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

Seyfarth Synopsis: Congressmen Budd, Hudson, and Correa reintroduce the Online Accessibility Act which would govern the application of the ADA to websites and mobile applications.

By Kristina M. Launey

On February 18, 2021, U.S. Representatives Ted Budd (R-NC), Richard Hudson (R-NC), and Lou Correa (D-CA) re-introduced the Online Accessibility Act in Congress as H.R. 1100. The bill would codify the principle declared by some courts, such as the Ninth Circuit in Domino’s, that a website (and mobile app) that is not accessible can violate the ADA, and set a standard by which accessibility is measured for the purpose of compliance with the ADA.

To accomplish this, the bill would add a Title VI to the ADA that would prohibit discrimination against individuals with disabilities by any private owner or operator of a customer-facing website or mobile application and impose the following specific requirements:

WCAG as the Access Standard:  The bill would deem any website and mobile application that is in “substantial compliance” with the WCAG 2.0 AA (the “Standard”), or any subsequent version published by the World Wide Web Consortium (W3C) to also be compliant with the new ADA Title VI. For websites that are not in substantial compliance with the Standard, the bill would authorize an “alternative means of access” that is equivalent to access to the content available on the website or mobile application.

Creation of Regulations: The bill would direct the U.S. Access Board – not the U.S. Department of Justice (DOJ) — to issue and publish standards (and to amend them to keep up with technological advances), and to propose and issue regulations on the topic.  This is a change from the ADA Title III regime where only DOJ has the right to issue legally-binding standards.

Notice and Cure: The bill would require an individual plaintiff to notify the website or mobile app owner or operator of the alleged noncompliance and then allow the owner or operator 90 days to cure the alleged noncompliance before the individual may file a complaint with the DOJ.  Disability rights advocates have consistently opposed notice and cure provisions in prior attempts to amend the ADA and they are likely to oppose them in this bill as well.

DOJ Enforcement: The bill would require the DOJ to investigate alleged violations of the new Title VI, as well as to periodically review customer-facing websites and mobile applications for compliance, and authorize the DOJ to file a civil lawsuit upon reasonable belief that an entity has violated Title VI.  Remedies available in such an action would include equitable relief (i.e., fix the website/mobile app), monetary damages to aggrieved persons, and a civil penalty in the amount of $20,000 for the first and $50,000 for any subsequent violation.  A court would be required to consider any good faith effort to comply with Title VI in determining the amount of civil penalty to assess.

Private Right of Action After Exhausting Prerequisite Actions:  An individual with a disability would only be able to file a civil enforcement action after providing notice to the website/app’s owner and operator(s), filing a complaint with the DOJ, and receiving notice that the DOJ will not pursue the matter after an investigation.  In any such lawsuit, the plaintiff would be required to state with particularity the specific barriers to access on the website or mobile application.

In a press release announcing the legislation, Rep. Budd said: “Every year, thousands of website accessibility lawsuits are filed by plaintiffs alleging that certain websites were not ADA compliant. Our bill solves that problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”

Rep. Hudson touted the Act, in sentiments echoed in part by Rep. Correa, as one that would: “improve web access for individuals with disabilities, as well as support small businesses. Especially as many small businesses struggle to stay afloat during the current pandemic, we must curtail frivolous and abusive litigation while continuing to push for web accessibility for everyone.”

Does this bill stand a chance?  Unlikely, but these Representatives have been persistent in trying.  Other short-lived attempts at ADA reform in Congress over the past years including the ADA Notification Act (H.R. 881 of 2011), the ADA Education and Reform Act (H.R. 620 of 2018), the “ADA Compliance for Customer Entry to Stores and Services Act” or “ACCESS Act” (H.R. 4099 of 2019), and 2020’s Online Accessibility Act, and even letter writing efforts between these Representatives and the DOJ, and Senators and the DOJ.  These efforts have not gained much traction because they did not receive support from disability rights advocates.  We do not see that situation changing during a Biden Administration.

Edited by Minh N. Vu

By Minh N. Vu

Seyfarth synopsis:  California District Judges are not convinced that hotel reservations websites have to provide detailed accessibility information.

