Open laptop with law book and gavel setting on the keyboard.

By  John W. Egan and Ashley S. Jenkins

Seyfarth Synopsis: New Kansas law will allow resident businesses to sue ADA website plaintiffs and their counsel over “abusive” litigation to recover defense fees and potentially punitive damages.

The Kansas legislature recently passed The Act Against Abusive Website Access Litigation that, starting on July 1, 2023, will allow Kansas businesses to sue ADA plaintiffs and their counsel to recover legal fees, as well as potentially punitive damages, for “abusive” website accessibility litigation commenced in any jurisdiction.  The new law allows businesses (or the State Attorney General on behalf of a class of businesses) to file claims against plaintiffs and their attorneys in a Kansas court of competent jurisdiction to recover fees incurred in the defense of out-of-state website accessibility litigation, as well as in the Kansas enforcement action.  The new law even authorizes the court to award punitive damages or sanctions not to exceed three times the fee award but does not provide any standards to guide the court in that determination (all these remedies also assume that a Kansas court would have personal jurisdiction over ADA plaintiffs and their law firms).

The new law adopts a “totality of the circumstances” test to determine if an ADA website lawsuit qualifies as abusive, which considers: (1) the number of substantially similar actions filed by the same plaintiff or firm (including those previously-declared frivolous or abusive litigation in the previous 10 years); (2) the defendant’s number of full-time employees and available resources to correct the alleged website access violation(s); (3) whether the jurisdiction or venue is a “substantial obstacle” to defending the case; (4) whether the plaintiff or his or her attorney is a Kansas resident; and (5) the nature of settlement discussions, including the “reasonableness of settlement offers and refusals to settle.” 

If the prospect of punitive damages were not enough of a deterrent for plaintiffs to sue Kansas businesses over website accessibility, the law even includes an available presumption that an ADA website case is abusive.  Specifically, when a business makes good faith attempts to cure the alleged violation after being placed on notice (either in the pleadings or otherwise) within 30 days, then the presumption applies. However, the presumption is unavailable where the business fails to correct the violation within 90 days of being placed on notice, as determined by the court.  This framework harkens back to previous failed legislative initiatives to amend the ADA to mandate that plaintiffs provide businesses with notice of violations and opportunity to cure before a case can proceed. 

The Kansas law will sunset if and when DOJ issues website accessibility regulations – which may well happen in the coming years.

As we have previously reported, website accessibility litigation is now making up a greater percentage of federal ADA Title III cases than ever before.  The litigation is highly concentrated geographically, with 92 percent of federal ADA website cases filed in only three jurisdictions last year: New York, Florida, and California.  Businesses of all shapes and sizes are often targeted, including many businesses domiciled outside of these jurisdictions.  

The Kansas law explicitly states that there are instances where website accessibility litigation “is abused for the primary purpose of obtaining an award of attorney fees for the plaintiff instead of remedying the alleged access violation,” and that “this small minority of cases . . . are almost always filed in another state’s court system against smaller Kansas businesses.”  In fact, according to our data, the entire state of Kansas only had seven ADA Title III accessibility lawsuits in 2022 and none of them were about websites.  It remains to be seen whether the Kansas law will deter website lawsuits against Kansas businesses, and whether plaintiffs, their lawyers, and the U.S. Department of Justice will challenge the law.

Edited by Kristina M. Launey 

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Judge writing on a document with gavel setting on the table.

By Minh N. Vu

Seyfarth synopsis:  A New York federal judge invokes the All Writs Act to dismiss a later-filed website accessibility lawsuit against the same defendant to protect the integrity of an existing consent decree that already requires the defendant to make its website accessible.

Businesses that are sued under Title III of the ADA for allegedly having a website that is not accessible to people with disabilities often want to know how they can avoid being sued again after settling a case.  A decision issued last week by Southern District of New York Judge Andrew Carter suggests that entering in to a consent decree which requires the defendant business to make the subject website accessible can be an effective way of deterring future lawsuits in federal court — at least for as long as the consent decree is in effect.

In Hanyzkiewicz v. Allegiance Retail Services, the defendant had entered into a consent decree to resolve a prior lawsuit alleging that its website was not accessible in violation of Title III of the ADA. The consent decree required the defendant to modify its websites “to substantially conform to Web Content Accessibility Guidelines 2.0 and/or Web Content Accessibility Guidelines 2.1 Level A Success Criteria… so that [they] will be accessible to persons with vision disabilities” by April 1, 2024.  The defendant was then sued by a second plaintiff (Hanyzkiewicz) in a new case which made the same claim as the one that had been resolved with the consent decree.  The defendant moved to dismiss, arguing that the consent decree in the first case mooted the controversy in the second case.  The Court did not agree that the matter was moot because the second complaint alleged that the website still had accessibility barriers.  However, the Court dismissed the case anyway, invoking its powers under the All Writs Act.

