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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).

SBA Releases New Frequently Asked Question (No. 49) - Maturity Dates for PPP Loans

On June 25, 2020 the SBA released a new Frequently Asked Question (No. 49) concerning the maturity dates for PPP Loans as modified by the recently passed Paycheck Protection Program Flexibility Act. All PPP Loans received on or after June 5, 2020, will have a five-year maturity. Any PPP Loan received before June 5, 2020, has a two-year maturity, unless the borrower and lender mutually agree to extend the term of the loan to five years. Businesses should address the maturity issue with their SBA lender and discuss any available change to the loan maturity date.

Top 10 Signs that May Indicate Financial Distress

The business world has been turned upside down with COVID-19 and the financial disruption it has created. Once healthy businesses are taking protective measures to remain viable. The impact of this health and financial crisis has affected nearly all industries in some manner. Being aware of areas or issues where your company is vulnerable is critically important. We have identified ten signs to look for when evaluating whether your company has some degree of financial distress.

HHS Delays Quarterly Reporting for Provider Relief Funds

There is good news for providers that received either (1) General Distributions from the HHS Provider Relief Funds [link to my article], or (2) Targeted Distributions from the HHS Provider Relief Funds [link to Ashley’s article]. HHS reversed its stance requiring quarterly reports for providers that received Provider Relief Funds and PPP loan monies. The initial quarterly reports would have been due by July 10, 2020. However, on June 13, 2020, HHS delayed the quarterly reporting requirement.

July 20 is Important Deadline for HHS Fund Distributions to Medicaid and CHIP Providers

On June 10, 2020, the U.S. Department of Health and Human Services (“HHS”) released details on the distribution of more CARES Act Provider Relief Fund payments. After allocating $50 billion to Medicare providers through its General Distribution fund, HHS has now announced that it will distribute $15 billion to eligible Medicaid and CHIP providers who apply by the deadline through a Targeted Distribution. Applicants must apply through the Enhanced Provider Relief Fund Payment Portal. The application form itself can be found on the HHS website and is due by July 20, 2020.

DOJ Updates Corporate Compliance Plan Guidance

With the passage of the Affordable Care Act in 2010, all healthcare providers were required to adopt and implement a corporate compliance plan. Historically, having an effective corporate compliance plan in place has been key to defending healthcare providers in fraud and abuse actions by Medicare, Medicaid, and commercial payers. Over the past couple of years, the U.S. Department of Justice’s (DOJ) Criminal Division has increased the number of prosecutions against U.S. corporations, including healthcare providers. Earlier this month, the DOJ’s Criminal Division updated its “Evaluation of Corporate Compliance Programs” guidance to educate prosecutors on how a corporate compliance program will be evaluated going forward.