By Minh N. Vu

Seyfarth synopsis:  The Spring 2022 Unified Regulatory Agenda is out with rulemakings on medical equipment, EV charging stations and fixed self-service transaction machines on the list of items to be addressed.

We predicted that there would be more regulatory activity in the ADA Title III universe under the Biden Administration and the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) confirms our forecast.  However, the Agenda does not include any proposed rulemaking concerning website or mobile app accessibility, an area where businesses continue to be barraged with private lawsuits in the absence of regulations.

Medical Diagnostic Equipment.  Back in 2017, the U.S. Access Board — the federal agency tasked under Title III of the ADA with drafting accessibility guidelines which must then be adopted by the Department of Justice (DOJ) before they become law — issued a final guidance containing standards for accessible medical diagnostic equipment.  The Agenda states that the DOJ will be issuing an Advanced Notice of Proposed Rulemaking (ANPRM) about these guidelines in September 2022 with a public comment period to close in November 2022.  The Agenda previews that “[a]mong the public input that the Department is seeking in this ANPRM is whether there are any issues relating to the potential adoption of the . . . [Access Board’s] Standards for Medical Diagnostic Equipment in the ADA regulation.”  Manufacturers of medical diagnostic equipment, as well as health care facilities that purchase and use such equipment, should actively participate in the ANPRM process.

EV Charging Stations.  According to the Agenda, the Access Board will be issuing a Notice of Proposed Rulemaking (NPRM) in September 2022 to set standards for accessible EV charging stations with the intent that the DOJ will eventually incorporate those guidelines in the current ADA Standards for Accessible Design. The rulemaking responds to the Infrastructure Investment and Jobs Act’s allocation of $7.5 billion to construct a national network of 500,000 EV charging stations nationwide.

Fixed Self-service Transaction Machines.  With the proliferation of self-service machines at public accommodations in the past few years, it is no surprise that the Access Board will be working on standards for accessible self-service kiosks, information transaction machines, and point-of-sale devices.  The Agenda states that an NPRM will be issued in August 2022.  It is very important for manufacturers of these machines, as well as the businesses that use them (e.g. retailers, rental car companies, lodging facilities, health care providers, banks, parking facilities, restaurants) to file comments on the Access Board’s forthcoming proposed guidelines because, once finalized, they are not likely to change in DOJ’s rulemaking process to make them enforceable standards.

***

While the rulemaking process can take years, we predict the DOJ will work hard to get all of these new standards finalized before the end of the Biden Administration because a regime change will most certainly halt all regulatory activity, yet again.

Edited by John W. Egan

By Minh N. Vu

Seyfarth Synopsis:  One of the most famous accessibility lawsuits of all time finally settles before trial under terms that may never be known.

After six hard-fought years in litigation at every level of the federal judicial system — including the Supreme Court — the parties in what may be the most famous website accessibility lawsuit of all time have reached a settlement, according to a Notice of Settlement filed with the district court on June 6, 2022.  We do not know, and may never know, the terms of that resolution. The  Notice does not indicate what form the resolution will take, or whether it will be confidential.

What were the highlights and takeaways from six years of litigation, in our opinion?

  1. The Ninth Circuit issued a decision reversing the district court’s dismissal of the lawsuit in a decision that we analyzed in a prior post. That decision is binding precedent in the Ninth Circuit.
  2. The Supreme Court declined review of the Ninth Circuit’s decision. Our blog post on this decision is here.
  3. On remand from the Ninth Circuit, the district court granted Robles’ motion for summary judgment about Domino’s website, finding that it was not fully accessible. In that decision, the court also concluded that a telephone line that requires a 45 minute wait is not a substitute for an accessible website.  Our analysis of that decision is here.
  4. The parties undoubtedly racked up substantial fees for six years of litigation at three different courts for a case that likely could have been settled at the outset for a modest amount of money.  This is the conundrum that every business faces when dealing with a website accessibility lawsuit.

From our perspective, legal guidance from the courts, especially at the appellate level, is always a good thing and this case certainly added to the ever growing body of law on website accessibility.

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: Second Circuit issues scathing decision directed at “mad lib”-style serial ADA Title III complaints, and affirms-on the basis of standing-the dismissal of four lawsuits alleging that retailers violated the ADA by not providing gift cards containing Braille.

