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Cartoon of a judge with a gavel in a courtroom.

By: John W. Egan and Minh N. Vu

Seyfarth Synopsis:  Two recent New York district court decisions underscore how serial website accessibility plaintiffs are encountering greater challenges to demonstrate their standing to pursue ADA claims in federal court.

SDNY Judge Orders Jurisdictional Discovery

In Fernandez v. Buffalo Jackson Trading Co., LLC, U.S. District Judge John P. Cronan granted the defendant’s request for jurisdictional discovery to be followed by an evidentiary hearing in connection with its motion to dismiss the complaint for lack of standing.  The hearing is set for May 28.

“Article III standing is not merely a pleading hurdle,” the Court observed in its decision, but instead “a core constitutional guardrail meant to ensure that federal courts decide only the rights of individuals, and that the federal courts exercise their proper function in a limited and separated government.” The Court further opined that “Article III does not permit plaintiffs to roam the country in search of … wrongdoing and to reveal their discoveries in federal court absent a genuine, personal stake in the outcome of the case.”

There were a number of factors that led the Court to question the “sincerity” of plaintiff’s allegations that he suffered an “injury in fact” while browsing the website and intended to return to the website at issue to make a purchase. 

First, the plaintiff filed dozens of “cookie-cutter, fill-in-the-blanks” complaints where he alleged that he went to a website to purchase some product, described a desire or need for the product, summarized some combination of features on the website that prevented his purchase, and asserted that he would return to make the purchase once the issue was corrected.  The Court also observed that the plaintiff’s firm used the same template pleading in cases filed by eight other plaintiffs.

Second, according to his numerous lawsuits, plaintiff allegedly attempted to purchase 40 products from dozens of websites in a single week.  The Court noted that these included the “Thompson leather moto jacket” at issue in the case, an “African Serpentine Necklace”, a “Bisonette Buffalo Leather Purse”, a “Synthetic Filled Puffy Comforter” and a “ProForce Combination Fist/Forearm Guard” from an online martial arts store, among many others.

Third, the Court noted inconsistences within the amended complaint itself.  The document alleged that the plaintiff wanted to buy the leather jacket in question because of its craftsmanship, functionality, and durability, along with the 10 percent discount offered for a first purchase.  The Court found it odd that the plaintiff was able to gather this information while claiming that the website was largely inaccessible in the first instance.

The Court was careful to note that the basis for its ruling was not whether the plaintiff could serve as a “tester” per se, as such litigants may have standing, but rather because the above issues warranted a more searching jurisdictional inquiry.  Accordingly, the Court declined to dismiss the action based on standing, but instead ordered limited discovery.  It suggested that plaintiff’s deposition and a forensic examination of the device or devices he used to access the website would be appropriate.  If plaintiff does not dismiss the case before then, we will report on the May 28 hearing.  

EDNY Judge Dismisses Website Case Based on Standing Sue Sponte

The day after the Buffalo Jackson Trading ruling, Eastern District of New York Judge Natasha Merle issued another defendant-friendly dismissal based on lack of standing. In Black v. 3 Times 90, Inc., the plaintiff alleged that he visited the website advertising Chinese restaurant locations because he enjoyed this type of cuisine, wanted to visit one of defendant’s locations “immediately” based on the recommendation of a friend, and often visits the neighborhoods where the restaurants are located.  

The restaurant owner moved to dismiss based on mootness.  The defendant argued it engaged a third-party vendor to remediate the barriers and thus there was no injunctive relief for the Court to award.

Rather than dismiss based on mootness, the Court ruled that the amended complaint failed to create a plausible inference that the plaintiff intended to return to the website, as required for a plaintiff to have standing to pursue an ADA Title III lawsuit. 

The Court found that the plaintiff failed to allege why the website barriers prevented or impeded him from visiting a restaurant location.  The Court also questioned plaintiff’s alleged desire to try food options “immediately” since, as alleged, the plaintiff often frequented neighborhoods where the restaurants were located, but never actually visited any to try the food.  It was also curious to the Court that the plaintiff did not attempt to find the menu or location information through any alternative means (other than attempting to access the defendant’s website) given the professed urgency.  Additionally, the Court pointed out that there are countless options for dumplings and unique dining experiences in New York City (both reasons cited by plaintiff to support plaintiff’s interest in the defendant’s business), but the amended complaint contained no explanation as to why there were no other options with these offerings.  Finally, though not cited as a factor in the standing analysis, the Court did mention in a footnote that the plaintiff had filed 27 lawsuits in the previous year.

Finding that the plaintiff had failed to allege facts establishing an intent to return to the website, the Court dismissed the Complaint.  The Court did so without granting leave to amend. 

***

The upshot of these decisions (and others on which we have reported) is that federal courts in New York City — after being barraged for a number of years with thousands of ADA website cases — are demanding more from serial plaintiffs to establish standing to sue.  This may be the reason why several plaintiff-side firms in New York have shifted most, if not all of their website accessibility lawsuits to New York State courts, where the standing requirements are less rigorous.  As we recently reported, the number of federal court filings in New York have decreased by almost a third since 2022, and the number of website accessibility lawsuits filed in New York federal court decreased by 39 percent.

