Over the past few weeks, our Title III Specialty Team contributed to the following pieces:
The site LXBN.com interviewed Seyfarth’s ADA Title III Team leader Minh Vu for an article about a pending lawsuit brought by an advocacy organization for the deaf against seven Hollywood movie studios for failing to provide closed captioning for lyrics of songs in motion pictures. The suit highlights the uncertain legal landscape on the digital frontier.
Lodging industry publication Hotel News Now featured Minh Vu’s practical advice on some thorny service animal questions that hotels often face. Service animal issues are not new, but businesses continue to grapple with them every day.
Last, but not least, a Cato Institute blog post recently referenced our post “Justice Department Delays Web Accessibility Regulations For At Least Three More Years, Leaving Businesses in Turmoil.”
We appreciate being your resource for ADA Title III disability access developments, and will continue to keep you updated.
Our research department has crunched the numbers from the federal court docket and the verdict is that the ADA Title III plaintiff’s bar and their clients are still busy filing lawsuits. Here are the findings:
- In 2015, 4,789 ADA Title III lawsuits were filed in federal court, as compared to 4,436 in 2014. That 8% increase is modest compared to the surge we saw, and reported in 2014. In 2014, the number of ADA Title III lawsuits increased 63% over the 2,722 lawsuits filed nationwide in 2013.
- California, Florida, New York, Texas, and Arizona had the most ADA Title III lawsuits — a total of 3,847 cases. This accounts for 80% of the lawsuits filed nationwide.
- Although California and Florida continue to be the most popular venues for ADA Title III lawsuits, the number of cases filed in those states in 2015 decreased by 11% and 14% respectively.
- Arizona experienced a surge in lawsuits. Plaintiffs in Arizona filed 25 times more cases in 2015 than they did in 2014, for a total of 207 lawsuits in 2015. Other states with substantial increases in the number of lawsuits were Georgia (from 20 to 96), Illinois (from 29 to 84), New York (212 to 366).
- Federal courts in Alaska, Montana, North Dakota, South Dakota, and Wyoming had no ADA Title III lawsuits.
- Who are the plaintiffs filing these suits? Our docket review revealed the top filers in 2015 were:
- Howard Cohan (FL/IL/LA) – 429
- Martin Vogel (CA) – 198
- Theresa Brooke (AZ/CA) – 175
- Patricia/Pat Kennedy (FL) – 173
- Tal Hilson (FL) – 136
- Jon Deutsch (TX) – 113
- Michael Rocca (CA) – 102
- Shirley Lindsay (CA) – 83
We do wish to add a disclaimer: Our research involved a painstaking manual process of going through all federal cases that were coded as “ADA-Other” and culling out the ADA Title II cases in which the defendants are state and local governments. In other words, there is always the possibility of some human error and we hope you’ll forgive us if the numbers are slightly off. And, we only counted federal filings. Some plaintiffs — such as those in California, which has ADA Title III-corollary state statutes — may file lawsuits in state court that never make it to federal court, and thus, are not included in our numbers.
By: Minh Vu
In late December, nine Democratic senators (Edward J. Markey (D-Mass), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio), Cory A. Booker (D-N.J.), Barbara A. Mikulski (D-Md.), Richard Blumenthal (D-Conn.), Benjamin L. Cardin (D-Md.), Al Franken (D-Minn.) and Richard J. Durbin (D-Ill.)) sent a joint letter to the Office of Management and Budget (OMB) requesting that office “complete its review” of the Department of Justice’s (DOJ) “Advanced Notice of Proposed Rulemaking” (ANPRM) for public accommodations websites, online systems, and other information and communication technologies (ICT).
While the letter’s message is one with which everyone watching the issue can agree, we found the request rather odd because OMB reviewed the ANPRM before it was published in 2010. There is nothing more for OMB to do with that document. After OMB’s review, the ANPRM published in September 2010 and the public submitted comments to DOJ for consideration by early 2011.
The next step in the regulatory process is for DOJ to issue a Notice of Proposed Rulemaking (NPRM). The NPRM would contain the actual language of the proposed rule. The DOJ must submit the NPRM to OMB for review before the NPRM is announced to the public in the Federal Register. Though we have been waiting for this step since 2011, DOJ has not yet submitted to OMB an NPRM that addresses public accommodations websites or ICT. We know this because OMB publicly announces on its website proposed regulations that are under review in its office, which it has not done for a public accommodations website/ICT NPRM.