As we previously reported, from the end of 2019 through the first few months of 2020, a group of serial ADA plaintiffs barraged New York federal courts with over 200 boilerplate lawsuits alleging that retailers and other businesses violated the ADA and New York state and city laws by failing to offer for sale gift cards in Braille.  In 2020, Judge Woods of the SDNY dismissed four of these cases, and plaintiffs appealed to the Second Circuit.

On June 2, 2022, the U.S. Court of Appeals for the Second Circuit affirmed the dismissals in a scathing decision that expresses the Court’s ire with the hundreds of boilerplate lawsuits that have inundated New York federal courts in recent years.  The decision further makes clear that plaintiffs who do not allege specific facts to establish their standing to sue will have their claims dismissed — a theme that continues from the Second Circuit’s recent decision in Harty v. West Point Realty.  In that case, the Court held that ADA plaintiffs must allege “downstream consequences” of being deprived information on a website to establish an Article III standing.

In the four cases that were consolidated into Calcano v. Swarovski North America Ltd., each plaintiff allegedly called the customer service offices at the respective businesses, asked whether the business sold gift cards in Braille, and was told that they did not.  Each plaintiff also alleged that they live near defendants’ stores, that they had been customers there “on prior occasions,” and that they would “immediately” purchase Braille gift cards once they became available.

The Second Circuit said these allegations were insufficient to show that plaintiffs faced a “material risk of future harm” that is “sufficiently imminent and substantial” to confer standing to sue under Title III of the ADA.  “[T]he central inquiry is not whether the complaint pleads the magic words that a plaintiff ‘intends to return,’” and therefore faces an imminent harm, but rather whether, under the “totality of all relevant facts,” plaintiff plausibly alleged a real and immediate threat of future injury (emphasis added).

In concluding that plaintiffs did not demonstrate a real and immediate threat of future injury, the Court noted the following:

  • Plaintiffs failed to allege any details about their past visits or the frequency of those visits, including what stores they visited, what they purchased, or even why they want to purchase Braille gift cards so urgently that they intend to do so “immediately;”
  • In only one out of the four cases did plaintiffs provide an accurate address for the defendant’s retail location (in one instance erroneously reciting a store address in Manhattan when defendant did not have a location anywhere in that borough). And in the one complaint where the business address was correctly stated, plaintiff alleged that his residence in the Bronx was “close” to the subject store near Columbus Circle in Midtown Manhattan, even though that trip that could be up to an hour away; and
  • Plaintiffs’ jurisdictional allegations simply “parrot[ed]” the Second Circuit’s language in a prior ADA Title III decision, which the court deemed “legal conclusion[s] couched as factual allegations.”

Most importantly, in evaluating the plausibility of plaintiffs’ allegations, the court refused to ignore the broader context of their litigation tsunami — citing that each of the four litigants were responsible for filing 81 out of the over 200 “essentially carbon copy complaints.”  In two of Calcano’s complaints, the court noted that only 26 of approximately 6,300 words, consisting of party names, dates, addresses and states of incorporation, were different, with both complaints including the very same typos.

Along the same vein, the court went further:

This backdrop of Plaintiffs’ Mad-Libs-style complaints further confirms the implausibility of their claims of injury. As noted above, Murphy asserts that he would return to a Kohl’s that doesn’t exist. Dominguez seeks to go back to Banana Republic for its food.  Thorne doesn’t even allege where he lives, making an assessment of proximity to a Jersey Mike’s impossible.  Calcano plans to travel from somewhere in the Bronx to Columbus Circle for a shaving supply gift card.  And all of these plans depend on the availability of braille gift cards even though Plaintiffs never explain why they want those cards in the first place. Although we might excuse a stray technical error or even credit an odd allegation standing alone as an idiosyncratic preference—to do so here in light of the cumulative implausibility of Plaintiffs’ allegations would be burying our heads in the sand. “[J]udicial experience and common sense” suggest that the errors, oddities, and omissions in the complaints are a result of their mass production, and they render each Plaintiff’s cookie-cutter assertion of standing implausible.

(Citation omitted.)

