Seyfarth Synopsis: DOJ announced today an extension to October 7, 2016 for the public to submit comments on the SANPRM for state and local government websites.

In May of this year the Department of Justice surprised us by issuing a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM), rather than – as all expected – actually issuing a proposed regulation for state and local government websites under Title II of the ADA.  In the SANPRM the DOJ seeks public input on well over 100 of tentative positions that it may take in a proposed regulation, including input on the costs and benefits of such a proposed rule.  The SANPRM imposed an August 8, 2016 deadline for submission of public comments.  Today, the DOJ extended the comment period by 60 days to October 7, 2016 after receiving three comments requesting extensions.  DOJ cited the effect these Title II regulations will have on the Title III web accessibility regulations as a reason for this extension: “[a] Title II Web accessibility rule is likely to facilitate the creation of an infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III Notice of Proposed Rulemaking on Web site accessibility of public accommodations.”  DOJ also noted that “further delays in this Title II rulemaking will, therefore, have the effect of hindering Title III Web rulemaking’s timeline as well” – further answering questions we’ve heard from many as to how interdependent these two regulatory processes really are.

This highlights the importance of organizations representing various sectors that own or operate “public accommodations” to weigh in on these important issues – which the DOJ has expressly stated will directly impact it future proposed rule for public accommodations websites, currently slated for 2018.  If your industry association has not drafted comments, this extension provides you the opportunity – there is still time.

For an overview of the key issues that warrant comment by public accommodations now, please see our prior post.


In honor of the 26th anniversary of the ADA, we are sharing our mid-year count of ADA Title III lawsuits for 2016 and it’s newsworthy:  The number of lawsuits filed in federal court is already at 3,435, up 63% from last year’s mid-year number of 2,114.  If the pace continues, the 2016 total may top 7,000.  To put the numbers into perspective, more lawsuits were filed in the past six months than were filed in all of 2013 when there were a mere 2,722 lawsuits.  The three states with most lawsuits continue to be California, Florida, and New York, but there is a shake-up in the fourth position.  Arizona, with 230 lawsuits, has beaten out Texas.  Based on our own practice, most lawsuits continue to be about physical access barriers but there has been a steady increase in lawsuits about websites that are allegedly not accessible to individuals with disabilities.  We will be provide more analysis at the end of 2016, which promises to be another record-breaking year.

Seyfarth Synopsis: Pennsylvania court rules that a museum violated the ADA when it refused to waive the entry fee for a guest’s personal care assistant. 

A federal district court judge in Pennsylvania court recently held that Title III of the ADA required the Franklin Institute (“FI”) to waive the admission fee for the personal care assistant (“PCA”) of a person with a disability to attend a movie screening at the museum.  Title III of the ADA requires public accommodations to make reasonable modifications to their normal policies practices and procedures where necessary to ensure access for individuals with disabilities, unless doing so imposes an undue burden or fundamentally alters the nature of the goods and services being offered.  The court found that waiving the fee would not pose an undue burden or result in a fundamental alteration in this case.

FI argued that free entry would result in dramatic economic consequences to the museum, including deficits, ineligibility for grants, elimination of services, budget cuts and ultimately layoffs.

The judge disagreed with colorful prose, finding no loss of revenue and nothing more than a de minimus added cost to FI; calling FI’s arguments “worthy of the antagonist in a Dickens novel.”   The judge noted that the museum’s existing practice of providing folding chairs for PCAs to sit next to wheelchair users would not cost the museum any money because the folding chairs were not normally sold to patrons.  The court also noted that FI spends substantial sums on charitable efforts and gives reduced price tickets to people who cannot afford to pay.  The court criticized FI’s argument that parents or babysitters of children must pay for entry, noting that individuals with disabilities are not the same as children.

While a well-heeded cautionary tale, this case is not of universal applicability.  It does not mean museums and other institutions must always let companions in for free.  Rather, places of public accommodation must take their obligation to make reasonable modifications to policies, procedures, and practices seriously, and conduct a meaningful analysis of whether making the modification would really impose an undue burden or result in a fundamental alteration.  The decision also serves as a reminder that disability access defenses are highly fact intensive and cannot be decided early in a case.  The practical approach in some cases may be to make the modification rather than watch fees increase in the process of litigating a case.