Procedural clarifications aside, the letter makes clear that these Senators share the frustration of businesses and advocacy groups alike over DOJ’s failure to provide clear and binding regulations on the issue of website and ICT accessibility in a timely fashion. The Administrative Procedure Act requires DOJ to follow the legally-prescribed public notice and comment process in issuing regulations. Five years have passed since DOJ issued the ANPRM stating that it would issue regulations but we still have no proposed rules. Instead, DOJ has chosen to pursue an aggressive enforcement program in which it has pressured businesses to make their websites accessible. The plaintiff’s bar has also increasingly begun follow DOJ’s lead and take legal action against businesses that may have postponed making accessibility changes to their websites until DOJ issues a final rule. The number of demand letters and lawsuits concerning allegedly inaccessible websites has surged in the past six months.
In their letter, the Senators urge the administration to adopt the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 level AA as the legal standard for accessible public accommodations websites, and then went one step further: They insisted that in addition to conforming with WCAG 2.0 level AA, public accommodations should also be required to make further reasonable modifications on a “case-by-case” basis to ensure access for individual website users who may still have problems accessing a WCAG 2.0 level AA conforming website unless they can demonstrate that doing so would be an undue burden. (Those who are familiar with the practical challenges of making a website conform with WCAG 2.0 level AA and keeping it that way should be cringing at this thought.) Finally, the Senators urged the Administration to make clear in the proposed rule that the websites of online-only businesses are also covered by Title III of the ADA (contrary to the law in the Ninth Circuit Court of Appeals, as we’ve previously reported) and must be accessible.
We seriously doubt that the Senators’ letter will do much to expedite the glacial pace of this rulemaking, but if we see any change in the pace we will report it to you here.
Edited by Kristina Launey
Last week, Buzzfeed reported that the United Spinal Association opposed Uber’s CEO’s nomination for Time Magazine’s Man of the Year award because Uber cars are allegedly not wheelchair accessible. This controversy raises an important and novel question: Are online-only businesses like Uber and Airbnb covered by Title III of the ADA, and what would coverage mean when the businesses don’t own or operate the vehicles or accommodations that customers use?
Uber provides transportation services to the public through a mobile app that connects independent drivers and their vehicles with customers. Uber does not employ the drivers, own any vehicles, or have a physical place of business to serve customers. Airbnb is a similar service for transient lodging. Airbnb, through its website and mobile app, connects renters with people who have overnight accommodations that they want to rent and processes the payment. Like Uber, Airbnb is a web-only business that does not own or operate the actual accommodations that are provided to the public.
Title III of the ADA only applies to owners, operators, lessors, and lessees of “place[s] of public accommodations.” Businesses such as Uber and Airbnb do not fit neatly fit into this definition because, as web-only businesses, they are not actual “places” of public accommodation. Moreover, they don’t own, operate, or the goods or services – the vehicles or accommodations – used by the end customer.
We were unable to find any ADA Title III lawsuits against Airbnb on the federal docket but Uber has been sued several times. In one case, Uber argued that it is not a place public accommodation in an ADA Title III lawsuit filed by the National Federation of the Blind. The case concerns the treatment of service animals by Uber drivers and we blogged about that case previously. The federal court in the Northern District of California refused to dismiss the case on this basis and allowed it to move forward for more fact development. Although the court will revisit this issue after the parties engage in discovery, its initial decision showed a willingness to find that Uber is a public accommodation. The court said that Uber could be considered a “travel service” which is one of the twelve categories of businesses listed in the ADA that are places of public accommodations.
One legal development that may change how the court in the Uber case ultimately rules is the Ninth Circuit Court of Appeal’s binding decision in two ADA Title III cases brought against Ebay and Netflix. The Ninth Circuit had issued its decision in the Ebay and Netflix cases two weeks prior to district court’s ruling in the Uber case. As we discussed in an earlier blog post, the Ninth Circuit held that the websites of online-only businesses are not places of public accommodation subject to Title III of the ADA. Uber would appear to fall within this category of online-only businesses, but the district court did not mention the Ninth’s Circuit decision in Ebay and Netflix at all.
If the case moves forward to trial (currently set for April 2016) and the court finds that Uber is a place of public accommodation, the court will have to decide what obligation, if any, Uber has to provide access to wheelchair accessible vehicles when it does not own or operate any vehicles or employ any drivers. If this case follows the path of most ADA Title III cases, it will settle before we get a ruling.
