News (All)

ADA Accessibility for Websites

Posted: January 22nd, 2018

By Christine Malafi

The Internet has become a necessity for the marketing and promotion of businesses, services, and merchandise. An evolving legal issue is website accessibility to those with disabilities and the applicability of Title III of the Americans with Disabilities Act (“ADA”). Accessibility of public websites and compliance with the ADA in connection with public websites may cause issues for some time to come, given the lack of governmental regulations and guidance in this area. Nevertheless, it’s important for businesses to know where the law currently stands.

The purpose of the ADA is to provide equal opportunity to individuals with disabilities. Title III of the ADA specifically prohibits discrimination of individuals with disabilities “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” While the ADA is silent on the specific issue of website accessibility, case law has made it clear that the ADA applies to public websites, and businesses must accommodate individuals with disabilities and make their websites ADA accessible. However, the extent to which websites must be made accessible has not been definitively determined. Questions remain as to whether all websites fall under the ADA and whether a website must also be tied to a physical location before it falls under the ADA, among other questions.

In December 2015, the Department of Justice (“DOJ”) announced that it would not issue private sector website ADA accessibility regulations until fiscal year 2018. However, a recent Presidential Executive Order cut regulatory resources, and may subsequently freeze the DOJ’s public accommodations website rulemaking.

In the absence of DOJ regulations, what should businesses do? Many settlements approved by the DOJ have implemented the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG) on how to make a website more accessible. At the most basic level, an ADA accessible website should provide these (and other) types of features:

  • Text alternatives for any non-text content;
  • Alternatives for time-based media;
  • Content that can be presented in different ways without losing information or structure;
  • Be easy to see and hear, including separating foreground from background;
  • Permit all functionality from a keyboard if needed (as opposed to a cursor);
  • Permit sufficient time to read and use content;
  • Not be designed in a way that is known to cause seizures;
  • Include ways to help users navigate, find content, and determine where they are;
  • Include text content that is readable and understandable;
  • Operate and appear in predictable ways;
  • Help users avoid and correct mistakes; and
  • Compatible with current and future user agents, including assistive web technologies.

The best option for business owners to not fall victim to a successful Title III suit is to comply with these WCAG guidelines.

However, it may not always be deemed “reasonable” for businesses to create a fully ADA compliant website. As is stated in the ADA: “A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. “ 28 C.F.R. § 36.302 (2012).

If making your website fully compliant with the WCAG is too costly for your company, other options may be available. Although New York courts have yet to address this specific issue, others have. In National Federation of the Blind v. Target Corp., Target was sued because its website did not enable visually impaired persons to directly purchase products, redeem gift cards, or find stores.  The court ruled against Target, as Target failed to show that the information on its website was available in another reasonable format. The court acknowledged ADA defines discrimination to include a failure to take such steps “as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C.S. § 12182(b)(2)(A)(iii). The court specifically noted the following examples of accessibility: “if a menu cannot be read by a blind person, the restaurant need not make the menu available in Braille; the restaurant could ensure that waiters are available to explain the menu”; and “while a bookstore must ensure that it communicates with its customers in formats which accommodate the disabled, a bookstore is not required to stock books in Braille.” Courts therefore recognize that there may be significant limitations on the possibility of making a website completely or fully ADA accessible.

In a more recent case, Robles v. Domino’s Pizza LLC, a blind plaintiff claimed that he could not order pizza from the Domino’s website because it was not accessible using a screen reader. The court found that although Domino’s website was not in compliance with the WCAG guidelines, their 24-hour toll free phone number, where live agents provided assistance with using the website, was enough to meet its obligations under the law.

Absent further guidance, businesses and individuals with public business websites are urged to ensure accessibility. At CMM, we are available to assist and guide you on this issue.