We note that in affirming the dismissal of these four cases on standing grounds, the Second Circuit majority did not reach the question of whether gift cards are covered by Title III of the ADA.  Judge Lohier, however, issued a concurring opinion that sharply disagreed with the majority’s reasoning on standing, as well as the lower court’s determination that a gift card is a “good” that is not required to be accessible under the ADA.

On this Blog, we have previously questioned whether the year-over-year increase in ADA Title III filings has been due to an uptick in discrimination, or more likely, because more lawyers elect to file more claims.  From the defense perspective, it is nice to see the Second Circuit majority in Calcano refusing to “bury . . . [their] heads in the sand.”

By Kristina Launey and Minh Vu

Seyfarth Synopsis: A California federal court decided after a trial that a blind plaintiff did not have standing to bring a lawsuit about an inaccessible website under Title III of the ADA, and California’s Unruh Act only protects people who try to access inaccessible websites while they are physically in California.   

We are seeing a trend in recent federal decisions in ADA Title III cases involving websites: Courts are finding that not being able to access information on a website, with no other adverse consequences, is not sufficient to establish the “concrete” harm required to have standing to sue.  In March, the Second Circuit issued a decision holding that a plaintiff had to allege “downstream consequences from failing to receive the required information [on a website] in order to have an Article III injury in fact.”  In that case, the plaintiff had failed to allege that his inability to obtain accessibility information about a hotel on its website actually impacted his ability to stay at that hotel or travel to the area of the hotel.

This week, District Judge Dale Fisher of the Central District of California held, after a bench trial, that plaintiff Andres Gomez did not have standing to bring a website accessibility lawsuit under Title III of the ADA because he had not shown any downstream consequences resulting from his encounter with the inaccessible website, nor a genuine intent to return to the website.  (Plaintiff Andres Gomez has filed well over 100 website accessibility lawsuits in California federal courts in the past three years alleging businesses have violated the ADA by having websites that are allegedly inaccessible to blind individuals.)

In the Court’s Findings of Fact and Conclusions of Law After Court Trial, the Court found that while Gomez had visited the inaccessible website to search for car rental companies in Los Angeles for a future trip, he did not credibly demonstrate that he would have a reason to return to defendant’s website.  Demonstrating a genuine intent to return to a business is critical to establishing standing to bring an ADA Title III claim because a plaintiff must show an imminent future harm for the prevention of which injunctive relief by the Court is necessary.  (The ADA only provides for injunctive relief to prevent future harm, not damages for past harm.)  The Court found that “defendant’s car rental locations would not be easy or even convenient choices for Gomez, and Gomez did not testify to any instance where he has actually rented a car in California or elsewhere.”  The Court observed that “there is no apparent reason to visit a website – certainly not for a second time – unless you intend to purchase or use the products or services described on the website.”

The Court also said a plaintiff must prove that the inability to access information on a website had consequences to have standing to sue:

Although the website’s inaccessibility allegedly initially prevented Plaintiff from learning the locations of Defendant’s rental cars, Plaintiff knew by the time he filed his Complaint that the locations were nowhere near El Monte and he did not demonstrate that they were close to any train or bus stations, or the airport that Plaintiff would have used to get to a California rental car agency in the first place. In short, Plaintiff did not demonstrate that this service was relevant to him, so the harm he suffered by being unable to access the website was merely “informational” and “dignitary.”

Judge Fisher thus held that “information” and “dignitary” harm is not sufficient to establish standing to sue and dismissed Gomez’s ADA claim.

The Court also dismissed Gomez’s California Unruh Act claim, finding that the statute does not apply to persons who were not physically in California (Gomez was in Florida when he visited the defendant’s website) when they experienced discrimination by a California-based business.

By Minh N. Vu

Seyfarth Synopsis:  A recent Second Circuit decision holds that a plaintiff’s encounter with an alleged legal violation on a website, without more, does not give that plaintiff standing to sue under Title III of the ADA.

New York federal courts have been inundated with website accessibility lawsuits in recent years and continued to lead the country with 2,074 cases filed in 2021.  By comparison, California came in at a distant second with only 359 filings for the same period.  Most of these 2,000+ New York lawsuits have been filed by a relatively small number of firms on behalf of blind plaintiffs who make vague and conclusory allegations about how they could not access the goods and services on dozens, if not hundreds of websites. Usually, these boilerplate complaints contain no information about what goods and services the plaintiffs actually wanted to access or why they needed these goods and services.