Edited by: Minh N. Vu & Kristina Launey

Seyfarth Synopsis: New Affordable Care Act and Medicaid Regulations will require covered entities providing health care programs and services have accessible electronic information technology, including accessible websites.

While we continue to wait for new regulations for the websites of state and local governments, federal agencies and public accommodations, two new regulations from the Department of Health and Human Services (HHS) strongly suggest that health care provider websites must conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA to meet their non-discrimination obligations.

Effective July 18, 2016, a new “Meaningful Access” rule interpreting the Affordable Care Act’s (ACA) Section 1557 Anti-Discrimination requirements will require providers of health care programs and services that receive federal financial assistance comply with new requirements for effective communication (EIT) (including accessible electronic information technology), and physical accessibility.  Because most health care providers do receive federal funds through Medicare reimbursements, this rule has broad coverage.  Effective July 1, 2017, new Medicaid rules will require managed care programs to have (EIT) that complies with “modern accessibility standards,” and impose other effective-communication requirements such as large print and other alternative formats.

Section 1557 of the ACA requires covered entities to ensure that health programs and services provided through EIT be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens (in which case the entity must provide the information in an equally accessible alternative format) or a fundamental alteration in the nature of the health program or activity.   HHS did not specify a website accessibility standard in the new rule.   However, the agency said that compliance with accessibility requirements would be “difficult” for covered entities that do not adhere “to standards such as the WCAG 2.0 AA standards or the Section 508 standards,” and “encourages compliance” with these standards. Moreover, recipients of federal funding and State-based Marketplaces” must ensure that their health programs and activities provided through websites comply with the requirements of Title II of the ADA — requirements that are the subject of a pending rulemaking at the Department of Justice.  The Rule also requires providers to give “primary consideration” to the patient or customer’s auxiliary aid or service for communication.

The new Medicaid Rule will require that entities providing managed care programs provide information in a format that is “readily accessible”, which it defines to mean “electronic information and services which comply with modern accessibility standards such as section 508 guidelines, section 504 of the Rehabilitation Act, and W3C’s Web Content Accessibility Guidelines (WCAG) 2.0 AA and successor versions.”  The agency intends this definition to be more clear, reflect technology advances, and align with the requirements of Section 504, and recommends entities consult the latest section 508 guidelines or WCAG 2.0 AA.

While both rules make reference to the Section 508 standards for accessible websites which has been the standard for federal agency sites for many years, all indicators point to WCAG 2.0 AA as the standard to use when working to improve the accessibility of a website.  The federal government has issued a proposed rule to replace the existing Section 508 standards with WCAG 2.0 AA.  Most experts we deal with consider the Section 508 standards outdated.  WCAG 2.0 AA was developed by a private consortium of experts called the Worldwide Web Consortium (W3C), and is the website access “standard” in all U.S. Department of Justice (DOJ) settlement agreements. It is also the legal standard for all airline websites covered by the Air Carrier Access Act.  Moreover, DOJ has indicated in its Supplemental Advanced Notice of Proposed Rulemaking for state and local government websites that WCAG 2.0 AA should be the legal standard for such websites.

Seyfarth Synopsis: The U.S. Supreme Court’s recent Spokeo decision may lead to more careful scrutiny of whether ADA Title III plaintiffs have a sufficiently “concrete” injury to confer jurisdiction in federal court.

As reported in previous posts, some courts have, in recent years, bent over backwards to find that plaintiffs with no legitimate reason to visit a business, or intent to do so in the future, have standing to sue under Title III of the Americans with Disabilities Act (ADA).  A sharp increase in the number of ADA Title III lawsuits has followed these decisions.

The U.S. Supreme Court’s May 16, 2016 decision in Spokeo, Inc. v. Robins may impact how courts across the country interpret standing requirements for these cases in the future.  Although not an ADA case, lower courts may apply Spokeo to reign in the recent growth of Title III litigation.