Lessons Learned from FCPA Enforcement in 2017

Posted: January 22nd, 2018

Published In: The Suffolk Lawyer

Tags:

The Department of Justice’s (“DOJ”) Foreign Corrupt Practices Act (“FCPA”) enforcement efforts ended 2017 with a bang on December 22, when the United States Attorney’s Office for the Eastern District of New York and the DOJ Fraud Section announced $422 million in criminal penalties against Keppel Offshore & Marine Ltd and its U.S. subsidiary (“Keppel USA”).  The enforcement action ranks seventh all-time in the history of the FCPA based on the assessed penalties.

According to the deferred prosecution agreement (“DPA”), Keppel, a Singapore-headquartered offshore rig and shipbuilding company, paid $55 million in bribes to officials at Petrobras, Brazil’s state-owned oil company, and the Workers’ Party of Brazil.  The bribery scheme spanned from 2001 to 2014, helped secure a dozen contracts, and earned the company $351.8 million.  Like so many FCPA cases, the bribes were effectuated through consultants, not directly by Keppel employees.  However, Keppel and Keppel USA executives allegedly created and executed agreements with the consultants intended to facilitate the bribe payments and conceal their purpose.  The DPA quotes emails from Keppel executives establishing that the company’s senior officials were aware that the funds paid to the consultant would be used to bribe Brazilian officials.

The DOJ’s key source of information against Keppel appears to have been Jeffrey Chow, an American citizen who had worked for Keppel as in-house counsel in Singapore for over 25 years.  Chow had secretly pleaded guilty on August 29, 2017 to violating the FCPA as part of his cooperation deal with prosecutors.  While Keppel entered the DPA, Keppel USA pleaded guilty to violating the anti-bribery provisions of the FCPA.  In addition to the $422 million in criminal fines Keppel agreed to pay pursuant to the DPA, Keppel USA was fined an additional $5 million as part of its plea agreement.  According to the agreements, the defendants engaged in extensive remedial measures, including terminating, disciplining, and financially sanctioning company employees involved in the scheme.  Interestingly, the criminal penalties under the DPA are to be split among the Brazilian ($211 million), Singaporean ($105 million), and U.S. ($105 million) governments.

Aside from the sheer dollar value, there are several things worth highlighting about the Keppel case.  First, despite President Trump’s public pronouncements against the FCPA and its enforcement, Keppel demonstrates the current DOJ leadership’s willingness to bring significant anti-corruption cases.  However, as only two of the top-ten FCPA enforcement actions of all time involve United States-headquartered companies (KBR/Halliburton in 2009 and Och-Ziff in 2016) one can question whether the Trump Administration will focus FCPA enforcement actions increasingly on foreign corporations as compared to past administrations.

Second, Chow’s secret guilty plea and ensuing cooperation with the DOJ’s investigation highlights how the DOJ’s increasing focus on individual criminal liability can help build larger corporate cases.  The DOJ has stated that this focus will continue in 2018.

Third, and finally, the Keppel case is the latest in a series of recent cases in which the investigation and settlements have been multilateral in nature.  The DOJ has been structuring settlements to allow payments to be made to governments in countries where the bribery occurred or the company is headquartered.  The Telia Company’s nearly one billion dollar resolution in September 2017 was spread across the United States, Sweden, and the Netherlands.

2017 was an unprecedented year in terms of FCPA enforcement.  There is no reason to believe that enforcement in 2018 will be any less significant.

 

 

 

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

A Criminal’s Guide to Karma: Your Past Will Come Back to Haunt You… Or Will It?

Posted: January 22nd, 2018

Published In: The Suffolk Lawyer

By Patrick McCormick

The basic rule of karma is what goes around comes around. While in everyday life this principle may appeal only to the superstitious, the harsh reality is that in a court of law one mistake or bad act from your past can come back to haunt you.

In New York courts, the rule regarding the admissibility of uncharged prior bad acts is derived from the landmark case People v. Molineux, 168 N.Y. 264 (1901). Put simply, the admissibility of uncharged prior bad acts is dependent upon why the evidence was proffered. Generally, courts will deem evidence of uncharged prior bad acts inadmissible if it is proffered as pretext to demonstrate that the defendant has a propensity to act in a certain way. However, evidence of a defendant’s uncharged prior bad acts is admissible if it demonstrates something other than propensity, such as intent, motive, knowledge, common scheme or plan, identity of the defendant, or necessary background information and context.

