Litigation – HospitalityLawyer.com

Strategies to Defend & Mitigate Against Sex Trafficking Lawsuits in the Hospitality Industry

Jennifer Miller — Tue, 19 Nov 2019 15:00:00 +0000

Federal and state laws define human trafficking as compelling someone through force, coercion or fraud to perform work or engage in sex acts. According to the Department of Homeland Security, it is a global issue with millions of adults and children being victimized to generate billions of dollars in profits for traffickers and others engaging in it.

There were 7,621 cases of human trafficking reported in the U.S. in 2016, the last year for which yearly totals are available. In the United States, human trafficking tends to occur around international travel-hubs with large immigrant populations, notably California, Texas, Florida, and Georgia. Illinois ranked 9th out of the 50 States with 296 reported cases of human trafficking during 2016.

The issue of human trafficking has gained national attention due to cases involving high profile individuals such as prominent investor Jeffrey Epstein and New England Patriots owner Robert Kraft.

Human trafficking is prevalent in the hospitality industry, particularly at hotels. Businesses in the hospitality industry are prime territory for sex traffickers, because they can take advantage of the privacy and anonymity offered to guests, according to the U.S. Department of Homeland Security. Hotels and motels are obvious examples, but sex trafficking also can occur at theme parks, cruise ships, resorts, and nightclubs. The Polaris Project has recorded 3,300 cases of sex trafficking in hotels over a ten-year period. For this reason, federal and state specific laws are law are being implemented, which are taking aim at curtailing sex trafficking in the hospitality industry.

Under the Trafficking Victims Protection Act (TVPA), hospitality business owners can be held civilly and criminally liable for allowing sex trafficking to occur on their property. The law allows the federal government or a survivor to bring a case against the trafficker, but also against any entity that financially benefited from his or her victimization and knew or should have known that the activity was a violation of human trafficking law. Notably, under federal law, buyers of sex are considered traffickers. Therefore, a hotel can be held liable to the victim if an employee rents a room to a trafficker or a buyer and the employee knew or should have known that the room would be used for a commercial sex act State laws, such as a newly passed law in Florida, also directly impact the hospitality industry. This new Florida law requires hotels and other lodging establishments to provide annual training on human trafficking awareness to housekeeping employees and those who work at a front desk or reception area where guests ordinarily check in or out.

A concerted effort must be made at your place of business to eliminate sexual trafficking and mitigate your company’s liability. The first step is to train your employee on identifying general indicators of sex trafficking which include:

Individuals show signs of fear, anxiety, tension, submission, and/or nervousness.
Individuals show signs of physical abuse, restraint, and/or confinement.
Individuals exhibit evidence of verbal threats, emotional abuse, and/or being treated in a demeaning way.
Individuals show signs of malnourishment, poor hygiene, fatigue, sleep deprivation, untreated illness, injuries, and/or unusual behavior.
Individuals lack freedom of movement or are constantly monitored.
Individuals avoid eye contact and interaction with others.
Individuals have no control over or possession of money or ID.
Individuals dress inappropriately for their age or have lower quality clothing compared to others in their party.
Individuals have few or no personal items—such as no luggage or other bags.
Individuals appear to be with a significantly older “boyfriend” or in the company of older males.
A group of girls appears to be traveling with an older female or male.
A group of males or females with identical tattoos in similar locations. This may indicate “branding” by a trafficker.

Your employee must also be trained on how to act when they suspect a situation of human trafficking. Employees are recommended to: 1) Do not at any time attempt to confront a suspected trafficker directly or alert a victim to your suspicions, (2) Call 9-1-1 for emergency situations—threats of violence, physical assault, emergency medical needs, etc. (3) Follow your corporate protocol, such as by notifying management and security. (4) Call 1-866-DHS-2-ICE (1-866-347-2423) to report suspicious criminal activity to federal law enforcement. Highly trained specialists take reports from both the public and law enforcement agencies. (5) Submit a tip at www.ice.gov/tips or get help from the National Human Trafficking Resource Center (NHTRC), call 1-888-373-7888 or text HELP or INFO to BeFree (233733).

This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

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Reptile Theory: Using the Primitive Brain to Increase Plaintiff’s Verdicts

Michael Phillips — Sat, 16 Nov 2019 16:00:00 +0000

Jane Doe was the victim of a sexual assault while a guest at Marrilton Garden Inn & Courtyard Suites. She has filed a multi-million-dollar suit against Heavenly Hospitality Management, LLC d/b/a Marrilton Garden Inn & Courtyard Suites, Marrilton, Inc., (several subsidiaries of Marrilton, Inc.) and Gwen Causey (hotel manager).

Scenario: Jane Doe, a guest, checks into the hotel and is sexually assaulted by John Thug, a fellow guest. Through discovery, it is revealed that, due to a series of mishaps and internal breakdowns, staff inadvertently allowed J. Thug to discover the room number of Doe and gain access while Doe was asleep.

During check-in and while preparing Ms. Doe’s electronic key, the front desk clerk loudly announced the room number.Shortly after Ms. Doe checked in, and after hearing the clerk reveal her room number, J. Thug approached the same front desk clerk, and having no reservation, requested the room adjoining Doe’s room.

After checking into his room, Thug waited until he heard Doe leave her room. As he exited his room, he noticed a housekeeping cart was located at the end of the hall. He approached the housekeeper who was cleaning a room, indicated he just departed his room and forgot to take his key. The second mistake occurred when the housekeeper improperly granted Thug access to Doe’s room where he proceeded to disengage the lock on the door adjoining his room.

Before leaving Ms. Doe’s room, J. Thug noticed an open water bottle and spiked it with Rohypnol. After exiting Doe’s room, J. Thug patiently waited until she returned and believed her to be incapacitated. He then spent the next several hours repeatedly sexually assaulting her.

Jane Doe filed a negligence action against the hotel and has made a demand for $25,000,000 in compensatory damages and $100,000,000 in punitive damages.

Witnesses who were deposed:

Front desk clerk: utilizing the Reptile Theory, Doe’s attorney had this witness admit she had received no safety training, was not familiar with the hotel’s policies and procedures, and as a result, failed to avoid needlessly endangering Doe.
General Manager /named Defendant: Doe’s attorney skillfully utilized the Reptile Theory to have the Manager admit she failed to provide a safe premises for her guests.
Franchisee: his deposition was taken for the purpose of establishing the duty owed to the public in general and Doe in particular.
Disgruntled former employer/housekeeper: Her testimony, along with four other disgruntled former employees, was taken for the purpose of showing corporate was on notice of the safety issues and lack of appropriate training of key staff.