Edited by: Kristina M. Launey  

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Image of an error sign on a computer.

By: Kristina Launey and Minh Vu

Seyfarth Synopsis: The FTC issued a Decision and Order prohibiting accessibility plug-in/Widget vendor AccessiBe from making misleading claims and to pay $1 million.

As the number of website accessibility lawsuit filings have exceeded 2,200 per year since 2018, so too has the list of companies offering solutions for making websites accessible to users who are blind or have other disabilities.  Because the process of auditing a website for accessibility issues and then remediating them by making actual changes to the source code can be expensive and time consuming, a number of businesses have emerged with quick and inexpensive “solutions” using overlays, widgets or plug-ins that claim to automatically make websites accessible to individuals with disabilities.  The actual efficacy of these methods or tools, as well as the related marketing claims of these vendors, have been the topic of heated debate in the digital accessibility community in recent years.  Many businesses – lured by the promise of an inexpensive solution – have paid for these automated accessibility tools even while some plaintiffs and advocacy groups insist that they do not work.

One of the most visible vendors in this space is accessiBe, which was the subject of a Federal Trade Commission (FTC) investigation.  On April 21, 2025, the FTC issued a Decision and Order (the “Order”) which, among other things, orders accessiBe to pay $1M and prohibits it from representing that its automated products can make any website compliant, or ensure continued compliance, with the Web Content Accessibility Guidelines (WCAG), unless it has the evidence to support its claims.  The Order also prohibits accessiBe from misrepresenting that statements in reviews, blog posts, or articles about its automated products are independent opinions by impartial users or organizations providing objective information.  The Order remains in effect for twenty (20) years, during which time accessiBe must file annual compliance reports with the FTC.

The Order resolves a detailed 27-page Complaint issued by the FTC which charged accessiBe with violating the Federal Trade Commission Act by falsely claiming that accessiBe’s widget (accessWidget) made all user websites WCAG-compliant.  According to the Complaint, accessiBe claimed that “installing accessWidget’s ‘one line of code’ makes a website compliant with 30% of WCAG’s requirements immediately and initiates an AI process that makes the website fully compliant with the remaining 70% of WCAG requirements within 48 hours.”  The Complaint alleged that “[c]ontrary to accessiBe’s promises, in a number of instances accessWidget fails or has failed to make basic and essential website components like menus, headings, tables, images, recordings, and more, compliant with WCAG and accessible to persons with disabilities.”  The Complaint further stated that accessiBe “made these advertising claims on its website and social media, as well as in paid advertisements” knowing that they “were deceptively formatted to appear like impartial reviews and articles.”  The Complaint contains detailed examples of the alleged violations. The FTC also blogged about the issue, noting “It’s advertising law 101: before you claim your product can perform a certain task, you need evidence it will work as promised.”

This development confirms our longstanding belief that businesses need to consult with counsel with experience in digital accessibility before investing in an accessibility solution, or hiring an accessibility consultant. 

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Plaintiffs filed 2,452 website accessibility lawsuits in federal court in 2024 – a 13% decrease from 2023. 

Website accessibility lawsuits filed in federal court fell for the second consecutive year in 2024, with a significant decrease from 2023 filings.  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 2024 was 2,452.  This number is 342 fewer than 2023’s total of 2,749, representing a 13% decrease. 

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2024: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (14% increase from 2019); 2021: 2,895 (12% increase from 2020); 2022: 3,255 (12% increase from 2021); 2023: 2,794 (14% decrease from 2022); 2024: 2,452 (13% decrease from 2023). *The number of cases that could be identified through a diligent search.]

Website accessibility lawsuits accounted for 28% percent of the total number of ADA Title III lawsuits filed in federal court in 2024 (2,452 out of 8,800 cases).  In 2023, website accessibility lawsuits made up 34 percent of all the ADA Title III lawsuits filed in federal court (2,794 out of 8,227 cases).  Also, as shown in the graph below, the number of filings per month ranged from a low of 167 cases in April to a high of 261 cases in October. 

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2024 – Dec. 2024): Jan. 2024 (168), Feb. 2024 (210), Mar. 2024 (188), Apr. 2024 (167), May 2024 (203), Jun. 2024 (196), Jul. 2024 (179), Aug. 2024 (205), Sep. 2024 (230), Oct. 2024 (261), Nov. 2024 (220), Dec. 2024 (225). *The number of cases that could be identified through a diligent search.]

New York federal courts continued to be the busiest with 1,564 lawsuits.  Florida was a distant second with 470 lawsuits, up from 385 in 2023.  Minnesota came in third with 114 lawsuits.  Pennsylvania passed Illinois for the fourth spot with 103 lawsuits.  Illinois did manage to stay in the top 5 with 93 lawsuits.  Remarkably, California’s federal courts only had three new website accessibility lawsuits last year.

