Tuesday, August 15, 2017

32 Jennings Strouss Attorneys Recognized in 2018 Edition of Best Lawyers in America®

PHOENIX, Ariz. (August 15, 2017) – Jennings, Strouss & Salmon, P.L.C., a leading Phoenix-based law firm, is pleased to announce that 32 lawyers have been named to the 2018 Edition of Best Lawyers. 

Best Lawyers has published their list for over three decades. Lawyers on the Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

Congratulations to the following Jennings Strouss attorneys named to the 2018 Best Lawyers in America list:

Gerald W. Alston – Arbitration; Commercial Litigation; International Arbitration – Commercial; International Trade and Finance Law; Litigation – Construction; Mediation
Thomas C. Arendt Real Estate Law
Timothy W. Barton – Litigation – Real Estate
David Brnilovich – Real Estate Law
John R. Christian – Tax Law; Trusts and Estates
Joseph E. Cotterman – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation - Bankruptcy
Richard K. Delo – Health Care Law; Legal Malpractice Law – Defendants; Medical Malpractice Law – Defendants; Personal Injury Litigation – Defendants
John J. Egbert – Commercial Litigation; Employment Law – Management; Labor Law – Management
Lee E. Esch – Real Estate Law
Jay A. Fradkin – Health Care Law; Litigation – Health Care; Medical Malpractice Law – Defendants; Personal Injury Litigation – Defendants
Jeffrey D. Gardner – Commercial Litigation
Joel L. Greene – Energy Law
Norma C. Izzo – Family Law
Paul G. Johnson – Commercial Litigation
Michael K. Kelly – Patent Law
Gary G. Keltner – Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation – Bankruptcy; Real Estate Law
Richard Lieberman – Banking and Finance Law; Business Organizations (including LLCs and Partnerships); Closely Held Companies and Family Businesses Law; Corporate Compliance Law; Corporate Governance Law; Corporate Law; Leveraged Buyouts and Private Equity Law; Mergers and Acquisitions Law; Private Funds / Hedge Funds Law; Securities / Capital Markets Law
Jay M. Mann – Construction Law; Litigation – Construction
Bruce B. May – Real Estate Law
Gary J. Newell – Energy Law
John C. Norling – Real Estate Law
Robert J. Novak – Banking and Finance Law; Real Estate Law
Michael R. Palumbo – Arbitration; Commercial Litigation; Mediation
J. Scott Rhodes – Administrative / Regulatory Law; Arbitration; Ethics and Professional Responsibility Law; Legal Malpractice Law – Defendants; Litigation – Municipal; Mediation; Municipal Law
Alan I. Robbins – Energy law
Jack N. Rudel – Corporate Law
John G. Sestak, Jr. – Administrative / Regulatory Law; Commercial Litigation; Corporate Law; Litigation – Banking and Finance; Litigation – Construction; Litigation – Labor and Employment; Litigation – Real Estate
Richard Silverman – Energy Law
Wayne A. Smith – Real Estate Law
George C. Spilsbury – Corporate Law; Public Finance Law
Bradley J. Stevens - Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; Litigation – Bankruptcy
Kenneth C. Sundlof, Jr. – Energy Law



About Jennings, Strouss & Salmon
Jennings, Strouss & Salmon, P.L.C., has been providing legal counsel for 75 years through its offices in Phoenix and Peoria, Arizona; and Washington, D.C. The firm's primary areas of practice include advertising and media law; agribusiness; automobile dealership law, bankruptcy, reorganization and creditors’ rights; construction; corporate and securities; employee benefits and pensions; energy; family law and domestic relations; health care; intellectual property; labor and employment; legal ethics; litigation; professional liability defense; real estate; surety and fidelity; tax; and trust and estates. For additional information please visit www.jsslaw.com and follow us on LinkedIn, Facebook, and Twitter.

