By Minh N. Vu, Julia Sarnoff, Kristina Launey

Seyfarth synopsis: California Court of Appeal affirms ruling that inaccessible restaurant website violated the Unruh Act and orders that restaurant website comply with WCAG 2.0 Level AA.

Before September 3, 2019, there were four substantive California state trial court decisions in website accessibility cases, and the verdict score was tied at 2-2.  Plaintiffs obtained summary judgment in two website accessibility cases concerning the websites of a retailer (Davis v. BMI/BND Travelware) and a restaurant (Thurston v. Midvale Corporation), while defendants secured summary judgment in a website accessibility case concerning a credit union website (the case has been appealed) and a defense jury verdict in a case concerning an inaccessible hotel website. Defendant Midvale Corporation pursued an appeal, which has resulted in very favorable precedent for website accessibility plaintiffs and their lawyers.

In a 33-page published decision, the California Court of Appeal affirmed the California Superior Court’s summary judgment ruling that Midvale violated the California Unruh Civil Rights Act by having a restaurant website that could not be used by a blind person with a screen reader.  The Court of Appeal also affirmed the trial court’s injunction mandating that Midvale make the restaurant website comply with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. Because the plaintiff’s Unruh Act claim was based on a violation of Title III of the ADA, the court’s analysis focused on whether Midvale violated the ADA by having an inaccessible website.

Here are some highlights from the decision:

Websites with a physical nexus are subject Title III.  The court held that that Title III of the ADA applies to a restaurant website because the website has a nexus with a physical place.  Citing to the federal Ninth Circuit Court of Appeals’ decision in Domino’s, the Court held that “including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with the changing technology to effectuate the intent of the statute.”  The Court also provided a detailed analysis of when a website has a sufficient nexus to a physical place of public accommodation, noting that a sufficient nexus existed in this action because “the website connects customers to the services of the restaurant.”  The Court declined to consider the plaintiff’s “wholly hypothetical question” of whether Title III of the ADA governs a website unconnected to a physical place of public accommodation offering only purely internet-based services or products.  This ruling is good news (for the moment) for businesses that do not have a physical location where customers go.

Third Party Content.  In response to Midvale’s argument that its website did not really connect customers to its location because customers are directed to a third party reservation service website to make a reservation, the Court of Appeal said “appellant offers no legal support for its theory that it cannot be liable for ADA discrimination if hires someone else to do the discrimination.”  This comment and the related analysis suggest that the court would be inclined to hold businesses accountable for the inaccessibility of websites of third parties with whom they contract to provide services to customers.

Alternative Means of Effective Communication. The court held that there was no triable issue of fact about whether the restaurant’s provision of a telephone number and email address on its website was a reasonable alternative means of providing effective communication because the restaurant’s telephone line and email address were available only during the restaurant’s hours of operation.  Because a sighted individual could obtain information about the restaurant 24 hours a day by visiting the website, the Court reasoned that the telephone number and the email did not provide effective communication in a “timely manner” since “the use of either [the telephone number or email] required [the plaintiff] to depend upon another person’s convenience to obtain information.”  The court did not address, however, whether a toll-free number that is staffed 24 hours a day would have yielded a different outcome.  This leaves open the possibility that a different outcome may be achieved with a different set of facts.

Due Process. The court rejected Midvale’s argument that the trial court violated its due process rights by improperly equating ADA compliance with WCAG 2.0 AA compliance.  While agreeing that WCAG 2.0 AA is not yet a legal standard, the court determined that the trial court “clearly rejected liability based on non-compliance with the guidelines and premised liability on the website’s inaccessibility.”  The court also rejected Midvale’s argument that the trial court’s injunction implies that Midvale should have known WCAG 2.0 AA compliance was legally required under the ADA.  The court found that “the more obvious implication [of the trial court’s injunction] is that the trial court determined appellant could not or would not redesign its website to comply with ADA standards without specific guidance, and so it selected what it believed to be a widely used technical standard to provide the needed guidance.”

WCAG 2.0 AA Injunction Not Overbroad or Uncertain.  The court rejected Midvale’s argument that the trial court’s injunction to make the restaurant website comply with WCAG 2.0 AA is overbroad or uncertain because experts can differ on whether a website conforms to these guidelines.  It reasoned that experts can weigh in on Midvale’s compliance with the injunction and that this should be not be a bar to an injunction because trial courts routinely assess expert testimony.