The All Writs Act “empowers district courts to enjoin actions brought by nonparties when doing so is necessary to protect the court’s jurisdiction over a previously entered consent decree.”  The Court found that allowing the second case to move forward “could frustrate the Court’s prior consent decree, and must be enjoined.”  The court noted that the second plaintiff had included “a proposed class that is absent from the Consent Decree and seeks materially different remedies.” Accordingly, the court found that “[t]hough plaintiff does not intend to frustrate the Consent Decree, it is entirely possible that her conduct in an ensuing litigation might disrupt the already existing Consent Decree.  It is well-settled in this district that consent decrees serve a valuable role in preventing duplicative, harassing, and perhaps frivolous litigation.”  On this basis, the Court dismissed the new lawsuit and said the second plaintiff could file a motion to enforce the consent decree under Federal Rule of Civil Procedure 71 if she had reason to believe the defendant was in noncompliance.

While not controlling precedent, this decision should deter plaintiffs from suing businesses that are already under a consent decree to make their websites accessible.  This deterrence comes with a price, however.  A consent decree is a court order, and noncompliance with such an order could result in a defendant being held in contempt and subject to sanctions.  Moreover, plaintiffs would still be able to pursue state law claims for damages in state court even if a federal consent decree is in place.  In short, when resolving a claim, defendants must consider a number of factors in deciding whether to resolve a claim with a consent decree or settlement agreement. 

Edited by Kristina Launey

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Picture of scale and gavel.

By Minh N. Vu

Seyfarth Synopsis: SCOTUS grants certiorari on an ADA Title III case for the first time in 18 years to resolve a circuit split on whether an ADA plaintiff has standing to sue without having any intention of frequenting the business.

“Does a self-appointed Americans with Disabilities Act ‘tester’ have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?” This is the question the defendant hotel asked the U.S. Supreme Court to decide in Acheson Hotels, LLC v. Laufer. Yesterday, the Supreme Court announced it would hear the case.  This will be the first time the Supreme Court hears an ADA Title III case in more than 18 years, and it has the potential to reshape the litigation landscape.

The First Circuit Court of Appeals in Acheson held that the plaintiff was not required to have actually intended to patronize the defendant hotel to have standing (i.e., be eligible) to sue the hotel over whether its website provided sufficient information about the hotel’s accessible features.  The Ninth, Eleventh, and Fourth Circuits have taken similar positions, finding that there is no need for a tester plaintiff to have an intent to patronize a business to have standing to file an ADA Title III lawsuit.  The Second, Fifth and Tenth Circuits, in contrast, have held that a plaintiff’s encounter with an ADA Title III violation on a website of a public accommodation does not automatically confer standing, unless there are downstream consequences resulting from the violation.  These courts require a plaintiff to show that the plaintiff wanted to patronize the public accommodation but could not because of the ADA violation on the website. 

If the Supreme Court affirms the Acheson decision and paves the way for more plaintiffs to file lawsuits without ever having to leave their homes or even feign interest in patronizing the defendant business, then the number of ADA Title III lawsuits is likely to increase substantially.  In 2022, federal courts saw the first decline in new ADA Title III lawsuit filings in the ten years that we have been tracking these statistics.  Even then, there were 8,694 such lawsuits, compared to a high of 11,452 in 2021.  On the other hand, if the Supreme Court adopts the approach of the Second, Fifth and Tenth Circuits, we doubt the lawsuits numbers will go down.  High-frequency plaintiffs and their attorneys will just have to work a little harder to persuade the courts they really want to patronize those thousands of businesses they sue each year.

Edited by John Egan

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Picture of New York City at sunset

By Lotus Cannon and Minh Vu

Seyfarth synopsis:  Leading the country with 3,173 federal ADA Title III lawsuits in 2022, plaintiff-friendly court decisions will likely keep New York in the top spot.

It is no surprise that New York has become the nation’s leader in ADA Title III and website accessibility litigation, bypassing California by a substantial margin in 2022. District Court judges in New York – especially in the Southern District – have been increasingly reluctant to dismiss website accessibility lawsuits before discovery.

