ADA Title III News & Insights

ADA Title III Lawsuits Surge by More than 63%, to Over 4400, In 2014

Posted in Barrier Removal, Lawsuits, Investigations & Settlements, Pool Lifts, Title III Access

By Minh N. Vu and Susan Ryan

In August 2014, we reported that the number of ADA Title III lawsuits filed against public accommodations rose by nearly 9% in 2013 over 2012. At that time, we predicted that there could be a 40% increase in the number of lawsuits filed in 2014 based on 6 months of data. Now that we have all the data, the actual number is far higher: There was a 63% surge, resulting in a grand total of 4,436 ADA Title III lawsuits filed in 2014.

Slide3

How Does This Compare to The Number of ADA Employment Lawsuits?

Just to put this into perspective, for comparison purposes we looked at the number of lawsuits filed under Title I of the ADA which prohibits discrimination on the basis of disability in employment. As the below chart shows, those numbers remained very steady in 2012-2014, and numbered well under half the total Title III cases filed in 2014.

Slide4

Where Are Most of These Cases Filed?

California continues to lead the country with the highest number of ADA Title III lawsuits (1866), with Florida coming in a close second (1553). New York (212), Pennsylvania (135), and Alabama (117) hold the distant third, fourth, and fifth place slots. These five states also saw the largest percentage increase in the number of lawsuits.

In stark contrast, there was not a single ADA Title III lawsuit filed in 2014 in Idaho, Montana, Nebraska, North Dakota, South Dakota, and Wyoming.

Slide2

Slide1

What is driving these higher lawsuit numbers, 25 years after the passage of the ADA?

Although we have not studied every complaint to answer this question, we did notice some trends in 2014 in our own practice. In addition to the usual lawsuits alleging physical access barriers at hotels, retailers, and shopping centers, we handled a number of cases brought by plaintiffs alleging a failure to provide accessible pool lifts, mostly in Florida. Some of these cases were clearly frivolous because the hotels did have pool lifts. Plaintiffs represented by one law firm filed more than 60 class action lawsuits in the Western District of Pennsylvania. Many of these alleged that the parking lots of various retailers, restaurants, and banks do not have compliant accessible parking spaces.   We also handled federal class actions alleging that some retailers’ point of sale devices are not accessible to the blind.

Who is filing these lawsuits?

We looked at our top five jurisdictions to see who some of the repeat filers were in 2014 under both ADA Title II (state and local government defendants) and Title III (public accommodations (private sector businesses)). In Florida, a plaintiff named Howard Cohan filed 529 such suits. In California, a plaintiff named Martin Vogel filed 124 suits. In Pennsylvania, a plaintiff named Christopher Mielo brought 21 lawsuits. In New York, a plaintiff named Zoltan Hirsch brought 24 lawsuits. In Alabama, a plaintiff named David Higginbotham filed 16 lawsuits.

A Note About Our Methodology

Our data comes from PACER, the federal court electronic docket system. When filing a new lawsuit, a plaintiff has two ADA codes to choose from: “Americans with Disabilities: Employment” or “Americans with Disabilities: Other.” The “other” category refers to ADA Titles II or III. Our diligent librarian, Susan Ryan, obtained the ADA Title III case numbers by reviewing each of the case names (and where necessary, the complaints) to eliminate all Title II cases. As far as we know, no one else has undertaken this task, so you are hearing it here first on this blog.

Edited by Kristina M. Launey

Ninth Circuit Rules Website Must Have Nexus to a Physical Place of Business for ADA to Apply

Posted in Lawsuits, Investigations & Settlements, Title III Access, Website

wooden gavel on laptopFailure to Provide an Accessible Alternative Is Not Intentional Discrimination Sufficient to Establish an ADA-Independent Unruh Act Claim

By Kristina M. Launey and Minh N. Vu

On April 1, 2015, the Ninth Circuit became the first federal appellate court in the country to hold that web-only businesses are not places of public accommodation under the ADA.