Thanks to a recent ruling by the U.S. Court of Appeals for the Second Circuit in Harty v. West Point Realty, defendants in these lawsuits should now have a stronger basis for getting the cases dismissed for lack of standing.  To have standing to bring a federal lawsuit, a plaintiff has to show that he or she has suffered a harm that is “concrete” and “particularized”.  In West Point, the Second Circuit made clear that simply encountering a barrier to access on a website is not a concrete and particularized injury.  In that case, the plaintiff sued a hotel located in West Point, Florida under the ADA for having a website with allegedly insufficient accessibility information (ADA regulations require that certain information be provided on the websites of hotels regarding their accessible features for people with mobility, vision, and hearing disabilities).  The Second Circuit upheld the district court’s dismissal of the lawsuit for lack of standing, finding that “[b]ecause [the plaintiff] asserted no plans to visit West Point or the surrounding area, he cannot allege that his ability to travel was hampered by West Point Realty’s website in a way that caused him concrete harm.”

The Second Circuit also made clear that the plaintiff’s inability to obtain information from the website alone was not a sufficient injury to confer standing.  On this point, the Court stated:

“[e]ven assuming that Harty can allege that he was deprived of information to which he is entitled by the ADA, he must also allege downstream consequences from failing to receive the required information in order to have an Article III injury in fact. In other words, Harty must show that he has an “interest in using the information … beyond bringing [his] lawsuit.  That he has not done. Harty, therefore, has not alleged an informational injury sufficient for Article III standing.”

In short, to bring a lawsuit about a website’s compliance with the ADA, a plaintiff has to show that he or she had a need for the information, goods and services offered by the website and that there were “downstream consequences” resulting from the alleged inability to use the website.

The Second Circuit is not the first Court of Appeals to reach this conclusion.  The Tenth Circuit and Fifth Circuit have all adopted this principle in the past year.  The Eleventh Circuit, on the other hand, recently decided that simply encountering a violation on a website could result in a concrete and particularized injury needed for standing.  Could there be a Petition for Certiorari to the Supreme Court forthcoming?

For the time being, West Point is binding on district courts in the Second Circuit, including those in New York where the vast majority of website accessibility lawsuits have been filed.  West Point’s usefulness for businesses defending website accessibility lawsuits will depend on the nature of the website at issue in a lawsuit and, of course, how well a complaint is drafted.  At a minimum, it will be more difficult for a plaintiff to claim that he or she was harmed by the inaccessibility of a website that offers unique goods, services, and information for which he or she does not have a need.

Edited by Kristina Launey & John Egan

By Kristina M. Launey & Minh N. Vu

Seyfarth SynopsisADA Title III website accessibility lawsuits filed in federal courts in 2021 jumped 14% over 2020, besting the 12% 2020 increase aided by a huge November 2021 spike in filings.

The numbers are in for total website accessibility lawsuit filings in federal courts in 2021, and they show a whopping 14% increase from 2020. The total number of lawsuits filed in federal courts alleging that plaintiffs with a disability could not use websites because they were not designed to be accessible and/or work with assistive technologies in 2021 was 2,895–372 more than 2020. This 14% increase in the number of lawsuits in 2021 exceeds the 12% increase we saw in 2020.  While these numbers pale by comparison to the explosion of cases we saw from 2017 to 2018 (an increase of 177%), the recent increases are still very significant.

[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); 2021: 2,895 (14% increase from 2020). *The number of cases that could be identified through a diligent search.]

In the first 10 months of 2021, there were between 170 and 260 filings per month except for March and August with 329 and 139, respectively.  The filings surged in November 2021 to 499 largely due to one NY law firm which filed 357 of those suits.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2021 – Dec. 2021): Jan. 2021 (234), Feb. 2021 (256), Mar. 2021 (329), Apr. 2021 (220), May 2021 (196), Jun. 2021 (242), Jul. 2021 (172), Aug. 2021 (139), Sep. 2021 (179), Oct. 2021 (183), Nov. 2021 (499), Dec. 2021 (246), *The number of cases that could be identified through a diligent search.]