Standing.  The court held that Midvale forfeited its claim that the plaintiff lacked standing to obtain an injunction because it failed to raise this argument in opposing plaintiff’s motion for summary judgment.  However, the court pontificated that the plaintiff did have standing to obtain an injunction under the Unruh Act because she testified that she visited the website multiple times, both before and after the lawsuit was filed, and that she encountered barriers each time.  Additionally, the court noted that the plaintiff testified to having at least some general interest in the restaurant (it was on a list of places she was interested in visiting), and claimed that she was deterred from visiting the restaurant’s website as a result of the barriers she encountered.  It is possible, however, that the court’s finding on the standing issue could have been different, or at least more robustly analyzed, if Midvale had raised these arguments earlier in opposition to the plaintiff’s motion for summary judgment.

This decision and the Ninth Circuit’s decision in Domino’s are both highly favorable to plaintiffs seeking to bring a lawsuit against a business with a brick and mortar presence in California.  Thus, we predict a continued increase in the number of website accessibility lawsuits filed in California state and federal courts unless the U.S. Supreme Court agrees to hear the Domino’s case and reverses the Ninth Circuit, or Congress takes action to amend the ADA.

By Minh N. Vu and Kristina M. Launey

Seyfarth Synopsis: Congress Members recently renewed their efforts to take legislative action and urge the DOJ take regulatory action regarding physical and website accessibility, respectively.

You have to give them credit for trying.  A group of Senators recently sent Attorney General Barr a letter asking the Department of Justice (DOJ) take action to provide some certainty and relief to businesses regarding website accessibility, and a group of Representatives introduced a bill to provide some relief to businesses from physical accessibility lawsuits.  While we appreciate their efforts, we are skeptical either will gain any traction.

On the topic of website accessibility, Senators Grassley, Tillis, Cornyn, Crapo, Ernst, Blackburn, and Rounds sent a letter dated July 30, 2019 to Attorney General Barr following up on the letter a larger group of Representatives wrote to Attorney General Sessions in 2018.  The letter sought an update and urged “further action to promote greater clarity, compliance, and accessibility” in the area of website accessibility.

The 2019 letter noted Attorney General Sessions’ October 2018 response reiterated the DOJ’s position that the ADA applies to public accommodations’ websites and that public accommodations have flexibility in how they will comply with the ADA’s requirements.  But, the response conspicuously lacked any indication that the DOJ would provide guidance to businesses on what it means to provide an accessible website.  The Senators’ 2019 letter emphasized the need for DOJ guidance in this area given the increasing litigation and conflicting judicial opinions on whether the ADA applies to websites at all: “Regulation through litigation should not be the standard.”

The 2019 letter closed by requesting information by August 30, 2019 – regarding what specific steps the DOJ has taken to resolve this issue in the past year, and what it intends to do; whether the DOJ considers the Web Content Accessibility Guidelines (WCAG) 2.0 an acceptable compliance standard for Title III of the ADA; whether a business’ resources should be taken into consideration; and whether the DOJ has considered intervening in any pending litigation to provide clarity or to push back against any identified litigation abuses.

Also on July 30, 2019, Representatives Calvert, Cook, Hunter, Walker, Grothman, Turner, Rice, and Wilson introduced H.R. 4099, the latest effort to provide some relief to businesses from physical accessibility lawsuits – with a bit of web accessibility thrown in.  The bill – dubbed the “ADA Compliance for Customer Entry to Stores and Services Act”, or “ACCESS Act” – would:

(1) Require the DOJ to develop an education program for state and local governments and property owners on “effective and efficient strategies” for promoting accessibility;

(2) Prohibit a lawsuit be filed alleging a violation of the ADA without prior notice be given to the owner or operator of the business and 60 days to provide a plan to cure the violation and 60 days after to make substantial progress on that cure.  The notice must specify in detail how the individual was actually denied access to a public accommodation, whether a request for assistance to remove the barrier was made, and whether the barrier was permanent or temporary.

(3) Require development of a model alternative dispute resolution program, apparently similar in concept to the U.S. District Court for the Northern District of California’s General Order 56.

(4) Require the Attorney General to complete a study within one year of whether the WCAG 2.0 standards, “accessibility widgets, or providing a telephone number through which members of the public can obtain the same information and services as they would on a website would all provide reasonable accommodation for individuals with disabilities.”