[Graph: Federal ADA Title III Website Accessibility Lawsuits per State, Jan. 2024 – Dec. 2024: NY 1,564, FL 470, MN 114, PA 103, IL 93, NJ 37, MO 35, WI 14, MA 10, IN 6, CA 3, NC 2, LA 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 2017-2024: NY: 2017 (335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022 (2,560), 2023 (2,152), 2024 (1,564); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021 (185), 2022 (310), 2023 (385), 2024 (470); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173), 2021 (167), 2022 (216), 2023 (143), 2024 (103); CA: 2017 (9), 2018 (10), 2019 (121), 2020 (223), 2021 (360), 2022 (126), 2023 (30), 2024 (3).]

If you’re wondering why California has so few website accessibility cases relative to New York, it is likely because judges in New York federal courts have been more favorable toward plaintiffs when the defendant is an online-only business. Although the Court of Appeals for the Second Circuit has yet to decide whether online-only businesses are covered by the ADA, most district court judges in New York – with a few exceptions – to have addressed the issue have concluded that they are.   That said, New York federal courts have been more demanding lately with regard to the allegations necessary to establish a plaintiff’s standing.

In California, both federal and state courts of appeal have reached the conclusion that online only businesses are not covered by the ADA, making it virtually impossible for plaintiffs to file viable lawsuits against online-only businesses for accessibility violations.  Thus, we predict fewer website accessibility cases in both California state and federal courts in the future; though we still see a significant number of demand letters and lawsuits filed in state courts, which are not included in our federal lawsuit numbers, especially against businesses with physical locations.

Why was there an overall decrease in the number of website accessibility lawsuits filed in federal courts throughout the country last year?  While there is no way to know for certain, we think there are at least three possible factors in play. 

First, and most significantly, more and more plaintiffs’ firms responsible for historically significant numbers of filings have been filing website accessibility lawsuits in state courts instead of federal court.  Since these filings are difficult to track, it may well be that the total number of website accessibility lawsuits increased year-over-year when accounting for state court filings.  

Second, some of the plaintiffs’ lawyers who used to file a substantial number of these lawsuits have been less active in this space. 

Third, more businesses are making website accessibility a priority which, in turn, may have reduced the number of inaccessible websites to sue.   

One thing is likely certain:  Unless the present administration and/or Congress makes significant changes to the ADA Title III statutory, regulatory, or enforcement schemes – a highly unlikely scenario – website accessibility lawsuits will continue to be filed.  What the numbers will look like remains to be seen.   

***

About our methodology:  Our 2024 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. 

Edited by John W. Egan

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Image of a service dog.

By: Minh N. Vu

Seyfarth Synopsis: A recent case from the U.S. District Court for the Middle District of Florida illustrates how businesses should handle scenarios where service animals present health risks to others with severe allergies.

We all know that public accommodations must allow service animals accompanying individuals with disabilities onto their premises, but what if doing so places others with severe allergies at risk?  A recent Florida federal court’s decision provides insight on how this scenario (and others involving “direct threats” to health and safety) should be handled.  

The plaintiff in this case used a dog which was trained to alert her to, and mitigate, self-harming behavior caused by post-traumatic stress disorder (“PTSD”), anxiety, and bipolar disorder.   Specifically, the dog would press on plaintiff’s body, lick and claw her to “ground” her during episodes of anxiety.  Based on these facts, the court concluded that the dog qualified as a service animal.  The plaintiff brought the service dog to an appointment with a new doctor.  When the doctor saw the dog, she informed her employee that she was severely allergic to dogs and could not see the plaintiff with the dog.  The employee then informed the plaintiff that she could either see the doctor while the service dog remained with her companion, or she could reschedule to see another doctor with the dog.  After the plaintiff became agitated and accused the medical practice of violating the ADA, the employee called the sheriff.

The court began its analysis by recognizing the Department of Justice’s guidance that “allergies are not enough to except a place of public accommodation from accommodating a service animal” and both the animal’s handler and the individual with allergies should be accommodated “by assigning them, if possible, to different locations within the room or different rooms in the facility.”  However, the court held that “[d]espite this rule, a service animal may nonetheless be excluded if it poses a direct threat to the health and safety of persons providing or receiving services from an accommodation.”  The court ultimately concluded that the medical practice had properly conducted “an individualized assessment” of the direct threat to the doctor and that its conclusion was objectively reasonable.  The court focused on the doctor’s testimony about her severe allergy to dogs, based on her prior consultation with her doctor and her own knowledge of her allergy and its symptoms.  The court also focused on the reasonable modifications offered to the plaintiff that would allow her to receive medical services, albeit from a different physician who did not have a dog allergy, which the plaintiff rejected.  It also considered the fact that the medical practice made a one-time decision “on the spot,” noting that the regulation requires only a “reasonable judgment” in determining if a direct threat exists under the circumstances.