Cases in point: 

In Loadholt v Shirtspace, the blind plaintiff alleged that he attempted to access the defendant’s website with his screen reader to buy a T-Shirt and encountered various barriers to access.  Joining the “vast majority of courts” in the Southern District and consistent with his prior opinion in Slade v. Life Spectacular, Inc., U.S. District Judge Andrew Carter held that the defendant’s online-only business is a public accommodation covered by the ADA.  (This question has not been addressed by the Second Circuit Court of Appeals, which decides appeals from New York federal courts).  Judge Carter also found that plaintiff’s allegations regarding the barriers allegedly encountered on the website, such as multiple dead links, were sufficient to state a claim and that plaintiff’s allegations regarding the T-shirt he intended to purchase, as well as his to return to the website to purchase several T-shirts once the website is made accessible, were sufficient to confer standing. Lastly, the judge denied defendant’s request to dismiss and/or strike plaintiff’s demand for civil penalties, fines, and punitive damages under the NYCHRL as premature.

In Weekes v The Outdoor Gear Exchange, Inc., the blind plaintiff alleged he encountered various barriers on defendant’s website, which offers a variety of products for outdoor activity, that prevented him from purchasing a carry-on bag. Defendant’s website offers a live telephone customer service representative during store hours whom customers can interact with to learn about defendant’s products and facilitate purchases. U.S. District Judge Ramos found that the availability of customer service representatives as an alternative auxiliary aid had no impact on whether plaintiff had suffered an injury in-fact for standing purposes, and noted that it is unclear whether customer service representatives would even serve as an effective alternative auxiliary aid if they cannot read plaintiff’s screen and are unavailable outside of business hours. Other courts have issued similar rulings, particularly at the motion to dismiss stage.  Judge Ramos also denied Defendant’s request to transfer venue to Vermont. Notably, while the defendant did not argue that its website was an online-only business exempt from ADA requirements, the Judge cited a holding in another decision issued by a Southern District of New York judge that a website with no nexus to a physical location where goods and services are offered is a place of public accommodation under Title III of the ADA.

These decisions suggest that New York, and particularly the Southern District, will continue to lead the nation as a hotbed of Title III and website accessibility litigation.

Edited by Kristina Launey

Accessibility Button on Computer Keyboard
Accessibility Button on Computer Keyboard

By Ashley Jenkins & Minh Vu

Seyfarth Synopsis: After ten years, the Department of Justice (DOJ) finally issued a report on the accessibility of federal government websites which exposes widespread accessibility barriers.

The adage, “Do as I Say, Not as I Do” seems to be the motto of the federal government when it comes to compliance with digital accessibility standards.  A recent report shows that many federal agencies are not complying with Section 508’s mandate that their websites be accessible even while one of their own, DOJ, seeks to impose website accessibility mandates on state and local governments and privately-owned businesses under Titles II and III of the Americans with Disabilities Act (ADA).

On February 21, 2023, DOJ released its first report on the federal government’s compliance with Section 508 of the Rehabilitation Act in ten years.  Section 508 requires federal agencies to ensure that their websites and other information and communication technologies are accessible to individuals with disabilities. Section 508 also requires the DOJ to submit a report to the President and Congress every two years regarding compliance with this requirement. 

Senator Bob Casey (D-PA) blasted the recently-released data in a press release, making the following observations about the report: 

  • “One in 10 public-facing websites at major federal departments and agencies are not fully accessible for people with disabilities. Three in five internal websites at major federal departments and agencies are not fully accessible to people with disabilities.”
  • “The Department of Agriculture, Department of Labor, Department of State, and Department of Veterans Affairs reported that 50 percent or less of the public-facing websites that were tested comply with federal accessibility requirements.”
  • “Some departments and agencies did not report conducting any accessibility testing of internal websites. It [is] not clear what steps departments and agencies are taking to test other types of technology covered by Section 508 of the Rehabilitation Act.”
  • “DOJ found that key government agencies, including DOJ itself, as well as the Department of Agriculture, the Department of Defense, and the Environmental Protection Agency did not have adequate ‘resources committed and/or staff trained to implement policies, processes, and procedures.’ These shortfalls in staffing were reflected in data regarding the low number of federal and contract employees directly supporting Section 508 programs in many agencies.”
  • “DOJ also found that ‘[a]gency maturity remains largely unchanged from prior reporting,’ raising concerns that, despite over a decade of technological evolution, many federal government agencies have not made efforts to improve and better integrate Section 508 compliance and ensure the federal government’s resources are available for people with disabilities, including taxpayers and federal workers.”

