By Minh N. Vu

Seyfarth Synopsis:  UC Berkeley and the DOJ resolve an 8-year investigation with a comprehensive Consent Decree that requires UC Berkeley to make virtually all the content on its online platforms accessible to people with disabilities within three years and adopt comprehensive policies and procedures to ensure accessible online content.

After eight years, the U.S. Department of Justice (DOJ) finally concluded its investigation into UC Berkley’s online content-related accessibility policies and practices with a 16-page Consent Decree that is awaiting approval by the federal court in the Northern District of California.  The investigation started in 2014 when the National Association of the Deaf (NAD) complained to the DOJ that free online courses, conferences, lectures, performances and other programming in audio or video formats offered by UC Berkeley did not have closed captioning.  NAD alleged that the failure to provide closed captioning violated Title II of the ADA which requires state entities to provide equal access to their services, programs, and activities.

The DOJ’s investigation expanded beyond access for people with hearing-related disabilities. The Consent Decree reflects this scope by requiring access to UC Berkley’s online content for people with all types of disabilities.  Although the Consent Decree is based on UC Berkeley’s obligations under Title II the ADA, it nonetheless provides a useful framework for private universities seeking to ensure their own website accessibility policies and procedures comply with Title III of the ADA.  We note, however, that a good compliance program does not have to be exactly like the one outlined in the UC Berkeley Consent Decree.

There is a lot to unpack in this Consent Decree, but here are some of the most significant takeaways:

  1. UC Berkeley must report to DOJ on the state of its compliance with the Consent Decree every six months during the Consent Decree’s 42-month long term.
  2. The Consent Decree covers the activities of the “Berkeley Entities”, defined as “the central administration of UC Berkeley and any UC Berkeley school, college, department, program, or academic unit.”  The Consent Decree specifically excludes individual students and student groups from coverage.
  3. The UC Berkeley platforms covered by the Consent Decree are:  (a) UC Berkeley’s Massive Online Open Course (“MOOC”) platform referred to as UC BerkeleyX; (b)  http://www.berkeley.edu/ (and any subdomain of www.berkeley.edu that may be accessed by the general public and that is controlled by a Berkeley Entity); (c) any podcast channel or account controlled by a Berkeley Entity that is hosted on a third-party platform (e.g. Apple Podcasts and Spotify); and (d) any other audio or video channel or account controlled by a Berkeley Entity that is hosted on a third-party platform (e.g. YouTube).
  4. UC BerkeleyX Platform.  Within nine (9) months of the date the Court approves the Consent Decree, UC Berkeley must ensure that all online content, including audio and video content, on this platform conforms to WCAG 2.0, Level AA. 
  5. Main Website.  Within eighteen (18) months of the date the Court approves the Consent Decree, UC Berkeley must ensure that all content on http://www.berkeley.edu/ and subdomains conforms to WCAG 2.0, Level AA, except for audio and video content which is subject to a different timeline. 
  6. New Audio and Video Content.  Within nine (9) months of the date the Court approves the Consent Decree, UC Berkeley will ensure that all audio and video content on the following platforms created or made publicly available after the date the Court approves the Consent Decree conforms to WCAG 2.0 Level AA:  http://www.berkeley.edu/ and subdomains, any podcast channel or account controlled by a Berkeley Entity that is hosted on a third-party platform (e.g. Apple Podcasts and Spotify), and any other audio or video channel or account controlled by a Berkeley Entity that is hosted on a third-party platform, such as YouTube.
  7. Existing Audio and Video Content: Within thirty-six (36) months of the date the Court approves the Consent Decree, UC Berkeley will ensure that:
    1. all audio and video Content on http://www.berkeley.edu/ and subdomains that was made publicly available prior to the Effective Date conforms to WCAG 2.0, Level AA;
    2. all audio and video content on UC Berkeley’s podcast platforms (e.g. Apple Podcasts, Spotify) that was made publicly available prior to the Effective Date conforms to WCAG 2.0, Level AA; and
    3. all other audio and video content on any other audio or video channel or account controlled by a Berkeley Entity that is hosted on a third-party platform (e.g. YouTube) that either (1) was created or made publicly available within the two (2) years preceding the Effective Date; or (2) has at least 750 views as of the effective date, conforms to WCAG 2.0, Level AA.