The first three provisions are very similar to those in the ADA Education and Reform Act of 2017 (HR 620) which passed the House but gained no traction in the Senate.  The fourth provision concerning website accessibility is new.  Requiring Department of Justice to conduct a study on alternative methods of providing access to information and functionality on a website an interesting long-term academic exercise which might someday provide some fodder for the defense bar, but it will do nothing to provide any relief to businesses facing the barrage of website accessibility claims now and in the foreseeable future.  Considering the fate of HR 620, the ACCESS Act is unlikely to become  law (though some state efforts, such as in Ohio, have succeeded).  We will monitor the bill as well as the correspondence between Congress and keep you updated.

By Minh N. Vu

Seyfarth SynopsisSerious sanctions imposed on a serial ADA Title III plaintiff and his attorney should concern the plaintiffs’ bar.

People often ask us why plaintiffs are filing hundreds of ADA Title III lawsuits when the law only allows for injunctive relief and attorneys’ fees and costs.  In the case of prolific plaintiff Alexander Johnson, it was a nice cash supplement to his disability income, apparently.  U.S. District Judge Paul Huck determined after a sanctions hearing that Attorney Scott Dinin had paid Johnson more than $84,500 over three years (2016-2018) for his participation in various ADA lawsuits.  The court wrote in its 21-page Sanctions Order:

This case reveals an illicit joint enterprise between Plaintiff, Alexander Johnson, and his attorney, Scott R. Dinin of Scott R. Dinin P.A., to dishonestly line their pockets with attorneys’ fees from hapless defendants under the sanctimonious guise of serving the interests of the disabled community.  Through this illicit joint enterprise, Johnson and Dinin filed numerous frivolous claims, knowingly misrepresented the billable time expended to litigate these claims, made numerous other misrepresentations to the Court, and improperly shared attorneys’ fees in violation of the Rules Regulating the Florida Bar, all done without regard to the interests of those with disabilities.

The Court based its findings on settlements from other ADA lawsuits, financial records, billing records, and even some email communications between Dinin and Johnson.  The Court ordered the following sanctions:

  • Disgorgement of all fees and costs obtained by Alexander and Dinin in all 26 gas pump cases they had filed, totaling $59,900;
  • Payment of $59,900 by Dinin;
  • 400 hours of community service by Johnson because he could not afford to pay the $59,900 penalty imposed by the Court;
  • An indefinite prohibition against Dinin and Johnson from filing ADA complaints in any state or federal court without first obtaining the Court’s permission;
  • A referral of Dinin to the Florida Bar for an investigation into his conduct relating to all of his ADA lawsuits;
  • A requirement that Dinin file the Sanctions Order in every court in which he has filed a lawsuit in the past two years.

The Sanctions Order is an unexpected end to two of twenty-six cases brought by Johnson against gas station owners for allegedly showing TV programming on gas pumps that did not have closed captioning for the deaf.  Defendants did not respond to the complaints and Johnson moved for the entry of a default judgment.  At the hearing on the default motion, the Court decided to probe deeper into Dinan and Johnson’s Title III lawsuit filings which eventually led to the Sanctions Order.

Dinin was counsel for the plaintiff in the first website accessibility lawsuit to ever to go trial (Gil v. Winn Dixie).  Winn Dixie’s appeal of the pro-plaintiff judgment in that case is awaiting a decision from the Eleventh Circuit, and it is unclear what impact, if any, the Sanctions Order will have on the award of fees and costs in that closely watched case.

The prohibition against future filings by Dinin and Alexander should reduce the number of ADA Title III lawsuits filed in Florida in the future.  According to PACER, Dinin was counsel of record in over 251 federal lawsuits in 2018 and 177 in 2019.  Johnson was a plaintiff in 50 cases in 2018 and 24 in 2019.

While the total number of ADA Title III lawsuits continues to climb, with no legislative or regulatory relief for businesses in sight, this Sanctions Order suggests that some judges have had enough and may be applying more scrutiny to ADA Title III claims.  In the meantime, we will be watching to see whether Dinin or Johnson appeal the Sanctions Order.

 

Edited by Kristina Launey

By Minh N. Vu

Seyfarth Synopsis:  The Supreme Court will decide whether to hear its first website accessibility case now that briefing on Domino’s Petition for Certiorari is complete.