Recently, the Court of Appeals and the Third Department decided two cases that demonstrate the increasing scrutiny courts apply when determining the admissibility of evidence pertaining to uncharged prior bad acts: People v. Leonard, 29 N.Y.3d 1 (2017) and People v. Anthony, 152 A.D.3d 1048 (3d Dep’t 2017). While on the surface these two cases may seem to warrant similar conclusions of law as to the admissibility of the evidence at issue, a subtle distinction can be gleaned to give insight as to how courts analyze this evidentiary issue.

In Leonard, the Court of Appeals reversed the finding of the trial court holding that the trial court erred in admitting Molineux evidence. The defendant was charged with sexual assault. At trial, the victim’s boyfriend testified that the defendant approached the victim, who at the time was intoxicated and vomiting, and then knelt by the victim and inappropriately touched her while her pants were down to her knees.

In an attempt to elicit testimony from the victim regarding an earlier incident of sexual abuse by the same defendant in which the circumstances were nearly identical, the prosecutor filed a “Molineux Proffer.” The testimony described how on an earlier occasion the victim was intoxicated and asleep on her coach when the defendant approached her, pulled down her pants, and inappropriately touched her. The prosecutor argued that this testimony was relevant because it demonstrated intent, absence of mistake, background, and a common scheme or plan. Over the defendant’s objection, the trial court ruled that the testimony could be elicited.

However, on appeal, the Court of Appeals found that the testimony regarding the prior incident of sexual abuse was propensity evidence that merely sought to show that the defendant committed the charged crime because he acted that way on a prior occasion. Notably, the Court stated that the testimony at issue did not fall into the background evidence exception because it was “not necessary to clarify their relationship or to establish a narrative of the relevant events.” Leonard, 29 N.Y.3d at 8.

Shortly after Leonard was decided, the Third Department confronted a case with the identical evidentiary issue. In People v. Anthony, the Third Department affirmed the trial court’s ruling that the evidence fell within recognized Molineux exceptions. In Anthony, the victim and defendant were acquainted through a course of drug deals. During the course of drug deals, the defendant, a member of the Bloods gang, invited the victim to join the gang multiple times. The victim rejected each invitation. Unfortunately, one drug deal went south when the victim rejected a gang invitation, which incensed the defendant. The defendant pulled out a gun and fired multiple shots at the victim, ultimately killing him. The prosecutor elicited testimony regarding the defendant’s gang membership and his earlier attempts to recruit the victim, arguing it provided context for the crime. The trial court admitted the testimony.

On appeal, the Third Department affirmed the trial court’s ruling. The Third Department noted that the defendant’s “purported gang membership fell within several Molineux exceptions, including placing testimony regarding defendant’s earlier attempt to recruit the victim in context.” Anthony, 152 A.D. at 1051. Unlike the Leonard Court, the decision in Anthony in no way expressed concern for propensity evidence.

These two cases shrewdly present how courts carefully scrutinize evidence in cases where prosecutors attempt to admit uncharged prior bad acts. In Leonard, the court deemed the evidence a mere subterfuge to demonstrate the defendant had a propensity to act a certain way. The Leonard court highlights that a court will not buy the argument that an identical uncharged prior bad act should be admitted because it is necessary provide background information or context out of fear that it will give rise to a propensity inference by those jurors who may not be thinking critically. Rather, a court is much more likely to admit evidence of prior uncharged bad acts if the evidence necessarily elucidates a narrative of events, like in Anthony.

So, for the would-be criminal defendants out there, remember: your past just might come back to haunt you.

Newsday: Campolo’s leadership featured in “Seeking Apartments, Recreation at Hauppauge Industrial Park”

Posted: January 22nd, 2018

HIA-LI says that the park’s economic impact could grow if people could also live there.

