ADA Title III News & Insights

Accessible Technology: Redbox DVD Rental Kiosk Class Action Settlement Highlights Litigation Risk Presented by Self-Service Equipment

Posted in Lawsuits, Investigations & Settlements

By Minh N. Vu

They are sprouting up everywhere:  Kiosks that allow customers to buy tickets, rent DVDs, get boarding passes, check-in at a hotel, count change, and even rent cars without ever having to interact with a human being.  These self-service kiosks can be a boon for customers and businesses, but they also create lawsuit exposure for businesses that fail to consider how they will be used by individuals who are blind or have limited mobility.     

Redbox’s recent settlement of a class action lawsuit brought by advocates for the blind highlights this thorny issue and the uncertain legal landscape surrounding self-service equipment designed for customer use.  Several blind individuals and an advocacy group sued Redbox because its DVD rental kiosks could not be independently used by non-sighted individuals.  After two years of litigation and mediation, the parties entered into a class settlement under which Redbox agreed to take the following steps for all Redbox locations in California:

  • incorporate audio guidance technology, a tactile keypad, and other accessibility features into its DVD rental kiosks so that blind customers can use them independently at one kiosk at every location within 18 months and at all California kiosks within 30 months;
  • provide 24-hour telephone assistance at each kiosk;
  • pay $1.2 M in damages to the class of aggrieved persons in California;
  • pay Lighthouse for the Blind $85K to test kiosks;
  • pay $10K to each named plaintiff in damages; and
  • pay $800K in plaintiffs’ attorneys’ fees and costs.

Redbox also agreed to make certain accessibility improvements to its website but notably did not commit to meeting the Web Content Accessibility Guidelines. Continue Reading

Fraud in the Friendly Skies? USA Today Reports Suspiciously Rising Number of Service/Emotional Support Animals On Planes

Posted in Service Animals

By Christie Jackson

USA Today recently reported that the number of passengers traveling on airplanes with service animals is increasing.  The article explores possible reasons for this increase.  Perhaps – innocently and legitimately – there are more individuals with disabilities flying the friendly skies with their service animals than ever before.  Or, as USA Today suspects, not all are legitimate service animals.  Ferreting out service animal fraud is an ongoing issue, which we have previously covered.

What could be motivating these air passengers’ fraud?  Well, money is always an issue.  According to the article, airlines charge as much as $549 for non-service animals, while there is no charge for service animals.  Or, consistent with the increasing trend of animals in strollers, purses, and just about everywhere their owners go, pet lovers just cannot bear the idea of leaving Fido in the cargo hold of the plane.

What law governs this?  The Air Carrier Access Act (ACA) governs the rights of passengers with disabilities traveling on planes.  The protections the ACA provides for individuals who have service or emotional support animals are broader than the Americans with Disabilities Act (ADA).  Under the ACA, virtually any type of animal can be a service animal.  The ACA also protects emotional support animals for recognized psychiatric conditions with documentation from a licensed mental health professional.  The ACA requires that airlines allow these animals on planes with their owners and prohibits airlines from charging a fee for the animals.  In contrast, the ADA only provides protection for dogs and miniature horses that are actually trained to perform work or tasks for a person with a disability. Unlike airlines covered by the ACA, public accommodations covered by the ADA do not have to allow onto their premises emotional support animals that merely make their owners feel better by their presence–even if the owners have a recognized psychiatric condition.

Passengers traveling with service or emotional support animals should note, however, that some destinations such as Hawaii and the UK may have additional rules concerning animals entering those areas.

Regardless of whether the animals on planes are legitimate service or emotional support animals, expect to see more furry friends on your next flight.

Edited by Minh Vu and Kristina Launey

Seyfarth’s Minh Vu Provides Insight into Pool Lifts Suits For Hotel News Now

Posted in 2010 ADA Standards, Pool Lifts

Our own Minh Vu was interviewed for this article about the state of compliance with the new pool lift requirements at hotels and how serial plaintiffs have capitalized on the rules to file more lawsuits.  Minh served as counsel to the American Hotel & Lodging Association in its successful effort to obtain a nine month extension of the pool lift compliance deadline after the Department of Justice decided to mandate — six weeks before the compliance deadline — that pool lifts must be fixed.

2014 May Be a Banner Year for ADA Title III Lawsuit Filings

Posted in Lawsuits, Investigations & Settlements

By Minh Vu, Kristina Launey, and Susan Ryan

If you had a suspicion that the Title III plaintiffs have been far more active in recent years, you were right.  Our review of the federal docket shows that there was a 9% increase in the number of lawsuits filed from 2012 to 2013. What’s more, the number of lawsuits filed in 2014 may increase by nearly 40% over 2013 if the current trend continues.

