By Kristina Launey

Seyfarth Synopsis:  California enacts new law, effective January 1, 2022, to crack down on fraudulent emotional support dogs.

Yesterday, September 16, having just defeated a recall effort, California Governor Newsom signed into law a bill, AB 468, that will impose various requirements, effective January 1, 2022, designed to curb emotional support animal fraud.

To be clear, emotional support animals (ESAs) are NOT service animals.  Under the ADA, a service animal is a dog that has been individually trained to perform tasks for an individual with a disability.  ESAs are not service animals under the ADA, though that line can sometimes be a bit blurry when the dog is trained to perform tasks related to mental or psychological disabilities. As the committee analyses of the legislation note, “an ESA is a dog (or other animal) that is not trained to perform specific acts related to a person’s disability. Instead, the owner of an ESA derives a sense of wellbeing, fulfillment, companionship, or lessened anxiety with the presence of the animal. Of note, ESAs do not enjoy the same legal privileges as trained service dogs: for example, while federal and state law require that service dogs be allowed to accompany their human partner in public places, ESAs on the other hand do not have to be accommodated.”

The committee analyses further note that “[a]ccording to the bill’s author and sponsors, the emergence of ESAs has led to an increase in the fraudulent selling and subsequent misrepresenting of emotional support dogs as service dogs,” including “businesses[es] now sell[ing] various misleading ESA-related certificates and merchandise that inaccurately imply that ESAs have the same legal rights and privileges as service dogs. Items generally include vests, tags, patches, holographic identification cards, and certificate documents prominently featuring the words “Emotional Support Animal” and in some instances “ESA, Protected Under Federal Law” which can imply that ESAs wearing such accessories are granted the same rights as service dogs.”

California law currently contains a provision providing that a person who knowingly and fraudulently represents a dog is a guide, signal, or service dog, can be found guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding 6 months, by a fine not exceeding $1,000, or by both that fine and imprisonment.  But there was no similar provision for ESAs – until now.

The new law, sponsored by Guide Dogs for the Blind and Canine Companions for Independence, will have three main components to attempt to crack down on ESA fraud:

First, a person or business that sells or provides a dog for use as an emotional support dog will have to provide a written notice – in at least 12-point bold type, on the receipt or a separate paper – to the buyer or recipient of the dog stating that (1) the dog does not have the special training required to qualify as a guide, signal, or service dog; (2) the dog is not entitled to the rights and privileges accorded by law to a guide, signal, or service dog; and (3) knowingly and fraudulently representing oneself to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.

Second, a person or business that sells or provides a certificate, identification, tag, vest, leash, or harness for an emotional support animal will also be required to provide the same written notice to the buyer or recipient.

Violation of these written notice requirements or knowingly and fraudulently representing, selling, or offering for sale, or attempting to represent, sell, or offer for sale, an emotional support dog as being entitled to the rights and privileges accorded by law to a guide, signal, or service dog, is subject to a civil penalty of $500 for the first violation, $1,000 for the second, and $2,500 for third and subsequent violations.

Third, the new law will also prohibit health care practitioners from providing documentation relating to an individual’s need for an emotional support dog unless the health care practitioner (1) holds a valid, active, license to provide professional services within the scope of the license in the jurisdiction where the documentation is provided; (2) establishes a client-provider relationship with the individual for at least 30 days prior to providing the documentation, (3) completes a clinical evaluation of the individual regarding the need for an emotional support dog, and (4) provides notice to the individual that knowingly and fraudulently representing oneself to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.  Violating these requirements subjects the health care practitioner to discipline from the licensing board.

Housing providers that must make reasonable accommodations for residents who need ESAs under the federal Fair Housing Act will appreciate the new health care practitioner requirements as they will help ensure that letters from such providers in support of ESA requests are legitimate.

By Minh Vu, Kristina Launey, Susan Ryan

Seyfarth Synopsis: ADA Title III lawsuit filings in federal courts on pace for a record year.

Regular readers will doubtless recall that 2020 was a down year (but just barely) for lawsuits filed in federal court alleging violations of Title III of the ADA.  Our mid-year total was 4,751, due to lockdowns in April and May.  That was the lowest mid-year number we’d seen since 2017.