The Consent Decree also requires UC Berkeley to adopt very detailed web accessibility procedures, appoint a web accessibility coordinator, create a very specific process and notice to the public for receiving and promptly responding to feedback and requests from users concerning web accessibility, and provide website accessibility training to individuals whose duties include uploading and managing online content on a UC Berkeley platform on behalf of a Berkeley Entity.  Furthermore, the Consent Decree requires UC Berkeley to not only continue its own internal accessibility testing of its online content, but also hire an external auditor to test the various covered platforms 9, 21, and 33 months into the Consent Decree. 

There is nothing particularly surprising about these comprehensive terms, other than the fact that the DOJ only required conformance with WCAG 2.0 AA, as opposed to the more demanding  WCAG 2.1 AA.  DOJ has required compliance with WCAG 2.1 AA in recent website accessibility agreements, even though DOJ itself is only required by law to comply with WCAG 2.0 AA for its own online content.  The longer timeline to bring existing audio and video content into compliance with accessibility standards is also noteworthy.  DOJ apparently recognized that requiring the addition of closed captioning and audio description to the many thousands of existing videos and audio files on UC Berkeley’s platforms could be cost-prohibitive and may result in their permanent removal. 

The Consent Decree is an example of the Biden’s Administration’s commitment to website accessibility enforcement, even if it seems to be in no hurry to issue regulations on this topic.

Edited by Kristina Launey

By Minh N. Vu

Seyfarth synopsis:  Ninth Circuit judges are getting tougher on lawyers who represent serial plaintiffs by reducing their fees and threatening sanctions for citing outdated law.

In 2021, plaintiffs filed 11,452 federal lawsuits alleging violations of Title III of the Americans with Disabilities Act (ADA). More than half (5,930) of those were filed in California.  While most judges in California have not seemed particularly concerned that the vast majority of these cases are filed by repeat plaintiffs, the patience of some judges is wearing thin. 

In a recent decision concerning fees awarded to a prevailing serial plaintiff, the Ninth Circuit made rather pointed comments about serial plaintiffs and their attorneys.  Quoting from a law review article advocating for lawsuit reform, the Court said:  “The ADA satisfied the need for meaningful legislation for the protection of individuals with disabilities; however, one of the unforeseen consequences of this statute was the widespread abuse taking form due to the actions of serial ADA plaintiffs.”  The Ninth Circuit then devoted several pages of its opinion to how these “get-money quick” lawsuits work and lamented that “the number of ADA cases in the Central District of California has ballooned from 3 percent of its civil docket to roughly 20 percent in recent years.”  The Court noted that “ [a] hallmark of abusive ADA litigation is the use of form complaints containing a multitude of boilerplate allegations of varying merit.” 

The Ninth Circuit Court concluded that in the federal trial court, District Judge Wu’s application of a blended $300 rate for all attorneys working on a case and a 65% reduction of all fees was warranted due to the routine nature of the work and the defendant’s lack of opposition on the merits.  With these reductions, the plaintiff’s firm received $10,000 in fees instead of the $34,000 it demanded for work through summary judgment.

The Court rejected plaintiff’s argument that the district court had failed to adequately explain the basis for the blended rate and downward multiplier.  It held that the district court “was not required to write the equivalent of a law review article justifying its fee award; it only had to provide a ‘concise but clear explanation” of the grounds for its decision.’”  It found the district court did that, finding that the ADA serial litigation is not complex and did not require partner level work, let alone two partners billing at $500 per hour. 

This decision should be useful for businesses fighting fee petitions filed by serial plaintiffs in routine cases.

In another recent decision, District Judge Otis Wright of the Central District of California made clear his intolerance for sloppy work by plaintiff’s attorneys in ADA Title III cases.  Judge Wright denied the plaintiff’s motion for a default judgment against a liquor store because, among other things, the plaintiff had failed to establish that the alleged barriers had denied her access to the public accommodation, or that the removal of the barriers was readily achievable.  On the latter issue, the court observed that plaintiff had not met her initial burden “to plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances,” as required by controlling Ninth Circuit precedent.  Indeed, the court concluded that the plaintiff had ignored this precedent altogether.  The court ordered plaintiff to show cause as to “why a sanction in the amount of up to $8,001 should not be imposed on counsel for repeatedly citing to law that was abrogated by the Ninth’s Circuit’s decision in Lopez v. Catalina Channel Express.” 