New York, Florida, and California federal courts continued to be the busiest by far, with California stealing the #2 spot from Florida in 2021. New York federal courts saw 2,074 lawsuits in 2021 (continuing upward from 1,694 in 2020, 1,354 in 2019, and 1,564 in 2018).  California saw 359 lawsuits (up from 223 in 2020, 120 in 2019, and 10 in 2018), and Florida saw 185 (continuing a downward trend of 302 in 2020, 526 in 2019, and 576 in 2018) lawsuits, as shown in the chart below. In fourth place at 167, Pennsylvania was only slightly down from its 173 lawsuits filed in 2020. Colorado dropped out of the top 10, and Illinois returned to the fifth spot with 34 suits—2 more than its tally of 32 in 2020 but (down from 91 lawsuits in 2019). Connecticut and Indiana remained in the top 10 with relatively meager numbers at 14 and 7, respectively, and newcomers Oregon and Wisconsin rounded out the top 10 with 5 and 4 filings, respectively.

These numbers do not account for the many demand letters sent out by law firms which never result in lawsuits, as well as lawsuits filed in state courts (mostly in California) which are more difficult to track.  These numbers also do not include lawsuits filed alleging that a mobile app is inaccessible, unless the lawsuit also alleged an inaccessible website.  In an unscientific search in 2019, 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; this year that number was closer to 50.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2021: NY 2,074, CA 359, FL 185, PA 167, MA 41, IL 34, CT 14, IN 7, OR 5, WI 4. *The number of cases that could be identified through a diligent search.]

If you’re wondering why California has so few website accessibility cases relative to New York, it’s because many plaintiffs prefer to file in state court where the law is generally more favorable toward plaintiffs, especially when the defendant is an online-only business.  We will be keeping an eye on Florida in 2022 to assess the impact of the Eleventh Circuit’s decision to wipe the Gil v. Winn Dixie case entirely out of the casebooks on grounds of mootness.  Before doing so, however, the Eleventh Circuit had issued a decision that established a fairly high hurdle for plaintiffs seeking to demonstrate an ADA violation in a website accessibility case, suggesting that the Eleventh Circuit may well reach the same conclusion again.  This decision could have a chilling effect on Florida plaintiffs in these types of cases.

***

About our methodology:  Our 2021 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.

By Minh N. Vu

Seyfarth synopsis:  The DOJ issued a new guidance on website accessibility that contains basic information about the ADA’s requirements for lay people but no new information for legal practitioners.

We can only speculate as to whether it was a response to the recent demand of 181 disability advocacy groups for regulations on website accessibility, but this past Friday, March 18, the U.S. Department of Justice (DOJ) issued an unexpected “Web Accessibility Guidance” for state and local governments and public accommodations under Titles II and III of the Americans with Disabilities Act (ADA).  Those looking for new legal insights from DOJ on this subject will be disappointed because the Guidance merely reiterates what experienced legal practitioners in this area already know based on DOJ’s prior statements.  The Guidance seems to be targeted at business owners and government employees who are unfamiliar with the DOJ’s position on website accessibility and/or legal basis for that position.  In fact, the DOJ’s press release explains that the Guidance “offers plain language and user-friendly explanations to ensure that it can be followed by people without a legal or technical background.”

The Guidance discusses the importance of website accessibility to people with disabilities and provides some examples of common barriers on websites.  In the section called “How to Make Web Content Accessible to People with Disabilities,” DOJ acknowledges that “[t]he Department of Justice does not have a regulation setting out detailed standards,” but insists that “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”  The DOJ further says that “[b]usinesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication.  But they must comply with the ADA’s requirements.”  (Emphasis added.)  Unfortunately, the DOJ does not discuss what it means by “flexibility.”  Likewise, the DOJ states that “[b]usinesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.”  (Emphasis added.)  But again, the DOJ does not specify the options from which businesses and state and local governments may “choose” to accomplish this goal.

On the question of how to make one’s website accessible, the DOJ states that “[e]xisting technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards, which the federal government uses for its own websites.”  Interestingly, while Section 508 requires conformance to WCAG 2.0 Level AA, DOJ has been insisting on the more demanding WCAG 2.1 Level AA in its recent settlements with places of public accommodation under Title III.