As we previously reported, the Ninth Circuit two weeks ago heard oral argument in two cases on the question of whether a business that offers its goods and services only through a website is a “public accommodation” covered by Title III of the ADA. The Ninth Circuit had previously held, in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000), that the statute only applies to businesses that have a connection to a physical place where they offer their goods and services, but this precedent did not specifically concern a website.

The Ninth Circuit followed this prior precedent in holding in Cullen v. Netflix and Earll v. Ebay that Netflix’s video streaming service and eBay’s web-based business are not subject to the ADA’s non-discrimination mandate because their services are not connected to any “actual, physical place.” The Court held that the phrase “place of public accommodation” requires “some connection between the good or service complained of and an actual physical place.”

This decision comes only a week after a district court in Vermont came down the opposite way after determining the authorities trial courts in the Ninth Circuit had relied upon, and which the Ninth Circuit relied upon in its April 1 orders, were not dispositive, as we reported here.

The Ninth Circuit decided additional California law-specific issues in Earll. It held that the DPA claim failed at a matter of law because Earll did not allege a violation of any separate applicable accessibility standard, such as the California Building Code. It also held that Earll’s Unruh Act claim failed because he had failed to allege intentional discrimination. Specifically, the Court found that the aural identification system used by eBay on its website applies to all eBay users, whether hearing impaired or not, and that eBay’s failure to provide a deaf-accessible alternative to that system does not amount to willful, affirmative misconduct sufficient to constitute intentional discrimination.

The opinions are only 3-4 pages long, not published, and expressly non-precedential. The plaintiffs may well appeal to the US Supreme Court to finally resolve this important issue of whether web-only businesses are places of public accommodation under the ADA.

Nation’s Only Non-Profit MOOC Platform Provider Leads the Industry With Accessibility Commitment

Posted in Department of Justice, Website

E-learning education or internet library. Conceptual imageBy Minh N. Vu and Paul Kehoe

The Department of Justice (DOJ) and edX today announced an agreement under which edX has voluntarily agreed to make its website, mobile applications, and open source learning platform conform to the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0). EdX contracts with some of the most prestigious universities and institutions in the world to deliver hundreds of free massive online open courses (MOOCs) to the public. While it will continue to be the responsibility of these institutions to provide course content that is accessible to individuals with disabilities, edX’s platform will enable the delivery of such accessible content and will provide these institutions with the tools to create accessible content.

This agreement is another example of the DOJ’s continued focus on ensuring that websites and mobile applications are accessible to individuals with disabilities, in even the absence of regulations specifically addressing these technologies.

Seyfarth represented edX in this matter.

Federal District Court in Vermont Finds Web-Only Businesses Are Places of Public Accommodation Under Title III of the ADA

Posted in Lawsuits, Investigations & Settlements, Title III Access, Website

(Photo) Tablet in LibraryBy Kristina M. Launey and Minh N. Vu

Although no federal appellate court has decided the issue, district courts are continuing to take sides in the debate over whether web-only businesses are subject to Title III of the Americans with Disabilities Act (ADA). For those of you keeping score, California leads the way, with multiple decisions from its district courts holding that they are not. One decision from a Massachusetts district court says that they are. Last week, the US District Court for the District of Vermont, which sits within the Second Circuit (which also includes New York and Connecticut district courts) joined the Massachusetts district court on the “Yes” team.

The issue was before the Vermont court on a motion to dismiss the complaint filed in National Federation of the Blind and Heidi Veins v. Scribd. Scribd is a California-based digital library that operates reading subscription (e-books, academic papers, legal filings, and other user-uploaded digital documents) services on its website and mobile phone and tablet apps. In this case, NFB and Veins allege that Scribd’s website and mobile applications are inaccessible to the blind, in violation of Title III, because they use an exclusively visual interface and are not programmed to be accessible through screen readers or other assistive technologies. As such, the plaintiffs claimed Scribd is denying blind persons equal access to all of the services, privileges, advantages, and accommodations that Scribd offers and is excluding them from accessing information critical to their education, employment, and community integration.