But filings picked up in the second half of 2020, and they’ve continued to rise in 2021.  In March 2021, we saw 1,240 filings—the most ever in one month.  Our total for January 2021 through June 2021 is 6,304, which puts us on track to see 12,000 filings this year.  Now, if 2020 taught us anything, it’s that you shouldn’t count your chickens (or your ADA Title III filings) before they’re hatched (or filed).  There could be a big downturn ahead.  But that’s where we are right now.

Chart showing Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013-June 30, 2021

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013-June 30, 2021: 2013: 2,722; 2014: 4,436, 63% increase over 2013; 2015: 4,789, 8% increase over 2014; 2016: 6,601, 38% increase over 2015; 2017: 7,663, 16% increase over 2016; 2018: 10,163, 33% increase over 2017; 2019: 11,053, 9% increase over 2018; 2020: 10,982, 1% decrease from 2019; 2021: 6,304 as of 6/30/21]

These numbers include Title III lawsuits filed on all grounds — physical facilities, websites and mobile applications, service animals, sign language interpreters, mask-wearing requirementshotel reservations websites, and more.  These numbers do not include the significant number of disability access lawsuits filed in state courts which are more difficult to accurately track or demand letters that never result in a lawsuit.

In what will come as a surprise to no one, California led the pack with 3,340 filings, followed by New York (1,423) and Florida (609).  Again, no surprises there.  Coming in at #4 was Texas (179) and Nevada (122) rounds out the top 5 states.

Chart showing Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2021-June 30, 2021

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2021-June 30, 2021: California: 3,340; New York: 1,423; Florida: 609; Texas: 179; Nevada: 122; Georgia: 85; Pennsylvania: 81; Illinois: 61; Tennessee: 51; Washington: 49]

It’s probably not useful to compare 2021 to 2020, as that was such an aberrant year (in so many ways), so let’s have a look at 2021 as compared to 2019 for the top five states.

Chart showing Federal ADA Title III Lawsuits Filed Mid-Year in Top Five States 2019 Compared to 2021

[Federal ADA Title III Lawsuits Filed Mid-Year in Top Five States 2019 Compared to 2021: California: 2019 Mid-Year: 2,444, 2021 Mid-Year: 3,340; New York: 2019 Mid-Year: 1,212, 2021 Mid-Year: 1,423; Florida: 2019 Mid-Year: 1,074, 2021 Mid-Year: 609; Texas: 2019 Mid-Year: 128, 2021 Mid-Year: 179; Nevada: 2019 Mid-Year: 126, 2021 Mid-Year: 122]

Total filings were up 11.2% from 2019 to 2021.  California filings were up 26.8% from 2019 to 2021.  New York filings were up 14.8%.  Bucking the trend, Florida lawsuits were down significantly from 2019 to 2021—a 43.2% drop.

What kinds of cases are responsible for the dramatic change in these states?  While we have not analyzed the data, one law firm in southern California filed over five hundred lawsuits about hotel reservations websites allegedly not providing sufficient disclosures about accessibility features in hotels starting in the fall of 2020 and continuing into 2021.  While many of these started in state court, most were removed to federal court.  We also continue to see lawsuits about physical access barriers and website accessibility.

What will the final tally be for 2021?  We predict a new record will be set and the number of lawsuits will exceed 12,000.

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those cases from the count.

 

By: John W. Egan

Seyfarth Synopsis: In navigating the contentious issue of COVID-19 passports, businesses need to be aware of their obligations to make reasonable modifications to their policies, practices and procedures applicable to patrons with disabilities.

New York City recently announced that it would require COVID-19 vaccination passports for many indoor activities. Conversely, some jurisdictions such as Florida and Texas have implemented anti-vaccine passport orders.  Like some states, the federal administration has taken a supportive position on vaccination mandates, announcing a vaccination requirement for federal employees. But the agency that enforces Title III of the ADA, the U.S. Department of Justice, has not issued explicit guidance for vaccination mandates by public accommodations.

