SUIT AGAINST FIRM BEHIND WEB ACCESSIBILITY SUITS FILED IN BAD FAITH?

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A federal district court says counsel for a power tool company embroiled in a lawsuit over its website’s accessibility acted against his client’s interest by discouraging it from pursuing cheaper and quicker alternatives to litigation.

Gregory F. Hurley of Sheppard Mullin Richter & Hampton LLP represents Harbor Freight Tools USA Inc., one of numerous retailers subject to complaints that they violated Title III of the Americans With Disabilities Act by failing to make their websites accessible to the blind.

Harbor Freight sued Carlson Lynch Sweet & Kilpela LLP after receiving a demand letter that claimed one or more disabled clients couldn’t access the retailer’s website. Fifteen days after Harbor Freight filed its complaint, Carlson Lynch asked the court to order Harbor Freight to change its site.

The demand letter said Harbor Freight could avoid a lawsuit by paying the firm an attorneys’ fee and making the changes. Hurley suggested he responded with a suit because the letter didn’t identify an actual client who was having problems with website access.

But Hurley was previously involved in a line of related cases through his client Toys ‘R Us, the U.S. District Court for the Western District of Pennsylvania said in its decision allowing Carlson Lynch’s complaint to proceed.

The Toys ‘R Us  lawsuit was resolved speedily and inexpensively through mediation after it was consolidated with 14 related suits, the court said. But instead of opting to go the same route for Harbor Freight, Hurley chose to initiate another lawsuit and inflict substantial litigation costs upon his client.

That decision was “disingenuous at best, and in bad faith at worst,” the court said. “This sort of lawyering exhibited by Attorney Hurley risks discouraging Plaintiffs and their counsel from seeking pre-litigation solutions—clearly, the most expedient and cost-effective means of resolving legal matters.”

Hurley didn’t immediately respond to requests for comment.

Carlson Lynch moved to dismiss Harbor Freight’s complaint March 29.  It remains to be seen how a California federal district court will rule on that latest legal volley in this case.