to a conclusion. This coupled with the technical nature of Intellectual Property Rights, the lack of such technical knowledge by the Judges and the non-observance of judicial orders has further inhibited the effective enforcements of IP rights by the Judiciary. Furthermore the Federal High Court is vested with exclusive jurisdiction over IP disputes. This is a bar to parties exploring Alternative Dispute Resolution.

The Way Forward

Due to the loopholes in enforcing IP rights and resolving IP disputes in Nigeria, it has become necessary that new and alterative procedures need to be considered. These include Arbitrations and Special Courts.

Why Arbitration

Arbitration according to the Black’s Law Dictionary is a dispute resolution process in which the disputing parties choose one or more neutral third parties to make a final and binding decision resolving the dispute. WIPO has advocated for the use of Arbitration for resolving IP disputes and has gone further to establish an Arbitration & Mediation Centre for resolving IP disputes.

It also has in place its Arbitration rules. Discussed here are the advantages of Arbitration over Litigation and why IP disputes should be resolved using Arbitration in Nigeria.

  • Technicality involved in Intellectual Property: Intellectual Property is a technical subject matter. Therefore it is a better to use an Arbitrator who has specialised knowledge of Intellectual Property. This is even more so when technical issues like computer programs, Industrial designs, patents etc. are being contested. When parties can choose their adjudicator they have the opportunity of picking one who possesses the necessary technical knowledge.
  • Expert determination: Disputing parties can also refer the matter to an expert in the area of dispute for expert opinion, appraisal, valuation or determination to settle a dispute. This expert can act as Arbitrator and the resulting decision is binding on the parties.
  • International Nature of Intellectual Property Disputes: IP is by its nature intangible and global unlike other forms of property. It can be exploited and transmitted globally instantaneously. This makes its rights infringeable internationally and disputes are cross borders. Therefore IP disputes are best resolved by Arbitration which is most suitable for International disputes.
  • Flexibility of Arbitration: Arbitration by its nature is flexible. The parties can choose the Arbitrator, time, conduct of the proceedings and venue of the proceedings. Also they can choose the applicable law to govern the proceedings. This is important having regards to the International nature of Intellectual Property disputes. Parties do not have to be bound by the local laws of a disputing party.
  • The Time Involved and Finality: Arbitral proceedings are fastidious. Parties do not have to go the tedious and formal procedure involved in litigation. Arbitration is expeditious, quick and efficient. This is an advantage for Intellectual Property disputes which are of a technical and economical nature and need to be resolved timeously. Furthermore, contracting parties can resolve that there will be no appeal to the arbitral award. This ensures the dispute will be brought to an end quickly unlike litigation where parties by contract cannot bar an appeal.
  • Confidentiality: Arbitration ensures confidentiality between parties. IP disputes may involve trade secrets and commercial benefits. These are better kept confidential in order to avoid being exploited by the public. Arbitration also ensures that parties’ trade reputation is protected and this is a commercial benefit.

Establishing Special IP Courts

A special IP Court is an independent public judicial body that can operate at national or regional levels to adjudicate IP disputes, enforcement of IP rights and incidental disputes. There has been a global trend toward the establishment of specialised IP courts especially in developed Countries.

Establishing a specialised Court improves the quality of justice available to litigants. This is because the Judiciary will have vast experience and knowledge in IP. This is unlike non specialised Court where the judiciary may or may not have vast knowledge of IP. Specialised Courts are better equipped to keep pace with and adapt to dynamic developments in Law.

Another advantage of specialised Courts is that they allow for timely and cost-effective handling of proceedings and can improve consistency in case Law. Establishing a specialised IP Court or Tribunal in Nigeria will further enhance the effective enforcement and protection of IP rights in Nigeria and it is important considering the fact that some IP disputes are of a criminal nature and thus not arbitrable.

Conclusion

Intellectual Property plays a key role in the economy and development of a Country. Where these rights are adequately protected, enforced and implemented, it has a lot of benefits to the economy and the society at large.