By James T. Madore
james.madore@newsday.com

@JamesTMadore

The Hauppauge Industrial Park, home to some of Long Island’s largest manufacturers, also needs apartments, sidewalks, entertainment venues, recreation options and other amenities found in villages, officials said Friday.

The park could increase its already substantial impact on the local economy if it were more attractive to people who want to walk to work or live near their job, said Terri Alessi-Miceli, CEO of HIA-LI, which represents businesses in the park and its supporters.

She and Suffolk County economic development leaders announced Friday the start of a one-year examination of the park’s future needs, both for employers and employees.

The study, to be conducted by the Regional Plan Association in Manhattan, will be paid for by the county’s Industrial Development Agency from a $100,000 research and planning fund.

The study, called an opportunity analysis, “offers us the chance to see how we can develop a sense of community in the Hauppauge Industrial Park, to do things that will keep our kids on Long Island, to create jobs,” Alessi-Miceli said at a news conference in Commack.

The 11-square-mile park has 1,350 companies that employ a total of 55,000 people.

The HIA-LI also wants to connect Stony Brook University with businesses in the park, in terms of jobs for recent graduates and research opportunities.

“The Hauppauge Industrial Park is the second largest industrial park in the country after Silicon Valley” in California, said attorney Joe Campolo, chairman of the HIA-LI board of directors. “The big difference between No. 1 and No. 2 is Silicon Valley’s collaboration with Stanford University. How do we collaborate with Stony Brook University? . . . We see a real opportunity here.”

IDA board chairman Theresa Ward, who also is Suffolk County Executive Steve Bellone’s economic development chief, said the county has invested $80 million in road improvements and other infrastructure projects in the park in recent years. She said the county wants to address the needs of companies in the park now and those who want to move there.

Three-quarters of the industrial park lies in Smithtown, which recently approved a zoning change that allows for taller buildings.

The change is significant because it paves the way for apartments, which young workers want, said Mitchell Pally, CEO of the Long Island Builders Institute.

“Young people want a different lifestyle,” he said. “We believe rental housing can be an integral part of the industrial park in the future.”

Read it on Newsday.

Campolo spotlighted in LIBN article “Officials Eye Rental Housing for LI Industrial Park”

Posted: January 19th, 2018

by David Winzelberg

Elected officials and business leaders are launching an economic study of the Hauppauge Industrial Park aimed at identifying opportunities for growth.

The study, which will be undertaken by the Regional Plan Association, will focus on ways to retain and attract employees, including redeveloping existing properties to add rental housing and creating a friendlier environment for millennials at the 11-square-mile park, which officials say is the second largest industrial park in the country.

The new effort, announced at a press conference in Commack Friday, comes on the heels of an economic impact study completed last month by Stony Brook University, which identified the park as a major economic engine for Long Island. Companies inside the Hauppauge Industrial Park employ about 55,000 workers and generate more than $870 million a year in revenue and property taxes, according to the report.

The Town of Smithtown recently created an overlay zoning district that allows building heights of up to 65 feet along Motor Parkway and up to 50 feet for other parts of the park, which is currently home to some 1,350 businesses. Officials say the zoning paves the way for redevelopment of existing buildings to add rental housing and other amenities that will help attract younger employees and allow for future business expansion.

“We want to keep our young people on Long Island and make it more affordable for them,” said attorney Joe Campolo, a partner of the Campolo Middleton & McCormick law firm and newly minted chairman of the Hauppauge Industrial Association’s Board of Directors.

State Assemblyman Michael Fitzpatrick said the effort to remake the park will attract new investment and boost business.

“A strong business climate strengthens our tax base,” Fitzpatrick said. “We need more housing opportunities for millennials so companies can attract the employees they need.”

Newly elected Smithtown Supervisor Ed Wehrheim, pledged to work with HIA-LI in the initiative. He called the park “the lifeblood” of the town.

“As goes the Hauppauge Industrial Park, so goes Smithtown,” Wehrheim said.