These decisions show that courts share businesses’ frustration with ADA complaints that do not contain specific factual allegations, seek unreasonable fees, or fail to heed controlling law.

Edited by Kristina Launey

By Minh N. Vu and John W. Egan

Seyfarth Synopsis: The U.S. Access Board published an ANPRM on September 21, 2022 requesting public comment on nine questions as it prepares draft regulations addressing the accessibility of self-service kiosks.

As previewed in the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) (as we previously covered), the U.S. Access Board recently issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) for Fixed Self-Service Transaction Machines (“SSTMs”) (a.k.a. self-service kiosks).  The U.S. Access Board—the federal agency that develops accessibility standards that become regulations under ADA Title III once adopted by the DOJ—is requesting public comment on nine questions (listed below) as it works on proposed accessibility requirements for self-service kiosks.

Self-service kiosks typically utilize touchscreens and visual displays which allow customers to access services or perform functions themselves that are traditionally provided by employees of the business.  These devices present financial and operational incentives to businesses, allowing them to have fewer employees serving customers, offer a largely contact-free customer experience, and give customers the option to skip the line for in-person service.  However, these kiosks can be impossible to use by people who are blind if there is no audio output for visual information, or controls that can be perceived without sight.  Persons who use scooters and wheelchairs can also have difficulty using self-service kiosks if the controls are out of reach from their seated position, the screen is too high, or there is no clear floor space in front of the machine.

Self-service kiosks have sprouted up everywhere in recent years.  They are used to order food, buy tickets of all kinds, pay for parking, check-in to a hotel or healthcare provider, get a rental car, and rent movies.  But unlike ATMs and fare machines that long predate them, self-service kiosks do not have specific accessibility requirements set forth in the ADA Standards for Accessible Design (“2010 Standards”) which apply to public accommodations and commercial facilities.  The absence of technical standards does not mean that there are no legal requirements, however.  The U.S. Department of Justice (“DOJ”) made clear in a recent Statement of Interest (“SOI”) that public accommodations have a duty to ensure effective communication for the goods and/or services offered through self-service kiosks.  This can be done by providing an accessible kiosk that people with disabilities can use independently, or with employee assistance that provides an equivalent experience.  In the SOI, the DOJ found that providing employee assistance at a self-service check-in kiosk was not sufficient where the process resulted in placing blind patients with appointments at the end of the line for people with no appointments.

The ANPRM notes that the accessibility of similar equipment is already covered in non-public accommodation contexts.  For example, the design and functionality of self-service kiosks in U.S. post offices must comply with accessibility requirements that apply to federal agencies employing such devices under Section 508 of the Rehabilitation Act of 1973 (“Section 508”).  Similarly, regulations under the federal Air Carrier Access Act already cover the accessibility of airport kiosks that allow customers to independently print boarding passes, check luggage, receive essential information about their flights, change seat locations, and pay various fees.  According to the ANPRM, the Access Board is evaluating whether, and to what extent, similar requirements should be issued for public accommodations.  Under the ADA, the Access Board is responsible for drafting the technical standards but they do not become binding on public accommodations until the DOJ incorporates them into its own ADA regulations.  The DOJ will not have much leeway to change the technical standards at that time, but it will be solely responsible for determining when the requirements will become effective and similar implementation issues. 

Included in the ANPRM is a matrix prepared by the Access Board that compares the current accessibility requirements for (1) ATM and Fare Machines under the ADA, (2) applicable hardware under Section 508, and (3) airport kiosks under the Air Carrier Access Act.  There are a number of commonalities among the requirements, which may provide insight on how the Access Board will approach these issues.  They include:

  • The usability of operable parts for individuals with disabilities;
  • Speech output requirements, privacy considerations (i.e. headset/audio jack), and user ability to change volume, interrupt and/or repeat audible content;
  • Numeric keys and other controls that are discernable by touch/tactile sense, and their format and organization;
  • Display screen requirements, character/font size, and visibility;
  • Braille instructions on the devices; and
  • Clear or unobstructed floor space or area in front of the devices.

