Seyfarth Synopsis:  The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.  Businesses need advice now on how to manage risk in this chaotic environment.

As we predicted, website accessibility lawsuits and threatened claims have become big business for some aspects of the plaintiffs’ bar.  More law firms are filing lawsuits or sending demand letters alleging individuals with disabilities are denied access to a business’s goods and services due to inaccessible websites than ever.  The number of lawsuits filed in federal court since the beginning of 2015 has surged to 106 as of September 21, 2016.  Retailers have been the most popular targets, followed by restaurant and hospitality companies.

(The above pie chart shows the following number of lawsuits by industry: Academic-1; Dating Services-1; Entertainment-7; Financial-1; Gaming-1; Hospitality-9; Insurance-1; Medical-1; Personal Services-1; Restaurant-16; Retail-63; Sports-2; Travel-1)

We analyzed the data to find that five firms dominate the space, but we have seen more and more attempting to get in on the action as well.

(The above pie chart shows the following percentages of lawsuits filed by law firm: Block Leviton-2%; Carlson Lynch-45%; Lee Litigation Group-30%; Newport Trial Group-17%; Roger Borg Law Offices-2%; Other-10%)

Pennsylvania, New York, and California federal courts have more than 85% of the lawsuits at this point, but, with three months left in the year, that could change.

(The above pie chart shows the following percentages of lawsuits per state: CA-19%; MA-4%; NY-30%; PA-37%; WA-4%; AZ-1%; TX-1%; FL-3%; IN-1%)

We have previously reported that several law firms representing unnamed clients with disabilities had sent out hundreds of demand letters to various types of businesses concerning their allegedly inaccessible websites.  From what we can tell, very few of those demand letters went to financial services institutions.  We have learned that the most recent batch of demand letters is focused on the websites of community banks around the country.

Meanwhile, we still have no proposed regulations for public accommodations websites from the DOJ and a change in administration could derail or delay the rulemaking process further.  Thus, the need is no less urgent for businesses to come up with a plan to mitigate their litigation exposure in this tumultuous environment.

Edited by Kristina M. Launey.

Seyfarth Synopsis: In yet another effort to reduce ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation to encourage tenants and landlords to acknowledge and address any accessibility issues during lease negotiations.

On September 16, 2016, California Governor Jerry Brown signed into law Assembly Bill 2093 – the second new disability access reform law of the year – in the state’s continuing effort to address the huge number of accessibility lawsuits. This bill, which became effective immediately, seeks to ensure that prospective commercial real estate tenants are notified of known construction-related accessibility violations during the course of lease negotiations so that owners and tenants have the opportunity to decide how any violations will be addressed and avoid future ADA lawsuits.  AB 2093 is similar to a piece of California’s last large-scale attempt at disability access reform, SB 1186 of 2012, which required a commercial property owner to state on a lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a certified access specialist.

AB 2093 takes the 2012 legislation one step further and requires commercial property owners to state on every lease or rental agreement executed after January 1, 2017, whether the property being leased or rented has been inspected by a California Certified Access Specialist (CASp) for compliance with construction-related accessibility standards.  If it has, and there have been no alterations affecting accessibility since, the owner must provide the prospective tenant a copy of the CASp report at least 48 hours prior to the execution of the lease or rental agreement.  Any necessary repairs are deemed the responsibility of the owner unless the landlord and tenant contractually agree otherwise.  If the CASp report indicates the property meets applicable accessibility standards, the owner must provide the report and CASp certificate to the tenant within seven days of the execution of the lease or rental agreement.

If the property has not been CASp-inspected, the owner must include specific language in the lease or rental agreement notifying the prospective tenant that: (a) a CASp can inspect the property and determine whether the property complies with construction-related accessibility standards; (b) a CASp inspection is not required by law; (c) the owner may not prohibit the tenant from obtaining a CASp inspection of the property; and (d) the owner and tenant shall mutually agree on the terms of the CASp inspection, including time, payment of fees, and allocation of responsibility for making any required corrections to accessibility violations identified in the CASp report.

Earlier this year, the Governor signed into law SB 269, which largely sought provide small business owners with some relief and protect businesses against liability for certain “technical” violations.  Both bills come on the heels of 2015’s AB 1521, which imposed procedural and substantive prerequisites to a “high-frequency litigant” filing a lawsuit in California state courts.

AB 2093 is intended to raise the issue of the existence of possible violations of the ADA and California accessibility laws during the course of commercial property lease negotiations to encourage business owners to make any necessary repairs in a proactive manner, rather than making repairs as a reaction to a future ADA lawsuit from a plaintiff seeking the $4,000 per violation bounty offered by California’s disability access laws.   Only time will tell if this latest effort at reform will make any difference in mitigating the huge, and growing number of disability access lawsuits in California (and across the country).  For those of you closely following state government attempts to intervene and quell the proliferation of disability access lawsuits, read about the Arizona Attorney General’s recent action here.