The firm’s affiliate, B3 Strategies, assists clients with lobbying and public policy strategy at the local, state, and federal levels. For more information please visit www.b3strategies.com.
~JSS~
Contact:  Dawn O. Anderson  |  danderson@jsslaw.com   |  602.495.2806

Friday, August 4, 2017

ADA Plaintiff's Fernando Gastelum and Theresa Brooke Sue Hotels Over Online Reservation Policies

By: Lindsay Leavitt Attorney, Jennings, Strouss & Salmon, P.L.C.


The Arizona hospitality industry needs to brace itself for another tidal wave of ADA litigation. ADA plaintiffs Fernando Gastelum and Theresa Brooke have recently filed nearly a dozen lawsuits alleging that the hotels’ online reservations policies violate the ADA. Mr. Gastelum and Ms. Brooke are represented by Peter Strojnik and Peter K. Strojnik, a father and son duo who have filed more than 2300 ADA lawsuits in the last 24 months.
                                           
In their lawsuits, Mr. Gastelum and Ms. Brooke allege that they were unable to reserve wheelchair accessible rooms using the hotels’ online reservation platform. They allege that this is a violation of a regulation published by the Department of Justice.   

28 CFR § 36.302(e)(1) provides that public accommodations that operate a place of public lodging must modify their policies to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms. This regulation went into effect on March 15, 2012.

There is very little case law interpreting § 36.302(e), but Mr. Gastelum and Ms. Brooke allege that the regulation is unambiguous—if a hotel allows online room reservations, it must also allow persons with disabilities to reserve accessible rooms online. The same goes for reservations made over the phone, in person, etc.

While most ADA accessibility cases against brick-and-mortar locations require the plaintiff to personally visit the premises, these lawsuits are different.  The alleged violations occurred online, thus, Mr. Gastelum and Ms. Brooke will argue they don’t even have to leave their homes to gain standing to sue.

There are a number of legal defenses still available for hotels sued under § 36.302(e)(1), and we recommend that a hotel facing (or hoping to avoid) a lawsuit brought by Mr. Gastelum or Ms. Brooke consult with an experienced ADA defense attorney. 

_____________________________________________________________________

Lindsay Leavitt is a business litigation attorney who has defended hundreds of businesses and commercial landlords in lawsuits arising under the ADA. He also regularly assists businesses with ADA compliance matters and provides advice on preventive measures.
Contact: lleavitt@jsslaw.com, 602.262.5825.

Friday, July 21, 2017

Hotels Sued For Violating ADA Online Reservation Policies



ADA plaintiffs have often targeted the hotel industry and Theresa Brooke’s latest round of lawsuits is no different. This time, she is suing hotels over their online reservation policies.

The Department of Justice issued regulations relating to hotel reservation policies that went into effect in March 2012. 28 CFR § 26.302(e) provides that, among other things, hotels must:

 -      modify their policies and practices to allow individuals with disabilities the opportunity to reserve accessible rooms in the same manner as individuals who do not need accessible rooms;

-       describe accessible features in the guest rooms so persons with disabilities can determine whether it meets their accessibility needs;

-       ensure that accessible guest rooms are held for persons with disabilities until all other guest rooms of that type have been rented; and

-       reserve, upon request, accessible guest rooms.

Theresa Brooke’s lawsuits allege that she was not able to reserve accessible rooms while using the defendant hotels’ online reservation platform.

It appears that, until now, only a handful of “online reservation” lawsuits have been filed by plaintiffs over the years. Mrs. Brooke’s lawsuits are unique because she is an Arizona resident filing suit against Denver-area hotels in the U.S. District Court of Arizona.

If she is successful in getting the federal court in Arizona to exercise jurisdiction over out-of-state hotels, it is possible that Theresa Brooke—who has sued more than 550 hotels over the last 24 months—could file suit against thousands of hotels across the country without ever leaving Arizona.