As we reported last month, a plaintiff’s firm in California that calls itself the Center for Disability Access has filed on behalf of fewer than 10 plaintiffs nearly 500 lawsuits against hotels in California claiming that the hotel accessibility information provided on the hotels’ reservations websites was not sufficiently detailed, in violation of Title III of the Americans with Disabilities Act and California’s Unruh Act.  We recently reported on decisions dismissing three of these cases.  Since then, the courts have issued four additional decisions dismissing these lawsuits.  The judges in these cases all agree that the ADA regulation in question does not require the hotels disclose the detailed accessibility information demanded by the plaintiffs.  The plaintiffs in three of the dismissed cases have filed Notices of Appeal to the Ninth Circuit.

Stay tuned for this developing situation.

 

Please join us on Thursday, March 11 for a webinar entitled ADA Title III Pandemic Year Updates: Hot Issues and Litigation Trends.

The COVID 19 pandemic caused a slight slowdown in ADA Title III lawsuit filings in 2020 but the ADA Title III plaintiffs’ bar quickly adapted and the courts are again flooded with these suits like never before. In this webinar, Seyfarth’s ADA Title III Team leaders will address how the pandemic has affected the ADA Title III landscape, how the Biden Administration will likely approach ADA Title III enforcement, and the type of lawsuits plaintiffs are bringing this year.

If you need an auxiliary aid or service to participate in this webinar, please email Kelly Sokolowski at ksokolowski@seyfarth.com by Thursday, March 4.

Click here to register and attend.

Date/Time:

Thursday, March 11, 2021
2:00 p.m. to 3:00 p.m. Eastern
1:00 p.m. to 2:00 p.m. Central
12:00 p.m. to 1:00 p.m. Mountain
11:00 a.m. to 12:00 p.m. Pacific

By Minh Vu, Kristina Launey, and Susan Ryan

Seyfarth Synopsis: ADA Title III lawsuits filed in 2020 fell slightly from last year’s high, but still topped 10,000 for the second time since we started tracking these lawsuits in 2013.

Maybe it was adjusting to working from home, overseeing children during the work day, or just the shock of the pandemic, but the ADA Title III plaintiffs’ bar filed far fewer lawsuits in April and May 2020.  This ultimately led to an overall reduction in the number of cases filed in 2020 as compared to 2019.

Plaintiffs filed 10,982 ADA Title III lawsuits in 2020, compared to 11,053 filed in 2019. That’s a reduction of less than 1%.  Considering that the country was gripped by a pandemic for much of 2020, this is still quite a large number of lawsuits.

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 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]

The months of April and May saw a steep decline in filings (572 and 538 respectively), but they rebounded quickly in June, with 857 filings.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2020 – December 31, 2020: January: 971; February: 927; March: 886; April: 572; May: 538; June: 857; July: 954; August: 1,079; September: 1,049; October: 1,072;  November: 983; December: 1,094]

These numbers include Title III lawsuits filed on all grounds — physical facilities, websites and mobile applications, service animals, Braille Gift cards, sign language interpreters, mask-wearing requirements, hotel 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.

In what should be a surprise to no one, California had the most federal filings – 5,869.  New York landed in second place, with 2,238, and Florida was third, with 1,208.  California broke its record for lawsuits by a staggering 22%.  New York and Florida saw decreases in their numbers; New York was down slightly, but Florida had the lowest number of filings since 2013.

[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2020: California: 2013: 995; 2014 1,866; 2015: 1,659; 2016: 2,458; 2017: 2,751; 2018: 4,249; 2019: 4,794; 2020: 5,869; Florida: 2013: 816; 2014: 1,553; 2015: 1,338; 2016:1,663; 2017: 1,488; 2018: 1,941; 2019: 1,885; 2020: 1,208; New York: 2013: 125; 2014: 212; 2015: 366; 2016: 543; 2017: 1,023; 2018: 2,338; 2019: 2,635; 2020: 2,238]