Mitchell Pally, CEO of the Long Island Builders Institute and an HIA-LI board member, said integrating the park with people living, working and recreating will be a key component for its future success.

“Rental housing can be an integral part of making the park better than it is today,” Pally said. “We’re not stuck with the current zoning. I don’t think anything is off the table.”

Terri Alessi-Miceli, HIA-LI president, said the RPA study would likely take a year to complete and that the association will hold public meetings along the way.

“We are primed for growth,” she said.

Read it on LIBN.

Campolo Elected Chairperson of HIA-LI Board of Directors

Posted: January 10th, 2018

Ronkonkoma, NY – Joe Campolo, Managing Partner of Campolo, Middleton & McCormick, LLP and a recognized advocate for Long Island and the business community, has been elected Chairperson of the HIA-LI Board of Directors, effective January 1, 2018. As Chairperson, Campolo will continue to spearhead HIA-LI’s efforts to promote and attract investment in the Hauppauge Industrial Park, one of the largest industrial parks in the United States and a major economic driver of the regional economy. He will also focus on adding value for HIA-LI’s tens of thousands of members and attracting a new generation of business professionals to the organization.

Under Campolo’s leadership, CMM, a premier law firm with offices in Ronkonkoma and Bridgehampton, has grown from two lawyers to a robust and highly respected team of over 30 lawyers servicing clients in a wide range of practice areas, and continues to grow. Campolo also serves as the Chairman of the Advisory Board of Protegrity Advisors, a leading mergers & acquisitions and business valuation firm.

In addition to his professional roles and work with HIA-LI, Campolo is deeply involved in the community, serving on many national and local boards. He served honorably in the United States Marine Corps and is a graduate of Stony Brook University and Fordham University School of Law. An Executive Producer of Tribute, an award-winning short film, Campolo is also a published author on negotiation and business development topics. He pens a popular weekly blog, Off the Record, where he connects with the business community by sharing his refreshingly honest views on current events, critical social issues, and personal topics, which can be accessed at www.joecampolo.com.

“I look forward to building upon the incredible work of HIA-LI in growing our economy and attracting public and private investment into the crown jewel of our region – the Hauppauge Industrial Park,” Campolo said of his election.

“Joe has been a very valued HIA-LI Board and Executive Committee member for several years bringing his business expertise to our members. As Board Chair we look forward to working with him to continue to advocate for the Long Island business community,” stated Terri Alessi-Miceli, HIA-LI President/CEO.

About HIA-LI
For over 30 years, HIA-LI has been one of the recognized voices for business on Long Island and a powerful force and economic engine for regional development. HIA-LI is headquartered in and supports the Hauppauge Industrial Park, one of the largest industrial parks in the United States and a major economic driver for the region. Learn more at http://hia-li.org/.

Campolo Discusses Critical Next Steps for the #MeToo Movement in “Destination Unknown: Where is Law Headed in 2018?”

Posted: January 10th, 2018

Compiled by Adina Genn

Long Island Business News

Joseph N. Campolo, Esq.
Managing Partner, Campolo, Middleton & McCormick, LLP

The long overdue dialogue sparked by the #MeToo movement is not just a passing trend. In 2018, we must engage in an even deeper discussion on sexual harassment in the workplace.

The priority is to make sure that women who have been victimized are safe and able to tell their stories. I applaud and support the many women who have had the strength to come forward and call out the many men who have abused their positions of power.

However, this watershed moment also demands that we find the right balance between keeping victims safe and not overreacting when normal human behavior has occurred. While businesses must have proper procedures and training in place to create a safe workplace, it’s also important that they preserve the camaraderie and office culture that make their businesses sociable and enjoyable places to work. No one wants to work with a bunch of robots who don’t say a word out of fear that they might offend someone. Such a workplace culture would also be damaging to women, as they could lose out on promotions, projects, or mentoring relationships that involve close contact with the opposite sex, which employers may come to view as too risky.