While the Arizona legislature recently enacted tough legislation in an attempt to curb serial ADA litigants, that legislation only affects litigants who are asserting claims under the Arizonans with Disabilities Act (AzDA). Theresa Brooke isn’t bringing AzDA claims; she is choosing to litigate in federal court under the ADA so she is beyond the reach of state law.

A hotel facing a Theresa Brooke lawsuit should do is consult with an experienced and knowledgeable ADA defense attorney. Jennings Strouss has defended dozens of hotels in ADA lawsuits and regularly advises the hospitality industry on ADA compliance measures. 

____________________________________________________________________


Mr. Leavitt represents and advises small and mid-size businesses in employment, landlord/tenant, and general litigation matters. He often serves as a de facto general counsel to business owners, providing practical advice on a variety of legal issues.

Mr. Leavitt's appreciation for small businesses is due, in part, to his own family's entrepreneurialism. His father, brother and wife are all small business owners, providing him with first-hand knowledge of the issues small businesses face, enabling him to better provide clients with real-world and cost-effective solutions. Mr. Leavitt also serves as Chair of the firm’s Food, Beverage, and Hospitality industry group.

Mr. Leavitt can be reached at  602.262.5825 or lleavitt@jsslaw.com.



Friday, July 14, 2017

ADA Plaintiff Theresa Brooke Sues Hotels Over Online Reservation Policies



By: Lindsay Leavitt Attorney, Jennings, Strouss & Salmon, P.L.C.

Theresa Brooke has returned to Arizona and has found a new way to sue hotels for ADA violations. Arizona hotel owners will remember Theresa Brooke—in 2015 she sued more than 125 of them for failing to install wheelchair accessible pool lifts.

Theresa Brooke, an Arizona resident, is now filing lawsuits in the U.S. District Court of Arizona against out-of-state hotels alleging that their online reservation policies violate the ADA. More specifically, she claims that as a disabled woman she should be able to reserve a wheelchair accessible room online.

Federal regulations require public accommodations that operate a place of lodging to modify their policies to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms. See 28 CFR § 36.302(e)(1)(i). This regulation went into effect on March 15, 2012.

Theresa Brooke’s lawsuits demand that the hotels fix the alleged violation and pay her attorney’s fees.

Are there any legal defenses to her claims? Definitely. Many defendants in ADA cases have opted to quickly remedy the alleged violation(s) and then file a Motion to Dismiss alleging the claims are moot—there is no ongoing “case or controversy” if the alleged violation has been resolved.

The first thing a hotel facing a Theresa Brooke lawsuit should do is consult with a knowledgeable and experienced ADA defense attorney. Jennings Strouss has defended more than 275 hotels, commercial landlords and businesses of all size in ADA accessibility lawsuits over the past couple of years. We are available to discuss your lawsuit and/or preventative measures your hotel can take to avoid becoming Theresa Brooke’s next lawsuit.
____________________________________________________________________


Mr. Leavitt represents and advises small and mid-size businesses in employment, landlord/tenant, and general litigation matters. He often serves as a de facto general counsel to business owners, providing practical advice on a variety of legal issues.

Mr. Leavitt's appreciation for small businesses is due, in part, to his own family's entrepreneurialism. His father, brother and wife are all small business owners, providing him with first-hand knowledge of the issues small businesses face, enabling him to better provide clients with real-world and cost-effective solutions. Mr. Leavitt also serves as Chair of the firm’s Food, Beverage, and Hospitality industry group.

Mr. Leavitt can be reached at  602.262.5825 or lleavitt@jsslaw.com.


Friday, July 7, 2017

Serial ADA Plaintiff Theresa Brooke Returns to Arizona



By: Lindsay Leavitt Attorney, Jennings, Strouss & Salmon, P.L.C.