Texas and Georgia rounded out the top five, with 285 and 240 filings, respectively.  Texas regained 4th place from Georgia, increasing from 239 to 285 filings in 2020.  Georgia decreased slightly in 2020 from 243 to 240.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2020 – December 31, 2020: California: 5, 869; New York: 2,238; Florida: 1,208; Texas: 285; Georgia: 240; Illinois: 172; Pennsylvania: 163; Colorado: 132; New Jersey: 70; Massachusetts: 66]

Other states with more than 100 filings included Illinois (172), Pennsylvania (163) and Colorado (132).  Illinois and Pennsylvania traded places from 2019, and Colorado surpassed New Jersey, increasing by a healthy margin over its 81 cases in 2019.

For a more in depth look at the types of cases driving these numbers, see our year end roundup post.

What do we think will happen in 2021?  As we predicted in early January, 2021 is shaping up to be a very busy year.  In January 2021, 1,108 cases were filed – the most ever in a single month.  To provide some perspective, in 2013, there were 2,722 filings for the entire year.  If the filings continue at their current rate, 2021 will be another record-breaking year for ADA Title III filings in federal court.

A note on our methodology: Our research involved a painstaking manual process of going through all federal cases that were coded as “ADA-Other” and manually culling out the ADA Title II cases in which the defendants are state and local governments.  The manual process means there is the small possibility of human error.

By Eden Anderson

Seyfarth Synopsis: Ninth Circuit concludes in trilogy of disability access cases that complaints must specifically allege unlawful conditions.

Over the years, ADA Title III complaints filed by the plaintiff’s bar have gotten progressively more vague with respect to the barriers alleged.  This is no coincidence: Some have stated outright that they keep those allegations vague so businesses cannot easily fix the alleged barriers to moot the lawsuits.

The Ninth Circuit is putting an end to this strategy.  In a trilogy of decisions just issued, it made clear that the more stringent pleading standard established in the Iqbal/Twombly cases still applies in determining whether a disability access plaintiff’s allegations state a claim for relief.  All three cases involved the same plaintiff—Brian Whitaker—a serial filer of disability access lawsuits who uses a wheelchair for mobility.

In the first case, Whitaker v. Panama Joes, Investors, LLC, Whitaker alleged he encountered inaccessible “dining surfaces” at a restaurant and that the restaurant also lacked “accessible restrooms” and “accessible paths of travel in the patio area.”  He alleged he was deterred from returning to the restaurant because of these alleged barriers.

The Ninth Circuit concluded these allegations were sufficient to establish Whitaker’s standing to sue, but not to state a claim for relief under Title III of the ADA.  Specifically, no facts were alleged to identify the “specific deficiencies in the dining surfaces,” and there was no description of “how the restrooms were inaccessible” or “which paths of travel in the patio area were accessible.”  Without such specificity, the restaurant was not on notice of the claims, and the allegations did not satisfy the Iqbal/Twombly pleading standard to sufficiently state a claim and avoid dismissal of the complaint.

The second case, Whitaker v. Body, Art, and Soul Tattoos Los Angeles, LLC, involved a tattoo parlor which Whitaker alleged lacked “accessible sales counters” causing him “difficulty and discomfort.”  The Ninth Circuit again found standing, but explained the allegations were too “vague” to state a claim for relief because the “specific deficiencies in the sales counters” were not identified.  It affirmed the district court’s granting of the motion to dismiss on that basis.

In the third case, Whitaker alleged he encountered “inaccessible service counters” at an auto dealership which caused him “difficulty and discomfort” and which deterred him from returning.  The Ninth Circuit again found standing, but affirmed dismissal of the complaint.  The court stated that under Iqbal/Twombly, to state a claim for relief, Whitaker needed to allege “well pleaded facts, not legal conclusions.”  Yet his complaint “failed to answer the basic questions: Were the service counters too low?  Or too high?  Were they positioned in an area that was inaccessible for another reason?”  Without this detail, the complaint failed to state a claim for relief and was properly dismissed.  The Ninth Circuit soundly rejected Whitaker’s plea for “more lenient treatment,” concluding, “we have never held that civil rights litigants are exempt from satisfying the pleading standard demanded by Iqbal and Twombly.”