As we continue to expose those men who use their powerful positions as a cover to disrespect women, we must also be cognizant of the fact that this swing of the pendulum has exposed innocent men to having their careers ruined by allegations that they said something inappropriate, rather than just having been friendly with someone.

Striking the right balance must be dealt with at the workplace level, and not through the courts. The unprecedented number of harassment allegations now coming to the surface will get lost in an overburdened court system; all claims, legitimate or not, will get muddled together in a judicial system that is simply unable to handle it all.

Instead, real solutions to sexual harassment in the workplace can only come from fostering an environment of collaboration and mutual respect among all employees. That means that men need to take responsibility for self-correcting their behavior as well as to stop ignoring (at best) or encouraging (at worst) when other men act inappropriately. We need to keep this dialogue open in 2018 for this national moment of reckoning to truly have a lasting impact.

Read it on LIBN.

January 23 – Malafi Shares Insights on Preventing Sexual Harassment in the Workplace While Preserving Company Culture

Posted: January 2nd, 2018

Event Date: January 23rd, 2018

Sexual Harassment in the Workplace: Steps Employers Should Take Now

In the wake of the national moment of reckoning about sexual harassment in the workplace, how can your business ensure the safety and well-being of employees while also preserving camaraderie and company culture?

Please join us for an informative presentation by Christine Malafi, partner at Campolo, Middleton & McCormick and an experienced attorney in corporate and labor & employment law. Christine will discuss the obligations of equal opportunity employers, identifying harassment including quid pro quo and hostile work environment, retaliation, reporting procedures, and how employers can stay ahead of the curve to create safe and comfortable workplaces for all employees.

Program details:

Tuesday, January 23, 2018

Doors open at 8:30 a.m. for networking
Program begins at 9:00 a.m.

The Miller Business Resource Center
Middle Country Public Library
101 Eastwood Blvd., Centereach

This program is free and open to the public. Advance registration is requested.  Register here or call 631-585-9393 x 133.

CMM Welcomes Richard A. DeMaio as an Associate

Posted: January 2nd, 2018

Ronkonkoma, NY – Campolo, Middleton & McCormick, LLP, a premier law firm with offices in Ronkonkoma and Bridgehampton, is pleased to welcome Richard A. DeMaio, Esq., to the firm as an Associate. Previously, he was a Summer Associate at the firm in 2016.

DeMaio focuses on litigation in varied subject matter including contract issues, business disputes, Federal Court matters, and landlord-tenant cases. He works extensively on motion practice in commercial litigation matters and also has experience preparing cases for trial including organizing exhibits, drafting trial memoranda, and assisting with trial strategy. DeMaio is particularly interested in the intersection of law and technology, making him a go-to attorney at the firm for issues regarding e-discovery.

The Lindenhurst resident graduated from Hofstra University Honors College magna cum laude and Hofstra University Maurice A. Deane School of Law cum laude, where he served as the Notes Editor for Hofstra Law Review. Admitted to practice in New York State, DeMaio is a member of the Suffolk County Bar Association and the Federal Bar Association. Prior to joining the firm, DeMaio worked at the New York State Division of Human Rights while in law school and also served as a legal intern for Judge Arthur Spatt of the United States District Court for the Eastern District of New York.

“Richard’s research and writing have already led to successful outcomes and creative litigation strategies for our clients,” said Patrick McCormick, chair of the firm’s Litigation & Appeals practice group. “We’re excited for Richard as he embarks on his legal career and are very happy to have him on board.”

About CMM
Campolo, Middleton & McCormick, LLP is a premier law firm with offices in Ronkonkoma and Bridgehampton, New York. Over the past generation, CMM attorneys have played a central role in the most critical legal issues and transactions affecting Long Island. The firm has earned the prestigious HIA-LI Business Achievement Award and LIBN Corporate Citizenship Award, a spot on the U.S. News & World Report list of Best Law Firms, and the coveted title of Best Law Firm on Long Island. Learn more at www.cmmllp.com.