The findings are not surprising because ensuring that websites are accessible to individuals with disabilities requires a substantial and ongoing commitment of resources which even the federal government seems to lack.  Nonetheless, the DOJ has in the past two years ramped up its enforcement efforts to compel private businesses to comply with accessibility standards and put in place rigorous website testing and monitoring efforts.  Private plaintiffs have also been extremely active, filing a record 3,255 website accessibility lawsuits in federal court against private businesses in 2022.  This latest data from DOJ is further evidence that DOJ needs to adopt reasonable website accessibility standards for public accommodations that recognize the real challenges that businesses face in making and keeping their websites accessible. 

Edited by Kristina Launey

By Minh Vu, Kristina Launey and Susan Ryan

Seyfarth Synopsis: The number of ADA Title III lawsuits filed in federal court dropped by 24 percent, the lowest since 2017, and California is no longer the epicenter.

ADA Title III case filings in federal court had been on a sharp upward trajectory since we started compiling these statistics in 2013. That year, there were only 2,722 lawsuits nationwide.  Eight years later, in 2021, there were 11,452 such lawsuits.  In-between, year over year increases ranged from 4% to 63%.  2020 was the only “down” year, with a 1% slight decrease which was likely attributable to pandemic restrictions. 

We now have a second, far more significant, “down” year.  In 2022, Plaintiffs filed 8,694 Title III lawsuits in federal courts, a drop of 2,758 cases, or 24.1%, from 2021.  However, compared to the 2,722 total lawsuit count in 2013, 8,694 lawsuits is still a very significant number of lawsuit filings for a fairly discrete area of the law, and marks an astounding 319% increase from 2013. 

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2022: 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; 2022: 8,694 24% decrease from 2021]

The other big news is that California – the historical leader in ADA Title III litigation – has fallen behind New York.  Plaintiffs filed 3,173 cases in the Empire State compared with 2,519 in the Golden State.  Third on the list was Florida with 1,350.  Rounding out the top five (well behind the leaders) were Texas with 348 and Pennsylvania with 245 lawsuits.  Sixth through tenth places went to: Tennessee (145), Missouri (142), Georgia (136), Colorado (117) and Massachusetts (71).  (Missouri is a newcomer to the top ten.)  Nevada and Illinois dropped out of the top 10.  Illinois came in at number 11 with 63 cases and Nevada plummeted to 4 cases from 130 in 2021.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2022 – December 31, 2022:  New York: 3,173; California: 2,519; Florida: 1,350; Texas: 348; Pennsylvania: 245; Tennessee: 145; Missouri: 142; Georgia: 136; Colorado: 117; Massachusetts: 71]
[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2022: 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; 2022: 2,519; 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; 2022: 1,350; 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; 2022: 3,173]

The states with no federal ADA Title III filings in 2022 were Alaska, Iowa, North Dakota, South Dakota and Vermont.

The end of the year was the least busy time for filings – November and December had 521 and 532 filings respectively.  The busiest months?  June (884), May (878) and March (872).  The year started out busy, but dropped precipitously in the second half.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2022 – December 31, 2022: January: 850; February: 828; March: 872; April: 602; May: 878; June: 884; July: 624; August: 732; September: 640; October: 731; November: 521; December: 532]

So what’s behind this decrease in filings?  As we discussed in a post about the mid-year lawsuit numbers, one prolific plaintiff’s firm in Southern California was sued by the Los Angeles and San Francisco District Attorneys which may have slowed down their filings.  That lawsuit was dismissed by the trial court (an appeal has been taken) so that firm may return to its normal pace of filings in 2023.  Several attorneys from that firm also left to form their own firm which will likely result in additional filings in California.  Furthermore, the Ninth Circuit Court of Appeals issued a decision in October 2022 that was unfavorable to plaintiffs’ attorneys which might have had a chilling effect for the rest of the year.  Unfortunately for businesses, a different panel of the Ninth Circuit reversed course in January 2023 when it issued a decision which will likely cause a surge in new filings by serial plaintiff “testers” unless it is rescinded.  The defendant in that case has filed a Petition for Rehearing En Banc which is under consideration.

We should note that federal website accessibility lawsuits accounted for 37% of the 8,694 ADA Title III lawsuits filed in federal court in 2022 – the largest percentage ever.  This is not surprising because serial plaintiffs can visit websites for the purpose of filing a lawsuit without even leaving their house. Lawsuits involving physical barriers typically require a visit to the place of business.