There are a few important takeaways from this decision:

First, it highlights the importance of considering (1) the specific facts presented by a situation in assessing whether a service animal poses a direct threat to someone else at the public accommodation, and (2) measures that would allow the person with a service animal to receive services from the public accommodation while mitigating the risk to the health and safety of others.  In this case, the medical practice considered the severity of the doctor’s allergy, and offered other options which would have allowed the plaintiff to receive medical services. 

Second, this case was decided only after an evidentiary trial, underscoring the difficulty of securing early dismissals of these types of cases.  Thus, businesses that face unruly behavior by animals or animals that otherwise pose health risks should be thoughtful in handling these situations.  They should conduct a fact-specific, individualized assessment of the risk that includes an exploration of alternatives that would mitigate that risk but still provide equal access to their products and services.  The case also illustrates how businesses should be prepared to go the distance in litigation if necessary (i.e. summary judgment and/or trial) if they decide to exclude the animal on the basis of a “direct threat” that it presents.

Edited by: John W. Egan  

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Department of Justice logo.

By: Ashley S. Jenkins and Minh N. Vu

Seyfarth synopsis: The Trump DOJ rescinded five COVID-19 related documents and six older guidance documents designed to educate businesses on the requirements of the ADA, claiming that the recission will reduce the burden on businesses to review them.

On March 19, 2025, to comply with President Trump’s January 20, 2025 memorandum “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis”, the Department of Justice (“DOJ”) announced that, to “deliver price relief to consumers” it was withdrawing eleven guidance documents it had issued over the years to educate covered businesses on the requirements of the Americans with Disabilities Act (“ADA”) and how to implement them in their operations. The DOJ said “[t]oday’s withdrawal of 11 pieces of unnecessary and outdated guidance will aid businesses in complying with the ADA by eliminating unnecessary review and focusing only on current ADA guidance.”  It should be noted that neither the ADA nor DOJ required public accommodations to review these guidance documents in the first place.

The withdrawn guidances include 5 “question-and-answer” documents issued during the COVID-19 pandemic to assist individuals with disabilities and businesses in understanding their rights and obligations during that time, a 10-part training program called Reaching Out to Individuals with Disabilities that educates businesses on the various requirements of the ADA, and guidance documents specifically targeting hotels and lodging facilities, gas stations, and retail establishments.

The full list of eleven rescinded guidance documents are:

  1. COVID-19 and the Americans with Disabilities Act: Can a business stop me from bringing in my service animal because of the COVID-19 pandemic? (2021)
  2. COVID-19 and the Americans with Disabilities Act: Does the Department of Justice issue exemptions from mask requirements? (2021)
  3. COVID-19 and the Americans with Disabilities Act: Are there resources available that help explain my rights as an employee with a disability during the COVID-19 pandemic? (2021)
  4. COVID-19 and the Americans with Disabilities Act: Can a hospital or medical facility exclude all “visitors” even where, due to a patient’s disability, the patient needs help from a family member, companion, or aide in order to equally access care? (2021)
  5. COVID-19 and the Americans with Disabilities Act: Does the ADA apply to outdoor restaurants (sometimes called “streateries”) or other outdoor retail spaces that have popped up since COVID-19? (2021)
  6. Expanding Your Market: Maintaining Accessible Features in Retail Establishments (2009)
  7. Expanding Your Market: Gathering Input from Customers with Disabilities (2007)
  8. Expanding Your Market: Accessible Customer Service Practices for Hotel and Lodging Guests with Disabilities (2006)
  9. Reaching out to Customers with Disabilities (2005)
  10. Americans with Disabilities Act: Assistance at Self-Serve Gas Stations (1999)
  11. Five Steps to Make New Lodging Facilities Comply with the ADA (1999)

To further implement the Executive Order, the DOJ said it would highlight tax incentives that are available to businesses that make accessibility improvements.  The DOJ has added a link to a 2006 guidance about those tax incentives from the homepage of www.ada.gov. 

While the guidance documents issued during the COVID-19 pandemic are arguably no longer necessary, for those of us who specialize in this area of the law, they provided useful guidance on how certain legal principles in the ADA should be applied and interpreted outside of the COVID-19 context.  The other guidance documents may be older, but some of them still contain highly relevant information in areas where the law has not changed, and were useful explanation to businesses of how different parts of the ADA statute and regulations should be applied by businesses.  In short, while the recission of these guidance documents does not substantively impact the ADA’s requirements, it does beg the question of whether they will be replaced by new guidance documents that will take a more lenient and business-friendly approach to ADA compliance. 

Edited by Kristina Launey

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Image of a shopping cart on top of a computer.

By: Lotus Cannon and Kristina Launey

Seyfarth Synopsis: Are web-only businesses subject to Title III? A Minnesota federal court joins the controversy and says yes.

Courts around the country are split on the issue of whether a “place of public accommodation” subject to Title III of the Americans with Disabilities Act must have a physical location where it serves the public.  A federal trial court in Minnesota recently denied a web-only business’s motion to dismiss, ruling that web-only businesses are covered by Title III, siding with the courts that have concluded that no physical place is required.