Serial plaintiff Theresa Brooke is back in Arizona filing more ADA accessibility lawsuits. Arizona hotel owners will remember that it was Theresa Brooke who, in 2015, opened the floodgates of accessibility lawsuits—she personally sued more than 100 hotels for failing to install wheelchair accessible pool lifts. For the past eighteen months she and her counsel, Peter K. Strojnik, have been touring California filing hundreds of “pool lift” lawsuits. She ran into problems, however, when California courts questioned her standing to file her lawsuits because she never actually visited the hotels (and therefore did not personally encounter the barriers to accessibility).

With her latest set of ADA lawsuits, Theresa Brooke attempts to get around the standing requirements by alleging that the websites of the defendant hotels (all based in the Denver area) do not allow her to reserve wheelchair accessible rooms online. This is a novel argument—and, if successful, could theoretically allow Theresa Brooke to sue hotels all across the country without personally visiting any of them. Theresa Brooke’s lawsuits are also unique because website accessibility lawsuits are typically brought by a person with visual or hearing impairments. Theresa Brooke has neither.

Theresa Brooke’s first-of-its-kind lawsuits raise a number of legal issues. For example, does the U.S. District Court of Arizona have specific personal jurisdiction over these Denver-area hotels? Courts have generally declined to assert personal jurisdiction solely on the basis of web advertising and instead look to see whether the defendants have more active contacts with a forum.

Regarding the substance of her allegations, whether websites are places of “public accommodation” for ADA purposes is a hot topic right now and courts within the Ninth Circuit have issued rulings on both sides of the argument.  Theresa Brooke’s lawsuits, however, raise a more narrow issue—she is able to access the hotel websites, but allegedly cannot reserve a wheelchair accessible room on the website. As someone who has defended more than 300 ADA lawsuits over the past 24 months—including more than two dozen filed by Theresa Brooke—this is a unique issue and one that I haven’t seen addressed by any court. That being said, the usual ADA defenses of standing, mootness, etc., will still apply to these cases and could be successful.

Accordingly, the first step a business defendant should do after receiving a lawsuit from Ms. Brooke is to contact a capable and experienced ADA defense attorney.   

____________________________________________________________________

Mr. Leavitt represents and advises small and mid-size businesses in employment, landlord/tenant, and general litigation matters. He often serves as a de facto general counsel to business owners, providing practical advice on a variety of legal issues.

Mr. Leavitt's appreciation for small businesses is due, in part, to his own family's entrepreneurialism. His father, brother and wife are all small business owners, providing him with first-hand knowledge of the issues small businesses face, enabling him to better provide clients with real-world and cost-effective solutions. Mr. Leavitt also serves as Chair of the firm’s Food, Beverage, and Hospitality industry group.

Mr. Leavitt can be reached at  602.262.5825 or lleavitt@jsslaw.com.


Thursday, July 6, 2017

New Proposed Rules for Arizona Sick Leave Requirements


By: Otto S. Shill, III, Attorney, Jennings, Strouss & Salmon, P.L.C.


Late last week, the Arizona Industrial Commission (the “Commission”) issued a Notice of Supplemental Proposed Rulemaking, adding proposed regulations that clarify several issues under Arizona’s new paid sick leave requirements. Below are summaries of the most significant proposed rules:

Paid Time Off (PTO) policies do not need to distinguish between sick leave and other leave. 
The new proposed regulations provide that when an employee has used available equivalent PTO for either sick leave or other reasons, “the employer may count the usage towards the amount of earned paid sick time taken by the employee to date in the year.” This proposal would lessen employers’ administrative burdens by allowing them to count the first PTO time used as sick leave. Thus, an employer who provides PTO at least equal to the required sick leave reduces the likelihood of having to deal with the carryover of unused sick leave. 

Employers may have an agreed hourly rate for purposes of paying sick leave. 
For employees who are paid on a commission, piece-rate, or fee-for-service basis, employers may pay for an employee’s sick leave benefit at an hourly rate agreed upon between the employer and the employee as the minimum compensation the employee will receive if the employee’s compensation would not otherwise reach that level. The agreed upon rate must at least equal the hourly rate required by minimum wage rules. The proposed regulations provide several other alternatives for determining the rate of pay based on actual compensation paid.