Edited by Kristina Launey and Minh Vu.

Seyfarth Synopsis:  Massachusetts recently enacted its first statewide ride-sharing law requiring companies like Uber to provide accessible transportation for individuals with disabilities.

On the heels of news that Uber and the National Federation of the Blind (“NFB”) settled their federal court lawsuit in California, which began with a fight over whether Uber is subject to Title III of the ADA as a place of “public accommodation” or a “specified public transportation service,” Massachusetts is taking ride-sharing accessibility matters into its own hands.

Massachusetts enacted its first ride-sharing law last month which – though not the first of its kind – continues the nationwide trend of states and cities implementing ride-share regulations.  What is novel is Massachusetts’s specific prohibition on these companies from discriminating against individuals with disabilities, a requirement that they provide wheelchair accessible vehicles, and a mandate that they provide accommodations to individuals traveling with service animals. Massachusetts’s new law is far broader than the recent California settlement, which was limited to only Uber and an agreement to provide accommodations to individuals with service animals.

The Massachusetts law also prohibits ride-sharing companies from charging higher fares or fees to individuals with disabilities and requires that they demonstrate that they have “an oversight process in place” to ensure their compliance with the new law and with all nondiscrimination laws in all “areas” (which is not defined) in which they operate.  The law also requires ride-sharing companies to have “established procedures governing the safe pickup, transfer, and delivery of individuals with visual impairments and individuals who use mobility devices, including … wheelchairs, … walkers, and scooters.”

The Massachusetts Department of Public Utilities (“DPU”) is responsible for drafting detailed regulations to support and enforce this new law and will likely provide guidance to companies as to the “oversight process” and ‘procedures’.”  DPU has announced that it looks forward to “implementing one of the most comprehensive ride-for-hire laws in the country to support innovation, public safety, and accessibility for those with special accommodation needs.”

The new law also calls for the formation of a task force, which will include a representative of the Disability Law Center, Inc., a Massachusetts non-profit disability advocacy organization, to consider the establishment of a Massachusetts Accessible Transportation Fund.  This Fund will be credited with annual surcharges from ride for hire companies that do not, as determined by the task force, provide sufficient wheelchair-accessible service.  The task force is required to file a report with the Massachusetts Legislature of its recommendations and proposed legislation by July 1, 2017.

Edited by Kristina Launey.

Seyfarth Synopsis:  The number of access lawsuits has surged in both Arizona state and federal courts, prompting an unprecedented intervention by the Arizona Attorney General.

By our count, nearly 300 ADA Title III lawsuits have been filed in federal court in Arizona this year to date.  This number represents a dramatic increase from 2015 when only 207 lawsuits were filed for the entire year.  In 2013 and 2014, there were only 20 and 8 of such lawsuits, respectively.

Four plaintiffs filed 284 of these nearly 300 2016 Arizona federal court lawsuits:  Damien Mosley (132 suits), Advocates for Individuals with Disabilities Foundation, Inc. (AIDF) (57 suits); Advocates for Individuals with Disabilities LLC (AID) (formerly known as Advocates for American Disabled Individuals, LLC (AADI)) (71 suits); and Santiago Abreau (24 suits).

Even more astonishing is the number of cases AIDF and AID/AADI have filed in Arizona state court under the Arizonians with Disabilities Act (AzADA) since January 2015.  The AzADA is similar to the federal ADA but allows plaintiffs to recover compensatory damages.  Under the ADA, prevailing private plaintiffs can only obtain injunctive relief and attorneys’ fees and costs.

The number of lawsuits filed by AIDF, AID, and AADI in Arizona state court (all in Maricopa County) in 2015 and 2016, according to our own research, are:

  • AID/AADI: 503 cases
  • AIDF: 1121 cases

In total, these plaintiffs have filed 1,624 cases since the beginning of 2015.  Compare that to the 584 suits filed in Arizona federal courts since the beginning of 2015.  Then compare that to the data we’ve collected on lawsuits filed in other states and nationwide.

Apparently alarmed by the number of suits flooding the Arizona court system, the Arizona Attorney General has filed a motion asking the Arizona state court in Maricopa County to consolidate all of the pending cases filed by AADI and to allow his intervention to stop what he calls a “systemic abuse of the judicial system.”  The motion provides two grounds for intervention.  First, it states that these lawsuits “imperils the State enforcement regime established by the Legislature” by signaling to other plaintiffs that it is more profitable to file these private suits than to utilize the state’s investigation and enforcement regime created by the AzADA which provides opportunities for a pre-litigation resolution.  Second, the State of Arizona has a strong interest in how the courts apply and interpret the AzADA’s statutory scheme.

Though outcry over the years over ADA lawsuit abuse has been consistent, as well as multiple legislative attempts at reform with little meaningful effect, we are not aware of any other instance when an enforcement agency has stepped in to address the actions of a serial plaintiff.  We will keep you updated on the developments.

Edited by Kristina Launey.

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.