What is the Reptile Theory?

We like to believe we are run by logic and emotion. Sometimes we are. But when something we do or don’t do can affect – even a little – our safety or the propagation and safety of our genes, the Reptile takes over. If your cognitive or emotional brain resists, the Reptile turns it to her will. The greater the perceived danger to you or your offspring, the more firmly the Reptile controls you. From Reptile, Chapter 1, The Science.

Major axiom: When the Reptile sees a survival danger, she protects her genes by impelling the juror to protect himself and the community.

Manipulation at its best: as demonstrated in the deposition clips, witnesses who are unprepared, disinterested, or both, can be utilized by the Plaintiff’s attorneys to make all sorts of inflammatory admissions:

Yes we needlessly endangered our guests;
Yes our conduct was egregious;
Yes our behavior shocks the conscience;
Yes we violated our safety rules;
Yes corporate was recklessly indifferent to the safety of our guest.

Faced with the above admissions, the Reptile asks jurors the following:

How likely was it that the act or omission would hurt someone? Highly likely according to the Defendant’s own employees.
How much harm could it have caused? See Doe’s medical and psychiatric records.
How much harm could it cause in other kinds of situations? This question appeals to the community (i.e. send a message that this type of behavior is unacceptable).

In a nutshell, the Reptile Theory is a way to inject punitive type testimony into the compensatory phase of the trial.

This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

Life, Liberty, and a Gluten-Free Meal

Brian Cafritz — Thu, 18 Jul 2019 16:00:53 +0000

Colonial Williamsburg Restaurant sued under the ADA for not allowing child to consume his home-prepared gluten-free meal.

The Governor’s Palace in Colonial Williamsburg, Virginia. A brick Colonial house with a courtyard, and former home of Thomas Jefferson.

The Americans with Disabilities Act (ADA) was enacted in 1990 to prevent discrimination against individuals with disabilities in all aspects of life. The Act has been applied to a variety of segments of our society, including building entrance designs, website displays, and workplace accommodations. Recently, a new twist to the Act arose when a 12-year-old boy visited a Colonial Williamsburg restaurant with his classmates on a school field trip.

The case, J.D. v. Colonial Williamsburg Foundation, was originally filed in the U.S. District Court for the Eastern District of Virginia and later appealed to the 4th Cir Ct. App. No 18-1725. In J.D., a 12-year-old boy with severe Celiac disease visited a restaurant with his classmates on a school field trip to Colonial Williamsburg. J.D.’s condition was so severe that even the slightest ingestion of gluten-based foods caused severe illness. On prior occasions, other restaurants had offered J.D. gluten-free meals that accidentally or unknowingly contained trace amounts of gluten, which caused J.D.’s symptoms to flare up. Because of this, J.D.’s parents decided that when J.D. had to eat out, they would prepare J.D.’s food for him, so that he could safely and comfortably eat without incident or fear of incident. Knowing that the field trip would require J.D. to eat at a restaurant, J.D.’s father (who also attended the field trip) brought a home-prepared meal for J.D. to eat while the rest of the class ordered its meals from the restaurant menu.

When the time came for lunch, the restaurant staff notified J.D. and his father that he was not allowed to consume outside prepared foods in the restaurant due to Virginia’s Health Code. In fact, Virginia’s Health Code prohibits food prepared in a private home from being used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the Virginia Department of Agriculture and Consumer Services. 12 Va. Admin Code § 5-421-270(B). However, as an accommodation, the restaurant advised J.D. that its chef would prepare J.D. a gluten-free meal of baked chicken and potatoes to meet his specific needs. The father declined the offer, stating that they did not want to risk kitchen mistakes, and he preferred J.D. eat his home-prepared meal. Left with the options of eating the chef-prepared meal, not eating, or eating outside the restaurant, J.D. and his father left the restaurant and ate the home-prepared meal separate from his classmates.

J.D. filed suit under §504 of Title III of the ADA, claiming that Colonial Williamsburg discriminated against him by excluding him from the restaurant and failing to modify its policy against the consumption of outside food. Defendants moved for summary judgment, and while the magistrate found a genuine dispute of material fact as to whether J.D. was disabled under the ADA, he recommended dismissal because J.D. failed to establish that he was discriminated against because of his disability. The District Court Judge adopted the magistrate’s recommendations and dismissed the case. Plaintiff appealed to dismissal to the 4th Cir.

An ADA claim requires a plaintiff to prove three elements: 1) that plaintiff is disabled under the meaning of the Act; 2) that the defendant operates a place of public accommodation; and 3) the defendant discriminated against him because of that disability. See Ariz. ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010); Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). In this case, there was no dispute on the second element, so the Court looked only at elements 1 and 3.

Under §12102(1)(A) of the ADA, a disability is defined as any “physical or mental impairment that substantially limits one or more major life activities.” This is different from an impairment, which the Act defines as any physiological disorder or condition that affects one or more body systems, including digestive. 28 CFR §36.105(b)(1). The 4th Cir. noted that “‘[N]ot every impairment will constitute a disability within the meaning of this section,’ but it will meet the definition if ‘it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” Id. § 36.105(d)(1)(v). Eating is a major life activity. Id. § 36.105(c)(1)(i).” J.D. at 10. The court then explained that when deciding if the Celiac disease created a disability, it had to interpret the ADA language “broadly in favor of expansive coverage.” Id. Even though J.D. had no symptoms when he avoided gluten, this was immaterial in determining if a disability existed, because the Court was required to look at his condition when he consumed gluten. Id. With the evidence showing that J.D. had serious consequences to his health when he ingested gluten and that he had an unusually small margin for error in his diet, the Court felt that there was a material question of fact as to whether J.D. had a disability within the meaning of the ADA. Thus, consistent with the District Court ruling, the court did not decide that J.D. had proven a disability, but rather, felt it was up to the jury to decide.