Lessons have been learnt form developed countries who have given IP the paramount stage that it deserves. A crucial method of ensuring these rights and enforced and disputes are efficiently resolved is to resort to Arbitration and establish specialised IP Courts.

Our Laws should be amended to meet up with dynamic trends in IP, to provide resort to ADR especially Arbitration and Special Courts and Tribunals should be established to ensure speedy and effective trial of IP disputes.

Pinsent Masons Provides Breakthrough Legal Advice

Pinsent Masons has provided the legal advice in a set of new reports recommending the latest innovation in the burgeoning technology of data trusts.

The reports, ‘Food Data Trusts: a framework for sharing information’, produced by the Internet of Food Things team at the University of Lincoln and Food Data Trust – Legal, Structuring and Governance, written by Pinsent Masons, both commissioned by the Food Standards Agency propose a breakthrough technology to resolve longstanding issues of consumer confidence in food labelling, origins and authenticity and the legal framework to support this.

The proposal is for a data trust framework under which businesses at all points in the food supply chain, from growers and manufacturers to retailers, can safely share selective in-house data. This could significantly improve supply chain processes while boosting consumer confidence about where foods come from, how sustainably they’re sourced and their authenticity.

The legal report, written by a team of data experts from Pinsent Masons including Andrew McMillan, Sarah Cameron, Michele Voznick, Lauro Fava, Chris Martin, Angelique Bret and Brendan Ryan, sets out the necessary collaboration agreements underpinning a data trust framework.

Professor Simon Pearson, Professor of Agri-Food Technology at the University of Lincoln, said: “It’s easy to understand why businesses are reluctant to share such commercially sensitive information. No one wants to reveal their advantages to their competitors. But, in the data age, this reluctance is holding up much-needed advances.

Sharing data in a secure and limited way can help to expose and tackle problems from incorrect labelling and widespread food fraud to tracing contaminated food, as well as speeding up product recalls.”

Importantly, the framework is not a data trust itself: it is a mechanism to manage data trusts, which might be decentralised, diverse data collections.

It is designed to control the way that data may be exchanged across data trusts that are linked temporarily, to ensure that information can be shared securely for example between regulators and other government departments that need to exchange secure and trustworthy data.

It also provides great potential to connect with AI services in order to provide access to dynamic and fresh data in return for immediate AI-derived information that could benefit the interconnected participants in the supply chain.

The report follows Pinsent Masons’ work on the Open Data Institute’s and Government Office for AI’s ground-breaking data-trust pilots, looking at how data trusts can be used to tackle major global challenges.

Deloitte Legal Appoints Head of Legal Management Consulting

Deloitte Legal combines market leading lawyers, consultants and technology experts to provide clients with new solutions to legal problems.

Deloitte has today announced the appointment of Jack Diggle as lead partner for its Legal Management Consulting arm.

Joining this month, Jack is responsible for expanding Deloitte’s offerings in this space by developing new capabilities and building on Deloitte’s existing technology, change and operations teams. Jack was previously vice president and global head of consulting at alternative legal services provider Elevate Services. He also headed up legal transformation at Barclays, leading the strategic change agenda for its in-house legal department.

In addition, Craig Conte and Tom Birdseye will be joining to help build out Deloitte’s consultancy offerings to in-house legal teams, contracting functions and law firms. Craig Conte is a globally renowned expert in contract management and consulting using technology and a range of legal managed services. A qualified lawyer with more than 20 years’ experience spanning a number of US law firms and geographies, Craig’s recent roles include being global head of contracts consulting at Elevate and head of the contracts and commercial management service line at Capgemini.

Tom Birdseye is a legal management consultant with over 20 years’ experience in change and transformation. He will focus on expanding Deloitte’s work with both in-house legal teams and law firms seeking to increase the efficiency and effectiveness of their operations. Most recently he was head of EMEA consulting at Elevate and prior to this he was global head of change management at Freshfields Bruckhaus Deringer.

The appointments follow the firm’s hiring of Emily Foges to head up its Legal Managed Services business, announced earlier in the summer.