Scribd based its motion on the argument that Title III does not apply to a website-only business and that the phrase “place of public accommodation” in the statute requires that the business have a physical place where it offers its goods and services to the public. After an extensive review of all the pertinent decisions on this subject, the court concluded that “clearly there is more than one reasonable interpretation of the language at issue here.” It went on to side with plaintiffs, based on the following reasoning:

  • In other parts of the statute, the word “place” is not used to modify the phrase “public accommodation.” In fact, the word “establishment” is sometimes used in lieu of the word “place.” Moreover, the fact that a “travel service” is one of the types of businesses named in the list of places of public accommodation suggests that a business with no physical location open to the public would also be covered by the statute.
  • The legislative history of the ADA, according to the court, reveals a “liberal approach” designed to eliminate discrimination against people with disabilities. To construe the law in a manner that would allow some businesses to be exempt from its non-discrimination mandate would be inconsistent with the statute’s goal of “full participation and access to all aspects of society.”
  • The court concluded that the committee reports accompanying the statute suggest that the “important quality public accommodations share is that they offer goods or services to the public, not that they offer goods or services to the public at a physical location.” Those same reports, according to the court, show that Congress intended the statute to be responsive to technological changes.
  • The court also gave weight to the fact that the Department of Justice has informally interpreted the statute to apply to web-only businesses.

The court’s denial of Scribd’s motion to dismiss means that the litigation will proceed. We predict a settlement is likely in light of this decision.

As we reported last week, we are awaiting the Ninth Circuit’s ruling on this very issue in Cullen v. Netflix and Earll v. eBay, Inc.. Will the Ninth Circuit follow the analytical path this Vermont court carefully laid to cross to the “Yes” team?

Neither this issue, nor the attention it’s garnering, is going away. Even Forbes has taken an interest.

Ninth Circuit Hears Arguments: Are Web-Only Businesses “Places of Public Accommodation” Subject to Title III?

Posted in Title III Access, Website

(Photo) Online ShoppingBy Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.

Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.

Does Title III of the ADA apply to web-only businesses? Continue Reading

NPR Report that DOJ Will Release Website Regulations This Month Requires Clarification

Posted in Department of Justice, Website

Question markBy Minh N. Vu and Kristina M. Launey

Seyfarth’s ADA Title III Team — along with many businesses and disability advocates — has closely monitored the status of the Justice Department’s (DOJ) proposed website regulations since the DOJ started its process in September 2010. We were surprised to hear NPR’s March 7 report by Todd Bookman that the DOJ is “scheduled to release regulations this month”. Bookman did not provide any further specificity as to which regulations are expected to issue, or reveal the source of this information, leaving all who have been closely following the regulations perplexed.

As we have reported, DOJ has been working on two sets of website regulations: One applicable to state and local governments and another for public accommodations (i.e., private entities that do business with the public). The proposed website regulations for state and local governments were slated to issue in December 2014, but did not. Those proposed regulations have been under review at the Office of Management and Budget (OMB) since July 2014. OMB is the last stop for all regulations before they are published. Thus, we have to assume that the NPR report is referring to these state and local government website proposed regulations, which could come out of OMB review for publication any day.

We seriously doubt that the NPR story was referring to proposed regulations for public accommodations websites for two reasons: First, DOJ’s last official projected date for these proposed regulations is June 2015. Second, DOJ has not yet even submitted any proposed regulations for public accommodations websites to OMB for its mandatory review and approval. Before publication, OMB must review the proposed rule to ensure it is consistent with applicable law, the President’s priorities, and the principles set forth in Executive Order 12866. The review also ensures that decisions made by one agency do not conflict with the policies or actions taken or planned by another agency. Executive Order 12866 also requires agencies to calculate the cost and benefit of the every proposed and final regulation. For example, if the proposed rule prohibits businesses from posting content on their websites that is not accessible to individuals with disabilities (e.g., videos that do not have captioning for the deaf or audio descriptions for the blind), OMB would have to consider whether such a rule would cause businesses to limit the amount of content that they decide to make available on the Internet.