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.

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Red hospital building graphic

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: Under a new Consent Decree with the DOJ, 24 Arizona eye surgery centers can no longer require patients with mobility disabilities to pay for third-party services to transfer them on and off operating tables, must pay $1M in damages and penalties, and implement comprehensive ADA policies and training.   

We predicted that the DOJ would get more aggressive in enforcing Title III of the ADA during the Biden Administration and we were right. On the heels of a comprehensive Consent Decree with UC Berkeley comes a Consent Decree involving 24 eye surgery centers in Arizona. 

The Consent Decree concluded a lawsuit the DOJ filed in the U.S. District Court of Arizona against the medical practice operating these eye surgery centers, as well as the organization that provided management, infrastructure, and technology services to that practice, as well as other partner practices. The lawsuit alleged that the eye centers refused to provide transfer assistance to patients who needed such assistance to get onto tables for surgery, and instead required them to pay a medical transportation provider to transport them from their homes in gurneys or stretchers and place them on the surgical table.  The DOJ alleged that the defendants had “sometimes” assisted patients, but in 2017 began requiring surgical patients with mobility disabilities who could not bear their own weight to pay for their own assistance.  The agency took the position that this was an unlawful surcharge under the ADA, as well as a violation of the obligation to provide reasonable modifications to normal policies, practices, and procedures, free of charge.

Last week, the DOJ and defendants agreed to a 22-page Consent Decree under which defendants would not only stop requiring patients with mobility disabilities to assume transfer-related costs, but also pay $1 million in damages and penalties, including establishing (and publicizing) a claims fund for aggrieved individuals, and implementing ADA policies and staff training. Here are the key aspects of the Consent Decree:

  1. “Interactive Process” Required For Providing Transfer Assistance.  Defendants and partner practices will engage in an “interactive process” with patients in need of transfer assistance when scheduling surgical appointments, which must include consideration of patient preferences and an individualized assessment of patient needs to determine transfer assistance options.  Defendants will provide and pay for transfer options that may consist of in-house staff assistance, equipment to provide transfer assistance, or third-party transportation services.
  2. Policy Requirements.  Defendants and partner practices will implement a transfer assistance policy that includes, among other things, a process for conducting individualized assessments for transfer assistance requests, acquiring transfer equipment, training of personnel to provide this assistance, and resolution of related patient disputes.  Defendants will also adopt and post a non-discrimination policy on their websites, as well as in employee handbooks and patient materials.  
  3. Staff Training.  Defendants and partner practices will provide annual training on ADA Title III requirements for facility accessibility, interacting with individuals with disabilities, and techniques for safely transferring individuals with disabilities to and from medical equipment, examination tables, and surgical tables.     
  4. Claims Fund, Damages, and Civil Penalty.  Defendants will deposit a sum of $725,000 into an independently-administered claims fund for aggrieved persons and pay for the administration of the fund.  The fund is to be distributed, in its entirety, to patients and prospective patients who, since 2017, were advised that they needed to pay for third-party medical personnel to transport them to surgical appointments.  Additionally, defendants will pay compensatory damages in the amount of $225,000 to specific individuals to be identified by the DOJ, as well as a civil penalty of $50,000 to the United States Treasury.
  5. Settlement Notice.  Defendants will notify patients eligible for compensation by U.S. Mail and e-mail monthly for one year.  Notice will also be provided on defendants’ websites, and this posting must conform to the Web Content Accessibility Guidelines (WCAG), Version 2.0, Level AA.  Additionally, once a month for at least 6 months, defendants will “post, pin, and maintain a tweet” on their Twitter accounts publicizing the Notice, and do the same on their Instagram and Facebook pages.    

*           *           *

The DOJ’s position is generally consistent with its previous guidance entitled Access to Medical Care for Individuals with Mobility Disabilities issued in July 2010.  In response to FAQs addressing accessible services and facilities at doctors’ offices, clinics, and other health care providers, the guidance states that medical personnel must provide “reasonable assistance” to enable individuals with mobility disabilities to receive medical care, which may include providing aid, through trained personnel and potentially with the assistance of lifts or other medical equipment, to facilitate the transfer in and out of mobility devices as necessary to receive treatment and care.  