Some businesses have announced vaccination requirements for patrons, and others are considering whether, in response to the NYC mandate or on a voluntary basis where permissible, to implement such a policy.  There are important disability access considerations for businesses to evaluate in imposing vaccination requirements for patrons.

The ADA prohibits public accommodations from applying eligibility criteria that screen out or tend to screen out a person with a disability, or any class of people with disabilities, unless they qualify as legitimate safety requirements necessary for the safe operation of the facility.  To meet this standard, the safety requirements must be based on actual risks, and not mere speculation, stereotypes or generalizations.

It is likely that a vaccination requirement would qualify as an ADA eligibility criteria.  The question then becomes whether such a requirement would be based upon legitimate safety considerations.  Businesses that rely on data addressing the effectiveness of vaccination to prevent severe disease and reduce transmissibility, and surging infection rates due to the Delta variant, would likely be on a strong footing to take this position.

That, however, is not the end of the analysis.  A business that has a policy requiring vaccinations for entry must make reasonable modifications to its policies, practices, and procedures to provide individuals with disabilities with access to their goods, services, and facilities, unless such modifications would present a direct threat to the health and safety of others, or fundamentally alter the business.

Most businesses considering implementing a vaccination-for-entry requirement will need to consider questions such as: whether and how to publicize a vaccination policy, the employees to be tasked with having a reasonable modification dialogue with patrons, the information to be requested of customers, any “script” or internal parameters for that communication, and what to do with customers who claim they cannot be vaccinated because of a disability.  The last question is obviously the most thorny since there is no “one size fits all” solution.  The modifications a public accommodation must make to a vaccination passport policy will vary (e.g., masking, social distancing, outdoor service, online alternatives, proof of negative COVID test) based upon the nature, operations, staffing, and clientele of the business, public health considerations and guidance, as well as state or local requirements.

While a private university, cruise line, movie theater, and neighborhood restaurant, for example, may all qualify as public accommodations with ADA obligations to individuals with disabilities, the considerations informing any vaccination mandate are not necessarily the same and need to be thoughtfully evaluated based on the organization, its industry, and the jurisdiction where it operates—as well as the specific circumstance of each patron requesting a reasonable modification of the vaccination policy.

Businesses should also keep a clear record of federal, state and local public health guidance, including their evolution over time, to support and document any vaccination passport policy that they implement.  And, the business should document requests for, and resolutions of, requests for reasonable modifications to the vaccination policy in case of litigation.

Stay tuned to the Blog for updates as this issue continues to develop.

Edited by Kristina Launey and Minh Vu

By Lotus Cannon and Minh vu

Seyfarth Synopsis:  After holding a consolidated evidentiary hearing, District Judge Brenda K. Sannes concluded that Plaintiff Deborah Laufer did not have standing to bring 17 lawsuits alleging that hotels failed to provide adequate accessibility information on their online reservations systems.

Last month, June 2021, Judge Sannes of the Northern District of New York dismissed 17 ADA cases brought by plaintiff Deborah Laufer for lack of standing. Laufer, a Florida resident with a disability, has been tormenting the hotel and lodging industry for years, bringing an impressive 614 lawsuits (including appeals) nationwide since 2018, including 63 in the Northern District of New York (NDNY). Her lawsuits are typically identical, alleging that the hotels violated the ADA and corollary state laws by failing to provide sufficient information about accessibility features and barriers at the hotels on their online reservation systems (ORS), as well as third-party reservations websites.

Laufer asserts these claims as a “tester,” someone who advocates for the rights of similarly situated disabled individuals by asserting civil rights claims against allegedly non-compliant businesses, even if they have no intention of ever being a customer.  Laufer’s initial complaints in the 17 cases did not allege that she has, or ever had, any plans to stay in any defendant’s hotel or visit the area near any defendant’s property.

