Richard Silverman Named Chair of the University of Arizona Foundation Board of Trustees

Jennings, Strouss & Salmon Member, Richard Silverman, recently assumed the position of chair of the University of Arizona Foundation Board of Trustees for the 2016-2017 fiscal year.

Read more here .

Advocates for Individuals with Disabilities Foundation Continues to File Hundreds of ADA Lawsuits Every Month

By: Lindsay Leavitt


This week the U.S. commemorated the 26-year anniversary of the Americans with Disabilities Act (“ADA”). In honor of this landmark civil rights law, an Arizona entity called Advocates for Individuals with Disabilities Foundation, Inc. (“AID Foundation”) filed its 950^th ADA lawsuit this year. You can read my earlier blogs about these lawsuits here, here, here, here and here.

The AID Foundation is one of the most prolific filers of ADA lawsuits Its methods are simple (and controversial)—AID Foundation staff members drive to every parking lot in a zip code taking photographs of the accessible parking spaces. If they believe there is an ADA violation—regardless of how minor—the AID Foundation will file suit, demanding a minimum of $5,000 for its attorneys’ fees.

Unfortunately, the cost of defending a lawsuit can be much more expensive than paying the demanded settlement amount, and the AID Foundation knows this. That is why the vast majority of these cases settle. Fortunately, however, there are a number of cost-effective strategies that defendants can employ to defeat these claims.

One strategy is the mootness doctrine. Because the only claim a plaintiff has under the ADA is for injunctive relief (i.e., for removal of the barrier to accessibility) a defendant’s voluntary removal of the alleged barriers has the effect of mooting a plaintiff’s ADA claim. Dozens of courts within the Ninth Circuit have dismissed ADA cases under the mootness doctrine. Perhaps more importantly, a case dismissed for mootness does not mean the plaintiff is the “prevailing party” and thus the plaintiff may not be eligible to receive its attorneys’ fees.

The mootness doctrine is one of a handful of cost-effective ways to resolve these lawsuits. Accordingly, the first step an Arizona business or commercial landlord should take after receiving a lawsuit from the AID Foundation is to contact a capable and experienced ADA defense attorney. 

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Lindsay Leavitt  is a business litigation and employment law attorney at Jennings, Strouss & Salmon, P.L.C. He regularly represents businesses in ADA compliance related disputes and provides

Advocates for Individuals with Disabilities Foundation has Filed More Than 950 ADA Cases in 2016

By: Lindsay Leavitt



An entity called Advocates for Individuals with Disabilities Foundation, Inc. (“AID Foundation”) has filed more than 950 ADA lawsuits this year against local businesses and commercial landlords. These lawsuits all focus on relatively minor violations in the parking lot. You can read my earlier blogs about these lawsuits here, here, here and here.

AID Foundation’s tidal wave of ADA lawsuits began in Scottsdale, spread through Phoenix and has flooded the East Valley for the past couple of months. I have represented more than 130 defendants in these cases and have become very familiar with AID Foundation’s modus operandi and litigation strategies.  

Nearly all of AID Foundation’s lawsuits allege that the accessible parking signs are too low (they must be at least 60” from the bottom of the sign to the ground) and/or that a “van accessible” sign (which costs approximately $10.00 to buy online) is missing.

Many defendants are frustrated because their parking lots were inspected and approved by a city ADA inspector. Unfortunately, a number of cities in Greater Phoenix have accessibility requirements that conflict with the ADA. For example, businesses in Mesa may be in compliance with the Mesa City Code, but in violation of the ADA, a federal law (which trumps conflicting state and city laws).

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

An Arizona business or commercial landlord who has been sued by Advocates for Individuals with Disabilities needs to immediately retain a competent and experienced ADA attorney. 

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Lindsay Leavitt is a business litigation and employment law attorney at Jennings, Strouss & Salmon, P.L.C. He regularly represents businesses in ADA compliance related disputes and provides advice on preventative measures.

 

How to Save Taxes and Avoid ADA Lawsuits

By: Otto S. Shill, III

In several states across the country, including Arizona, plaintiffs’ lawyers are bringing lawsuits against businesses for alleged violations of the Americans with Disabilities Act (the “ADA”).   Businesses can easily avoid the headache and expense of such a lawsuit by ensuring that their facilities comply with the ADA before a lawsuit is filed.  The federal government encourages voluntary compliance by providing financial assistance to small businesses that make required changes to older facilities.