The DOJ’ s position that the ADA requires health care providers to provide transfer assistance in health care settings raises a thorny question for health care providers with limited staff who neither have the training nor physical strength to provide such assistance.  Does a dental practice with one dentist, a receptionist and a dental assistant need to hire additional staff to provide transfer assistance, for example?  The ADA and its implementing regulations state that public accommodations do not have to modify a policy, practice, or procedure that “fundamentally alters” a public accommodation’s services or facilities, but this defense has not been tested in the context of transfer assistance in the health care setting.  The defendants in this case elected not to test this defense.  Had they done so, the analysis would have been fact intensive and would have required an analysis of their operations, the types of patient assistance they already provide, the nature of the services provided, and other factors. 

Medical providers of all sizes should take note, evaluate their own protocols for handling transfer requests, and consult with knowledgeable counsel as to the ADA compliance considerations that these issues raise.  

Edited by Kristina Launey

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Plaintiffs filed 3,225 website accessibility lawsuits in federal court in 2022 – a 12% increase over 2021. 

2022 was another record setting year for website accessibility lawsuits filed in federal court.  The total number of lawsuits filed in federal court 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 2022 was 3,255–360 more than 2021. This 12% increase in the number of lawsuits in 2022 is just slightly lower than the 14% 2021 increase, and matches 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 continued year-over-year increases are still very significant.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2022: 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); 2022: 3,255 (12% increase from 2021). *The number of cases that could be identified through a diligent search.]

Especially striking is the fact that, based on our soon-to-be-released overall 2022 ADA Title III lawsuit numbers, these website accessibility lawsuits made up a whopping 37% of the ADA Title III lawsuits filed in 2022, up from roughly 25% in 2021.

The first half of 2022 saw a steady climb from 210 in January to 383 in March, a dip to 164 in April, then spikes at 412 and 448 in May and June. The monthly numbers were more consistent at between 232-273 in July through October, with a dip to 163 in November, before a December finish of 201.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2022 – Dec. 2022): Jan. 2021 (210), Feb. 2021 (285), Mar. 2021 (383), Apr. 2021 (164), May 2021 (412), Jun. 2021 (448), Jul. 2021 (232), Aug. 2021 (237), Sep. 2021 (247), Oct. 2021 (273), Nov. 2021 (163), Dec. 2021 (201). *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 Florida regaining the #2 spot and Pennsylvania besting California for the #3 spot.  New York federal courts continued to be bombarded with lawsuits, totaling 2,560 lawsuits in 2022 (continuing an upward trend from 2,074 in 2021, 1,694 in 2020, 1,354 in 2019, and 1,564 in 2018).  Florida was a distant second with 310 lawsuits. California federal courts saw only 126 lawsuits in 2022 (halting the prior upward trend of 359 in 2021, 223 in 2020, 120 in 2019, and 10 in 2018), as shown in the chart below. Pennsylvania passed the 200 mark at 216 in 2022, materially up from 167 lawsuits filed in 2021 and 173 in 2020.  Illinois retained the #5 spot with 19 suits—considerably fewer than its 34 in 2021 and 32 in 2020 and 91 in 2019). Connecticut and Indiana remained in the top 10 with relatively meager numbers at 5 and 2, respectively, and newcomers Massachusetts, North Carolina, and Minnesota beat out Oregon and Wisconsin for the final 3 top 10 spots, with 13, 3, and 1 filings, respectively.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2022: NY 2,560, FL 310, PA 216, CA 126, IL 19, MA 13, CT 5, NC 3, IN 2, MN 1. *The number of cases that could be identified through a diligent search.]
[Graph: New York, Florida, Pennsylvania, and California Federal ADA Title III Website Accessibility Lawsuits 2017-2022: NY: 2017 (335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022 (2,560); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021 (185), 2022 (310); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173), 2021 (167), 2022 (216); CA: 2017 (9), 2018 (10), 2019 (121), 2020 (223), 2021 (360), 2022 (126).]

If you’re wondering why California has so few website accessibility cases relative to New York, it is likely because New York courts have been more favorable toward plaintiffs, especially when the defendant is an online-only business. Whether online only businesses are covered by the ADA remains unanswered by the Court of Appeals for the Second Circuit; however, with a few exceptions, district court judges in New York that have addressed the issue have found that online only businesses are covered by the ADA. 

In contrast, in California, both federal and state courts of appeals have reached the conclusion that online only businesses are not covered by the ADA, making it much more difficult (if not impossible) for plaintiffs to sue online-only businesses for accessibility violations.  Thus, we predict fewer website accessibility cases in both California state and federal courts in the future.

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.