The Court then looked at the third element; i.e., whether or not Colonial Williamsburg discriminated against J.D. According to 42 U.S.C. § 12182(b)(2)(A)(ii), discrimination is defined, “in part, as: a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, [etc.].” Id. (emphasis in original)

The courts use a three-part test to determine if discrimination occurs. The three parts are: “(1) whether the requested modification is “necessary” for the disabled individual; (2) whether it is “reasonable”; and (3) whether it would “fundamentally alter the nature” of the public accommodation. Id., citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001), at 683 n.38.

The Court first looked at whether the modification [allowing him to eat his home-prepared meal] was necessary to provide J.D. with a “like experience” to non-disabled guests. This necessarily requires the court to make an individualized inquiry into the plaintiff’s specific circumstances and determine if the proposed accommodation addresses the disability, or if the accommodation creates a condition that extends beyond the person’s capacity. In this case, J.D.’s evidence showed that he repeatedly became ill when exposed to gluten from meals prepared at restaurants, even when they were purported to be gluten-fee. While the court did not make an ultimate decision on whether the modification of its rules was necessary, it did find that there was sufficient evidence presented to create a genuine dispute of fact on whether eating out is beyond J.D.’s capacity.

Second, where an accommodation is already in place, a plaintiff may still be entitled to something more if he can show that the accommodation does not account sufficiently for his disability.” J.D. at 16. In this case, the restaurant’s proposed accommodation was to prepare a gluten-free meal. Given J.D.’s history of illness from prior attempts at gluten-free restaurant meals, it became a question of fact as to whether or not the restaurant’s proposed accommodation was sufficient. “Indeed, a jury might well reject J.D.’s evidence about the severity of his gluten intolerance, and thus find that the protocols at [the restaurant] were sufficient to account for his disability. But in our view, J.D. has put forth enough evidence at this stage to raise a genuine dispute of material fact as to whether the proposed accommodation sufficiently accounts for his disability.” Id. at 17.

For the next step of its analysis, the 4th Cir. considered whether or not the restaurant’s proposed accommodation was reasonable or not. Indeed, “[f]acilities are not required to make any and all possible accommodations that would provide full and equal access to disabled patrons,” but “need only make accommodations that are reasonable.” Id. at 18. Citations omitted. Here, the court pointed out that the restaurant allowed guests to serve their own food if it is for babies or if they wanted to bring a cake in for large celebrations, provided the restaurant was given advance notice. The fact that J.D. may not have provided advance notice to the restaurant was dismissed as irrelevant to the court, because the lack of notice did not require additional staffing or create an unreasonable hardship in the restaurant’s operations. And when looking at the Health Code regulations the restaurant cited for its policy, the 4th Cir. noted that the prohibition on home-prepared foods was designed to prevent restaurants from serving food prepared in private homes. It did not prohibit customers from bringing in outside food. There was no evidence introduced that J.D.’s request would truly impose a safety concern or risk contamination of other foods. The court reasoned that if that were the case, the restaurant would not allow outside foods in other circumstances.

The Court ultimately ruled that decisions of reasonableness of accommodations are highly individualized, fact-specific for each case. As a result, they are decisions best left to a jury, who can judge the credibility of witnesses and weigh the importance of evidence.

Finally, the Court looked to the restaurant’s affirmative defense that allowing homemade meals fundamentally changes the restaurant experience. Under this defense, the defendant must prove that the Plaintiff’s request would fundamentally alter the nature of the program or services provided by the restaurant. Like the other issues, the court considered, this too was found to be a jury question. A jury “could reasonably find that accommodating the occasional request of someone with severe food sensitivities would not fundamentally alter the Tavern’s business model, especially if other family members purchase food or (as happened here) if the meals are already paid for as part of a group rate.” Id. at 23.

Impact of Ruling

Given the above, the 4th Cir. reversed the trial court’s dismissal and remanded it back to the District Court. The takeaways from the decision are striking.

First, it seems clear that the court is framing ADA cases such as this to be treated similarly to ordinary negligence cases. Those cases are almost always fact-specific and to be determined by a jury. If there is any credible evidence to support a claimant’s case, the court is likely to defer ruling to the jury.

Second, it is important to note that the Health Code Regulation relied upon by the restaurant does not expressly state that it is designed to prohibit the serving of food, rather than customers bringing in food. This ruling places restaurants in a difficult position of having to choose between enforcing written regulations and agreeing to proposed individual modifications as necessitated by the ADA. Restaurant staffers are not trained in legal analysis, and it seems untenable that a waiter or manager would have to interpret the intent of a health regulation. Forcing a restaurant to make such interpretation exposes a restaurant to more litigation because the parties cannot know if it is proper to violate the regulations based on its language. Indeed, the Dissent correctly notes that the de facto result of this ruling is that “Restaurants must either allow patrons to consume food prepared outside their premises or must justify their refusal at a costly trial.” J.D. at 32. Both the disabled parties and the restaurant industry would be better served if the Health Regulation was written clearly to prohibit serving versus bringing in outside foods, and the restaurant could rely upon the code as written.

Finally, it seems clear that the Courts are taking an expansive view of the ADA’s coverage. Rather than draw bright line tests that disabled persons and businesses can plan for, individualized assessments on a case-by-case basis must be made. This is likely to result in inconsistent applications where some modifications are allowed but possibly similar modifications are not allowed. As the dissent in J.D. notes, “[t]he majority’s rule means that a patron’s demand that he be allowed to eat outside food will sometimes be reasonable and other times not. This puts managers in the middle of a difficult line-drawing exercise: What criteria are they supposed to use in navigating the tension between the ADA’s requirements and public health law? Which privately prepared meals must they allow and which may they refuse? The majority wouldn’t even require advance notice from customers in J.D.’s position, meaning that managers will have to evaluate the disruption and the safety hazard of a customer’s outside meal on the fly, with the specter of litigation hanging overhead.” J.D. at 31.

If you have any questions about this ruling, its impact on restaurant operations, or how it may impact your business, the attorneys at KPM LAW are ready for your call.