The Guidance then reminds covered entities that the DOJ considers website accessibility a priority and lists some settlements reached by the DOJ with state and local governments and businesses.  We saw some questions on social media after the issuance as to why the Guidance does not cover intranets (employee-facing technologies).  That would be covered by Title I of the ADA, which is enforced by the EEOC, not the DOJ.

Our takeaway?  After four years in which the Trump DOJ did very little to require businesses and state and local governments to make their websites accessible, the Biden DOJ felt the need to announce that website accessibility is back on the Civil Rights Division’s enforcement agenda, just as we predicted it would be.  Whether the DOJ takes any further action toward enacting regulations on this subject, as the 181 advocacy groups called upon it to do, remains to be seen.

Edited by Kristina Launey and John Egan

By Kristina M. Launey and Minh Vu

Seyfarth Synopsis: The Eleventh Circuit has refused to reconsider its decision to vacate its prior order and the trial court’s judgment because of mootness; meanwhile disability rights advocates demand regulatory action from DOJ on accessible websites.

On March 2, 2022, the Eleventh Circuit Court of Appeals denied Winn-Dixie’s request that the full panel of judges reconsider a single Eleventh Circuit judge’s order dismissing the appeal and district court proceeding as moot.  This ends what had been an over-six year saga in one of the most-watched website accessibility cases in the country.  Here’s your Cliffs Notes version of this drama:

In June 2017 a Florida federal trial court ruled in favor of the blind plaintiff, finding Winn-Dixie’s inaccessible website violated the ADA, holding Winn-Dixie responsible for third party content on its website, and ordering, among other things, that the website be brought into conformance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA by December 1, 2017.  According to court filings, Winn-Dixie complied with the order.

As we previously reported, in April 2021, the Eleventh Circuit Court of Appeals overturned the trial court’s verdict, 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, privileges, or advantages of Winn-Dixie’s physical stores.

Just a week later after the Eleventh Circuit’s order, the plaintiff filed a request that an en banc panel of judges reconsider the ruling, arguing that the issues in the case are of exceptional importance and that, among other things, the panel deviated from prior Eleventh Circuit precedent in rejecting the physical “nexus” standard.

At the end of 2021, the Eleventh Circuit dismissed the appeal as moot, vacated its prior decision as well as the district court judgment below, and remanded the case to the district court to dismiss as moot.  The Court concluded that the entire matter was moot because the injunction had expired while the appeal was pending for over four years.

Winn-Dixie apparently didn’t like this ruling and asked the Eleventh Circuit for rehearing en banc on whether the appeal and underlying case are moot.  The Eleventh Circuit has now denied that petition, putting an end to this six year saga unless Winn-Dixie decides to ask the Supreme Court to review the decision. Since the chances of the case being accepted by the Supreme Court are miniscule, this matter is likely over.

How does the Eleventh Circuit’s dismissal of the appeal and vacating of the judgment below affect the legal landscape?  The substantive decisions by the district court (often cited by plaintiffs) and the Eleventh Circuit (cited by defendants for a short time) are effectively erased from the case books and can no longer be cited for any purpose.  On balance, this is a good outcome for plaintiffs in the Eleventh Circuit because the decision set a very high standard for a violation.  The court had concluded, for example, the plaintiff’s inability to order prescriptions online for pick up at the store because of the website’s inaccessibility was not a barrier to his access to Winn-Dixie’s goods and services at the store.

Another Saga Begins (Anew?)

Meanwhile, on February 28, 2022, 181 advocacy groups—some of which had also at one time filed Amicus Briefs in the Winn-Dixie litigation—collectively published a “Joint Letter to Enforce Accessibility Standards” to Kristen Clarke, the head of the US Department of Justice (DOJ) Civil Rights Division which is responsible for enforcing the ADA.  The groups—led by the American Council of the Blind, American Federation for the Blind, the National Disability Rights Network, and the National Federation of the Blind—asked DOJ to “adopt enforceable online accessibility standards by the end of the current Administration.”