Employers may provide new employees a pro-rated amount of sick leave in their year of hire. 
Employers may limit the amount of sick leave available to new employees by providing them with an estimate of the amount of sick leave they can earn at the rate of 1 hour for every 30 hours worked during their initial partial year of employment if the leave is immediately available to the employee on the employee’s 90th day of employment. This means that an employer using the calendar year as the measurement year for sick leave purposes, who hires a new employee after January 1, may provide that employee with less than the maximum 24 or 40 hours of sick leave by estimating the amount the employee could actually accrue during the remainder of the year, and by making that leave available on the 90th day of employment.

Employers who provide the maximum required sick leave on day 1 can avoid carryover requirements.  
The proposed regulations allow employers who front-load sick leave by making the maximum 24 or 40 hours of sick leave available to the employee on the first day of the employer’s measurement year, to avoid tracking the accrual of sick leave and does not need to allow any sick leave to be carried to a subsequent year.

Planning Pointers. 
In many ways, the supplemental proposed regulations make planning harder for employers. At first blush, they appear to give employers the ability to avoid administrative burdens. However, the proposals, like the Commission’s FAQs, are not entirely consistent with the statute governing sick leave, and could therefore be challenged and found to be unenforceable. For example, under the new proposed rules, carryover requirements are waived if paid time off of any kind that is at least equal to the maximum required sick leave is granted to employees on the first day of the employer’s measurement year. However the statute provides that unused sick leave “shall be carried over.” Also, no mention is made of the fact that some employers may have notice conditions tied to paid time off that do not comply with the requirements for the notice rules relating to sick leave under the statute.

Thus, employers seeking to comply with the new law have two risks in following the positions announced by the Commission. First, the Commission may change its rules. The comment period on these proposed regulations ends on August 8, so we won’t know until after that what the final rules will be. Second, both proposed regulations and final regulations constitute the interpretation of Arizona’s executive branch of government, and a court might not uphold them. ARS § 23-376 authorizes the Commission to “coordinate implementation and enforcement of the statute and to create guidelines or regulations for that purpose.” Nothing in that statue appears to give the Commission authority to promulgate legislative regulations, which would typically have the full force of law. Rather the language suggests that the regulations would be interpretive or procedural regulations. There is a real possibility that some positions of the Commission given in its guidance on these matters could exceed its authority and that courts could invalidate those positions, particularly if they are inconsistent with the statutory language.

Employers must consider these risks carefully in reaching conclusions about how to draft and implement their policies. The most conservative approach would be to maintain policies that correlate directly to the statutory language. If an employer wishes to be somewhat more aggressive, it could adopt the positions allowed by Commission guidance, anticipating that having followed those guidelines would offer some measure of protection against retroactive enforcement should the guidance be invalidated or changed in the future. In any event, employers should consult with their counsel regarding their legal risks and responsibilities as they adapt their policies to comply with Arizona’s new sick leave statutes.
____________________________________________________________________

For more than 30 years, Mr. Shill has helped businesses and business owners comply with government regulations, navigate government investigations, and build wealth through business transactions and long-term planning. He has significant experience in federal and state tax compliance and tax controversies; compensation, benefits, and employment regulation; and government contracting compliance and disputes.

Mr. Shill regularly represents clients before federal and state government agencies, including the Internal Revenue Service, the Equal Employment Opportunity Commission, U.S. Department of Labor (DOL), the National Labor Relations Board, Arizona Attorney General's office, Arizona Industrial Commission, Arizona Department of Revenue and other Arizona regulatory boards. Mr. Shill also drafts and lobbies for the passage of legislation to address client issues.

Mr. Shill can be reached at 602.262.5956 or oshill@jsslaw.com.