A Discussion of the Reptile Trial Strategy Through The Lens of the Erin Andrews v. Marriott International Lawsuit

Hagwood & Tipton — Thu, 11 Jul 2019 23:00:08 +0000

I. WHAT IS THE REPTILE THEORY/STRATEGY?

Reptile: The 2009 Manual of the Plaintiff’s Revolution, authored by Don Keenan and David Ball, was published in 2009. This book is offered exclusively to plaintiff’s lawyers and provides a strategy for plaintiff’s attorneys in most stages of litigation. The Reptile theory is derived from a model of the brain created by Paul Maclean, a neuroscientist. Maclean’s model is based on the concept that the three parts of the brain developed through evolution, and he coined the phrase “Triune Brain.” One of those three parts, the Reptilian Complex, is the oldest part of the brain. This is where Keenan and Ball begin the development of the Reptile Trial Strategy. According to Reptile, the reptilian brain controls our basic life functions, such as breathing, hunger and survival and instinctively overpowers the cognitive and emotional parts of the brain when those life functions become threatened. It thrives on evolution, and therefore maximizes “survival advantages” and minimizes “survival dangers.”

Utilizing the Reptile Trial Strategy requires presenting each case in a way that shifts each juror’s brain into survival mode and motivates each juror to decide a case in a way that will reduce or eliminate the danger, thereby protecting himself, his family, and the community. A verdict that enhances individual and community safety is the antidote to the defendant’s dangerous conduct, and jurors will take advantage of this opportunity to lessen the danger. The goal is to create a mindset for the jurors that causes each to decide a case based on the potential harms and losses that could have resulted from the defendant’s dangerous conduct and not based on the actual damages suffered by the plaintiff.

Three major questions in Reptile, which plaintiff’s counsel must answer for the jurors, are:

How likely was it that the act or omission would hurt someone?
How much harm could it have caused?
How much harm could it cause in other kinds of situations?

The formula provided is that to employ the reptile strategy: safety rule + danger = reptile. In other words, they try to prove that there was a safety rule in place. The safety rule was proper and reasonable. The defendant chose to violate the safety rule. Every wrongful defendant act derives from a choice to violate a safety rule.

The six characteristics that each safety rule must have to promote the reptile strategy is:

It must prevent danger.
It must protect people in a wide variety of situations, not just someone in the plaintiff’s position.
It must be in clear English.
It must explicitly state what a person must or must not do.
It must be practical and easy for someone in the Defendant’s position to have followed.
It must be one that the defendant will either agree with or reveal him or herself as stupid, careless or dishonest for disagreeing with.

II. ERIN ANDREWS v. MARRIOTT INTERNATIONAL, INC., ET AL

Nationally known sports reporter Erin Andrews filed suit in the Circuit Court of Nashville, Davidson County, Tennessee in December of 2011 against Marriott International, Michael David Barrett (the Stalker), West End Hotel Partners LLC (hotel franchisee), and Windsor Capital Group (hotel management). She sought $75,000,000 in total damages. Marriott International was dismissed before the trial. The case went to trial in February of 2016. The jury returned a verdict in favor of Andrews with a total award of $55,000,000.00. The jury assigned 51% liability to Barrett. The two hotel companies were jointly responsible for 49% or $26 million.

The case stemmed from an incident at a Nashville Marriott hotel in 2008. Ms. Andrews, an ESPN reporter at the time, was in Nashville covering a college football game. Barrett was an insurance agent who targeted Andrews because she was “trending” on the internet for the purpose of taking videos of Andrews to sell to TMZ, a celebrity gossip site, and/or post on the internet for profit.

Barrett succeeded in this endeavor and captured approximately five minutes of film of Andrews, while she was nude, by placing a video camera in the peephole of her hotel room door. He tried to sell the video to TMZ, which refused, and he then posted the video on the internet. It spread from there. He pleaded guilty to stalking charges, was convicted and sentenced to 2.5 years. Plaintiff’s counsel effectively used the Reptile strategy in discovery, voir dire and at trial.

III. DEFENSES TO THE REPTILE STRATEGY

The counterpart presentation of this article will provide key points in developing a defense plan to the Reptile strategy beginning in discovery, including what to expect from plaintiff’s counsel and preparing defense witnesses for depositions, in limine motions, thoughts about “re-priming” a jury during voir dire, jury instructions, more witness preparation for trial and consideration of using reverse Reptile tactic in specific situations involving comparative fault.

See David C. Marshall, Lizards and Snakes in the Courtroom, For the Defense, April 2013 at 64-69, 74-75.
See David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution.

AUTHORS

David Eaton
David Eaton is a founding shareholder of the firm and practices in the Nashville, Tennessee office. He practices in Kentucky, Mississippi, North Carolina, and Tennessee and focuses in the areas of long-term care defense and general liability claims. As an advisor to health care providers, David has worked closely with nursing home staffs and personnel in the strategy and development of the defenses of cases prior to and through trials. David received a Bachelor of Arts degree in English from Nicholls State University in 1995 and a Doctor of Jurisprudence from Mississippi College School of Law in 2000.

Michael Phillips
Michael Phillips is a founding shareholder with Hagwood and Tipton and president of the firm’s Executive Committee. Michael oversees staff in both the Jackson, Mississippi, and Hillsborough, North Carolina, offices.A significant portion of Michael’s cases involves the defense of physicians, nurses, hospitals, nursing homes, assisted living facilities and other health care providers. He handles all phases of the litigation process – with a particular emphasis on trial – and has defended claims against nursing homes and assisted living facilities in Mississippi, Tennessee, Alabama and North Carolina. Michael also has extensive experience in the areas of complex defense litigation involving premises security/liability, insurance coverage and general insurance defense.

This article is part of our Conference Materials Library and has a PowerPoint counterpart that can be accessed in the Resource Libary.

Hospitality Case Review: The Top 100+ Hospitality Cases That Impacted Us in 2018

Karen Morris — Thu, 20 Jun 2019 16:00:08 +0000

Written by Karen Morris, J.D., LL.M. and Diana S. Barber, J.D., CHE, CWP

ADA/Standing
1. Brito v. Wyndham Hotels and Resorts, LLC, 2018 WL 317464 (D. Colo., 01/08/2018). Plaintiff is a paraplegic and requires the use of a wheelchair to ambulate. While at defendant hotel he encountered multiple violations of the Americans with Disabilities Act (ADA) that effected his use and enjoyment of the premises and sued. The hotel challenged plaintiff’s standing. To establish standing, a plaintiff must show, inter alia, that he suffered an injury in fact. To prove that, plaintiff must establish a likelihood that he will return to defendant’s premises. Factors a court considers are the proximity of the business to plaintiff’s residence, the plaintiff’s past patronage of the business, the definitiveness of plaintiff’s plan to return, and the plaintiff’s frequency of travel near defendant. In the complaint plaintiff stated he lives in the same county as defendant, he has frequented defendant hotel for “pleasure purposes,” he was a guest at the premises for a two day stay, and he alleges an intention to return within four months. This constitutes a personal stake in the outcome to constitute standing and avoid dismissal of the complaint.