Our take on the timing of the proposed regulation for public accommodations websites is consistent with what we heard last week at CSUN’s 30th Annual International Technology and Persons with Disabilities Conference. The Chief of the DOJ Disability Rights Section, Rebecca Bond, would not state when any website regulations would issue. Attorney Lainey Feingold, who was quoted in the NPR story, also said in her presentation that she did not know when any proposed regulations would come out. However, in both the NPR story and a previous story, Bookman made his March regulation-issuance prediction without naming a source for the information.

When issued, the proposed regulations for state and local government websites will likely provide some insight into the content of the proposed regulations for public accommodations websites that are due out in June. However, DOJ will have to address a host of issues in the latter set of regulations that will not be as relevant for state and local government websites.

As always, follow our blog for the latest on DOJ’s proposed website regulations.

Don’t Miss Our Digital Accessibility Webinar – Tomorrow, February 26, 2015

Posted in Webinars

Webinar_Flat_Icon_Set_REZERVAPlease join Seyfarth Shaw’s ADA Title III team members Minh Vu and Kristina Launey, along with SSB Bart CEO Tim Springer, for a preview of the Defending Digital Accessibility Lawsuits presentation they’ll give at this year’s California State University Northridge Annual International Technology and Persons with Disabilities Conference.  This 45-minute webinar will provide a brief overview of applicable laws and recent settlements, and practical tips for proactive preparation and avoidance, or remedial defense, against digital accessibility complaints and litigation.

Click here to register for the webinar.

Proposed Accessibility Standards for Federal Government Websites Highlights Double Standard Justice Department Seeks to Impose on Public Accommodations

Posted in Department of Justice, Website

disabled buttonBy Minh N. Vu and Kristina M. Launey

On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (“Access Board”) issued a proposed rule (“NPRM”) which would, among other things, adopt the WCAG 2.0 Level AA Guidelines (“WCAG 2.0 Level AA”) as the standard for federal government websites.  Section 508 of the Rehabilitation Act requires federal government websites and off-line documents and software to be accessible, but the Section 508 standard for accessible websites has been, since it issued in 2000, a list of 16 requirements that are less rigorous than the WCAG 2.0 Level AA Guidelines.  The issuance of this NPRM underscores that — even while the Justice Department (“DOJ”) has been demanding that public accommodations make their websites conform to WCAG 2.0 Level AA — neither it nor any other federal agency is presently required to meet this standard.  As we have reported, the DOJ has entered into a number of settlements and a consent decree with public accommodations which reference WCAG 2.0 Level AA as the accessibility standard.  DOJ has done so even though it still has not issued a proposed rule that adopts a legal standard for accessible public accommodations websites.  DOJ started this rulemaking process more than four years ago and has stated that it will issue a rule in June of this year. Whether this projected deadline will be pushed back again remains to be seen.

The government has faced scrutiny and even been sued for its own inaccessible websites.  As we previously reported, last year an advocacy group sued the United States General Services Administration, alleging GSA’s own website, SAM.gov, is inaccessible and does not comply with Section 504, leaving certain blind and visually impaired government contractors unable to register or timely renew their government contracts.  The NPRM even notes that some federal agencies have had trouble complying with the less demanding existing Section 508 standards.

In announcing the NPRM, the Access Board noted that adoption of WCAG 2.0 Level AA for federal agency websites would  promote consistency with the Department of Transportation’s recent final rule which adopted the same standard for air carrier and ticket agent websites, and accelerates the spread of web accessibility.

The Access Board will provide a 90 day public comment period and will hold a public hearing on March 5 at the CSUN conference in San Diego, and on March 11, at the Access Board in Washington, D.C. After the public comment period closes, the Access Board will consider the comments and issue a Final Rule.  We will be watching with great interest to see whether federal agencies, including DOJ, will support the adoption WCAG 2.0 Level AA for their own websites and how much time they will give themselves to remediate and conform their websites to this new standard.