Recognizing the disagreement among federal appellate and trial courts on this issue, as well as the fact that the Eighth Circuit Court of Appeals (within which the District of Minnesota sits) has not opined on the issue, the Court went to great lengths to justify its decision that a “public accommodation” does not have to be a physical place.

First, the Court sought to distinguish the Third, Sixth, and Ninth Circuit decisions finding that public accommodations are limited to “physical structures” by stating that those cases were about whether the ADA applied to the content of insurance policies, not websites. 

Second, the Court stated that those courts had “allowed the canon of noscitur a sociis to play too great a role in their analysis.”  This cannon of statutory construction states that a word is known by the company it keeps and is used to interpret ambiguous words.  The Court insisted that the application of this rule “ignores the maxim that a remedial statute should be read broadly” and runs counter to the “ADA’s intent, which Congress enacted ‘to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.’” 

Third, the Court gave no weight to the dictionary definition of the word “place” in the phrase “place of public accommodation” because that definition, in the Court’s view, was “inconclusive.”

Fourth, the Court noted that Congress’ failure to amend the ADA to explicitly include websites should not be construed as Congress’s intention to exclude websites. To the contrary, the Court posited that the lack of legislative action could be interpreted as an understanding that no amendment is required to cover online-only businesses.

The bottom line is that the Court found the exclusion of online-only businesses from the ADA’s coverage inconsistent with the ADA’s mandate to ensure equal access for individuals with disabilities to businesses’ goods and services, noting that shopping via retail websites is not meaningfully different from shopping at physical stores. 

While we have yet to see other district courts in the Eighth Circuit weigh in on this issue, this decision may spark a trend of web accessibility lawsuits in Minnesota and the Eighth Circuit, as we have seen from plaintiff-friendly rulings in New York. 

Edited by: Minh N. Vu

By Minh N. Vu, Kristina Launey, and Susan Ryan

Seyfarth Synopsis: The two-year decline in ADA Title III filings stopped in 2024, with plaintiffs increasing filings back to 8,800 complaints in 2024.

When we first started tracking ADA Title III lawsuits in 2013, the total for the year was only 2,722.  The number climbed steadily to an all-time high of 11,452 in 2021, and then fell to 8,694 in 2022.  2023 saw another decrease to approximately 8,200 filings.  What would 2024 bring? More of the same or a return to the ADA Title III litigation heyday?  The answer is: something in between.

In 2024, plaintiffs filed 8,800 ADA Title III complaints in federal district courts.  This represents a 7% increase from 2023.  And it’s more than triple the number of filings we saw in 2013, when we first started compiling these numbers.

[Total Number of ADA Title III Federal Lawsuits Filed Each Year, January 1, 2013 – December 31, 2024; 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; 2023: 8,227 – 5% decrease from 2022; 2024: 8,800 – 7% increase over 2023]

After two years of being behind New York, California regained its top position with 3,252 filings.  That’s a whopping 37 percent increase over 2023, but still significantly lower than its all-time high of 5,930 in 2021.  One law firm drove the increase by filing 2,598 of these cases. 

New York took second place, with 2,220 cases.  We attribute the decrease to several plaintiffs’ firms now filing in New York or New Jersey state court after several unfavorable decisions from NY federal judges. 

Florida came in third for the seventh year in a row, with 1,627 cases.  Rounding out the top ten were Texas (224) Illinois (199), Pennsylvania (143), Missouri (135), Minnesota (134), New Jersey (134) and Georgia (107).  Minnesota is a newcomer to the top ten list, taking the space left by Tennessee, which dropped out of the list.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2024 – December 31, 2024:  New York: 3,252; California: 2,220; Florida: 1,627; Texas: 224; Illinois: 199; Pennsylvania: 143; Missouri: 135; Minnesota: 134; New Jersey: 134; Georgia: 107]

Every year, there are some states with no ADA Title III filings at all.  This year, those states are Alaska, Hawai’i, Iowa, Montana, Vermont and West Virginia.  Surprisingly enough, North Dakota, which has had zero lawsuits from 2013 – 2023, broke its streak with two pro se cases in 2024 about pool lifts – a topic we’ve heard little about in a while. 

[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2024: 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; 2023: 2,380; 2024: 3,252; 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; 2023: 1,415; 2024: 1,627; 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; 2023: 2,759; 2024: 2,220]

Filings remained fairly steady throughout the year, ranging from a low of 633 in January (often a low month) to a high of 815 in October.  July and August were tied for second place with 750 filings each month.  The only other month of the year below 700 filings was June with 676.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2024 – December 31, 2024: January: 633; February: 739; March: 792; April: 710; May: 730; June: 676; July: 749; August: 750; September: 739; October: 815; November: 744; December: 723]

What’s in store for 2025?  We predict the numbers will remain between 8,000 and 9,000.  Although we predict less enforcement of Title III of the ADA by the Trump Administration’s Department of Justice (DOJ), the reduction will have little impact on the number of lawsuits filed because the DOJ rarely had to file suit to enforce the law, even under Democratic administrations.  Whether private citizens and advocacy groups will step up enforcement efforts to fill the void remains to be seen.  We do expect private lawsuits to increase, though they will likely file more in state courts than federal courts, according to the trends we’ve anecdotally been seeing. We only report on federal lawsuit filings – not state filings – because the state court reporting services are less reliable for accurate data. For more predictions and our 2024 year in review, please see our prior post.