In Spokeo, the plaintiff filed a putative class action against a company that operated an online background search service.  In the complaint, the plaintiff alleged that information provided about him in a background report, such as his marital status, age, and education, was inaccurate.  The plaintiff, on behalf of himself and a class of similarly situated individuals, charged the company with willfully violating the Fair Credit Reporting Act (FCRA) by failing to adopt procedures to ensure the accuracy of its reports.

The Ninth Circuit held that the complaint in Spokeo sufficiently alleged an injury-in-fact as required for standing, but the Supreme Court vacated the Ninth Circuit’s decision, and remanded the case.

In a majority opinion by Justice Alito, the Court held that the Ninth Circuit’s standing analysis was incomplete because it failed to consider whether the alleged injury was sufficiently “concrete.”  To qualify as a “case or controversy” over which a federal court has jurisdiction, according to the Court, there must be a concrete injury, meaning it must “actually exist”, and be “real” rather than “abstract.”  The problem with the complaint in Spokeo, the Court reasoned, was that a violation of the FCRA’s procedural requirements may result in no harm.  The Court directed the Ninth Circuit to consider on remand “whether the particular procedural violations alleged . . . entail a degree of risk sufficient to meet the concreteness requirement.”

This case raises interesting questions for ADA Title III matters where standing can be a hotly contested issue:

  • Does an ADA “tester” who travels to businesses, not to purchase goods or services, but instead solely to evaluate compliance, suffer “concrete” injury as clarified in Spokeo?
  • Do ADA plaintiffs have standing to challenge all barriers at a business related to their disability, or only those that they actually encountered during their visit?
  • Does a serial ADA plaintiff’s litigation history have any bearing on whether he or she suffered “concrete” injury in a given case?

Although the implications of Spokeo for ADA Title III cases are not entirely clear at this point, the decision is good news for businesses.  Some ADA Title III plaintiffs have only the most tenuous connection to the businesses they sue, and the alleged barriers that they challenge.  Spokeo may prompt lower courts to more carefully scrutinize whether their alleged injuries are sufficiently “concrete” to confer jurisdiction in federal court.

Edited by Kristina Launey.

Seyfarth Synopsis: In yet another effort to limit predatory ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation that will provide small business owners with some potential relief.

Another year, another attempt in California to reform disability access laws – which presently offer plaintiffs a $4,000 per violation bounty for suing businesses.  But this one might actually make a difference – for small businesses at least. The bill is significant as a demonstration of yet another effort at reform that will still likely have little effect on the big picture.  As the bill’s author has noted, it is a “watered down solution to this lawsuit abuse dilemma.”

On Tuesday, May 10th, Governor Jerry Brown signed into law Senate Bill 269.  The bill became effective immediately.

Most significantly, the legislation creates a third category of businesses exempt from full minimum statutory damages — businesses that have employed 50 or fewer employees on average over the past three years, with a facility that has been inspected by a CASp inspector before the filing of a lawsuit or receipt of a demand letter (and the business was not otherwise on notice of the alleged violations), and the business corrected, within 120 days of the CASp inspection, all construction-related violations noted by the CASp inspector that are the basis for the lawsuit or demand letter.  This third category is added to two other categories of businesses which are eligible for reduced statutory damages by virtue of 2012 reform legislation — the last earnest effort of reform that made it into law, which we wrote about here.

There are quite a few hoops for a small business to jump through to qualify for this new exemption, which is why we doubt it will make much of a difference.

SB 269 also allows an exemption from statutory damages for small businesses (25 or fewer employees and less than $3.5 million in gross receipts annually over the past three years), and only provides protection from enumerated technical violations (things like parking lot paint fading or signage) if the small business can manage to fix them within 15 days of notice of the alleged violations — a really short time.  Often it can take more than 15 days to get a contractor out to re-paint parking lot striping, and much longer than that to order and install proper, compliant signage.

A plaintiff can still recover damages if he shows that he did in fact experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations.  This means that the plaintiff could just try to open the door and find a violation inside the facility, or find a violation that doesn’t fall into one of the “technical violations” specified in Civil Code section 55.56(e).