Nationwide, plaintiffs filed 2,719 ADA Title III lawsuits last year, as compared to 2,495 in 2012.  That’s an increase of slightly more than 9% year-over-year.

Where were the most complaints filed in 2013?  California (995 claims), Florida (816 claims) and New York (125 claims).  The high percentage of cases filed in California is no surprise because California has a non-discrimination law that provides for statutory minimum damages of $4,000.  Plaintiffs filing in California almost always include claims under California law because their remedies under the Title III of the ADA are limited to injunctive relief and attorneys’ fees.  (If you’re in Pennsylvania, beware: June 2014 saw a slew of physical accessibility class complaints filed by the same plaintiff, Christopher Mielo, and law firm, Carlson Lynch, against numerous businesses.)

Want to avoid ADA Title III lawsuits?  Open your business in Alaska, Idaho, Montana, Nebraska, North Dakota and Vermont where no ADA Title III cases were filed in 2013.

Our research also shows that ADA Title III case filings may reach more than 3800 cases in 2014 — a whopping increase of 40%.  Already, we saw approximately 1939 ADA Title III cases filed in the first six months of the year.  We say “approximately” because the federal docket system, PACER, lumps Title II and Title III cases together under the category of “Americans with Disabilities — Other.”  We obtained the 1939 number by assuming that 86% of the ADA Title II and Title III cases reported were actually ADA Title III cases.  The 86% is based on our research department’s manual review of the 2012 and 2013 case filings to separate out the Title II and Title III cases.  That review showed that 85-87% of the total cases reported by PACER in 2012 and 2013 were Title III cases.

If you want to drill down on our methodology, here goes:  We ran a PACER search in federal district courts for nature of suit code 446, which covers non-employment ADA cases.  We then went through the resulting list of case names, eliminating those that were clearly filed against public entities that would fall under Title II.  What we had left were the Title III complaints for 2012 and 2013.  We did not undertake a manual review of the 2014 numbers but, as explained above, applied the findings from the 2012-2013 review to the 2014 numbers.

We do want to give a few of caveats about these numbers.  First of all, not all plaintiffs code their claims correctly.   For example, some of the cases we checked to determine if they were Title II or Title III claims turned out to be Title I claims that were given the wrong nature of suit code.  Secondly, there are some plaintiffs whose complaints are, to put it mildly, opaque in their intent.  We decided not to count these as Title III claims, but someone else might have reached a different conclusion.

While our approach may not be bullet proof, we can safely say that the number of ADA Title III lawsuits are on the rise, propelled by cases concerning the accessibility of new technologies and the internet.

Comment Period for Movie Captioning NPRM Opens Today

Posted in Auxiliary Aids and Services, Department of Justice

By John W. Egan

On July 25, 2014, the Department of Justice (DOJ) issued proposed regulations that would require movie theaters with digital screens to show movies with closed captioning and audio description.  We covered this development here.

DOJ has requested public comment on a number of issues related to these proposed regulations, including whether closed captioning and audio description requirements should also apply to theaters showing movies in analog (film) format within four years after the final rule is published, or instead be addressed in future a rulemaking.

The period for providing public comments on this Notice of Proposed Rulemaking starts today and will run until September 30, 2014.

Edited by Kristina Launey

Summer Blockbuster: Justice Department Issues Proposed Rule That Would Require Movie Theaters Nationwide to Provide Captioning and Audio Description Listening Devices

Posted in Auxiliary Aids and Services, Department of Justice

By John W. Egan

On Friday of last week—the day before the ADA’s twenty-fourth anniversary—the Department of Justice (DOJ) announced a proposed rule that would require movie theaters with digital screens (and possibly those with only analog screens) to show movies with closed captioning and audio descriptions (if available), and to purchase equipment that would allow the transmission of such information to moviegoers with hearing or sight disabilities.  The regulations would also require theaters to inform the public about the availability of such captioning and audio descriptions in its advertisements and other communications about the movies they show.

The regulations implementing Title III of the Americans with Disabilities Act (ADA) already require that public accommodations, including movie theaters, provide auxiliary aids and services to ensure effective communication with persons with visual and auditory impairments.  The proposed rule would require that movie theaters provide specific equipment and accommodations to patrons who are blind or have low vision, as well as patrons with auditory impairments.  DOJ estimates that complying with these proposed requirements would cost the industry between $138.1 and $275.7 million and that a substantial number of small businesses will experience “a significant economic impact.”

The major provisions are discussed below.