In each of the cases, Whitaker stood on his allegations and did not amend his complaint to add the requisite factual details—even though the district courts permitted him to do so.  While one might wonder why Whitaker chose that route, his arguments on appeal furnish the answer and some amusement.  Whitaker took the position that providing details about the nature of alleged access barriers would provide a defendant with sufficient information to remediate and moot his ADA claims.  The Ninth Circuit was not persuaded, responding that “defendants should be encouraged to remove barriers from their establishments.  This is an important objective of the ADA.”

As this trilogy of cases makes clear, plaintiffs and lawyers in disability access cases must provide sufficient factual details to place defendants on notice of the nature of the barriers they allege they personally encountered and which allegedly denied them of full and equal access in order to state a claim.

Edited by Minh Vu and Kristina Launey

 

 

By Minh N. Vu

Seyfarth synopsis:  A federal judge dismisses the first two of hundreds of pending lawsuits filed against hotels for allegedly not providing enough accessibility information on their reservations websites.

Last fall, a prolific plaintiff’s firm in California began filing lawsuits against hundreds of hotels in California on behalf of seven plaintiffs.  The plaintiffs alleged that the information about the hotels’ accessibility provided on their reservations websites or on Expedia (in a handful of cases), was not sufficiently detailed for them to make a choice as to whether the hotel met their accessibility needs –  in violation of the ADA Title III regulation governing hotel reservations.  So far, these plaintiffs – all represented by this same firm –  have filed over 450 suits and the number keeps growing.

The plaintiffs insist that hotels must report on their reservations websites and third party websites specific data about accessibility features such as the dimensions of space under accessible desks and sinks.  They also claim that describing an element as “accessible” is not sufficient.

A number of hotels disagree that the regulations require that level of detail and are filing motions to dismiss.  Earlier this week, Judge Carney of the Central District of California issued decisions in two of these cases.  In the first case, the plaintiff alleged that the hotel’s information on Expedia did not comply with the regulations because it was not sufficiently detailed.  The court said the hotel was not responsible for information on Expedia because “nothing in Plaintiff’s Complaint suggests that the alleged deficiencies on Expedia’s website was due to Defendant’s failure to make information available to Expedia.”  The court further stated that the information on Expedia as well as on Marriott.com was, in any event, more than adequate because “[a] website need not list its compliance or non-compliance with every ADAAG provision to satisfy 28 C.F.R. § 36.302(e)(ii), citing the DOJ Guidance.”

Specifically, the court noted that:

Expedia identifies all of the major common areas as wheelchair-accessible (e.g., the business center, concierge desk, elevators, fitness center, restaurant, parking, registration desk, pool). (Expedia’s Website.) It indicates that the routes of travel to areas of the hotel and accessible guestrooms are accessible.  It specifies that guestrooms are accessible and provides details on types of accessibility features, including a “grab bar near toilet,” a “low-height counter and sink,” and a “raised toilet seat.”  It also directs customers to contact the hotel directly for additional information on accessibility features.  Defendant’s website provides similar information in even more detail, listing the following “Guest Room Accessibility” features: accessible guest rooms with 32-inch wide doorways, accessible route from public entrance to accessible guest rooms, alarm clock telephone ringers, bathroom grab bars, bathtub grab bars, bathtub seat, lowered deadbolt locks, lowered door night guards, doors with level  handles, lowered electrical outlets, flashing door knockers, hearing accessible rooms and kits, roll-in showers, adjustable shower wands, “TTY/TTD available,” TVs with closed-captioning, toilet seats at wheelchair height, transfer showers, accessible vanities, and lowered viewports. (D’s Website.) Defendant’s website also notes that “[f]or more information about the physical features of our accessible rooms, common areas, or special services relating to a specific disability, please call +1 714-772-6777.”  This information more than satisfies Defendant’s obligation under § 36.302(e)(ii).

(citations omitted).

In the second case which involved the sufficiency of a hotel’s information on Marriott.com, Judge Carney reiterated the legal principles stated in the first decision, and concluded that the accessibility information “more than satisfies” ADA requirements.