On November 19, 2020, Judge Sannes issued an order in Laufer v. Laxmi & Sons, LLC dismissing all of Laufer’s then-active lawsuits in the NDNY for lack of standing, finding that visiting a non-compliant ORS solely as a tester was not sufficient for standing. The Court found that to allege the type of “concrete and particularized” past injury and likelihood of future injury that would give her standing in this context, Laufer would need to demonstrate that (1) she “had a purpose for using the [ORS] that the complained-of ADA violations frustrated” other than to just test the websites, and (2) “her intent to return to the [ORS] to book a room, or at least to obtain information that would allow her to decide whether to book a room, is plausible.” Judge Sannes then allowed Laufer to move to amend her complaints in each case. Laufer moved to amend her complaints in most of her cases, and included allegations that both her planned future visits to each defendant’s ORS and her visits to those ORSs prior to filing her complaints were motivated in part by her desire to travel to the area near each defendant’s hotel. While the Court found that most of the proposed amended complaints sufficiently alleged standing on their face, it questioned Laufer’s stated intention to travel to the area near each particular defendant’s hotel, and thus whether she had a genuine need to utilize the accessibility information on each defendant’s ORS.

Accordingly, following Second Circuit guidance in Harty v. Simon Prop. Grp., 428 F. App’x 69, 72 (2d Cir. 2011), the Court ordered an evidentiary hearing for all 17 cases to probe Laufer’s claim that she intended to visit the Defendant’s ORS because she was planning a trip across New York State.  Plaintiff testified that she has family in New York and travels frequently to visit them, and that she has considered relocating to New York.  Laufer also named specific sites and locations within the vicinity of the Defendant’s hotel that she would like to visit.

The Court was not convinced and dismissed all of the cases for lack of subject matter jurisdiction.  The Court stated as follows:

Plaintiff’s problem is simply one of credibility: she has sued owners of hotels located in virtually every part of New York State, and in hundreds more areas throughout many other states (including some that are very far-flung from New York, such as Colorado and Texas).  She originally asserted that she visited these hotels’ ORSs simply for the purpose of determining whether they complied with the requirements of 28 C.F.R. § 36.302(e), and it was only after the Court questioned Plaintiff’s standing that she sought to add allegations avowing an intention to travel throughout New York State, and stay in hotels in “every area” along the way.

It defies credibility that, for approximately a year and a half, Plaintiff has been planning a trip involving such a massive time and financial commitment, which she intends to begin a short time from now and complete before her granddaughter begins school in the fall, and yet she cannot answer the most basic questions regarding how much time she is setting aside for the trip, which specific locations she intends to travel to, how much the trip will cost, how she will fund it, how the inevitably lengthy trip comports with her daughter’s professional, educational and child-care obligations, or anything else about the trip aside from her vague desire to travel “all over” New York State and the rest of the country. Even for the most efficient and financially prudent of travelers, a trip covering even a selection of the places that Plaintiff has targeted with her lawsuits would inevitably take many months and cost thousands of dollars or more. Indeed, the many locations Plaintiff has asserted an intent to travel to in New York alone span the entire state and are separated by many hours by car.

Judge Sannes’ decision will likely put an end to Laufer’s website lawsuits in the Northern District of NY, but not necessarily elsewhere.  Laufer may also seek to appeal the decision which would force the defendants to spend even more money to continue defending these lawsuits.  Therein lies the quandary for defendants in the ADA Title III lawsuits: It is usually more expensive to fight these lawsuits (even when the prospect of winning is high) then it is to settle them early.

Edited by Kristina Launey

By Minh N. Vu

Seyfarth Synopsis: California federal trial court grants summary judgment for plaintiff, finding Domino’s violated the ADA by having a website that is inaccessible to the blind and orders Domino’s bring its website into compliance with the WCAG 2.0 guidelines.

Five years after the lawsuit was first filed, federal district court judge Jesus Bernal ruled on June 23 that Domino’s had violated Title III of the Americans with Disabilities Act (ADA) by having a website that was not fully accessible to plaintiff, who is blind.  This litigation saga has involved an appeal to the Ninth Circuit by plaintiff which reversed the district court’s dismissal of the case, a petition for certiorari filed by Domino’s which was denied, and numerous skirmishes in district court on remand which eventually culminated in the court’s June 23 order granting plaintiff’s motion for summary judgment on the ADA claim as it relates to Domino’s website, but allowing the case to continue regarding Domino’s mobile app.