Last year’s reform effort, AB 1521, added Section 425.55 to the Code of Civil Procedure.  That section imposes procedural and substantive conditions (disclosure of number of previous lawsuits filed, the reason the plaintiff was in the geographic location of the alleged violation, and why he/she visited the site) before a “high-frequency litigant” can file a lawsuit in California state courts.  A “high frequency litigant” is a “plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation or an attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.”

AB 1521 also requires, in Government Code section 70616.5, a high-frequency litigant to pay at the time of filing a construction-related accessibility lawsuit in California state court, a $1,000 filing fee in addition to the court’s initial filing fee.  Finally, AB 1521 established state court procedures to evaluate cases that involve a high-frequency litigant as well as procedures for requesting a joint inspection of the premises as part of participating in an early evaluation conference.

We’re often asked what practical effect these California reform bills have on the big picture of ADA lawsuit abuse.  The response, unfortunately, is usually: very little because the statutory damages exceptions apply mostly to small businesses, and the procedural protections only apply to lawsuits filed in state courts, while many ADA cases are filed in federal courts.  On May 4, 2016, the United States District Court for the Eastern District of California issued an Order confirming that defendants sued in federal court are not entitled to a stay of proceedings and an early evaluation conference under California’s disability accessibility laws.

Despite efforts to reign in overzealous plaintiff’s attorneys and bring back the spirit of the ADA and California accessibility laws, the wheels of justice turn slowly.  These bills show the legislature’s attempts to chip away at this issue bit by bit.

Edited by Kristina M. Launey,  Minh N. Vu.

Seyfarth Synopsis:  If you would rather not read the 30-page small print Federal Register notice, this summary will provide you with what you need to know about the Justice Department’s most recent official pronouncement on web accessibility.

As we reported, last week DOJ issued a lengthy Supplemental ANPRM (SANPRM) for state and local government websites, which some commentators have decried as a “do-over.”  This unusual move was a surprise, to be sure, but we do not view it as a complete setback.  The SANPRM appears to be DOJ’s attempt to preview its position on key issues and obtain public comment.  As such, the SANPRM has very serious implications that go far beyond the realm of state and local governments.  The rules that DOJ ultimately issues in the state and local government website rulemaking will likely provide the framework for the proposed rule for public accommodations websites — currently slated for 2018.   Accordingly, public accommodations and the organizations that represent them need to submit comments in response to the SANPRM before the comment period closes on August 8, 2016.

We normally don’t write long blog posts but the lengthy SANPRM — containing no fewer than 123 questions for public comment — warrants an exception.  Below is a high level summary of the key issues, with some of our preliminary commentary:

  • Scope of Regulation. DOJ is considering broadening the scope of the future rule from websites to “Web content.”  This expansion could potentially cover web content that a covered entity places on websites that it does not own or control (g. advertising), and could have far reaching implications.
  • Accessibility Standard. DOJ believes that WCAG 2.0 AA should be the standard for Web content, as we’ve predicted.
  • Compliance Period. DOJ is considering giving public entities “two years after the publication of a final rule to make their Web sites and Web content accessible in conformance with WCAG 2.0 Level AA, unless compliance with the requirements would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.”  This begs the question of why DOJ’s enforcement attorneys have been demanding that businesses and state local governments make their websites comply with WCAG 2.0 AA right now.  The two-year proposal is a shift away from DOJ’s initial, 2010, ANPRM position where it contemplated different compliance dates for existing web pages versus new webpages or websites.  The SANPRM also notes DOJ is considering a longer three-year compliance period for captioning of live audio content.
  • Consultants. DOJ wants to know if there is a shortage of consultants who can bring Web content into conformance with the proposed WCAG 2.0 AA standard.  Rather than rely on anecdotal comments, we suggest that DOJ canvas the field of such consultants and interview them to see if they are actually qualified.  DOJ will likely learn that there are very few truly experienced digital accessibility consulting firms – certainly not enough to assist the thousands of state and local governments, let alone the millions of public accommodations that will most certainly need guidance.
  • Less Demanding Standard for Small Entities. DOJ is considering whether “small public entities” or “special district governments” should have a different compliance timetable or be subject to a less demanding standard such as WCAG 2.0 A, as opposed to AA.  This approach could set the precedent for small businesses in a future proposed rule applicable to public accommodations.
  • Possible Exemptions. DOJ is considering exempting the following Web content from compliance with the proposed WCAG 2.0 AA standard:
    • Archived Web Content. To be considered “archived Web content,” the content would have to be (1) maintained exclusively for reference, research, or recordkeeping; (2) not altered or updated after the date of archiving; and (3) organized and stored in a dedicated area or areas clearly identified as being archived.  Covered entities would still have to provide accessible versions of this content if someone asks for it.
    • Conventional Electronic Files (g. PDFs, Word documents, Excel spreadsheets, and PPT presentations) that existed on a Web site before the compliance date of any proposed rule.
    • Third-party Web Content Linked from the Public Entity’s Website. Note, however, there would be no exception for linked Web content if the public entity “uses the third-party Web site or Web content to allow members of the public to participate in or benefit from the public entity’s services, programs, or activities.”  For example, if the state parking enforcement authority contracts with a third party to process parking ticket payments on a third party site, that site would also need to conform to WCAG 2.0 AA.
    • Third Party Content. A public entity would not have to make content that is posted on its website by third parties conform with the proposed standard, unless the information is essential for engaging in civic participation or if the Web site owner has chosen to include the third party content on the Web site.  This proposal strikes us as highly ambiguous.  Would YouTube have to provide captioning for every video posted by third parties because it has chosen to invite such third parties to post the videos?  Would allowing people to post be considered an affirmative choice by the website owner triggering the compliance obligation?  What if a website owner needs to include key third party content on its site but the vendor but the vendor won’t agree to make it accessible?  Would the website owner be barred from including this third party content on its website, even if no vendor will provides it?
  • Social Media Platforms. DOJ considers social media platforms such as Facebook, YouTube, Twitter, and LinkedIn to be covered by Title III of the ADA and proposes to not address the use of these platforms by state and local governments (subject to Title II) in this rule.  However, DOJ says that any information provided by public entities on those social media platforms must also be available in some alternative way if the platforms are not accessible.
  • Web content of Educational Institutions. DOJ is considering requiring educational institutions to make all content available to the public (as opposed to exclusively for students) on their Web sites conform to WCAG 2.0 AA.   Universities should be gearing up to fight this proposition vigorously because their websites tend to be vast repositories of information (some of which may never be accessed or viewed), including thousands of videos, that would have to be made to conform to WCAG 2.0 AA.  DOJ said that content relevant to a particular student or parent must be made accessible on demand “in a timely manner.”
  • Conforming Alternate Versions of Web Pages and Web Content. DOJ may permit the use of conforming alternate versions of a Web page and/or Web content (1) when it is not possible to make Web content directly accessible due to technical or legal limitations; or (2) when used to provide access to conventional electronic documents.
  • Undue Burden and Fundamental Alteration Defenses. DOJ is considering the use of these defenses as grounds to not make Web content conform to WCAG 2.0 AA, but (1) the burden of proving defense would remain on the public entity; (2) the decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity; and (3) the decision must be documented with a written statement of the reasons for reaching that conclusion.  Moreover, the public entity still has to take any other action that would not result in such an alteration or such burdens.  Moreover, the public entity still has to provide access in some alternative fashion unless doing so would also result in a fundamental alteration in the nature of a service, program, or activity or undue financial and administrative burdens.
  • Does Compliance with WCAG 2.0 AA Satisfy a Public Entity’s ADA Obligations? Not entirely.  DOJ says that a public entity would not be required to go beyond this standard even if a person with a disability is unable to access the Web content.  However, the public entity would still have to utilize an alternative method of providing the individual with a disability equal access to the information, service, program, or activity on its Web site unless the public entity can demonstrate that alternative methods of access would result in a fundamental alteration in the nature of the service, program, or activity or undue financial and administrative burdens.
  • Measuring Compliance with WCAG 2.0 AA: DOJ is seeking public comment on how compliance with WCAG 2.0 Level AA should be assessed or measured, particularly for minor or temporary noncompliance.  Should the measurement be based on the percentage of Web content that is accessible, or some minimum threshold of compliance?  The DOJ also wants to know if there are circumstances where Web accessibility errors may not be significant barriers to accessing the information or functions of a Web site.  We strongly believe that the regulations must contain a clear statement that temporary noncompliance is not a violation of the ADA.  Websites change all the time and there are bound to be bugs and issues that come up.  And, guidance on how compliance with the standard will be measured given the dynamic nature of websites is essential.
  • Coverage of Mobile Apps.  DOJ asks whether its rule should cover mobile apps and which standard should be used. DOJ specifically called out WCAG 2.0, the User Agent Accessibility Guidelines 2.0, the Authoring Tools Accessibility Guidelines 2.0, or ANSI/Human Factors Engineering of Software Interfaces 200 as possible accessibility requirements for mobile apps.