Will the Title II rulemaking effort slated to start in 2023 make a difference in the 2023 lawsuit count?  Unlikely, as that process can take a significant amount of time, and only would apply to state and local governments under Title II and not private businesses.  While a Title III rulemaking could follow, it is highly unlikely to be completed by the end of this Presidential term.

***

About our methodology:  Our 2022 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.

Seyfarth Synopsis:  We predict another busy year on all fronts as DOJ continues to push its regulatory and enforcement agenda.

Photo showing hand holding a crystal ball

Lawsuit Numbers.  Last January, we predicted that roughly the same number of ADA Title III lawsuits would be filed in federal court in 2022 as in 2021, but halfway through 2022 it became apparent that the numbers would likely be substantially lower.  That downward trend continued, and while our diligent research department is waiting for the dust to settle for December numbers before we announce the total for 2022, we are certain that the final number for the whole year will be substantially less than the number of ADA Title III lawsuits filed in 2021.  We attribute that decrease in part to the fewer number of filings by one Southern California plaintiffs’ firm (the Center for Disability Access), after the Los Angeles and San Francisco District Attorneys filed a civil lawsuit against the firm alleging fraudulent conduct in connection with its lawsuit activities.  The trial court dismissed this lawsuit in August 2022, but the newly-elected San Francisco District Attorney filed an appeal in November 2022, so the matter is far from over.  Stay tuned for our final 2022 ADA Title III federal lawsuit count and more analysis in the coming weeks.

For 2023, we think the number of lawsuits filed in federal court will increase as certain plaintiffs’ firms regroup and new plaintiffs and firms continue to enter the scene.

Physical Barrier Lawsuits.  If the past is any indication, lawsuits concerning physical access barriers at public accommodations facilities will continue to be the most common type of ADA Title III lawsuit.  Hotels, shopping centers, restaurants, and retail stores continue to be the most popular targets, particularly for those serial plaintiffs.  We continue to see lawsuits and demands from some serial plaintiffs whose disabilities are highly questionable.  The most common barriers alleged in these lawsuits pertain to accessible parking, loading zones, public restrooms, sales counters, accessible tables, and aisle width.

Website-Related Lawsuits.  In 2022, we continued to see large numbers of private lawsuits filed in federal and state courts, as well as demand letters, about website accessibility. We also saw the beginnings of renewed efforts by DOJ on the regulatory (discussed here and here) and enforcement front concerning accessible websites. A few notable court decisions issued in 2022, including an unceremonious end to the Winn-Dixie and Domino’s sagas, a few pro-defendant standing, class cert, physical nexus, and anti “serial plaintiff” decisions. What does 2023 have in store?  

Website Accessibility Lawsuit Numbers.  We are still finalizing our count of lawsuits filed last year in federal court concerning websites that are allegedly not accessible to the blind, but a preliminary peek suggests that  over 3250 such lawsuits were filed —  a significant jump from 2021. As in prior years, the vast majority of these lawsuits were filed by only a handful of law firms, overwhelmingly based in New York.  We predict the number of these suits filed in 2023 will be comparable to 2022.  We will be taking a closer look at this increase in another post later this month.

“Tester” Standing.  “Does a self-appointed Americans with Disabilities Act ‘tester’ have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?” This is the question the defendant hotel has asked the U.S. Supreme Court to decide in Acheson Hotels, LLC v. Laufer.   The First Circuit Court of Appeals in Acheson had answered this question in the affirmative, putting it at odds with other circuits which have reached the opposition conclusion.  The Second and Tenth Circuits, for example, have held that a plaintiff’s encounter with an ADA violation found on a website of a public accommodation does not automatically confer that plaintiff with standing to sue unless there are downstream consequences resulting from the violation.  These courts require a plaintiff to show that the plaintiff wanted to patronize the public accommodation but could not because of the ADA violation on the website.  

While Acheson is a case about the alleged lack of accessibility information on a website (i.e., a deficient content issue), the question presented is also relevant to lawsuits in which plaintiffs with disabilities claim they could not use/navigate a website due to digital barriers.  In the Second and Tenth Circuits, as noted above, these plaintiffs would have to show that they wanted to patronize the public accommodations but could not because of digital barriers on their websites.

The Supreme Court will decide whether it will hear the case in January 2023.