Bankruptcy
2. In Re Lorraine Hotel 2017 LLC, 2018 WL 5288893 (N.D. Ohio, 10/22/2018). Plaintiff hotel filed a Chapter 11 petition in bankruptcy. The debtor’s sole asset was a 93-room hotel, of which 54 rooms were rentable. The debtor did not have casualty insurance covering destruction of, or damage to, the facility. The Bankruptcy Code, Section 1112(b) authorizes a judge to dismiss or convert a Chapter 11 case to Chapter 7 “for cause.” Cause exists where a debtor fails to maintain appropriate insurance resulting in risk to the estate. The court stated appropriate insurance coverage is of “paramount importance” in this case because of the single asset in the estate and the status of the business as a struggling downtown hotel. The court thus dismissed the Chapter 11 case and denied conversion to Chapter 7. Instead, creditors can pursue their state remedies.

Class Action
3. Valverde v. Xclusive Staffing, Inc., et al, 2018 WL 4178532 (D. Co., 08/31/2018). Plaintiff is an employee of Omni Hotel. Per the written employment policies of the management company that operates the hotel, a $3.00 processing fee is deducted from each paycheck plaintiff and other employees receive. Plaintiff objected and seeks certification of a nationwide class of plaintiffs. Defendant objected arguing the allegations were insufficient to show that plaintiffs from other states were subject to the same policy. The court noted that defendant management company’s policies are national and controlled centrally from its Colorado headquarters. They are contained in its written employment policies used nationwide. The court thus found the evidence sufficient to certify a nationwide class.

Contracts
4. Murphy Elevator Co., Inc., v. Coco Key Hotel & Water Resort, 2018 WL 1747924 (Ohio Appls Crt, 04/11/2018). The parties had a two-year elevator maintenance contract. After the first year and a half, the hotel failed to pay. The elevator company stopped performing and sued for breach of contract. The hotel argued that it should only be liable for the unpaid moneys up to the time plaintiff stopped performing. The court rejected this argument and granted the elevator company lost profits. Noted the court, an award of damages should put the injured party in the same position it would have been in had there been no breach.

5. Stanciel v. Ramada Lansing Hotel and Conference Center, 2018 WL 842907 (Mich. Appls, 02/13/2018). Plaintiff fell when entering a hot tub at defendant hotel. Plaintiff attributes the fall to a broken support bar leading into the tub. Plaintiff sued, and the parties purportedly agreed to a settlement. Defendant prepared a written settlement agreement and submitted it to plaintiff. The documents included a “Medicare addendum.” Defendant’s attorney told plaintiff’s counsel to advise if he had a problem with any of the wording. Plaintiff returned the signed documents to defendant but unilaterally crossed out language in the addendum. Plaintiff now seeks to enforce the settlement agreement. Defendant argued the agreement was not valid because defendant was not willing to agree to the settlement without the eliminated clause. Plaintiff argued the clause that was crossed out was not an essential term of the settlement agreement so there was still a meeting of the minds on all the essential terms. The court ruled the parties did not reach an enforceable settlement agreement. Case dismissed.

6. Claris, Ltd. v. Hotel Development Services, LLC, 2018 WL 3203053 (Crt. Appls, Ohio, 06/29/18). Per contract dated 8/2005, defendant agreed to build plaintiff a 4-floor, 122 room hotel which plaintiff planned to operate as a Candlewood Suites. The construction was completed in late summer 2006. In 2013 the hotel began experiencing water penetration when rain occurred. Plaintiff’s expert witness investigated defendant’s construction work of the hotel’s walls and identified five deficiencies. The expert excluded one of the five as the cause of the water problem but did not identify the extent to which the other four may have contributed to the damage. Therefore, plaintiff failed to establish that a breach of contract by defendant caused the leakage. Thus, the court reversed a jury verdict in favor of plaintiff and directed a verdict for defendant.

7. Couture Hotel Corporate v. US, 2018 WL 3076847 (Crt. of Fed. Clms, 06/21/2018). Plaintiff purchased a $9 million hotel near Nellis Air Force Base intending to participate in the off-base lodging business for visitors to the base utilized when on-base lodging is full. To meet the base’s requirements, plaintiff made modifications costing in excess of $1 million. When the work was completed, defendant advised plaintiff that, due to lowered demand, it was not adding any new facilities to its overflow listings at the time. Plaintiff sued, claiming that defendant’s refusal to permit plaintiff to compete for off-base services violated the Competition in Contracting Act, various associated procurement regulations, and a contract implied-in-fact. The court held for the government finding procurement rules were not violated, and a contract-in-fact did not exist. While the government representative talked to plaintiff about prerequisites to qualify for the lodging overflow business before plaintiff purchased the facility, documents provided to plaintiff clearly stated that a prerequisite to the government signing a contract were various inspections and approvals. Said the court, “[I]n negotiations where the parties contemplate that their contractual relationship would arise by means of a written agreement, no contract can be implied.” The complaint was thus dismissed for failure to state a claim.

Default Judgment
8. Travelodge Hotels, Inc. v. Durga, LLC, 2018 WL 5307809 (D. NJ, 10/26/2018). Defendant was a franchisee of plaintiff. Defendant ceased operating and plaintiff filed suit for damages for breach of contract. Plaintiff ultimately received a default judgment. Defendant now seeks relief from that judgment. He argued his failure to defend was excusable because he was traveling the world searching for experimental medical treatments for their daughter who suffers from a rare anoxic brain injury which worsened about the time of the lawsuit. Per defendant, this search “consumed” his life. The court granted the relief, noting that the defendant’s inattention to the lawsuit was excusable given the daughter’s illness.

Eminent Domain
9. North Carolina Dept. of Transportation v. Laxmi Hotels, Inc., 2018 WL 2207793 (05/15/2018). Defendant operates a Super 8 Motel. The Department of Transportation (DOT) sought to widen and improve the street on which the hotel was located. As a result of the work, the hotel lost several parking spaces. Also, due to a 15-foot tall retaining wall installed, visibility of the facility from the nearby thoroughfares was totally lost. The DOT claims it explained the extent of the work to be performed. The hotel’s president stated the DOT assured him the hotel would not lose any parking spaces and failed to explain the height of the retaining wall. As a result of the lost parking and street visibility, the hotel claims the DOT significantly underpaid for the taking since the loss of parking and visibility severely impacted the value of the hotel. The court agreed that the DOT did not adequately inform the hotel of the extent of the taking of hotel property. The court thus ordered the DOT to provide just compensation. The case was remanded for further calculation of appropriate reimbursement for the hotel.