Cliffs Notes version of the regulatory saga: In 2010, DOJ issued an Advanced Notice of Proposed Rulemaking for Title II and Title III website regulations for state/local governments and public accommodations, respectively.  While there was some non-substantive activity around issuing accessibility standards for the websites of state and local governments covered by Title II of the ADA in 2016, the DOJ did not issue a single proposed rule during the entire Obama Administration.  In 2017, the Trump DOJ terminated these rulemaking efforts altogether.

The absence of regulations regarding web accessibility has been problematic for public accommodations which were hit with over 7,851 federal website lawsuits from the beginning of 2017 to the end of 2020.  This number does not include the numerous lawsuits filed in California state courts or demand letters that never turned into lawsuits.  The lack of clear standards has resulted in a body of law with conflicting decisions, and has made it very difficult for businesses to demand accessible websites from their web developers and web content from software vendors.  Thoughtful regulations that set clear standards and take into account the challenges businesses face in developing and maintaining accessible websites would be welcome by the business community and advocates alike.   While we have seen greater activity by the Biden DOJ in the website accessibility enforcement space recently, it would be surprising to see this Administration issue website accessibility final regulations in fewer than three years.  It is not impossible, but also not likely.

 

By Minh Vu, Kristina Launey and Susan Ryan

Seyfarth Synopsis:  Plaintiffs continue filing ADA Title III lawsuits in record numbers with no sign of stopping.

As regular readers of this blog know, the number of ADA Title III lawsuits filed in federal court in 2020 dipped slightly under 11,000, but the plaintiffs’ bar came roaring back in 2021. There were at least 11,452 federal filings last year – an all-time record since we started keeping track in 2013 when there were only 2,722 suits.  That’s a 320% increase in eight years.

[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; 2021: 11,452 4% increase over 2020]

Has the world become more inaccessible?  We don’t think physical facilities are any less accessible than they were in 2013.  If anything, they should be more accessible as new buildings built in compliance with the ADA Standards for Accessible Design replace old ones and more time has passed for businesses to engage in readily achievable barrier removal in pre-ADA facilities.  So what is driving these huge numbers?  We haven’t finished our tally for 2021 but we know that in 2020, more than 2,500 lawsuits were filed in federal court about the accessibility of websites – a type of lawsuit that was rare to non-existent back in 2013.  In addition, in 2021, a number of firms filed dozens, if not hundreds, of cookie-cutter website accessibility lawsuits.  Plaintiffs’ lawyers also filed hundreds of lawsuits on a new theory that that hotels violated the ADA by failing to disclose sufficient information about their accessible rooms on reservations websites.  One firm filed over 550 of these cases starting at the end of 2020 and continuing through 2021.  And, of course, the cases alleging physical access barriers in facilities such as shopping centers, restaurants, and hotels keep on coming – even in 2020-21 when indoor activities were often shut-down.

What do the numbers tell us?

California remains a lawsuit hotbed, no doubt because plaintiffs can add a state law discrimination claim under the Unruh Act and get $4,000 in statutory damages for every incident of discrimination without even having to prove an actual injury.  The 5,930 California filings accounted for just over half the total number of filings nationwide.  New York was a distant second, with 2,774 lawsuits, and Florida was third, with only 1,054 lawsuits.  In short, there were more ADA Title III suits filed in California than in all other 49 states combined.

[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2021: California: 2013: 995; 2014 1,866; 2015: 1,659; 2016: 2,458; 2017: 2,751; 2018: 4,249; 2019: 4,794; 2020: 5,869; 2021: 5,930; Florida: 2013: 816; 2014: 1,553; 2015: 1,338; 2016:1,663; 2017: 1,488; 2018: 1,941; 2019: 1,885; 2020: 1,208; 2021: 1,054; New York: 2013: 125; 2014: 212; 2015: 366; 2016: 543; 2017: 1,023; 2018: 2,338; 2019: 2,635; 2020: 2,238; 2021: 2,774]

Rounding out the top ten were Texas (337), Pennsylvania (161), Georgia (160),  Nevada (130), Colorado (102), Illinois (99), and Tennessee (91).  Nevada and Tennessee are newcomers to the top ten, displacing New Jersey and Massachusetts which fell to eleventh and thirteenth places with 70 and 51 lawsuits, respectively.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2021 – December 31, 2021: California: 5, 930; New York: 2,774; Florida: 1,054; Texas: 337; Pennsylvania: 161; Georgia: 160; Nevada: 130; Colorado: 102; Illinois: 99; Tennessee: 91]

There were no ADA Title III federal lawsuits at all in Alaska, Delaware, Idaho, Iowa, Montana, Nebraska, and North Dakota.