Here are some highlights from the decision:

  • Under Ninth Circuit precedent, web-only businesses are not covered by the ADA. However, websites that have a nexus to a physical place of public accommodation are covered. Domino’s argued that the ADA does not cover its website and mobile app because it does not own the physical stores where the pizza would be picked up, and there is no “nexus” between the website/mobile app and the stores.  Judge Bernal rejected this argument, stating that the Ninth Circuit had already found that the alleged inaccessibility of the website and app “impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.”
  • The court noted that no expert found that the website was fully accessible, including Domino’s expert who said that he could not place a future order using a screen reader. Based on this fact, the court concluded that Domino’s had violated the ADA with regard to its website.  The court ordered Domino’s to “bring its website into compliance with the WCAG 2.0 guidelines.”  Interestingly, the court did not specify which level of WCAG compliance would be required:  A, AA, or AAA, nor did it specify a time table for compliance.
  • The court concluded that having a phone line where plaintiff could place an order did not provide equivalent access when he was placed on hold for over 45 minutes on the two occasions he tried to call.
  • The court found that the ADA claim was not moot because the website was still not fully accessible and the accessibility of the mobile app remained disputed.
  • Plaintiff sought $4,000 for each of the multiple visits he made to the Domino’s website, but Judge Bernal found that there was only “a single overarching violation: Defendant maintained a website that screen readers cannot read.  For this same reason, each of the Plaintiff’s individual visits to the website encountered the same barrier and therefore the same violation.”  We note that while the $4,000 damages award is not significant, plaintiff will be entitled to recover his attorneys’ fees as well.   The fee award should be substantially higher given the length and intensity of this litigation.

Disability rights advocates and the plaintiff’s bar are undoubtedly pleased about most aspects of this decision.  We will report on further developments as they unfold.

Edited by Kristina M. Launey

By Eden Anderson

Seyfarth Synopsis: A federal judge precluded the plaintiff from multiplying his statutory damages under the Unruh Act by his alleged number of visits to the defendant’s business.

California’s Unruh Civil Rights Act (“Unruh Act”) provides for the recovery of the greater of actual damages or $4,000 in statutory damages for “each particular occasion” of access denial.  (Civil Code § 55.56(f).)  Citing this statutory language, plaintiffs in disability access litigation frequently allege multiple visits to (or deterrence from visiting) a defendant’s property and cite the frequency of their visits as a basis for making unreasonable settlement demands.  For example, if a plaintiff claims to have visited a property on 15 occasions and encountered access barriers on each occasion, they will demand $60,000 plus attorneys’ fees to settle.

While some judges have awarded such relief, on June 16, 2021, Judge Beth Labson Freeman of the Northern District of California issued an order in Johnson v. Garlic Farm Truck Center, LLC capping the plaintiff’s statutory damages recovery to $4,000 in spite of allegations that the plaintiff visited the property and encountered access barriers on three occasions.

The defendant in Garlic Farm did not respond to the complaint and the court granted the plaintiff’s motion for default judgment.  In assessing the plaintiff’s request for $12,000 in statutory damages, the court questioned why the plaintiff would make three visits to a property he knew was in violation of disability access laws.  The court also found troubling the fact that the plaintiff’s counsel had filed over 5,000 Unruh Act cases in federal district courts in California, and that the Complaint inconsistently alleged that the access barriers “prevented [plaintiff] from returning to the business,” yet also that he had visited the property three times.  The court concluded the plaintiff’s “[b]ehavior,” the “incongruity” in his allegations, and the sheer volume of disability access cases his counsel was pursuing indicated that “Mr. Johnson is primarily interested in increasing statutory damages.”  The court thus limited statutory damages recovery to $4,000, noting that “[d]istrict courts in the Ninth Circuit have limited statutory damages under the Unruh Act when plaintiffs engage in this behavior.”

This decision is also notable because the Court’s concerns about the plaintiff’s tactics were raised sua sponte—by the Court on its own accord—and not by the defendant, who had not even appeared in the case.  The order also provides defendants a clear decision they can rely upon to counter unreasonable settlement demands.

