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BMD Obtains Dismissal of ADA Title III Suit Against National Outlet Mall Chain

On January 12, 2018, Brennan, Manna & Diamond obtained the dismissal of an Americans with Disabilities Act (“ADA”) lawsuit filed against Tanger Factory Outlet Centers, Inc. in the U.S. District Court for the Western District of Michigan.

The suit, which was brought under Title III of the ADA, alleged that Tanger’s Byron Center, Michigan outlet mall contained barriers to access in violation of the ADA’s accessibility requirements. The plaintiff demanded prospective injunctive relief, including a retrofit of the entire mall, as well as expert witness and attorneys’ fees.

BMD moved to dismiss the case for lack of standing. Unlike a conventional suit, where a plaintiff seeking monetary damages must show a past injury to possess legal standing, an ADA Title III plaintiff must show a threat of prospective future harm in order to recover. Typically, this means that the plaintiff must plead (and prove) that he or she has reason to continue to visit the public accommodation in question and will continue to be injured by the facility’s alleged non-compliance with the ADA.

In its opinion granting Tanger’s Motion for Judgment on the Pleadings, United States Magistrate Judge Ellen S. Carmody held that the plaintiff’s Amended Complaint failed to adequately plead prospective future injury. In particular, the Court noted that “[v]ague and conclusory allegations that a plaintiff intends to return to a location […] are insufficient to maintain an ADA claim.” Applying this standard to the plaintiff’s Amended Complaint, the Court held that his “vague and conclusory statements regarding his alleged intent to return” to Tanger’s Byron Center property “are insufficient.” On this record, the Court found that the plaintiff “failed to sufficiently allege that he will suffer a future injury in the absence of injunctive relief.”

Recognizing the cost that ADA Title III actions pose to owners and operators of public accommodations, BMD’s experienced team of ADA litigators uses a proactive approach to seek the early and cost-effective resolution of cases before proceeding with expensive expert discovery. BMD was proud to obtain this result for Tanger Factory Outlets, one of the largest and most iconic outlet mall chains in the country.

BMD Partners Christopher Congeni and Daniel Rudary represented Tanger Factory Outlet Centers in this case. The citation for Court’s opinion is Saar v. Tanger Factory Outlet Centers, Inc., W.D. Mich. No. 1:17-cv-41, 2018 WL 387962 (Jan. 12, 2018).

CLIENT ALERT: Ohio Supreme Court Rules that a Subcontractor's Construction Defects are Not a Covered "Occurrence" Under a CGL Policy

Although a growing number of states have held that CGL policies provide coverage for damages caused by the defective work of subcontractors, the Ohio Supreme Court has refused to join the national trend. In Ohio N. Univ. v. Charles Constr. Servs., Inc., 2018-Ohio-4057, the Ohio Supreme Court recently ruled that a subcontractor’s faulty workmanship is not a covered “occurrence” under a typical CGL policy.

CLIENT ALERT: Taxpayer Passport Application will be Denied Due to Unpaid Taxes

In late 2015, Congress passed The Fixing America’s Surface Transportation Act (FAST) into law. This law allows the IRS and State Department to refuse to issue a Passport if the taxpayer has a seriously delinquent tax debt. The law also permits the IRS and State Department to revoke a taxpayer’s Passport for these same delinquent tax debts. To be considered a seriously delinquent tax debt, the tax debt must total more than $51,000.

CLIENT ALERT: New Opportunity Zone Incentives Promise to Spur Economic Development

Created as part of the recently passed Tax Cuts and Jobs Act, “Opportunity Zones” are designed to encourage long-term investments in underserved communities. By offering tax benefits to private investors who choose to invest their capital at the nexus of need and opportunity, the program supports a broad array of investments and offers opportunity for creative problem-solving strategies to address community needs. The program offers investors tiered tax benefits depending on the term of the investment, including a temporary deferral and partial reduction of unrealized capital gains, as well as the potential to exclude all future appreciation on the investment. The program is designed to tap into the estimated $6T+ of unrealized capital gains held by U.S. individuals and companies by incentivizing investors to re-invest that capital in low-income communities to spur economic development and job creation.

CLIENT ALERT: Medicare Trust Fund to Run Out of Funding Beginning in 2026, Likely to See an Increase in Audits, Overpayment Demands and Extrapolations

Pursuant to a Medicare Trustee Report released on June 5, 2018, the Medicare trust fund will run out of funding beginning in 2026, which is three years earlier than previously expected. Although the Trustee’s report requests that Congress and the President act with urgency to remedy this problem, in the short term, we expect to see an increase in government payer audits, overpayment demands, and extrapolations.

CLIENT ALERT: The European Union's New Data Privacy Law Goes Into Effect

On May 25, 2018, the European Union’s (“the EU”) new data privacy law went into effect. The General Data Protection Regulation (“GDPR”) concerns the processing of personal data that can be searched according to specified criteria such as geographical scope.