Bloomberg BNA and Lifezette yesterday published articles about the “explosion” of web accessibility lawsuits, quoting Seyfarth ADA Title III Team Leader Minh Vu. The articles come on the heels our blog reporting on the of the DOJ’s further delay of web accessibility regulations until at least 2018. For more on this surge of litigation activity, and what your business can do to mitigate risk, please join us for our webinar tomorrow, December 2, 2015: Is Your Business the Subject of a Title III Lawsuit Yet?”.
By Minh N. Vu and Kristina Launey
In an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018—eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).
As we previously discussed, DOJ made a number of statements in the 2010 ANPRM that led businesses to reasonably conclude that they could and should wait for the regulation to issue before taking action. Among other things, the ANPRM acknowledged a need to adopt a legal technical standard for an “accessible” website and asked how much time businesses should be given to comply. However, since issuing that ANPRM, DOJ’s enforcement attorneys have investigated numerous public accommodations, pressuring them to make their websites accessible. DOJ even intervened in recent lawsuits (e.g., here, here, and here) taking the position that the obligation to have an accessible website has existed all this time in the absence of any new regulations.
DOJ claims that it is delaying the public accommodations website regulations so that it can learn from the development of state and local government website regulations, which it will supposedly issue in January 2016. Specifically, DOJ states in its Fall 2015 Statement of Regulatory Priorities that “[t]he Department believes that the title II web site accessibility rule will facilitate the creation of an important infrastructure for web accessibility that will be very important in the Department’s preparation of the title III web site accessibility NPRM.” Whatever the reason, DOJ’s delay in issuing public accommodations website regulations perpetuates the murky waters businesses must navigate, with no regulatory guidance about what the law requires of them. Right now there is no legally binding technical standard that defines an “accessible” website. There is no rule about whether a business is required to ensure that third party content or software on its site is “accessible.” There is no rule about whether the existence of an occasional unintended barrier on a website which can arise from routine updates is a violation of the ADA.
In the meantime, the DOJ and private plaintiffs continue to pressure businesses, through enforcement actions and lawsuits, to bring websites into conformance with a standard no law requires, citing the ADA’s general principle of “equal access”. This puts businesses in an untenable position, as they struggle to prioritize what can often be considerable spend and business disruption to bring a website into conformance with this standard, against the multitude of other, established, regulatory requirements with which the business must comply upon risk of violating established laws. This external pressure has only increased of late—we have seen plaintiff’s lawyers initiated a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities. We have seen (and reported) time and again—hence the dearth of case law in this area—businesses settle (most recently, as we had predicted, Scribd joined that club), quite simply (to the outside world; not so simple to the business’s interior decision-making) because it is less expensive to settle than to litigate in an uncertain legal landscape. These enterprising litigants know this.
For more on this surge of litigation activity, and what your business can do to mitigate risk, please join us for our webinar on December 2, 2015: Is Your Business the Subject of a Title III Lawsuit Yet?”.
Oh, the irony. Our federal government is filing lawsuits against private businesses and universities for having allegedly inaccessible websites and mobile apps when its own agencies have inaccessible websites. In April 2014, we reported that the American Council of the Blind (ACB) and three blind federal contractors sued the General Services Administration , alleging GSA’s own website, SAM.gov, is inaccessible and denies certain blind and visually impaired government contractors the ability to register or timely renew their government contracts online.
On Tuesday, November 10, 2015, the plaintiffs announced that the parties had reached a settlement, which requires GSA to make significant changes to SAM.gov to make it more accessible. The announcement did not reference the Web Content Accessibility Guidelines (WCAG 2.0), even though the Department of Justice has been using this set of guidelines for all of its website settlements with private businesses.
The plaintiffs report that following GSA’s implementation of the agreed-to changes, the website will undergo review by another independent accessibility expert. In addition, the agreement creates a process by which members of the blind community will test and provide feedback on future changes to SAM.gov.
The attorneys for the plaintiffs stated in a press release: “The Internet is part of our daily lives, and being unable to access any website—much less a website that is essential to doing business with the federal government—puts members of the blind community at an economic disadvantage. It is unfortunate that it took the filing of a lawsuit to bring about meaningful change but we thank GSA for working collaboratively with us and our clients to make SAM.gov accessible.” And, “everyone, including the blind community, deserves access to the Internet, which has become a means for independence, information and commerce.
We are trying to get a copy of the actual agreement and will update this post when we do.
We’ve done the review and crunched the numbers: It appears that the surge of ADA Title III lawsuits we saw from 2013 to 2014 is holding strong, though possibly leveling off.