Online-Only Businesses.  Online-only businesses will likely see fewer ADA lawsuits in California in 2023 because in 2022, the California Court of Appeals agreed with the federal Ninth Circuit Court of Appeals that a “public accommodation” under the ADA must be a physical place where goods and services are offered.  (The California Supreme Court declined review of the decision.)  Thus, only websites that have a nexus to a business with a physical location where goods and services are offered to the public are subject to Title III of the ADA.  With both state and federal courts in California now aligned in their interpretation of the ADA on this issue, plaintiffs will face a significant barrier in suing online-only businesses in California for violations of the ADA or Unruh Act.  (In lawsuits based on disability discrimination, plaintiffs can establish violations of the Unruh Act by proving either a violation of Title III of the ADA or intentional discrimination.)

Hotel Reservations Websites.  In late 2020 and early 2021, the aforementioned Center for Disability Access filed over 550 lawsuits in federal court alleging that hotels had failed to disclose sufficient information about the accessibility of their hotels as required by ADA regulations.  After suffering over 90 defeats in district court and then in the Ninth Circuit Court of Appeals, the firm voluntarily dismissed nearly all of these suits in 2022.  In its decision, the Ninth Circuit endorsed the interpretation of the regulation that had been implemented by lodging industry leaders back in 2012 when the regulation became effective. While we saw a very small handful of these cases filed in 2022, new lawsuits of this type are unlikely because most U.S. hotels comply with the Ninth Circuit’s direction.

U.S. Department of Justice Enforcement Actions. Last January we predicted the DOJ would be busy enforcing the ADA in 2022, and we were right.  The DOJ filed two enforcement lawsuits under Title III:  One concerning architectural barriers at Wrigley Field in Chicago and another against a number of eyecare facilities for refusing to provide transfer assistance to patients who use wheelchairs.  The DOJ also entered into at least fifteen settlement agreements or consent decrees in 2022 resolving many different types of alleged ADA Title III violations. These resolutions included a multi-million dollar settlement with a rideshare app company to resolve claims that the company failed to waive wait time charges for passengers with disabilities, a settlement with a Rhode Island university regarding its student medical leave policies, a settlement with a New York university regarding accessible student housing, and settlements with three retailers concerning the accessibility of their vaccine appointment scheduling websites.  The DOJ also filed one Statement of Interest in which it maintained that plasma donation centers are places of public accommodation covered by Title III of the ADA.

The DOJ was equally busy enforcing Title II of the ADA, which imposes obligations similar to Title III of the ADA on state and local governments.  One of the most notable ADA Title II resolutions was the DOJ’s comprehensive agreement with UC Berkeley about its website and other online content.  Other universities, both public and private, should take note.

All of these enforcement activities are set out on the DOJ’s website.

Regulatory Developments.  We will see continued rulemaking activity by DOJ and the U.S Architectural and Transportation Barriers Compliance Board (Access Board) on website accessibility, medical diagnostic equipment, and kiosks in 2023.

Websites: As we previously reported, the DOJ announced in July 2022 that it would be issuing a Notice of Proposed Rulemaking (NPRM) (essentially, a draft regulation) in April 2023 setting forth the accessibility requirements for state and local government websites under Title II.  This has just been pushed back to May 2023.  Given its dismal track record of issuing any regulations on the subject of accessible website for the past decade (including many missed deadlines), it will be interesting to see if DOJ actually meets this revised target date.  If DOJ does issue proposed regulations for state and local government websites under Title II of the ADA, it is likely the agency will later using those as a framework for regulations covering public accommodations under Title III of the ADA.  

Medical Diagnostic Equipment: DOJ has also announced that it will be issuing a Notice of Proposed Rulemaking for Medical Diagnostic Equipment in April of this year.  This rule, if finalized, would make the Standards for Medical Diagnostic Equipment (MDE) previously issued by the Access Board into binding legal standards for health care providers covered under Title III of the ADA.  Health care providers should be on the lookout for this NPRM and be ready to comment on the proposed rule. 

Self-Service Kiosks: Meanwhile, the Access Board will be busy this year reading public comments filed in response to its Advance Notice of Proposed Rulemaking (ANPRM) on the accessibility of self-service kiosks.  It recently announced that a proposed rule will issue by November 2023.  As we explained in a prior post, the Access Board is responsible for issuing technical standards which are not legally binding on public accommodations until the DOJ incorporates them into its regulations through a separate rulemaking process.  Thus, the Access Board’s ANPRM, and subsequent proposed rule, for self-service kiosks is the first step of a lengthy regulatory process.

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2023 will likely be another busy year in the ADA Title III space.  We will be here to provide our insight into the latest developments.  Happy 2023 from The Seyfarth ADA Title III Team!

Edited by Kristina Launey

Accessibility computer icon button
Accessibility computer icon button

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