VUDU Agrees to Caption or Subtitle All Online Streaming Video Content in Settlement With NAD

Posted in Lawsuits, Investigations & Settlements, Website

By Kristina M. Launey

On Monday, the National Association of the Deaf (NAD) announced a settlement agreement between it and VUDU, Inc., a wholly owned streaming entertainment subsidiary of Walmart, in which VUDU has agreed to caption 100% of movies and television programs streamed online through VUDU’s Video on Demand Service.  NAD is a non-profit civil rights advocacy group of, by, and for deaf and hard of hearing individuals.  In the agreement, VUDU agreed to, by January 16, 2015, ensure every title in its online catalog is closed-captioned or subtitled, and to caption all newly-acquired content as soon as that content is made available to the public.

The agreement does not address whether Vudu or the providers of the videos and other content Vudu streams on its service is responsible for providing the captioning; Vudu simply commits to provide the content with captioning or subtitles.  The only exception to this general commitment is in cases where a video programming owner provides Vudu with non-English-language-based content containing English language subtitles.  In that case, the agreement allows Vudu to use that English-subtitled version in lieu of Closed Captioning as long as Vudu has used diligent efforts to obtain Closed Captions or subtitles that describe the audio content of programming, such as speaker identification, sound effects and music description.  The agreement prohibits subtitles from being used for programming required to be captioned under the Communications and Video Accessibility Act or when Closed Captions or Subtitles for the Deaf and Hard of Hearing are available. 

The agreement also requires Vudu to provide customer service representatives with documentation and training regarding handling questions about captioning issues.

The agreement remains in effect until May 31, 2018.

Captioning of videos and other online content has been a hot topic recently in the ADA Title III space in various forms.  In 2011, NAD sued Netflix over its streaming service and received mixed results due to a conflict in the courts as to whether a web-only video streaming business is a place of public accommodation covered by Title III of the ADA, as we reported here and here.  Ultimately, NAD and Netflix entered into a consent decree that, similar to the Vudu agreement, required closed captions in 100% of Netflix’s streaming content.  In a different context, the Department of Justice is working on rules that would govern the obligation of movie theaters to show movies with closed captioning and audio description, but has only issued proposed regulations.  In yet another slightly different context, a Court rejected a deaf plaintiff’s claims that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks and that Redbox Digital failed to closed-caption all of its online videos that were available for streaming.  The Court reasoned that a public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities in the form of captioned videos at its kiosks.  The Court also found, following Ninth Circuit precedent, that Redbox Digital did not have to caption its library of web-based videos for deaf or hard-of-hearing consumers because a website is not a place of public accommodation under Title III.

This is a new frontier, and clearly a high priority for deaf advocates.

Edited by Minh N. Vu

Serial ADA Plaintiff Makes Florida News

Posted in 2010 ADA Standards, Lawsuits, Investigations & Settlements

By Minh N. Vu

Serial ADA Title III lawsuit filer Howard Cohan made local television news last week in a story CBS Action News 47 reported after Mr. Cohan filed 24 new lawsuits against various north Florida hotels.  Seyfarth Shaw’s Title III Team has handled a number of cases filed by Mr. Cohan.  Our search of the federal court docket shows that he has filed 606 lawsuits since the beginning of 2013.

Businesses often ask why the courts would allow a plaintiff with no apparent interest in doing business with the target of these lawsuits to pursue these matters. The reality is that challenging the legitimacy of these cases will almost always exceed the cost of settling the matter.  As a result, most businesses choose the latter, seemingly more practical option, which simply encourages more lawsuits.  On occasion, some businesses targeted by serial plaintiffs decide to fight and have obtained excellent results, as we reported here. However, these cases are the exception.

Edited by Kristina M. Launey