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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).

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.