As you can see, there are a many issues requiring public comment in the SANPRM.  State and local governments, persons with disabilities, digital accessibility experts, vendors of third-party content  and public accommodations all need to engage in this process and provide their input.  If you have questions about the SANPRM or how to get involved in making comments, feel free to contact us or your favorite Seyfarth attorney.

This morning, on Global Accessibility Awareness Day, DOJ participated by issuing its Spring 2016 unified agenda, including upcoming regulatory actions on web accessibility and movie captioning.

Click on the links to the right in the bullets below for the lowdown on each rule, but here are a few highlights:

AA65: State and Local Government web accessibility regulations.  No need to follow this like a bloodhound; the DOJ just issued a Supplemental Advanced Notice of Proposed Rulemaking, which we reported here.  Watch this space for an imminent detailed blog on the SANPRM – so you don’t have to slog through the 30 pages of small print.  The comment period closes in August 2016, and the NPRM is due out in July 2017, with comment period on the NPRM to end in September 2017.

AA60: Regulation to reflect statutory amendments to the definition of disability applicable to section 504 of the Rehabilitation Act. NPRM due in July 2016, with final action expected by years’ end.

AA59:  Regulations to clarify terms within the definition of disability and to establish standards that must be applied to determine if a person has a covered disability under Title II and Title III, due to statutory changes made in the ADA Amendments Act of 2008. Final rule due May 2016 (like, now!)

AA63:  Movie Captioning and Audio Description regulations.  The final rule is due July 2016; read our take on these regs here.

  • DOJ/CRT – Prerule Stage – Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Governments: 1190-AA65
  • DOJ/CRT – Proposed Rule Stage – Implementation of the ADA Amendments Act of 2008 (Section 504 of the Rehabilitation Act of 1973): 1190-AA60
  • DOJ/CRT – Final Rule Stage – Implementation of the ADA Amendments Act of 2008 (Title II and Title III of the ADA): 1190-AA59
  • DOJ/CRT – Final Rule Stage – Nondiscrimination on the Basis of Disability; Movie Captioning and Audio Description: 1190-AA63

So it’s possible we could have several interesting things happen in 2016.  Do we believe that everything will come out when DOJ says it will?  No.  No, we do not, if history is any indication.  Will we (Susan Ryan) check these diligently every day like our old friend Sisyphus with his boulder?  Yes.  Yes, she will.

Oh, and in case you remember that old chestnut AA61, the Title III almost-proposed web regulations (which we’ve reported on ad nauseum), that apparently does not merit an entry in the Unified Agenda.  The focus is all Title II (AA65) now.  There’s a mention of the Title III almost-proposed regulations in the AA65 write-up, but no indication of any status.

Stay tuned… and if you’re not taking advantage of any of the great information provided by various entities as part of Global Accessibility Awareness Day – all about digital (web, software, mobile, etc.) accessibility and users with different disabilities, check it out: http://www.globalaccessibilityawarenessday.org/!