You may recall that there was a 60% increase in the number of ADA Title III lawsuits between 2013 and 2014 (2479 vs. 4436). In the first six months of 2015, 2114 Title III lawsuits were filed. While we think that the number of lawsuits filed in the second half of 2015 will be slightly greater than the first half, the total will not likely be much different from the 2014 total. This means that the 2014 surge was probably not an aberration but, more likely, the new normal. Although we did not analyze the types of ADA Title III lawsuits filed in 2015 (e.g. architectural barriers, operational issues, or digital accessibility), our practice has seen a surge of private litigant claims based on allegedly inaccessible websites.
Where are the lawsuit hotspots? The favorites remain the same: California, Florida, and New York. That said, a few states are seeing more action than before. For example, Idaho had four lawsuits in the first half of 2015 even though it had none for 2013 and 2014. Arizona had 19 lawsuits filed during this six month period even though it only had 8 in all of 2014. Minnesota had 42 lawsuits in the first six months of 2015 as compared to the 14 it had in all of 2014. Wyoming, Dakota, Montana, and Nebraska continue to be ADA Title III lawsuit-free.
We’ll keep tracking the filings and update our findings for all of 2015 in January 2016.
Marianne Wilson of Chain Store Age Media reported today that the “ADA Education and Reform Act of 2015”, H.R. 3765, introduced yesterday, October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL), seeks to address ADA “drive-by” lawsuits. This is a topic about which we’ve reported about numerous times, such as here. Wilson reported Tom McGee, president and CEO of the International Council of Shopping Centers (ICSC), a group endorsing the proposed legislation believes the bill will “ensure resources are focused on improving access while protecting businesses from abusive lawsuits.” The article notes ICSC cited our blog’s data, which shows that from 2013 to 2014 the number of ADA Title III lawsuits surged by more than 63%.
What would the bill require?
The bill would require that DOJ’s Disability Rights Section, in consultation with property owners and representatives of the disability rights community, develop a program to educate State and local governments and property owners on effective and efficient strategies for promoting access to public accommodations for persons with a disability, such as training for Certified Access Specialist professionals.
The bill would also make it unlawful for any person to send a demand letter alleging a violation of the ADA unless the letter specifies details about the alleged denial of access circumstances, the address of the property, the specific sections of the ADA violated, and whether a request was made to remove an architectural barrier, and whether the barrier to access was permanent or temporary. Failure to comply with that provision subjects the demanding party to a fine. It also would amend the ADA to provide that a civil action based on failure to remove architectural barriers in existing public accommodations may not be brought unless the complaining party has first provided specific notice to the owner or operator of the public accommodation, after which the owner or operator would have 60 days to provide a written description of improvements to remove the barrier, and the owner or operator has not made those improvements within 120 days.
Finally, the bill directs the US Judicial Conference to, with property owners and representatives of the disability rights community, develop a model program to promote the use of alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve claims of architectural barriers to access. The goal of the program would be promote access quickly and efficiently without costly litigation. As many are aware, such a program already exists in the U.S. District Court for the Northern District of California. Its General Order 56 requires a stay of discovery except for certain disclosures until after a joint inspection, meet and confer, and mediation with the Court’s ADR unit has occurred.
We will continue to follow this legislation as it moves through the process.
The Department of Justice (DOJ) announced today that it filed a lawsuit against the Gates-Chili Central School District in New York because it refused to have its teachers help a kindergarten student with epilepsy and other disabilities manage her service dog. According to the complaint, the young student was non-verbal and could not give the service dog required commands. The student also needed someone to tether the dog to her person at various times during the day. Because the school refused to allow its employees to perform these functions, the parents had to hire a personal aide to perform these functions. According to the DOJ, the District violated Title II of the ADA — the part of the law prohibits discrimination on the basis of disability by state and local governments.
DOJ’s position in this lawsuit is very concerning because the ADA Title II regulations plainly state that “[a] public entity is not responsible for the care or supervision of a service animal.” Giving commands to a service animal clearly constitutes the “supervision” of a service animal that is not required under DOJ’s own regulations, but DOJ has nonetheless filed this lawsuit. The question now is whether the DOJ will similarly interpret the ADA Title III regulations to require employees of public accommodations to supervise service animals as well. Those regulations also contain language stating that businesses do not have to care for or supervise service animals.
We suspect the school will be filing a motion to dismiss shortly and will keep you apprised.