Employment/Actual Employer
10. Frey v. Hotel Coleman, et al, 2018 WL 4327310 (7th Cir., 2018). Plaintiff worked at a Holiday Inn Express in Algonquin, Illinois. The hotel was owned by Hotel Coleman, Inc. which hired Vaughn Hospitality, Inc. to manage the facility. Vaughn Hospitality consisted of Michael Vaughn and his wife. Plaintiff’s paychecks came from Hotel Coleman; she was trained, supervised, evaluated, assigned, etc. by Vaughn Hospitality. Plaintiff claimed Michael Vaughn sexually harassed her and she filed a claim with the EEOC. She was thereafter fired and sued Hotel Coleman and Vaughn Hospitality for retaliatory discharge. The lower court determined Vaughn Hospitality was not plaintiff’s employer and dismissed the charges against it. Following trial against Hotel Coleman, plaintiff appealed Vaughn Hospitality’s dismissal. The appeals court reviewed several factors to consider when determining who is an employer, the most important being the right to control and supervise the worker. The court vacated the ruling that Vaughn Hospitality was not a joint employer and remanded the case. In doing so the court commented that the district court will “likely” conclude that Vaughn Hospitality was plaintiff’s employer.

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Authors

KAREN MORRIS
(585) 256-0160
Judgekaren@aol.com

Karen Morris is an elected Town Justice in Brighton New York, a Professor of Law at Monroe Community College (MCC), and an author. She was elevated to the title of Distinguished Professor, awarded by the Chancellor of the State University of New York.

She has written several textbooks including numerous editions of Hotel, Restaurant and Travel Law, the latest of which was published in 2017 by Kendall Hunt and won a Textbook Excellence Award from Text and Academic Authors Association. She also wrote two editions of New York Cases in Business Law for Cengage Publishing. In 2011, she published Law Made Fun through Harry Potter’s Adventures, and in 2017, Law Made Fun through Downton Abbey. She also co-authors Criminal Law in New York, a treatise for lawyers. She writes a column for Hotel Management Magazine entitled, Legally Speaking, and a blog for Cengage Publishing Company on the law underpinning the news.

Among the courses she has taught are Hotel and Restaurant Law, Business Law I and II, Constitutional Law, Movies and the Law, “The Michael Jackson Trial” and “O.J. Simpson 101; Understanding Our Criminal Justice System.” Her course offerings include some in traditional classroom settings and others online. She won the Excellence in Teaching Award in 1994, having been selected by her peers, and the Chancellor’s Award for Teaching Excellence in 2002, conferred by the Chancellor of the State University of New York.

DIANA S. BARBER
(404) 822-0736
dsbarber@gsu.edu
Diana@LodgeLawConsulting.com

Diana S. Barber, J.D., CHE, CWP is currently an adjunct professor teaching hospitality law and hospitality human resource management at Georgia State University in Atlanta, GA. In addition, she conducts a one-day workshop on contracting and risk management for the Events and Meeting Planning Certificate Program offered by The University of Georgia in Athens, Georgia.

In 2017, Diana became a co-author of Hospitality Law, Managing Legal Issues in the Hospitality Industry (5th Edition), along with Stephen Barth.
Ms. Barber is a recipient of the J. Mack Robinson College of Business Teaching Excellence Award in 2011 and was awarded 2011 Study Abroad Program Director of the Year by Georgia State University. In addition, Ms. Barber is the recipient of the 2010 Hospitality Faculty of the Year award and in 2012, received a Certificate of Recognition from the Career Management Center for the J. Mack Robinson College of Business. Ms. Barber is a member of Phi Beta Delta, an honor society for international scholars. Diana also completed her certification as a Certified Wedding Planner through the nationally recognized [the] Bridal Society.

Ms. Barber has recently launched a consulting/speaking company called LodgeLaw Consulting using her combined academic and hospitality legal skills; specializing in providing education to hospitality companies on preventative measures to reduce legal exposure, as well as a full range of legal services to hotels, motels, restaurants, event planning companies and private clubs. She has over thirty years of legal hospitality experience. Diana began her law practice as an associate attorney at King & Spalding in Atlanta, Georgia after graduating cum laude from Walter F. George School of Law at Mercer University in Macon, Georgia. She then spent over fourteen years with The Ritz-Carlton Hotel Company, LLC serving as vice president and associate general counsel. She is a member of the State Bar of Georgia, G.A.H.A., and the Georgia Hotel & Lodging Association (“GHLA”).

Defending Cases In High Crime Areas

Hagwood & Tipton — Tue, 18 Dec 2018 16:00:13 +0000

Depending on where you do business, crime and its associated consequences may simply be a cost of doing business. Unfortunately, savvy Plaintiff’s lawyers have carved out a niche practice by targeting businesses in high crime areas of our inner cities/Plaintiff-friendly venues. Frequently hotels, restaurants, bars, and the like find themselves as repeat targets in premises liability lawsuits. And oftentimes the victims’ injuries are catastrophic –murder, rape, assault, emotional trauma, physical injury.

The general theme Plaintiff’s lawyers use in these cases is that the Defendant, in an effort to maximize profits, skimped on security measures that would have made the premises safe –i.e. crime free, risk free, covered in bubble wrap with no sharp edges or tripping hazards. To drive up the value of these cases and advance the argument the Defendant was ‘on notice’, Plaintiff’s lawyers rely on the crime statistics for the premises being sued as well as the surrounding community. Police call logs, news articles, social media postings, and the like are used to paint a picture that management was aware of the problem but disregarded the risk to its customers.

Once the groundwork has been laid for the ‘profits over people’ theme, the focus of the case shifts to deterrent measures –security guards, security lights, fences, other barriers, cameras, etc. From a defense perspective, the key is to focus on the word ‘deterrent’. More often than not, the criminal perpetrator, if identified and caught, will have an extensive criminal history. For such a person, the fear of going to prison is no deterrent. By focusing on the history of the criminal, you may be able to demonstrate that he/she has committed crimes despite the presence of ‘appropriate’ deterrent measures. Another factor to focus on is the deterrent measures used by other similarly situated businesses in the community. Again, experience tends to show that most businesses follow the same or similar security protocols.