Seyfarth Synopsis:  In a refreshing breath of fresh air, a federal judge holds that an intent to return as a “tester” does not give a plaintiff standing to sue under Title III of the ADA.

gavelAs we’ve reported before, the number of ADA Title III lawsuits has surged in the past few years, mostly in part due to a handful of plaintiffs who file hundreds of lawsuits each year.   Because a court can only consider an ADA Title III claim when there is a threat of an imminent future injury, these serial plaintiffs typically allege in their complaints that they have an intent to return to the business as a patron and that they are “testers” whose sole purpose is to see if the business is complying with the law.  Some courts have held that a plaintiff’s status as a tester does not necessarily bar the suit, emboldening plaintiffs to file even more suits in these jurisdictions.

U.S. District Judge Nickerson, in the District of Maryland, held in an Order issued on May 4 that an intent to return to the business as a tester does not give a plaintiff standing to sue.  “This court is not aware of any authority showing that Title III of the ADA was intended to create such broad rights against individual local businesses by private parties that are not bona fide patrons, and are not likely to be bona fide patrons in the future.”  The court was not convinced that the plaintiff would be visiting the defendant’s shopping center as a patron in the future because he had filed twelve other lawsuits against other businesses in the same vicinity along the I-95 corridor.  Those lawsuits undermined his claim that he would be visiting this particular shopping center –as opposed to all those other businesses — as he traveled on the interstate.   

Kudos to Judge Nickerson for a sensible ruling.

Edited by Kristina Launey.

Time concept: Hourglass on computer keyboard backgroundSeyfarth Synopsis: Public entities and private businesses have been waiting for years – since 2010 – for the Department of Justice to issue regulations setting a standard for website accessibility.  The DOJ has announced that it is stepping backward rather than moving forward in that process, withdrawing its Notice of Proposed Rulemaking on Title II regulations applicable to public entities, and issuing a Supplemental Notice of Proposed Rulemaking seeking further comments and input.

We’ve been anxiously awaiting the Department of Justice’s (“DOJ”) issuance of Title II public entity website accessibility regulations – as a precursor to Title III regulations that would apply to businesses.  Apparently the wait will continue.  On Friday the DOJ announced that on April 28, 2016, it withdrew its Notice of Proposed Rulemaking (“NPRM”) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities (RIN 1190-AA65).  DOJ had submitted the NPRM to the Office of Management and Budget (“OMB”) for review pursuant to Executive Order 12866 on July 9, 2014.

DOJ also issued a Supplemental Advance Notice of Proposed Rulemaking (“SANPRM”) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  Its stated intent with the SANPRM is to solicit additional public comment on various issues to help DOJ “shape and further its rulemaking efforts,” citing evolutions (availability, less expensive, more widely used) in the internet, accessibility tools and assistive technologies in the six years since DOJ issued its 2010 Advanced Notice of Proposed Rulemaking (“ANPRM”) as the reason for this redux.  DOJ stated its expectation that public comments on the SANPRM “will be more detailed and focused than those received in response to its original 2010 ANPRM.”  As one commentator in the web accessibility community characterized the action: “DOJ: Because the web’s changed in the SIX YEARS we’ve been delaying regulations, we’re going to TOTALLY START OVER!”

The DOJ offered examples of what it seeks in the SANPRM:

  • More specific information relating to the potential application of technical accessibility requirements to the web sites of public entities under title II of ADA.
  • Information on the appropriateness of setting alternative requirements for small public entities.
  • Precise information on the costs and benefits of web accessibility that will aid in its preparation of a regulatory impact analysis.
  • More information about specific benefits, including benefits to persons with particular types of disabilities, and input on how to measure the benefits of web accessibility.
  • More information about the current level of accessibility of public entities’ web sites, including the experiences of people with disabilities accessing public entities’ web sites.
  • Specific data on the costs of web accessibility and suggestions about how to measure those costs.

In addition to the SANPRM, the DOJ stated its intent to conduct research and studies to better understand the benefits and costs of a Web accessibility regulation – as if, after all this work, it may decide a regulation governing web accessibility may cost more than the benefit it would bring?

DOJ concludes its press release on this shocking development by noting that “web accessibility continues to remain a critical component of public entities’ obligation to provide equal access to their programs, services, and activities under the ADA.”

This will no doubt have an effect on the development of Title III regulations as well.