Globally, Deloitte is made up of more than 2500 professionals operating in more than 80 countries.

Deloitte has more than 250 people in the United Kingdom, delivering technology-enabled legal solutions in areas such as employment, litigation, corporate and commercial and immigration, including more than 85 client-facing practicing lawyers.

We Discuss The New Mandated Health Insurance Law In Oman

Health insurance is a contract that requires an insurer to pay some or all of a person’s healthcare costs in exchange for a premium.

The Capital Markets Authority in Oman, the financial regulator, has released the new mandated medical insurance Law, Unified Health Insurance Policy and the Health Insurance Rules under Decision No.78/2019 through Resolution No 34/2019 – For the Issue of Unified Healthcare Insurance Policy Form.

The Health insurance market embraces itself for another mandated health insurance law in the Sultanate of Oman. Residents in Oman will be required to have in place a minimum level of medical insurance coverage with minimum benefits pursuant to the prescribed provisions of Resolution No. 34 of 2019 For the Issue of Unified Healthcare Insurance Policy Form, which was issued by the CMA as at 24 March 2019 and is now in force.

The application of the Law is relevant to the employer market and the beneficiaries arising from those relationships including employer, employee and dependents.

The Policy must be completed and submitted by the Insured as a legal obligation. The Law, as currently prescribed, addresses application, coverage, mandatory minimum benefits and claims management.

Chapter Two is of interest, as the preamble defines a wide interpretation of what shall constitute the contract of health insurance, which includes all basic information, details and common practices in healthcare insurance contracts, etc. Insurers will need to take care of their pre-contractual documents, as these could for all intents and purposes unintentionally constitute the contract of insurance. Chapter Two further sets out the general terms and conditions, placing obligations on the insured to disclose correct and accurate information.

The Code of Conduct for Insurance Business issued by the CMA requires insurers to inform insureds of their duty to disclose relevant information. Omani Law, therefore, applies the duty of utmost good faith. Chapter Two also prescribes the excluded conditions from the coverage under the Policy.

The overall combined limit under the Policy is OR 4,500 in terms of financial spend, so surprisingly much lower than the United Arab Emirates and KSA mandated schemes. Inpatient treatment limits for the policy year is capped at OMR 3,000 and includes usual basic cover, i.e. admission in hospital or day-care, cost of treatment, room cost, consultant fees, diagnosis and test, medicine, ambulance cost and companion cost, also including the cost for pre-existing and chronic conditions for in-patient treatment, while the latter is excluded for out-patient treatment.

Hospital admission under the Policy must be in a joint room and is limited to 30 days at each instance, whereas the ambulance cover is limited at OR 100 each trip. Outpatient treatment is limited to OR 500 for each policy year and the cover is limited to consultancy fees, diagnosis and tests, pharmacy fees and lab fees. Additionally, the Policy includes the cost of repatriating a deceased beneficiary to their country of origin, for which a limit of OR 1000 has been allocated.

Any departure from the basic benefits is not permitted unless agreed as a Schedule to the Policy and signed by both parties and should additional benefits be opted for by the insured, they must be set out in the Optional Benefit Schedule format provided in Appendix 3 to the Law.

Appendix 4 to the Law sets out the mandatory basic minimum coverage under the Policy, which provides two options to the Insured based on which premium will be determined by the Insurer. While both options have the same coverage terms and limits, the first option provides for deductibles on certain categories and the second option does not require deductibles to be paid by the beneficiary.

The deductibles on the first option are limited to outpatient treatment only and are set at 10% for medicine, subject to the limit of OR 5 per visit and 15% for consultancy fees, diagnosis and lab fee for providers within network and at 30% for Providers outside the network.

While the Middle East insurance market is to a large extent geared up for the new mandated health insurance requirements in Oman based on previous experiences with the KSA and United Arab Emirates markets, they should no doubt see the opportunities for top over coverage in Oman given that the minimum coverage is very basic in nature.

Of interest, Oman has not applied licensing for third party claims administrators at present, which also presents opportunities in this market.