Judge Carney’s decisions are good for the hotel industry and an important step toward countering the tsunami of lawsuits hitting California hotels during a very difficult time for the hospitality industry.  Check back for more developments on these cases.

UPDATE: On February 25, 2021, U.S. District Judge Percy Anderson dismissed with prejudice a third reservations website case filed by this law firm against another hotel with an even more detailed opinion which squarely rejects the plaintiff’s demand for detailed accessibility information.  The court stated:

The 2010 DOJ ADAAG Guidance on this provision “recognizes that a reservations system is not intended to be an accessibility survey,” and “[b]ecause of the wide variations in the level of accessibility that travelers will encounter . . . it may be sufficient to specify that the hotel is accessible” and to provide basic facts about each accessible room.” That is exactly what Defendant does here. Defendant provides Plaintiff notice that it has accessible rooms. While Plaintiff argues that “claiming something is ‘accessible’ is a conclusion or opinion,” the term “accessible” is specifically defined in the ADAAG to describe “a site, building, facility, or portion thereof that complies with these guidelines.” 1991 ADAAG § 3.5. Thus, the Defendant’s use of the term “accessible” is not merely conclusory, it means that the features in the hotel defined by Defendant as “accessible” comply with the ADAAG.

Edited by Kristina M. Launey

Seyfarth Synopsis: A recently-filed lawsuit contains a lengthy critical report by a digital accessibility consultant of accessibility issues created by an accessibility widget.

Amidst the thousands of lawsuits filed over the past few years alleging business’ websites and mobile apps are not accessible to blind individuals, businesses have scrambled to find ways to make their websites and apps accessible.  Often those businesses engage a consultant experienced in digital accessibility to perform an audit of the website or app. The consultant may also provide instruction on how to remediate the underlying code of the website or app to make it – and maintain it so it stays – accessible. This process can be costly and take a considerable amount of time, depending on the size and complexity of the website and the business’ resources. All the while, the business remains at risk of more lawsuits for not providing a website that individuals who are blind or have hearing impairments, for example, can use.

As lawsuits have proliferated, so have consultants and companies offering to make a website accessible through an overlay or “widget”, at much less effort – though not necessarily less cost or less risk – than remediation of the underlying code. Even while respected members of the digital accessibility community voiced reactions ranging from skepticism to flat out repudiation of these products, businesses have used them on their websites, desperately searching for any cost-effective accessibility solution. In a comprehensive article about the legal and technical issues surrounding these products, disability rights attorney Lainey Feingold wrote that “[c]ompanies promise that a website will work for disabled people if the software is installed” and that “using the software will prevent a website from being sued [for not being accessible].” Her article concludes with links to a number of articles written by reputable digital accessibility consultants (who have qualifications sufficient to provide expert witness services to a business facing a website accessibility lawsuit), that provide useful information for any company considering purchasing one of these products, and she provides the following advice: “take the time to understand how disabled people navigate websites.  Hire disabled people for roles throughout the design and development process and implement well recognized best practices. Rely on reputable consultants and proven tools. Respect the ADA and avoid quick-fix tools.”

Last year, there were a number of website accessibility suits filed against companies who had attempted to make their websites accessible using these products.  One plaintiff’s law firm recently took it up a notch, including in a lawsuit a detailed criticism and lengthy report by a digital accessibility consultant of the accessibility issues created by an accessibility widget.

The digital accessibility expert’s report, which is attached to the complaint, explains that the widget requires a JavaScript snippet be added to each page of the business’ website, which then provides controls that allow the user to modify the website’s appearance, a series of disability “profiles” which provide modifications or enhancements on the website for a user’s specific disability, and in some cases attempts to repair the website’s underlying accessibility issues. The report lays out the consultant’s opinion about the ways in which the widget product not only does not and cannot ensure full and equal access to a website by individuals with disabilities, but also that the product actually adds new accessibility issues to the website.  Obviously this is one expert’s opinion, and we’ll watch how this argument plays out in this lawsuit if it proceeds through litigation rather than settlement.