The ANPRM specifically requests public comment on the following questions:

Question 1. . . . Are there capabilities, functions, or other objective criteria that should define the types of devices covered as SSTMs or self-service kiosks?”

Question 2. Are there other types of electronic devices providing unattended interaction that should be addressed by this rulemaking? If so, what are they?”

Question 3. Are there types of self-service electronic devices that should not be covered by this rulemaking? If so, why not?”

Question 4. Should the Board’s rule require all fixed or built-in SSTMs and self-service kiosks in each location to be accessible? If not, why, and what should the number be? Are there some facilities or locations that should have a higher number of accessible devices than others?”

“Question 5. The Board seeks comment on this planned approach [of incorporating more recent, Section 508 standards for kiosks] for the proposed supplementary guidelines for SSTMs and self-service kiosks outlined in this ANPRM.”

Question 6. Should requirements for ATMs and fare machines in the current ADA and ABA Accessibility Guidelines be updated as part of this rulemaking to address additional features covered in the Revised 508 Standards and the DOT rule pertinent to the accessibility of ATMs and fare machines?”

Question 7. The Board seeks comment from users and manufacturers of self-service transaction machines and self-service kiosks on their experiences in using or designing accessible machines and the benefits and costs associated with the proposed requirements.”

Question 8. The Board seeks comments on the numbers of small entities that may be affected by this rulemaking and the potential economic impact to these entities; these include small businesses, small non-profits and governmental entities with a population of fewer than 50,000. The Board also seeks feedback on any regulatory alternatives that may minimize significant economic impacts on small entities.”

Question 9. Should SSTM and self-service kiosk which accept credit and debit cards be required to accept contactless payment systems?”

Because it is very unlikely the DOJ will change the technical standards that issue from the Access Board in its own rulemaking process, self-service kiosk manufacturers and businesses that currently employ these technologies (or are considering employing them in the future) such as retailers, restaurants, banks, lodging facilities, institutions of higher learning, and other covered entities, should submit public comments by the deadline of November 21, 2022.

Edited by Kristina M. Launey

By Minh N. Vu

Seyfarth Synopsis:  The California Court of Appeals decision that put an end to lawsuits against online only businesses in California and called out DOJ and Congress for inaction stays put after California Supreme Court denied plaintiff’s review request.

Update: On November 9, 2022, the California Supreme Court denied plaintiff’s request that the Court review the California Court of Appeals precedent setting, 35-page opinion, that closed the door on California lawsuits brought against online only businesses, agreeing with the U.S. Court of Appeals for the Ninth Circuit that websites are not “public accommodations” covered by Title III of the ADA.  It also held that creating and maintaining an inaccessible website cannot constitute intentional discrimination under the Unruh Act.

The blind plaintiff in Martinez v. Cot’n Wash, Inc. alleged that the online only retailer had engaged in disability discrimination in violation of California’s Unruh Act by having a website that he could not use with his screen reader software.  There are two ways to establish a violation of the Unruh Act: prove (1) intentional discrimination; or (2) a violation of Title III of the ADA.  Martinez claimed that he had alleged sufficient facts to establish a violation under both theories.

Martinez struck out on both counts.

With regard to the intentional discrimination theory, Martinez argued that the retailer’s failure to take action in response to his demand letters complaining about the website’s accessibility barriers constituted intentional discrimination.  The Court disagreed, reiterating that “[a] claimant may not “rel[y] on the effects of a facially neutral policy on a particular group… to infer… a discriminatory intent.” The Court also said that “a failure to address known discriminatory effects of a policy” is not sufficient to establish intentional discrimination under the Unruh Act.

As for Martinez’s claim that the online-only retailer had violated Title III of the ADA, the Court opined that “even after examining the language of the statute and considering maxims of statutory interpretation and legislative history pre-dating passage of the law, we remain without a clear answer as to whether a purely digital retail website can constitute a ‘place of public accommodation’ in the context of Title III.”  The Court thus turned to what it called “the third and final step in the interpretive process.”   The Court explained:

In this phase of the process, we apply reason, practicality, and common sense to the language at hand.  Where an uncertainty exists, we must consider the consequences that will flow from a particular interpretation.  Based on such an analysis, we ultimately find dispositive that adopting Martinez’s proposed interpretation of “place of public accommodation” would mean embracing a view that Congress (through its inaction since the enactment of the ADA) and the DOJ (through its unwillingness to draft regulations) have both tacitly rejected.