Continue Reading

Businesses Nationwide Hit By Wave of Lawsuits Alleging Inaccessible Websites

Posted in Department of Justice, Lawsuits, Investigations & Settlements, Website

By Minh N. Vu and Kristina M. Launey

Although “drive-by” ADA Title III lawsuits alleging physically inaccessible public accommodations facilities will continue to be a mainstay for the plaintiff’s bar, a new type of lawsuit has recently emerged:  The “surf-by” lawsuit.  In the past month, we have seen an onslaught of case filings and demand letters threatening lawsuits from private plaintiffs alleging that retailers, colleges, and other businesses denied blind individuals access to the businesses’ goods and services by having inaccessible websites or mobile applications.  These plaintiffs generally claim this denial of access violates Title III of the Americans with Disabilities Act (ADA) and California’s Unruh Act.  They are threatening to take action and filing their suits in California because, while the ADA authorizes only injunctive relief and attorneys’ fees, California law imposes up to $4,000 statutory damages per violation of the law.

We had predicted this flurry of lawsuits would come.  Plaintiffs are taking advantage of the uncertainty surrounding this issue created by the Department of Justice’s (DOJ) four-year delay in issuing regulations on this subject, and encouraged by the DOJ’s aggressive enforcement posture on this issue despite its failure to issue regulations adopting a clear standard for accessible websites and mobile applications.  Below is some background on this quickly evolving area of the law and a look at why some businesses are choosing to make their websites and mobile applications accessible now.

What is an “accessible” website?  At this time, there is no law or regulation that sets the technical requirements for an “accessible” website  or mobile application for public accommodations.  Conceptually, an accessible website is one that can be used by people with various sight, hearing, and mobility disabilities.  For example, blind people use screen readers and other assistive technologies to convey to them what is on a webpage.  People with low vision need to be able to resize text and need a certain level of contrast.  People who are deaf need captioning to access the audio in videos shown on websites.  People with limited dexterity need to be able to navigate through a webpage using a keyboard instead of a mouse.

For many years, the so-called Section 508 website accessibility standards applicable to federal government websites was used to define accessibility.  In recent years, however, a new and more robust set of guidelines developed by a private industry group has emerged called the Web Content Accessibility Guidelines (WCAG) (see 2.0.    Last year, the Department of Transportation adopted WCAG 2.0 Level AA as the legal standard that governs the websites of airline carriers under the Air Carrier Access Act.  The DOJ signaled in 2010 that it would likely adopt these guidelines as the standard for public accommodations’ websites, but has still not issued a proposed rule.  As discussed below, the WCAG 2.0 AA is the accessibility standard cited in virtually all settlements involving website accessibility and most recently in DOJ’s consent decree with H&R Block.

Is My Business Required To Have An Accessible Website?  If you want to avoid litigation, yes.  But as a matter of established law, the answer is less clear and may also depend on whether the goods and services available on the website are available in some equivalent alternative manner.  Title III of the ADA requires businesses provide equal access to their goods and services to individuals with disabilities.  This obligation includes providing auxiliary aids and services necessary to effective communicate with individuals with hearing, vision, or cognitive disabilities.  Accessible electronic information technology is considered an auxiliary aid or service.  Based on these regulations, plaintiffs and DOJ are taking the position that making websites accessible is required under Title III of the ADA.

Because litigating these cases is expensive and complicated, most businesses confronted with a demand or lawsuit are likely make a commitment to make their websites comply with the WCAG 2.0 Level AA in some reasonable timeframe.  In 2013 and 2014, a large grocery chain, a weight loss company, an healthcare insurance provider, and a national drug store agreed to make their websites accessible after being approached by advocates for the blind.  Just this year, H&R Block also agreed to make its online tax preparation tool, website, and mobile application comply with the WCAG 2.0 Level AA after being sued by advocates and the DOJ.  In short, despite the lack of website accessibility regulations, more businesses are realizing the importance of making their websites and mobile applications accessible now given the very active enforcement environment.

California District Court Holds that Redbox Does Not Have to Offer Captioned Videos at its Rental Kiosks or on its Streaming Video Website

Posted in Lawsuits, Investigations & Settlements, Website

By Erin McPhail Wetty

Last month, a California district court reaffirmed that Title III of the Americans with Disabilities Act (“Title III”) does not require a public accommodation to offer accessible goods (i.e. videos with captioning) as part of its inventory.  In Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014), a deaf individual claimed that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks, despite his requests.  The plaintiff also argued that Redbox Digital failed to closed-caption all of its online videos that were available for streaming, in violation of Title III.  The defendants filed a motion to dismiss both claims.