A note on our methodology: Our research involves 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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Image of a legal gavel.

By: Pamela C. Huynh, Minh N. Vu and John W. Egan

Seyfarth Synopsis:  Concerned that serial plaintiffs are not actually ensuring that defendants are removing access barriers under their confidential settlement agreements, EDNY Judge Cogan takes charge. 

Be careful what you ask for – that’s the adage that a serial plaintiff and her attorney should have considered before asking U.S. District Judge Cogan to make defendants pay the $9,000 they still owed under a settlement agreement resolving an ADA Title III access suit.  Instead, they got a harsh rebuke and a decision that conditioned their judgment for the overdue payment on their (1) disclosure to the court of all of confidential settlement agreements for past EDNY lawsuits, and (2) submission of evidence that remediation has been completed under all of those agreements. 

The plaintiff in this case had sued the defendants, a restaurant and an affiliated property company, with a “cookie-cutter complaint” listing more than 15 pages of physical accessibility violations.  The parties resolved the case in open court with an agreement that required a $10,000 settlement payment and only a handful of changes to the restaurant.  When the defendants failed to pay $9,000 of the settlement, the plaintiff filed a motion with the court seeking an order compelling payment, but did not reference any of the remediation work required under the agreement.

Judge Cogan was not pleased.  He first pointed out that he had no authority to order injunctive relief to remedy a breach of the agreement, and that the only relief available was a judgment for $9,000.  Next, Judge Cogan expressed concern “that Title III of the ADA has primarily become a tool not used to ensure disabled persons can access privately operated public accommodations but instead used by a specialized plaintiff’s bar against ‘mom and pop’ operations (i.e., bodegas, bars, restaurants, retail and convenience stores) to extract attorneys’ fees.”  Judge Cogan also pointed out that the vast majority of ADA Title III settlements result in a “plain vanilla stipulation of dismissal (or a notice of dismissal if the defendant agrees to settle before appearing),” where, “[f]or all the court knows, nothing happened except the payment of a nominal sum to the plaintiff and the payment of a far more substantial fee to the plaintiff’s lawyers.”   “[T]o ensure that this action has been brought for plaintiff’s benefit, and not the benefit of her attorney,” Judge Cogan stated that the court would stay the judgment for the outstanding $9,000 until the plaintiff proved that the remedial changes required in the agreement at issue — as well as in all other agreements reached by her in cases filed before the court— have been fully implemented.  The decision also required plaintiff to provide copies of all of her other settlement agreements from cases before this court for its review. 

Plaintiff promptly filed a letter seeking clarification of the decision in which she also pointed out that the time for the defendants to complete the remediation had not yet expired so she did not reference it in her original motion.  In response, the court issued a Final Injunction and Order that differed from the prior decision.  The Final Injunction and Order entered a judgment against defendants, jointly and severally, for the $9,000 owed under the settlement agreement, and directed the defendants to complete the agreed-upon remediation by May of this year.   The Court then issued a clarifying Order, that same day, indicating that “[t]he only cases requiring proof of performance are those that have been brought before the undersigned.” 

While the Final Injunction and Order and clarifying Order tempered the initial decision, the matter is another example of district judges in New York becoming more frustrated that Title III of the ADA has become “a means of securing fees for plaintiff’s attorney[s]” and not a means of improving accessibility for individuals with disabilities.  It appears that judges in New York may be more willing to take matters into their own hands to ensure that when serial ADA litigants resolve cases, remediation of access barriers is actually the result.

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Cartoon phone.

By: Ashley S. Jenkins and Minh N. Vu

Seyfarth synopsis: The DOJ’s new step-by-step guidance for state and local governments on how to comply with new regulations that mandate accessible web content is also useful for public accommodations looking to make their websites and mobile apps accessible to individuals with disabilities.

In April 2024, the Department of Justice (“DOJ”) published a new regulation setting technical standards that state and local governments must follow to make their web content (e.g. websites, mobile apps, information on third party websites) accessible to people with disabilities.  That rule requires covered entities to make their web content conform to the Web Content Accessibility Guidelines Version 2.1, Level AA (“WCAG 2.1 AA”), subject to a few limited exceptions, as we discussed in a prior blog post.  The DOJ followed up a month later with a Small Entity Compliance Guide explaining the rule and its exceptions, and then on January 8, 2025, issued a “resource” document (the “Resource Document”) containing step-by-step guidance for how these entities should approach the daunting task of making their web content conform with WCAG 2.1 AA.

While the DOJ issued the Resource Document for state and local governments, the document is useful for public accommodations that seek to create, implement, or refine their own digital accessibility programs.  This challenge is (or should be) top of mind for all businesses that interact with the public on the web given the thousands of lawsuits filed each year about websites and mobile apps that are allegedly not accessible to persons with disabilities.