The Court observed that since 2010, Congress and the DOJ recognized the need to address through legislation or regulations whether and under what circumstances a website constitutes a “place of public accommodation” but chose to do nothing, suggesting that neither the DOJ nor Congress “officially endorses” the coverage of websites by the ADA.  The Court stated that:

Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification.  To the contrary, it is a reason for us not to do so.  This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislative fact-finding.

In short, the Court said it was not its place to “adopt an interpretation of the statute that is not dictated by its language, especially in the face of… legislative and agency inaction.”

Martinez will likely file a petition for review by the California Supreme Court, but that court’s review is entirely discretionary and less than five percent of petitions are granted.  Thus, this decision will likely stand as binding precedent on all California trial courts.

The significance of this decision for online only businesses cannot be overstated.  It means that plaintiffs cannot successfully sue them for having inaccessible websites in California state or federal courts.  As discussed, the U.S. Court of Appeals for the Ninth Circuit has long held that a website is not a place of public accommodation covered by Title III of the ADA.  This decision will certainly reduce the number of lawsuits brought in California state and federal courts by plaintiffs enticed by under the Unruh Act’s $4,000 minimum statutory damages provision.

The data underscores the importance of this decision.  Relatively few website accessibility lawsuits have been filed in California federal court – most likely because of the Ninth’s Circuit’s position on online only businesses.  California plaintiffs have favored state court where a few judges, until now, were willing to allow suits against online only businesses and even found that having an inaccessible website could constitute intentional discrimination under Unruh.

Businesses must keep in mind, however, that this decision has little impact on claims relating to websites that have a nexus to a physical facility where goods and services are offered to the public.  Such websites would likely be considered a benefit or service of a brick and mortar place of public accommodation, and be covered by Title III’s non-discrimination mandate.

Edited by Kristina M. Launey

By Kristina Launey and Julia Sarnoff

Seyfarth Synopsis:  The Department of Health and Human Services and Department of Justice recently issued Guidance for telehealth accessibility with specific examples.

During the COVID-19 pandemic, many health care providers and patients turned to telehealth as a way to provide and receive health care services while in lockdown.  Telehealth allows providers to see patients via videoconference (or telephone) and exchange written materials electronically.  While telehealth has many advantages, it can also present challenges to those with visual, hearing, cognitive, or other disabilities.  Telehealth websites may not be fully compatible with screen reader technologies relied on by individuals who are blind or have low vision, for example.

Recognizing these challenges, on July 29, 2022, the Department of Health and Human Services (HHS) and Department of Justice (DOJ) issued a joint Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons.

The Guidance states that all entities subject to Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, Title VI of the Civil Rights Act of 1964, and Section 1557 of the Affordable Care Act should review their telehealth systems, policies, and processes to ensure accessibility for telehealth programs for all persons with disabilities.  The Guidance also provides specific examples of actions that health care providers may need to take to ensure that health care offered via telehealth is accessible, as well as resources for providers and patients about telehealth and civil rights protections.

Some examples provided in the Guidance for how health care providers can provide accessible telehealth services include:

  • Ensuring that the telehealth electronic platform is coded to support screen reader software used by blind individuals (which is in alignment with the accessible technology requirements under Section 1557 of the ACA and Medicare rules).
  • Providing instructions or allowing extra time for a patient to become familiar with the telehealth platform in advance of a remote appointment.
  • Ensuring that health care providers communicate effectively with people who have communication disabilities, including about provider availability, records access, and during appointments.

These are just a few of the examples provided in the Guidance.  Health care providers subject to the laws covered by the Guidance should review the Guidance closely to ensure that their telehealth services meet HHS and DOJ’s expectations for accessible telehealth services, and seek counsel experienced in accessibility for assistance.

Edited by John W. Egan

By Kristina Launey and John W. Egan

Seyfarth Synopsis: Department of Justice (DOJ) announced its intent to begin the rulemaking process to enact website accessibility regulations applicable to state and local governments under Title II.