Edited by Kristina Launey

By Kristina Launey

Seyfarth Synopsis: A recent order from the Eleventh Circuit signals that the court is seriously considering a rehearing in Gil v. Winn-Dixie.

As previously reported, the Eleventh Circuit made waves recently overturning a 2018 Florida federal court’s trial verdict ruling that Winn Dixie’s inaccessible website violated the ADA. On April 15, the plaintiff filed a Petition for Rehearing en banc, arguing that the issues in the case are of exceptional importance and that, inter alia, the panel deviated from prior Eleventh Circuit precedent in rejecting the “nexus” standard.  On April 22, counsel for numerous advocacy groups including the National Federation of the Blind, National Council on Independent Living, and National Association of the Deaf, filed a motion for leave to file amicus briefs in support of the rehearing.  Yesterday, May 20, the Court ordered Winn Dixie to file a response to the Petition for Rehearing by June 1.  The Court noted its particular interest in Winn Dixie’s response to the plaintiff’s mootness argument — that the appeal was moot and since the actions required by the district court’s injunction had long since been complete (in the three years it took the Eleventh Circuit to hear and decide the appeal).  This action by the Court signals to us that the Court is seriously considering a rehearing – as it could have otherwise simply denied the Petition without hearing Winn Dixie’s position.  We’ll keep you posted.

By the Seyfarth ADA Title III Specialty Team

Seyfarth Synopsis:  The Seyfarth ADA Title III Specialty Team shares thirty tips for how to provide great service to people with disabilities in three fun and informative videos.

Celebrate Global Disability Awareness Day by learning more about how to provide a great experience for your customers with disabilities!  Our popular three-part video series ADA 30:  30 Tips for 30 Years contains practical advice on how to make your facilities more accessible to people with disabilities, make reasonable modifications to your normal practices and procedures to ensure access, and effectively communicate with individuals who are have sight, hearing, and speech disabilities.  Most of these tips cost nothing to implement — awareness of the issues and how to respond is all that’s required.

The links to the videos are below:

By Kristina M. Launey & Minh N. Vu

Seyfarth SynopsisADA Title III website accessibility lawsuits filed in federal courts in 2020 jumped a surprising 12% over 2019, in spite of a mid-year pandemic dip in filings.

The numbers are in for total website accessibility lawsuit filings in federal courts in 2020, and to our surprise they show a significant increase from 2019. The total number of lawsuits filed in federal courts alleging that plaintiffs with a disability could not use websites because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them, in 2020 was 2,523–almost 300 more than in 2019.  While certainly not akin to the explosive 177% increase in these suits from 2017 to 2018, it is a meaningful increase over the relatively level 2018 and 2019 filing counts.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2020: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (12% increase from 2019). *The number of cases that could be identified through a diligent search.]

This is especially remarkable in light of the drop in filings in April 2020 to the lowest number we’ve seen in quite a while during the height of the pandemic shutdowns across the country, with courts closing, law firms moving to remote work, and lawyers with children adjusting to homeschooling and doing their day jobs.  As shown in the chart below, even though filings started out the year lower than 2019 (likely due more to some New York attorneys focusing on Braille gift card lawsuits instead of website accessibility lawsuits and less due to the nascent pandemic), they bottomed out at 62 in April (a third of the 183 filings from the same month in 2019). Filings then slowly increased again, jumping to 300 in August (compare to 270 in 2019), 293 in October (compare to 140 in 2019) and 299 in December (compare to 119 in 2019).  We have not yet crunched the Q1 2021 numbers but anecdotally believe those high monthly filing numbers have continued into 2021.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2020 – Dec. 2020): Jan. 2020 (187), Feb. 2020 (174), Mar. 2020 (167), Apr. 2020 (62), May 2020 (119), Jun. 2020 (150), Jul. 2020 (269), Aug. 2020 (300), Sep. 2020 (274), Oct. 2020 (293), Nov. 2020 (228), Dec. 2020 (299), *The number of cases that could be identified through a diligent search.]