The key steps DOJ recommends in the Resource Document that entity take to make its digital assets conform to WCAG 2.1 AA are:

  1. Identify key personnel within your organization to be responsible for ensuring digital assets conform to WCAG 2.1 AA.  These individuals will likely include IT personnel, marketing personnel who create web content, procurement personnel, and members of risk, compliance, and/or legal departments.  The Resource Document recommends making sure these individuals are aware of their roles and responsibilities. If current staff lack the requisite expertise, organizations should consider engaging an outside expert to provide training or assistance.
  2. Train Staff.  Individuals responsible for digital accessibility compliance must be trained on what digital accessibility is and why it is important.  The training must be tailored to their role (e.g., training for web designers will be different from training for marketing staff).  Anyone who is permitted to make changes to the website or mobile app, and who field inquiries regarding accessibility from the public should receive some form of digital accessibility training relevant to their role.
  3. Identify the Digital Content your Entity Provides.  Before an organization can start addressing digital accessibility, it must identify the websites, mobile apps, and other web content that it makes available to the public.  Entities should prepare a list of all websites, mobile apps, and third-party platforms (e.g. social media) where their web content is placed, and the type of content on those pages (HTML, PDFs, Videos, Images).
  4. Understand What Types of Web Content Can Be Given Lower Priority.  The regulation for state and local governments actually exempts certain web content from WCAG 2.1 AA conformance.  While these exemptions do not apply to public accommodations at this time, public accommodations can consider this list informative as to what the DOJ might not focus on an enforcement effort, and thus put a lower priority on the following items in their remediation efforts:
    • Archived web content
    • Content posted by third parties
    • Password-protected individualized electronic documents
    • Preexisting electronic documents (PDFs, word processor files, presentation formats and spreadsheets)
    • Preexisting social media posts
  5. Determine Which Content Must Comply.  After Step 4, entities should determine what specific content remains to be remediated and who within the organization controls that content.
  6. Determine What Actions Need to be Taken.  Once an entity has a complete list of its public facing digital content, it must audit this content against WCAG 2.1 AA success criteria to determine what pages/components of the content do not conform to WCAG 2.1 AA and require remediation.  The Resource Document is a bit vague about how to go about this audit but does make clear that automated testing tools alone are insufficient because those tools cannot test for all aspects of accessibility.  Thus, a proper audit must include some combination of automated and manual assessment.  In our experience, few organizations have the internal expertise to conduct an audit of their websites or mobile apps.  We recommend hiring a reputable third-party digital accessibility expert to conduct a manual and automated audit of websites and mobile apps.  Hiring the right consultant and determining the most appropriate (and cost effective) form to receive the audit results can be challenging and can often benefit from guidance from attorneys experienced in digital accessibility.
  7. Prioritize Remediation.  After receiving audit results, entities must prioritize the required remediation actions.  The DOJ suggests prioritizing the remediation of issues that (1) affect key tasks; (2) pertain to frequently accessed content; (3) have been flagged as inaccessible by individuals with disabilities; (4) are in development; (5) appear across multiple web pages, like navigation menus, search features, and standardized footers; and (6) are based on a template.
  8. Review Relevant Vendor Contracts.  Many organizations engage third-party vendors to create or provide content for their websites and mobile apps. The DOJ recommends the following types of measures to ensure that deliverables conform to WCAG 2.1 AA:  (1) requiring vendors to provide detailed information about the level of accessibility of their product before signing any contracts; (2) asking vendors to include a warranty in their contracts stating that they comply with certain technical standards and applicable Federal and state accessibility laws; (3) including language in their contracts prohibiting vendors from disclaiming any accessibility warranties; (4) requiring vendors to provide indemnification for any breach of any accessibility warranties; (5) testing the accessibility of vendor products.
  9. Create Policies for Digital Accessibility.  The DOJ strongly recommends that entities have digital accessibility policies, and the Resource Document provides links to various resources on how to draft such policies.  In our experience, digital accessibility policies should, at a minimum, identify which assets are covered, the accessibility standard to be applied (and any exceptions), the business unit(s) responsible for ensuring compliance, the process for compliance and considering exceptions, and a process for customers to make accessibility requests or report accessibility issues.

The Resource Document should be required reading for every business with digital assets, as the discussion, examples, and resources are very useful.

Edited by John W. Egan and Kristina Launey

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Image of a pen resting on an agenda labeled 2025.

By Minh N. Vu

Seyfarth Synopsis: 2024 saw some interesting developments and an uptick in lawsuit filings from 2023; expect less ADA Title III enforcement and rulemaking activity from DOJ in 2025.

The first quarter of this century concluded with yet another busy year for ADA Title III litigation.  While we are still finalizing the numbers, 2024 saw a meaningful increase in federal ADA Title III lawsuits from 2023.  There were also some noteworthy facts and moments. 