This week the Department of Justice (DOJ) announced its intent to begin the rulemaking process to enact website accessibility regulations applicable to state and local governments under Title II of the Americans with Disabilities Act (ADA).

The rulemaking effort is a “long-term action”, with a Notice of Proposed Rulemaking (NPRM) (essentially, a draft regulation) scheduled to issue in April 2023 and DOJ to receive public comment by no later than June 2023. According to the DOJ announcement, because “many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online,” the DOJ intends “to amend its Title II ADA regulation to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities.”

This is very big news for a few reasons.

First, regulations providing guidance regarding entities’ obligations with respect to websites under the ADA have been long-desired by all interested parties—the disabled community, advocates, governmental entities, and private businesses.  The last effort to do this, begun by the Obama DOJ in 2010, drew on for years before it was unceremoniously withdrawn by the Trump DOJ at the end of 2017.  Just a few months ago, in March 2022, the Biden DOJ issued Guidance regarding website accessibility, in what many thought was the DOJ’s alternative to any regulatory effort.  Apparently rather than being an alternative, it was a warm-up for the main event.

Second, while the regulations would apply only to state and local governments subject to Title II, as in prior rulemaking efforts, regulations applicable to private businesses subject to Title III may well follow in similar form and substance.  We accordingly encourage public accommodations to submit comments on this rulemaking as this rule will have implications for them as well.

Some of the questions that we believe the Title II regulations (and/or any subsequent Title III regulations applicable to private businesses) should answer include:

  • At what point a website or app is considered accessible in compliance with the law and how is that measured?
  • What is the safe harbor period for websites to be brought into compliance with a standard for website accessibility without fear of lawsuits?
  • Will there be any special provisions for small covered entities to the extent compliance results in an undue burden or hardship?
  • What will be the treatment of third party content and/or crowdsourced material as it relates to compliance?
  • Will the regulations permit alternative access or “equivalent facilitation” for complex content such as detailed charts and graphs?

Businesses that want to prepare for the coming changes should continue to take cues from case law, the Guidance, and the prior DOJ rulemaking effort—that is, look to the Web Content Accessibility Guidelines 2.1 Level AA toward making and maintaining web content and apps that are accessible to individuals with disabilities.

Edited by Minh N. Vu

By Minh Vu, Kristina Launey, and Susan Ryan

The year 2021 was a blockbuster for ADA Title III lawsuits filed in federal court, with over 11,452 filings. At the end of June 2021, the lawsuit count was 6,304. This year, the number of lawsuits filed by the end of June 2022 has dropped to 4,914 – a stunning 22 percent reduction.

Mid-year numbers in prior years were as follows:

[Mid-Year ADA Title III Federal Lawsuit Filings 2017-2022: 2017: 4,127; 2018: 4,965; 2019: 5,592; 2020: 4,751; 2021: 6,304; 2022: 4,914]

As you can see, we’re back at 2018 numbers.  Yes, 2020 was lower, but that was the year of COVID-19 lockdowns. The 2021 count was so low, in fact, that we had to double-check our figures.

We couldn’t help but notice that the California numbers took a similar dive. Here’s a little history of the Golden State’s mid-year count:

[California Mid-Year ADA Title III Federal Lawsuit Filings 2017-2022: 2017: 1,440; 2018: 2,155; 2019: 2,444; 2020: 2,702; 2021: 3,340; 2022: 1,587]

In 2022, there were 1,753 fewer federal filings in California compared to 2021, for a whopping 52 percent drop. What’s behind this radical change? One law firm which calls itself the Center for Disability Access (a/k/a Potter Handy) only filed 397 federal lawsuits in the first six months of 2022 as compared to 1,729 such suits for the same period in 2021. We have seen less activity from other California firms as well. One reason for the decrease could be the increased scrutiny on these accessibility lawsuits by law enforcement officials. For example, in April 2022, the Los Angeles and San Francisco District Attorneys filed a civil lawsuit against the Center for Disability Access alleging fraudulent conduct in connection with its lawsuit activities.  And in May 2022, the San Francisco District Attorney lodged 18 felony charges against attorney Kousha Berokim who allegedly filed fraudulent accessibility lawsuits against San Francisco businesses. These actions may have had a chilling effect on the plaintiffs’ bar in California and elsewhere.