Another effective tool in rebutting the deterrent argument is to place the local criminal justice system on trial in the civil case. What happens to the criminal Defendants charged with these crimes?Are the local judges tough or too lenient on crime? How effective/proactive is the DA in prosecuting these cases? In other words, do criminal Defendants have anything to fear? Unfortunately the answer is oftentimes ‘No’. Instead of relying on or fixing the system, Plaintiff’s lawyers would have the businesses in the community become fortresses impervious to the realties facing the average taxpayer in the community.

Defending businesses in high crime areas is a challenge. Very rarely does the opportunity to blame the victim arise. In addition to presenting positive evidence of the security measures implemented and associated costs, educating the jury as to the realties present in the community, including uncontrollable obstacles that exist when trying to provide a safe premises, can have a positive effect. At a minimum, it should result in a settlement well below policy limits, which is so often not the outcome in these cases.

Authors

Effectively Using Social Media At Trial

Hagwood & Tipton — Tue, 20 Nov 2018 16:00:01 +0000

The process begins with obtaining information via requests for production, interrogatories, requests for admissions, depositions, etc. If used effectively, social media discovery can become an effective defense strategy that will withstand objections and scrutiny at trial.

Social media evidence is important information to explore, especially considering most people (Plaintiffs) tend to have no filter when it comes to posting information about: relationships with their family, romantic interests, employers, prior medical history, who has done them wrong, friends, lawyers, meals, and the list goes on. People also like to share their personal opinions on just about anything – Nike, Chic-Fil-A, NFL protests, etc.

Social media information is potentially important as an admission against interest, assuming the information is relevant. Information a party or witness puts on the internet can potentially be used against them in cross-examination at trial or during discovery. Litigators have never had this type of ready access to so much of what a party or witness says, does or thinks.

Once suit is filed, you need to have a strategy for obtaining social media evidence and how you are going to use it. The first step is to perform an investigation. The second step is to use your discovery tools. The third step is to get the evidence admitted. And the fourth step is ethical considerations. Developing a good social media investigation strategy does more than just provide you with information. It helps you craft discovery requests that ask for specific information, a requirement that now exists in federal courts and that will soon exist in state courts. The specific information requests can help you compile the discovery, comply with discovery requirements, and help you drill down to obtain the facts you need in order to help your case.

Authors

EEOC Lawsuit Push Takes Aim At Hospitality Employers

Andria Ryan — Tue, 18 Sep 2018 16:00:20 +0000

In the first half of August 2018 alone, the U.S. Equal Employment Opportunity Commission (EEOC) filed 16 lawsuits against employers—and hospitality employers should be especially wary about this surge of litigation, as several claims took direct aim at businesses in the industry.

Harassment Claims Continue To Capture Spotlight

In light of the sexual abuse allegations against high profile individuals and the subsequent #MeToo Movement, EEOC Acting Chair Victoria Lipnic has announced workplace harassment issues are a priority for the agency. She pointed out that harassment “causes serious harm to women and men in all kinds of jobs across the country,” and commended not only the EEOC legal teams for their work but also the individuals who came forward with complaints, many of whom alleged they suffered retaliation as a result.

One case against a country club in California involves claims of sexual conduct by a manager directed at female employees, including soliciting naked pictures, grabbing their buttocks, attempting to kiss them, and requiring sexual favors for job benefits. The EEOC lawsuit alleges that when women refused, the manager threatened termination and reduced their working hours in retaliation.

A sports bar in New Mexico also faces an EEOC lawsuit for sexual harassment of female employees by managers and coworkers. Reported behavior included requests to “show more cleavage” in their uniforms, crude comments about their breasts and buttocks, comments by male employees about their penises, text requests for sex, and unwelcome touching. This case also alleges retaliatory actions against the women for complaining.

EEOC’s Push Includes Other Claims As Well

But sexual harassment is by no means the only kind of claim being faced by hospitality employers. The recent wave of EEOC litigation also includes claims of age discrimination, pregnancy discrimination, and failure to accommodate employees under the Americans with Disabilities Act (ADA), among others.

For example, a Georgia-based sports bar is facing an EEOC lawsuit alleging pregnancy discrimination. The lawsuit alleges that a pregnant bartender was demoted to a lower-paying server position because of her pregnancy. EEOC officials brought the lawsuit stating that “physical appearance alone is never a sufficient reason for taking adverse action against a pregnant employee” and depriving her of income.

The most recent lawsuit was filed against the Grand Hyatt in New York City on August 15, alleging failure to accommodate a front desk employee with a disability. The EEOC alleges that the hotel violated the ADA by forcing the employee to stand while performing his duties despite his request for a sitting accommodation due to a spine condition. The lawsuit alleges that the hotel initially accommodated the employee by allowing him to sit, then required him to resume standing, causing him significant pain and forcing him to take an unpaid leave.

Conclusion

The wave of lawsuits by the EEOC shows that the agency is beefing up its enforcement efforts in priority areas. The EEOC’s most recent Strategic Enforcement Plan outlines the agency’s priorities and includes ensuring that employers comply with obligations to accommodate disabled employees, protecting pregnancy employees’ rights, and stamping out harassment and retaliation in the workplace.

Now is the time to review your EEO, harassment, reasonable accommodation, and anti-retaliation policies to ensure that they meet modern standards. You should also train your managers and supervisors to ensure they are enforcing those policies, and confirm that employees are aware of your company’s commitment to a discrimination-free and harassment-free workplace.

For more information, contact the author at ARyan@fisherphillips.com or 404.240.4219.