March and November 2021 were the busiest months for new filings with 1,108 and 1,148 cases, respectively, while July and December 2021 were the least busy filing months with 743 and 732 filings.  Even plaintiffs’ lawyers have to go on vacation and celebrate the holidays, it seems.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2021 – December 31, 2021: January: 1,108; February: 994; March: 1,240; April: 1,018; May: 1,003; June: 941; July: 743; August: 864; September: 836; October: 825;  November: 1,148; December: 732]

We predict 2022 will be comparable to 2021 unless there is another COVID-related shutdown, but that seems unlikely at this point.  Plus, ADA Title III lawyers have adapted to working remotely and are more productive than ever.

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

By Eden Anderson

Seyfarth Synopsis: The DOJ issued guidance on two COVID-era access issues, confirming outdoor business operations must comply with the ADA and prohibiting medical providers from adopting blanket bans on companion accompaniment.

The Department of Justice (DOJ) recently updated its Common Questions About COVID and the ADA (“Common Questions”) to include information on issues of interest to businesses with outdoor operations, including so called “streateries,” and to medical providers.  For restaurants and retailers that created sidewalk and parking-lot retail and eating areas to adapt to pandemic health restrictions, the DOJ makes clear those areas must be accessible to individuals with disabilities. For medical providers, the DOJ emphasizes a case-by-case analysis must be conducted of companion accompaniment requests.  The previous version of the DOJ’s Common Questions addressed only how the pandemic did not alter rules for admission of service animals and issues of more relevance to employers, including whether long COVID qualifies as a “disability.”  The newly added FAQs provide important new guidance for businesses grappling with COVID-era operational challenges.

Outdoor Business Operations Must Comply with the ADA

The new information confirms that outdoor restaurant and retail areas, many of which were introduced during the pandemic, must comply with the ADA.  Businesses must ensure there is an accessible route from the accessible parking to the outdoor eating or retail area by making sure outdoor fixtures (e.g., sandwich boards, heaters, planters, chairs, tables, umbrellas, etc.) are not blocking the path of travel.  Additionally, businesses must ensure there is an accessible route through any outdoor eating or retail space, that any outdoor check out area is accessible, and that outdoor operations do not block accessible parking spaces.

The guidance also reminds businesses with outdoor operations to be cognizant of objects that protrude into the sidewalk at heights that cannot be detected by a person with visual disability (e.g., umbrellas, canopies, table tops, tree branches or displays).  Even if the protruding object is something maintained by the city such as, for example, a tree branch, the business is obligated to report the issue to the city to have the tree trimmed.

Medical Providers Cannot Adopt Blanket Bans on Patient Companions

For medical providers trying to balance patient and provider safety with their ADA obligations, the DOJ warned that, even in the midst of the pandemic, a “blanket” rule banning all non-patients from entry into a medical facility would be impermissible.  Rather, the medical provider must consider whether a patient with disability needs someone with them to equally access medical care, and balance that need against legitimate safety concerns associated with COVID transmissibility.

For example, while a person with a mobility disability would not need a companion to assist them with mobility while in a medical facility, a person with Down Syndrome who cannot speak and who is in severe pain may need a companion to be allowed entry to ensure effective communication.  In other instances, a medical provider may instead allow for a companion’s remote participation in the patient’s care; for example, where a patient suffers a traumatic brain injury and wants their COVID-positive spouse to be involved in care discussions (we note the COVID-positive is likely key here, as the DOJ would likely otherwise require the companion be allowed in person absent extreme circumstances).  These three examples provided by the DOJ illustrate how fact-intensive the effective communication inquiry can be, with the DOJ encouraging providers to “think creatively” about how to best serve the needs of a patient with disability.

Given the importance of outdoor dining during the pandemic, it is important to ensure that your outdoor business operations are accessible.  For medical providers, the new guidance underscores the importance of ensuring that your staff conducts a case-by-case analysis of companion requests from individuals with disabilities.

Edited by Kristina Launey and Minh Vu