A close examination of the 2022 mid-year figures also reveals that – although California’s numbers were down by more than 52 percent – the national figures only fell by 22 percent.  So which state is picking up the slack?  Start spreading the news, it’s New York.

New York has had a substantial number of filings ever since we first started keeping these statistics in 2013. From 2013 to 2017, New York held third place, behind California and Florida. Then, in 2018, New York surged into second place thanks to several New York attorneys who filed hundreds of lawsuits a year about allegedly inaccessible websites and the lack of Braille gift cards. Now, for the very first time, New York has taken the number one spot for federal ADA Title III federal filings – at least for the first half of 2022. Here are the mid-year numbers of the five states with the highest number of filings:

[2022 Mid-Year Federal ADA Title III Filings for Top 5 States: PA: 152; TX: 191; FL: 659; CA: 1,587; NY: 1,819]

Will New York be the hottest jurisdiction for ADA Title III federal lawsuits at the end of the year?  Or will California manage to regain its dominance? Stay tuned….

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 Michael Steinberg

Seyfarth Synopsis: For the second time in four years, the Third Circuit has reversed a trial court’s certification of a nationwide Title III class on numerosity grounds, applying a demanding standard that will be hard for plaintiffs to meet in future cases.

The nationwide, corporate-wide class action under Rule 23 has long been a popular tool of the Title III plaintiffs’ bar.  It’s not hard to see why: defendants who find themselves on the wrong end of a class certification order in such cases face the prospect of incurring the costs of investigating and remediating accessibility barriers in dozens, hundreds, or even thousands of store locations across all fifty states.  Over the last several years, though, the Third Circuit has shown increasing skepticism of nationwide Title III class actions.  In a 2018 case involving alleged excessive slopes in a restaurant chain’s parking lots, Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018), the Third Circuit warned that Rule 23’s numerosity requirement has “real teeth.”  On June 24, 2022, the court in Allen v. Ollie’s Bargain Outlet, Inc. made clear that those “teeth” have real bite.

In Allen, the two named plaintiffs — both wheelchair users — alleged they encountered obstacles blocking the paths of travel through two different Ollie’s stores in Pennsylvania they had visited.  After their hired investigators found aisle width issues in several more stores, they filed suit seeking certification of a nationwide class of all persons with qualified mobility disabilities who had experienced access barriers in interior paths of travel at any Ollie’s store in the United States in violation of Title III.

Rule 23(a) of the Federal Rules of Civil Procedure required the plaintiffs to show, among other things, numerosity – which requirement is presumptively met if plaintiffs could show there are 40 or more class members.  But according to the Third Circuit, none of plaintiffs’ evidence added up.

To show numerosity, the plaintiffs in Allen introduced three kinds of evidence.  First, they presented data from the U.S. Census Bureau’s 2018 American Community Survey estimating the number of people with serious difficulty walking or climbing stairs for each zip code with an Ollie’s store.  The Third Circuit rejected the use of this statistical evidence as a valid basis to prove numerosity, concluding that population estimates “prove little” about the number of wheelchair users, and in any event provided no information about how many disabled individuals had actually patronized an Ollie’s store or encountered accessibility barriers there.

Second, the plaintiffs presented evidence of video footage at two Ollie’s locations over a seven-day period that captured 16 wheelchair or scooter users.  The Third Circuit found this, too, to be insufficient, observing that it would be “speculation” to assume that all wheelchair or scooter users were disabled under the ADA.  Moreover, even if that were not so, there was no evidence that the video depicted anyone who had suffered an injury.  The court made clear that, for numerosity, a plaintiff’s evidence must relate to the “subset of injured customers,” not the broader population of disabled persons.

Finally, the plaintiffs introduced evidence purporting to show twelve written accessibility-related customer complaints.  Twelve were too few, the court found, either in isolation or when taken in conjunction with the American Community Survey estimates from the Census Bureau.  The Third Circuit explained that courts cannot be left to speculate about the size of a potential nationwide class.

Allen’s demanding approach to numerosity will place significant obstacles in the path of plaintiffs seeking nationwide class certification under Title III going forward, at least for cases brought in the Third Circuit.  We’ll be watching to see whether courts in other circuits follow.

Edited by Minh Vu

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 ANPRM 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.