Under Section 44 of the Internal Revenue Code (the “Code”) a business generating one million dollars or less in annual gross receipts or having less than 30 or fewer full-time (30 hours per week) employees and that spends at least $250.00 in eligible expenses may qualify for a credit against its income tax liability.  The credit is allowed for 50% of eligible expenses in excess of $250.00 up to a maximum of $10,000.00 that are incurred to comply with the ADA.   The credit is available in each taxable year that the business makes eligible expenditures.  This means that a small business can get a credit against federal income tax of up to $5,000.00 in each year it spends more than $250.00 on eligible expenses.  That can go a long way toward paying for improvements that make a facility more accessible and that avoid a potential lawsuit.  A business can take advantage of the credit by filing either form 3800 or 8826 with its federal income tax return.  Note that any amount with respect to which the credit is claimed cannot be included in the owner’s basis in the re-mediated property.

Eligible expenditures must be (i) related to alterations of existing facilities that are placed in service before November 5, 1990 (as opposed to new construction), (ii) reasonable in amount, and (iii) meet established ADA standards.  Examples of eligible expenditures include removing physical or transportation barriers that limit accessibility to disabled persons, providing equipment to assist visually impaired persons, and providing interpreters or similar equipment for hearing impaired persons.

 As an alternative, a business may take a deduction of up to $15,000 per year under Internal Revenue Code section 190 for expenditures to remove architectural and transportation barriers that are expensed rather than capitalized.  However, to the extent that a business applies this deduction, it will not be eligible for the credit under Code section 44.

Jennings Strouss & Salmon has in the past year defended more than one hundred fifty ADA lawsuits regarding facilities compliance.  Our attorneys can provide guidance concerning how to defend these lawsuits, comply with the ADA and take advantage of available tax credits and deductions.

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Otto S. Shill, III is a Member at Jennings, Strouss & Salmon and is a part of the Tax, Estate Planning and Probate group. He can be contacted at oshill@jsslaw.com or 602.262.5956.

 

Lindsay Leavitt Featured in AZ Big Media

Jennings, Strouss & Salmon attorney, Lindsay Leavitt, is featured in AZ Big Media, online.

Read the full article: Here's How to Protect Yourself From Frivolous ADA Lawsuits .

Chris Rogers Featured in Financier Worldwide

Jennings, Strouss & Salmon attorney, Chris Rogers, is featured in Financier Worldwide.

Read the full article: Introduction of Regulation.

Lindsay Leavitt Featured in The Arizona Republic

Jennings, Strouss & Salmon attorney, Lindsay Leavitt, is featured in The Arizona Republic.

Read the full article: Phoenix-area activists, businesses go head-to-head in flood of Americans With Disabilities Act lawsuits

Lindsay Leavitt Featured in AZ Business Magazine

 

Jennings, Strouss & Salmon attorney, Lindsay Leavitt, is featured in AZ Business Magazine regarding ADA cases.

Read the full article here.

How to Respond to an NLRB Investigation

By: Otto S. Shill, III

For employers in western states, labor disputes may seem like remote events that happen between unions and companies in industrial cities east of the Mississippi River.  After all, Arizona is an “at will employment” and “right to work” state, isn’t it?  But here in Arizona the local regional office of the National Labor Relations Board (NLRB) is aggressively enforcing the National Labor Relations Act (the Act), which prohibits any employer, whether unionized or not, from using discriminating hiring practices or otherwise interfering with employees’ rights to act collectively to improve the circumstances of their employment or to consider adopting a union organization.  The job of the NLRB is to protect the rights of employees guaranteed under the Act.  Employers can therefore expect that facts are often interpreted by both the agency and the courts in favor of employees.  This means that Employers need to inform themselves and their management employees about how to avoid problems and to respond to enforcement actions. 