New York and Florida federal courts continued to be the busiest with 1,694 (up from 1,354 in 2019 and 1,564 in 2018) and 302 (continuing a downward trend of 526 in 2019 and 576 in 2018) lawsuits, respectively, as shown in the chart below. California and Pennsylvania maintained their third and fourth positions, with lawsuits in each of those states almost doubling in 2020 over 2019.  Pennsylvania had 173 lawsuits in 2020. The number of California lawsuits continued to jump from 10 in 2018 to 120 in 2019 to 223 in 2020. Colorado moved up from ninth place in 2019 to edge out Illinois for the fifth spot with 43 suits over Illinois’s 32 suits (down from 91 lawsuits in 2019). This number does not account for the many demand letters sent out by California firms that never result in lawsuits and lawsuits filed in state courts which are much more difficult to track.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2019: NY 1,694, FL 302, CA 223, PA 173, CO 43, IL 32, MA 24, CT 11, GA 8, IN 7. *The number of cases that could be identified through a diligent search.]

This growth in New York federal website accessibility lawsuits is remarkable considering lawsuit filings slowed considerably in the midst of the 2020 pandemic, and some of the most prolific New York plaintiffs’ firms turned their attention to Braille gift card cases in late 2019 and early 2020. The New York surge began in 2017 after New York federal judges allowed website accessibility cases to proceed to discovery in lawsuits against Blick Art and Five Guys.

It will be interesting to see if the website accessibility lawsuit numbers will decrease in Florida for 2021 in light of the Eleventh Circuit Court of Appeal’s decision in Gil v. Winn Dixie.  That decision reduces the number of websites covered by the ADA by holding that only those whose inaccessibility create an intangible barrier to access to the goods, services and facilities of a place of public accommodation state a claim.

Even more remarkable is that these numbers also do not include lawsuits filed alleging the inaccessibility of mobile apps (unless the lawsuit also alleged an inaccessible website).  In an unscientific search, we came across 203 lawsuits alleging a violation of the ADA due to inaccessible mobile apps all filed by three attorneys in Florida and New York.

***

About our methodology:  Our 2020 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability.  For example, there were a number of lawsuits in 2018-2021 (a very large explosion of such suits in 2021 in California) brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities.  We also removed a number of lawsuits from the 2020 count brought against state and local government entities under Title II of the ADA for having inaccessible websites.

By Minh N. Vu

Seyfarth Synopsis:  The Eleventh Circuit’s much-anticipated decision in Gil v. Winn Dixie sets a higher bar for plaintiffs in website accessibility lawsuits and creates a conflict among judicial circuits that could result in Supreme Court review; Gil promptly filed a Petition for Rehearing en banc.

After two and a half years of deliberation, the Court of Appeals for the Eleventh Circuit finally issued a decision in Gil v. Winn Dixie, overturning the trial court’s finding that Winn Dixie violated the ADA by having an inaccessible website.  Rather than clarifying the state of the law on website accessibility, the decision makes the law on website accessibility even more complicated.

Plaintiff Gil, who is blind, sued grocery retailer Winn Dixie alleging that the business violated the ADA by having a website that he could not access using screen reader software.  He claimed that he wanted to use the website to order prescriptions which he would pick up at the store.  He later also claimed that he wanted to download online coupons onto his rewards card for use at the store.  After a bench trial, the district court concluded that the website was not accessible to screen reader users and that Winn Dixie had violated the ADA.  The district court found that it did not need to decide whether websites are covered by the ADA because, in this case, the website was “heavily integrated” with Winn Dixie’s physical stores (which are undoubtedly public accommodations) and acted as a “gateway” to them.  The court issued a detailed injunctive relief order which, among other things, required Winn Dixie to make its website conform to the Web Content Accessibility Guideline 2.0 Level AA – a privately developed set of criteria for web accessibility that has not been adopted as a legal standard under the ADA for public accommodations websites.