The Court held that Title III does not regulate the content or characteristic of goods that places of public accommodation provide—“the goods in a retailer’s industry”—such as the DVDs Redbox offered at its rental kiosks.  In so holding, the Court relied on regulations, which explicitly state 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.”  The plaintiff argued that DVDs should not be considered special goods because of recent technological advances that make captioning DVDs easier.  In rejecting this argument, the Court reasoned that the ease of captioning does not affect whether or not captioned DVDs should be viewed as accessible goods.  Rather, the Court concluded that the plaintiff’s request was essentially a request for Redbox to change its DVD inventory at its kiosks, which Title III does not require.  This ruling is not a positive development for advocates of the deaf and hard of hearing who are pushing for more captioning of video content.  It is also significant in driving home the point that Title III regulates the entity’s provision of a good, not the content or creation of that good.

The Court also found 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 outcome is not surprising because courts in the Ninth Circuit have taken the position that only websites that have a nexus to a brick and mortar public accommodations location are covered by Title III of the ADA.  The outcome on this point would likely have been different had the case been brought in the First Circuit—where the Massachusetts District Court held that Netflix’s online video-streaming website was covered by Title III, even though Netflix had no brick and mortar place of business, as we previously reported.

This case is significant as one of the few, yet increasing, cases addressing the applicability of Title III to emerging technologies, such as the internet and captioning, that were not contemplated in 1992 when the ADA was enacted.  Even more so, because in the absence of regulations setting requirements for web accessibility, some may point to this case as evidence websites are not subject to Title III, while others point to the Massachusetts Netflix case to argue the contrary.  In view of the recent wave of lawsuits and enforcement actions surrounding accessibility of business’ websites, this area of law is evolving very quickly.

Edited by Minh Vu and Kristina Launey

Ebay Announces Web Accessibility Partnership with the National Federation of the Blind

Posted in Department of Justice, Website

By Kristina Launey

Ebay has announced that it has teamed with The National Federation of the Blind in a “Web 2 Sustainable Accessibility Partnership Agreement”, aimed to “enhance the accessibility of eBay’s website and mobile applications” Ebay’s announcement states that, through the partnership, “blind buyers and sellers on eBay who use technologies such as text-to-speech screen readers and Braille displays will have even greater access to eBay’s website and its applications for smartphones and tablets.”

As we have previously reported, though the expected DOJ regulations setting requirements and technical standards for public accommodations websites have been pushed back repeatedly, most recently to March 2015, many businesses are taking a proactive approach to this issue.

Defendants May Have Another Chance at Recovering Attorneys’ Fees for Frivolous ADA Claims

Posted in Lawsuits, Investigations & Settlements

By Jon D. Meer

When defendants win in a Title III ADA accessibility case, they are entitled to seek their reasonable attorneys’ fees.  To recover, defendants have to show that the claims were “frivolous, unreasonable or without foundation.”  While most claims that are dismissed on summary judgment would seem to meet this standard, district courts often deny fees to prevailing defendants.

The Ninth Circuit has now endorsed a second chance to seek fees against plaintiffs who pursue appeals of their claims.  In the very recent decision in Martinez v. Columbia Sportswear USA Corp and Eddie Bauer LLC, Case No. 12-16331 (9th Cir. June 9, 2014), the Ninth Circuit awarded the defendants all of their fees on appeal, because “it was clear at the time that the district court entered final judgment that the claims had no basis in law or fact.”  Thus, even though the district court had denied the defendants’ request for fees at the time of final judgment, the Ninth Circuit held that a case that did not seem frivolous at the time of summary judgment may later be found frivolous if the plaintiff pursues an appeal.

Even better, the Ninth Circuit—which is often perceived as too friendly to the pursuit of ADA accessibility lawsuits—ordered that both the plaintiff and his counsel were both responsible for paying the defendants’ fees.

So, if fees are denied by the district court, defendants may get a second chance to seek fees on appeal.  At the appellate level, a case may seem more frivolous and a fee award from an appellate court is likely to be very difficult to overturn.  To take advantage of this strategy, defendants should consider the following:

  • Inform plaintiff’s counsel that defendants will seek fees on appeal, even if fees were denied by the district court
  • Consider waiving fees on appeal in exchange for plaintiff’s dismissal of the appeal—given that fees on appeal are a realistic possibility
  • Seek fees on appeal against both the plaintiff and the plaintiff’s counsel
  • Seek fees based on a reasonable rate with precise documentation of the hours worked and the billing rates of the lawyers on the appeal—don’t give the court an excuse to cut the amount of fees requested

To be sure, a realistic threat of paying attorneys’ fees can help to deter entrepreneurial lawsuits.  While a threat of fees might have little impact at the inception of litigation, defendants now have more support for a subsequent chance at fees on appeal.  Plaintiffs beware.