When the NLRB regional office receives a complaint, it opens an investigation, giving the assigned investigator a limited period of time to collect information about the alleged violation.  The investigator uses this investigation period to gather evidence that it will use to assess its case and to determine whether or not to litigate a case.  Evidence and witness statements provided by an employer during this crucial time become part of the administrative record and will be used in subsequent litigation.  Although employers get a chance to present their case, the Regional Director often draws inferences negative to the employer, and investigators do not always prompt the employer to offer evidence that could be used to rebut these inferences.  The result often is that the NLRB Regional Director finds that he has evidence that will allow the agency to prevail in litigation and then offers a settlement that includes hiring the complainer and/or paying him or her back pay to the date of alleged discrimination.  All of this happens under time pressure imposed by the agency’s Regional Director so that employers have little time to think and react.  Employers often characterize the process as costly and unfair.

Employing legal counsel early in the enforcement process gives an employer important advantages.  Counsel can help to develop and present evidence in a way that can rebut the negative inferences drawn by the Regional Director based on an incomplete view of the facts and that may cause the agency to reconsider its litigation risks.  Even if a case cannot be resolved during the investigation, the administrative record developed during the investigation will become critical during the litigation that follows.  Both administrative law judges of the agency and the courts can legally ignore evidence that is not presented to the agency in a timely manner.  In some cases, the administrative investigation is often the most critical phase of a case.  Hiring counsel who can help prepare the right response early in the enforcement process could prevent litigation or substantially reduce the cost of a settlement, saving literally thousands or tens of thousands of dollars. 

At Jennings, Strouss & Salmon, our attorneys have significant experience in assisting employers avoid, and defend themselves against, enforcement actions by government agencies, including the NLRB.   We are anxious to help businesses to improve their profitability by avoiding the difficulties that come with government enforcement actions including NLRB investigations.

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Otto S. Shill, III is a Member at Jennings, Strouss & Salmon and is a part of the Tax, Estate Planning and Probate group. He can be contacted at oshill@jsslaw.com or 602.262.5956.

Jennings, Strouss & Salmon Expands Tax, Estate Planning and Probate Practice Group with the Addition of Otto S. Shill, III

(PHOENIX, Ariz.) - Jennings, Strouss & Salmon, P.L.C., a leading Phoenix-based law firm, is pleased to announce that Otto S. Shill, III has joined the firm as a Member in the  Tax, Estate Planning, and Probate practice in Phoenix, Arizona

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. 

“Otto possesses significant legal experience in the area of tax that will be advantageous, not only to his existing clients, but to other firm clients as well,” states Richard C. Smith, chair of Jennings, Strouss & Salmon’s Tax department. “We welcome Otto and the knowledge he brings to help expand the depth and breadth of the firm’s legal services.”

Mr. Shill advises clients on how to avoid and resolve issues. He regularly represents clients before the Internal Revenue Service (IRS) and other federal and state government agencies, such as the Equal Employment Opportunity Commission (EEOC), U. S. Department of Labor (DOL), Arizona Attorney General’s office and numerous Arizona regulatory boards. Mr. Shill also drafts and lobbies for the passage of legislation to remedy client issues. The Arizona Board of Legal Specialization designates Mr. Shill as a Certified Tax Specialist.

“I am excited to be joining Jennings, Strouss & Salmon, one of Phoenix’s oldest and most respected law firms,” said Mr. Shill. “Both at work and through public service, I help businesses and their owners thrive in challenging regulatory environments. Combining my resources with those of such a fine law firm will magnify and expand our ability to contribute to their success.”

Mr. Shill is actively involved in numerous community and business organizations. He is a member of the American Bar Association's Section of Taxation, Section of Labor and Employment, and Section of Public Contract Law. Mr. Shill is also a member of the State Bar of Arizona's Labor and Employment and Tax Law Sections. In addition, he serves on the Board of Directors for East Valley Adult Resources Foundation, as President-Elect of the Mesa Rotary Club, and as a member of the Arizona Business Aviation Association. Mr. Shill previously served as Chairman of the Board of Directors of the Mesa Chamber of Commerce and United Food Bank.

Mr. Shill earned his LL.M.in Taxation from Boston University in 1987, a J.D. from Brigham Young University, J. Reuben Clark Law School in 1985, and a B.S. in Accounting from Brigham Young University in 1982.

About Jennings, Strouss & Salmon, P.L.C.

Jennings, Strouss & Salmon, P.L.C., has been providing legal counsel for over 70 years through its offices in Phoenix and Peoria, Arizona; and Washington, D.C. The firm's primary areas of practice include 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