The Not-So-Happy Hour: Preparing for Investigations & Subpoenas in Light of #metoo & More

Matthew Feinberg — Tue, 10 Jul 2018 16:00:34 +0000

Since the last Presidential election campaign began approximately two years ago, there has been a significant public focus on sexual harassment, income inequality, crimes against women, public corruption, and the income gap. Sexual harassment claims have skyrocketed in the wake of the #metoo movement, with some states reporting as much as 400% increases in claim filings. Corporations are drawing attention—both positive and negative—from the way they handled employee compensation when the recent corporate tax cuts went into effect. The restaurant industry is under heightened scrutiny due to the way certain companies distribute tips among servers and wait staff. Federal courts are recognizing an expanded reach of workplace non-discrimination laws based on sexual orientation and sexual identity. Union and collective bargaining issues arise during every election cycle. And, various government watchdogs, including the New York attorney general, and private-sector interest groups are opening large-scale investigations or starting publicity campaigns seeking to expose sexual harassment, workplace discrimination, and unequal treatment. For better or worse, as the Bob Dylan lyric goes: “the times they are a-changin’.”

Based on these trends, we predict substantial increases in the number of individual employee claims and government-backed investigations over the next several years. And, we expect that the hospitality industry will be a prime target. This is so because the hospitality industry touches virtually every person in the country in some way on a regular basis, and many hospitality employees are often young, transient, and looking for only temporary, part-time, or seasonal work. If your company works or contracts with the federal or a state government, an investigation or subpoena is even more likely. Hospitality companies should expect that it is a question of when—not if—they will become involved in some sort of investigation or litigation. So, what should you do to protect your company before and after the law comes calling?

Create a Paper Trail

An ounce of prevention is worth a pound of cure. The single greatest – and by far the most dangerous – pitfall for a company faced with a subpoena, government investigation, or litigation is incomplete record keeping or insufficient record retention. Even if a company has done everything right, it may nevertheless face substantial risk if it cannot prove it. It is, therefore, critical for companies and their corporate counsel to maintain detailed and accurate records of employee complaints, management and employee training, schedules, hourly rates, payroll and tips, and disciplinary action, among many other things. Without detailed records, companies could be facing an uphill battle in any investigation or litigation. Therefore, it is critical that companies create and maintain accurate records. Practicing good record retention is the best way to protect the bottom line.

Walk the Walk

Perhaps the most avoidable mistake a company may make that can lead to a lawsuit or government investigation is to ignore bad behavior or trivialize an employee or customer complaint. If an employee informs a supervisor that they have experienced sexual harassment or discrimination or they are concerned that they are being paid less than another employee for performing the same work: listen, investigate, document, follow up, and follow through. Following these simple steps is preventative as well as remedial. A company can avoid a lawsuit or investigation by taking appropriate action in response to a complaint, and an investigation is less likely to lead to liability if the company can prove that appropriate action was taken.

Lawyer Up

Successful companies have good relationships with their lawyers, particularly in the hospitality industry. A brief check-in with corporate or outside counsel on day-to-day issues can identify areas of risk and solve small problems before they become big headaches, all at a very low cost. And corporate counsel, when not familiar with particular areas of law or potential recent developments, should not be afraid to ask for help from outside counsel. Often, lawyers provide free updates or publications to their clients on changes in the legal landscape. And, when a lawsuit or investigation commences, having a trusted outside counsel that knows your company, understands your corporate policies and company atmosphere, and is invested in a long-term relationship can be a major benefit to your company and its bottom line.

Premises Securities Litigation

Niva Harney-Hiller — Tue, 12 Jun 2018 16:00:13 +0000

This [article] gives a brief overview of how to deal with premises security litigation when it arises on your premises. It addresses case management, investigation and evaluation. Based on these three building blocks, it highlights best litigation planning, budgeting and best resolution plans for security claims.

CASE MANAGEMENT

Once a complaint is received by your claims department, the first cause of action is to review the facts alleged in the complaint and assess the information contained. Is there an existing case in the company’s files? Or is it the first time your company is hearing about this incident? The company should try to identify all the named defendants and which of the defendants are insured. What are the legal causes of action alleged in the complaint and what facts support the allegations?

INVESTIGATION.

After the preliminary assessment of the case, the company should gather all the relevant information including all the possible witnesses, crime grid statistics, police reports, incident reports, any documents/reports as to other incidents, security information, retrieve any surveillance footage (save enough –recommended an hour before and an hour after), assess lighting on the property, interview security personnel, if any, etc. It is important to understand that at this point it is possible that the only source of information is the complaint. That is why it is essential to gather all the relevant facts in connection to the incident as quickly as possible.

In this stage, it is essential to identify any potential security liability issues at the premises. Retaining a security company early on to assess the premises may not be a bad idea. A security company will evaluate the reasonableness of the security measures all ready in place based on the crime grid statistics and what they show. The important thing in this phase is getting on the offense and creating your own narrative.

EVALUATION

This process includes an assessment of the possible liability and damages issues related to the plaintiff’s claim. Before deciding on a successful litigation plan, the company must understand the possible ramifications of each cause of action, and the likely results. What are the available defenses and the chances of a successful outcome based on what information is available. To succeed in a negligence claim a plaintiff must prove (1) the existence of a legal duty; (2) a breach of that duty; (3) proximate cause of the plaintiff’s damages by defendant’s breach;and (4) damages. Proximate cause had two components: (1) foreseeability and (2) cause-in-fact. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004).

In cases of liability arising after a crime is committed on the premises, it is necessary to understand the issue of foreseeability. Generally, a foreseeability analysis includes matters such as the imminent harm, the existence of prior similar crimes and the totality of the circumstances.

For example in Florida, in a premises liability case a property owner is generally under no duty to exercise any care to warn or guard against the harmful acts of a third party unless that third party’s harmful behavior is reasonably foreseeable. And although not dispositive, a showing that of no prior incidents can shed a light on the difference between whether an accident “is merely possible and whether it is reasonably foreseeable.” Las Olas Holding Co. v. Demella, 228 So. 3d 97, 104 (Fla. 4th DCA 2017)

In Texas, the courts compare the narrowed criminal history of the premises with the crime in question based on the five factors: proximity, publicity, recency, frequency, and similarity.See Flanagan v. RBD San Antonio L.P., 04-16-00761-CV, 2017 WL 5615567(Tex. App. Nov. 22, 2017).

LITIGATION PLANNING

A litigation plan is a mutually agreed upon plan between claims professional and defense counsel to implement the resolution plan. Although it must identify all the agreed upon steps to achieve the resolution plan, it is not a start to finish all-encompassing plan, but a living document built in phases.

After a litigation plan is agreed upon, ask counsel to estimate time expenditure necessary for that portion of the litigation plan. The budget should track the litigation plan and include costs for any experts that are used during that portion of the litigation plan.