In the meantime, businesses looking to make their websites and mobile apps more accessible should carefully vet all consultants and other accessibility solutions.  Outside legal counsel experienced in digital accessibility can often add great value in these efforts and engagements.

By Minh N. Vu and Kristina Launey

Seyfarth Synopsis: We predict 2021 will be a very busy year for ADA Title III lawsuits.  Here is our take on the types of cases public accommodations can expect to face.

2020 was, by all accounts, an unusual year.  The year began with some prolific plaintiffs’ attorneys turning their attention from website accessibility lawsuits to lawsuits claiming that the ADA requires gift cards containing Braille. That gambit has not worked out well for these plaintiffs’ lawyers at the district court level, and the issue is now on appeal to the Court of Appeals for the Second Circuit.

Then the COVID-19 pandemic hit, causing a significant drop in the number of lawsuits filed — stalling the year over year growth in the number of ADA Title III lawsuits filed in federal courts, which peaked in 2019 with 11,053 lawsuits.

The pandemic did result in some new types of ADA lawsuits, however.  For example, a handful of plaintiffs sued about having to wear masks in public accommodations.

As the year wore on, the plaintiffs’ bar got back to work and filed a number of new lawsuits in the last quarter of 2020. As in prior years, we are completing our tally of lawsuits filed in federal courts and will know whether the end-of-year surge made up for the decrease in activity over the summer.

No one could have predicted what we have endured as a country in 2020.  But one thing is fairly certain:  2021 will be a very busy year for ADA Title III lawsuits.  If they remain on current pace, we expect they will likely equal or exceed the 2019 count.

What will those lawsuits be about?

Hotel Reservations Websites.  In 2020, several law firms and their plaintiffs filed hundreds of lawsuits against hotels which allegedly did not provide enough accessibility information about their hotels and accessible rooms on their own reservations websites or on online travel agency websites (OTAs) such as Expedia or Booking.com.  In the final months of 2020, one California firm filed over two hundred of these suits (most in state court) that will continue to be litigated in 2021.  Many hotels are fighting back so we anticipate more judicial decisions about how much accessibility information the ADA actually requires hotels provide on their reservations websites.

Website and Mobile App Accessibility LawsuitsAs in prior years, we expect a significant number of lawsuits alleging violations of the ADA and related state laws based upon the alleged inaccessibility of websites and mobile apps to the blind or people with hearing disabilities.  We anticipate that the Eleventh Circuit will finally issue its decision in the Gil v. Winn Dixie appeal, which may provide further guidance on whether the privately-developed Web Content Accessibility Guidelines (WCAG) should be the legal standard for accessible public accommodations websites.

Physical Access Barrier Lawsuits.  Lawsuits about accessibility barriers in physical facilities of public accommodations have always been the bread and butter of the ADA Title III plaintiffs’ bar, and we do not see that changing.  The barriers we most often see in these lawsuits concern accessible parking, exterior paths of travel, store aisles, restroom elements, and sales counters.

Department of Justice (DOJ) Enforcement Actions and Investigations.  The DOJ under the Trump administration was not particularly aggressive in its enforcement of Title III of the ADA and did not appear to pursue website accessibility investigations.  We expect much more zealous enforcement in a Biden administration, so businesses should be prepared to face broad investigations into their compliance with Title III of the ADA and potentially onerous demands for remedial action.

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What can a place of public accommodation do to mitigate the risk of being a statistic in 2021’s annual lawsuit count?  Have an ADA expert review your physical facility and take steps to remove barriers to access.  Adopt an ADA policy and train your employees on the law’s requirements to ensure appropriate interactions with individuals with disabilities.  Have a digital accessibility expert review your websites and mobile apps to ensure they can be used by people with disabilities.  And hotels, be sure you are providing accessibility information about your accessible rooms and common areas on your reservations website and that accessible rooms can be reserved on that website.  Also be sure you send accessible rooms and information to some OTAs.  It’s going to be a very busy year for ADA Title III matters, but you can take steps to make your business a less attractive target.  For a nice overview of common compliance problems, check out our video tips here.