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Businesses are obliged to ensure that their facilities comply with the Americans With Disabilities Act. But can anyone who believes he has found a violation somewhere sue to remedy it? The U.S. District Court for the District of Maryland recently considered what types of plaintiffs may initiate such litigation, and excluded out-of-state persons that merely “test” faraway properties for ADA compliance.

The plaintiff in Nanni v. Aberdeen Marketplace, Case 1:15-cv-02570-WMN (D. Md. May 4, 2016), was a Delaware resident with a disability who said that he traveled along Interstate 95 into Maryland to visit with family and friends and attend various events. He alleged that he had stopped at Aberdeen Marketplace up to four times to rest and take a bathroom break. During those visits, he contended, he encountered various barriers to accessing the stores and services, defects that he believed ran afoul of the ADA. Asserting an intention to patronize to the shopping center up to three times a year and also test the facility’s compliance with the ADA, Plaintiff sought declaratory and injunctive relief. Represented by Silverman|Thompson|Slutkin|White, Aberdeen Marketplace moved to dismiss the lawsuit.

First, a little background on “standing”: To be able to bring a lawsuit, a plaintiff has to demonstrate that he suffered an injury in fact – that is, an actual or imminent invasion of a legally protected interest that can be remedied by a judicial decision. When a plaintiff requests injunctive relief, he also has to show a “real and immediate threat” of being wronged in the future, a likelihood that is greater than a “mere possibility.” Applied in the context of Plaintiff’s lawsuit, he had to describe “specific concrete plans” to return to Aberdeen Marketplace and how he would be similarly injured during those future visits.

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Long a consistent and ardent judicial champion of the constitutional protections afforded citizens under the Fourth and Sixth Amendments, one cannot help but wonder how Justice Scalia would have viewed the showdown between Apple and the Department of Justice.
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The Court of Special Appeals of Maryland issued an opinion this week that serves as a reminder that a party’s simple failure to preserve evidence can sometimes snatch defeat from the jaws of victory. The case (and link) is Cumberland Insurance Group v. Delmarva Power.
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It’s no secret that the Court of Special Appeals has been increasingly overwhelmed with cases, nor is it a secret that the Court would like to see a lot of these cases resolved or otherwise cleaned up before having to spend time on them. Those concerns led to the creation of the Court’s ADR Division and accompanying procedures for steering the parties toward settlement or streamlining of the appellate process. After trying those out for a while, however, the Maryland Courts’ Standing Committee on Rules of Practice and Procedure identified some kinks, inefficiencies, and redundancies in the overall system, and proposed some related rules changes that were adopted by the Court of Appeals this month.
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In its 2009 decision in Shenker v. Laureate Educ., Inc., 411 Md. 317, the Court of Appeals of Maryland inserted a caveat in the premise that shareholder lawsuits against corporate directors must be pursued as a derivative action on behalf of the corporation itself. By declaring that a corporation’s impending sale gave rise to common-law duties by directors that could be enforced directly by shareholders, the high court outlined an exception that risked swallowing the rule. Last month, however, the Court of Special Appeals gave a more thorough explanation about when Shenker applies – and, as to be expected, it’s not as broad as disgruntled shareholders might hope.
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Have you obtained a judgment for recovery of money? Lucky you! Is that judgment unsecured? Ouch.

Well, at least you have some protection should your opponent decide to appeal: Under the Maryland Rules (and unless the parties agree otherwise), the appellant has to file a supersedeas bond covering the whole amount of the judgment that remains unsatisfied, plus interest. Of course, the court can always reduce the bond amount, but it can still be a pretty big deterrent to weak or frivolous appeals that just delay payment and increase the chance that some other creditor will snatch up the debtor’s funds in the meantime. As proposed in the 188th Report of the Maryland Standing Committee on Rules of Practice and Procedure, however, the bond isn’t without limits.
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Governments and businesses know – or at least they should – that there’s a difference between being vicariously liable and being directly negligent. Jurors may not, however, so how carefully should the distinction be explained come time for crafting jury questions? Perhaps not much – according to a new opinion of the Court of Special Appeals, provided the jury is otherwise instructed properly by the trial court and counsel, blurring the line between vicarious liability and negligence in a jury question can be excusable.
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We all know the little tricks to stuffing the most content into the allotted number of pages of your appellate brief (currently 50 for the Court of Appeals and 35 for the Court of Special Appeals) – decreasing the line spacing, decreasing the margins, decreasing the kerning, decreasing the height of the text, etc. Well, you’re not fooling anybody: As noted by the Maryland Standing Committee on Rules of Practice and Procedure in its 187th Report, “Appellate judges, in Maryland and elsewhere, are regrettably familiar with those tactics and legitimately complain about them.” The Committee has finally had enough, and is urging the Court of Appeals to amend the Maryland Rules to combat the problem.
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As the appellant in the Maryland appellate courts, when should you file your brief? Currently, it’s within 40 days after the clerk notifies you that the court has filed the record. Sounds easy enough, except the current Maryland Rules don’t actually require the clerk to send such a notice. In fixing that little problem, however, the Rules Committee is considering working in a smidge more time for practitioners to get their briefs in.
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Maryland attorneys are eminently familiar with the State’s Local Government Tort Claims Act (LGTCA), which imposes a limitation on liability for the local government entity of $200,000 for each individual claim ($500,000 aggregate for claims that arise from the same occurrence). This limitation on liability operates to strictly limit damages recoverable from the local government entity regardless of the extent of harm experienced by the plaintiff. And now, with today’s Court of Appeals’ decision in Espina v. Jackson (No. 35, Sept. Term 2014), that damages cap applies even in the face of egregious constitutional violations because such “constitutional torts” fall within the LGTCA’s “tortious acts or omissions” terminology.
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