Two and a half years after hearing oral argument on Winn Dixie’s appeal, the Eleventh Circuit reversed the lower court’s determination in favor of the Plaintiff, finding that (1) the retailer did not violate the ADA because its website is not a place of public accommodation, and (2) the website did not pose an “intangible barrier” to his access to the goods, services, privilege’s, or advantages of Winn Dixie’s physical stores.

The finding that websites are not places of public accommodation under the ADA is consistent with the position the Eleventh Circuit has taken in prior cases.  In support, the Court cited to the statutory definition of the term “public accommodation” which, it noted, was an “expansive list of physical locations” that does not include websites.

The Court acknowledged that Gil could state a claim for a violation of the ADA if he could show that the website constituted an “intangible barrier” to his access to the goods, services, privilege’s, or advantages of Winn Dixie’s physical stores, but found that Winn Dixie’s website did not present such a barrier.  The Court based this conclusion on two key facts:  (1) No goods or services could be purchased on the website; and (2) “all interactions with Winn-Dixie which can be (although need not be) initiated on the website must be completed in-store: prescription pick-ups and redemption of coupons.”

The Court distinguished this case from its prior decision in Rendon v. Valleycrest Productions, Ltd. where it held that the producers of the Who Wants to Be A Millionaire game show violated the ADA by providing only a telephonic means — which was not accessible to people who were deaf or had limited dexterity — of competing for a spot on the show.  The Eleventh Circuit emphasized that in Rendon, the telephone screening process was the “sole access point for individuals to compete for the privilege of being a contestant on the game show” and thus “acted as an ‘intangible barrier’ that prevented the plaintiffs from ‘accessing a privilege’ of a physical place of public accommodation (the game show).”  The Court found that the Winn Dixie website, in contrast, had “limited functionality” and was “not a point of sale.”

The Court also distinguished the case from Robles v. Domino’s where the Ninth Circuit concluded that the plaintiff had stated a claim against Domino’s under the ADA by alleging that the pizza delivery company had an inaccessible website.  The Eleventh Circuit underscored that purchases could be made on the Domino’s website, unlike the Winn Dixie website.

The Eleventh Circuit also went out of its way to point out that it did not agree with the Ninth’s Circuit’s position that a website with a “nexus” to a physical place of public accommodation is covered by the ADA.  The Court said:  “[W]e decline to adopt the “nexus” standard.  In sum, we do not find Robles persuasive, either factually or legally.”

We could say much more about the sixty-seven page decision, but we’ll leave you with a few immediate reactions.

First, there are now at least three different theories of liability for website accessibility adopted by federal courts of appeal.  In the Eleventh Circuit, to establish a violation of the ADA based on an inaccessible website, a plaintiff must show that the inaccessibility of the website prevented him or her from accessing the goods, services, privileges, or advantages of a physical place of public accommodation.  In the Ninth Circuit, a plaintiff would only have to show that an inaccessible website has a nexus to a physical place of public accommodation to establish ADA liability.  In the First Circuit — which has not yet considered a website accessibility case — a plaintiff would have a strong argument under current precedent that a website that falls into one of the twelve categories of businesses in the ADA’s definition of the term “public accommodation” would be covered under the ADA, even if it has no physical place of public accommodation.

Second, while the Winn Dixie decision makes the Eleventh Circuit a less attractive venue for plaintiffs seeking to file website accessibility lawsuits than before, such plaintiffs can always choose to file in a different circuit where the precedent is more favorable.  Thus, we do not believe this decision will have much impact on the number of website accessibility lawsuits filed.

Third, the likelihood of the U.S. Supreme Court taking up this issue has certainly increased now that there is a conflict between the Eleventh Circuit and the Ninth Circuit as to when an inaccessible website belonging to a physical place of public accommodation violates the ADA.

Stay tuned to find out if Plaintiff Gil files a Petition for Certiorari.

April 15, 2021 UPDATE:  Earlier today, plaintiff Juan Carlos Gil filed in the Eleventh Circuit Court of Appeals a Petition for Rehearing en bancGil argues that the issues in the case are of exceptional importance and that, inter alia, the panel deviated from prior Eleventh Circuit precedent in rejecting the “nexus” standard.

Edited by Kristina Launey