Most Prolific Lawsuit Filers.  According to our search in Courthouse News Service, four law firms each filed more than 100 federal ADA Title III lawsuits last year.  So Cal Equal Access Group was the most prolific, filing a whopping 2,598 federal ADA Title III lawsuits in 2024.  Stein Saks in New York trailed behind with 395 lawsuits, followed by Sconzo Law which filed 193 lawsuits, and Gottlieb Associates with 190 lawsuits.  Indeed, the twenty most prolific firms were responsible for more than 4,000 of the federal filings last year. This, of course, doesn’t include lawsuits filed in state courts or demand letters that never appear on court dockets.  

Self-Service Kiosks.  While there have been a number of cases regarding self-service technologies over the years, the two most significant class action battles we have seen regarding the accessibility of self-service check-in kiosks to the blind continue after the federal district courts certified national injunctive relief and California damages classes.  One case went to trial and resulted in a judgment for the plaintiff who submitted fee petition in excess of $10M.  Both cases are on appeal.  These cases underscore the importance of considering accessibility when purchasing self-service kiosks and other self-service technologies.  While providing prompt employee assistance can be an alternative to having fully accessible self-service kiosks when no private information is involved, businesses must seriously consider whether such assistance will likely be provided where the kiosks are installed.

Nondairy Milk Litigation Against Coffee Retailers.  One law firm filed class action lawsuits on behalf of various alleged lactose intolerant/dairy allergic plaintiffs against a number of coffee retailers claiming that the additional charge all customers must pay for customizing beverages with non-dairy milk constitutes disability discrimination under the ADA.  Two federal courts have granted motions to dismiss the complaints with leave to amend, and the ADA Title III plaintiff’s bar does not seem interested in jumping on what appears to be a losing bandwagon.

Website Accessibility.  Plaintiffs continued to file large numbers of lawsuits alleging that blind users have been denied access to websites with digital barriers, and the DOJ pursued aggressive enforcement actions on this basis. While few of these cases are litigated, let alone on a class basis, in 2024 a California law firm obtained class certification in one such suit and thereafter settled the case (subject to court approval) for more than $6M in damages and fees.  In an interesting turn, the federal court rejected the proposed class action settlement because, under the agreement, any unclaimed funds would revert back to the defendant.  The court’s rejection of the class settlement may spell trouble for the resolution of that case.

Also, on the subject of websites, in 2024, the U.S. Department of Justice (“DOJ”) issued final regulations containing accessibility requirements for the websites, mobile apps, and other web content of state and local governments, as we have previously discussed.  Just a few days ago, the DOJ followed up with a “resource” document to help covered entities “figure out what they should do to comply with the rule.”  These regulations and the resource document provide a useful roadmap for (but are not binding upon) public accommodations that are developing digital accessibility policies, programs, and processes. 

The DOJ.  Anecdotally — based on our own handling of DOJ investigations for clients — it seems that U.S. Attorneys’ Offices across the country significantly ramped up their ADA Title III enforcement efforts in the past four years.  We saw many more investigations into complaints concerning physical access barriers at public accommodations, websites, and hotel reservations practices.  In one settlement agreement with a hotel company, the DOJ expressed its position – not expressly stated in the ADA regulations for hotel reservations – that (1) accessible hotel rooms must be bookable via loyalty program points, and (2) accessible rooms must be bookable on some third party reservation services.

Physical Access Barriers.  We continued to see a number of lawsuits about physical access barriers in public accommodations, as well as complaints about service animals being subjected to pet fees or paperwork requirements. 

What’s in store for 2025?

We predict that the ADA Title III plaintiff’s bar and their clients will continue to file lawsuits at roughly the same level as 2024.  Most cases will be about physical or digital access barriers.  A smaller percentage will be about operational issues such as a failure to make reasonable modifications to normal policies, practices, and procedures, or provide auxiliary aids and services to ensure effective communication.  In the effective communication category, a new type of case has emerged involving blind plaintiffs alleging that public accommodations must provide digital wayfinding technology, instead of providing employee assistance to read written information or navigate the facility.  We see this as an uphill battle for plaintiffs as the regulations explicitly allow employee assistance to facilitate effective communication.

We believe there will be a significant change in how the DOJ enforces Title III of the ADA.  In the first Trump Administration, the DOJ seemingly conducted very few investigations into allegedly inaccessible websites or other digital content. The second Trump Administration will likely repeat this approach.  The DOJ may also be more flexible in negotiating resolutions with public accommodations.  One thing is certain:  The DOJ under President Trump will not be looking to expand the scope of the ADA’s coverage.

The incoming administration will also be less likely to weigh in on any private party ADA Title III lawsuits through intervention or filing of Statements of Interest – at least in favor of plaintiffs.  And, finally, given the Trump Administration’s mandate to reduce regulations, new regulatory activity in the ADA Title III space will be very unlikely.  This means pending rulemakings for accessible self-service kiosks and EV charging stations at the U.S. Access Board may stall.

Stay tuned to our blog for updates, and Happy 2025!

Edited by Kristina Launey & John W. Egan