Earlier today, Plaintiff Guillermo Robles filed his opposition to Domino’s request to the U.S. Supreme Court for review of the Ninth Circuit Court of Appeal’s decision to let Robles’s lawsuit against Domino’s proceed to discovery.  Robles, who is blind, sued Domino’s alleging that its website and mobile app are not accessible to the blind, in violation of Title III of the Americans with Disabilities Act.  The district court dismissed the lawsuit at the outset of the case, finding that the lawsuit violated Domino’s due process rights because there are no regulations setting accessibility standards for accessible websites or mobile apps of public accommodations. The Ninth Circuit reversed, holding that the ADA does cover websites of public accommodations with brick and mortar locations and Domino’s due process rights would not be violated by the lawsuit.  The Ninth Circuit remanded the case to district court for discovery and other proceedings.

Domino’s filed a Petition for Certiorari in which it argued, among other things, that there is a split among the Circuit Courts of Appeals with regard to the application of the ADA to websites.  Today, Robles responded by pointing out that there is no such split among the circuits when it comes to websites of businesses that have a physical locations where they serve customers.  Robles also argued, not surprisingly, that the Ninth Circuit’s decision was correct and no review by the U.S. Supreme Court is necessary.

We will be keeping a close eye on the developments and let you know as soon as the high court decides whether it will take the case.

Edited by Kristina M. Launey

By Minh Vu, Kristina Launey, and Susan Ryan

Seyfarth Synopsis: Data from the first six months of 2019 shows a 12%  increase over 2018.

The task of counting the number of ADA Title III lawsuits filed in federal courts grows with the ever-increasing numbers of lawsuits.  For the period from January 1, 2019 through June 30, 2019, our research team counted 5,592 ADA Title III lawsuits filed in federal court, versus 4,965 filed in first six months of 2018.  That’s a 12% increase.

If the lawsuits continue continue to be filed at the current rate, the number of federal ADA Title III lawsuits filed in 2019 will top 11,000 and it will be yet another record breaking year.

 

[Graph: ADA Title III Lawsuits in Federal Court Jan. 2014 – Jun. 2019: 2014: 4,436; 2015: 4,789, 8% increase over 2014; 2016: 6,601, 37% increase over 2015; 2017: 7,663, 16% increase over 2016; 2018: 10,163, 33% increase over 2017; 2019: Total: 5,592, as of 6/30/19, Projected Total: 11,184, 10% increase over 2018]

California continues to lead the country with 2,444 federal ADA Title III lawsuits in the first six months of 2019, with New York trailing far behind with 1,212 such suits.  Florida is a close third with 1,074 federal suits.  California continues to be a very popular jurisdiction because plaintiffs can add on a state law Unruh Act claim which provides for $4,000 in statutory damages for each incident of discrimination.  This statutory damages provision gives prevailing plaintiffs an automatic payment so they do not even need to prove that they incurred any actual damages, unless they want to recover more.  The 2,444 California federal ADA Title III lawsuit number does not capture the complete picture of disability access suits filed in California because many more access suits are filed in state court, which we do not track.  This holds true in other states as well, but, as we know anecdotally, it would still not put any other states anywhere near California in the number of disability access lawsuits filed in state and federal courts.  Few other states allow recovery of statutory damages for disability access claims; while Title III only allows recovery of attorneys’ fees and costs in addition to injunctive relief.  In stark contrast to California, the federal courts in Idaho, Iowa, Montana, North Dakota, Oklahoma, South Dakota, and Vermont have seen no ADA Title III lawsuits this year.

[Graph: Top 10 States for ADA Title III Federal Lawsuits Jan. 2019 – Jun. 2019: CA 2,444, NY 1,212, FL 1,074, GA 128, TX 126, PA 71, NJ 66, IL 63, MA 55, MI 36]

What are these lawsuits about?  Based on the many cases we see in our practice, most cases concern allegedly inaccessible physical facilities or websites.  However, there have also been a number of lawsuits claiming that hotels are not putting information about the accessibility of their physical facilities on their reservations websites as required by the ADA regulations, and some lawsuits regarding service animals and sign language interpreters.

Businesses feeling under siege are not likely to see relief any time soon.  Attempts to curb this lawsuit tsunami through federal legislation such as the ADA Education and Reform Act passed by the House last year have seen no progress.

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those cases from the count.

By Minh N. Vu

Seyfarth Synopsis:  Courts in the Fourth Circuit are taking a hard look at a plaintiffs’ standing in website accessibility cases.

In a small but potentially important victory for defendants facing website accessibility lawsuits, the Fourth Circuit has issued two decisions upholding dismissal of lawsuits for lack of standing with a well-reasoned analysis that can be applied to the defense of other lawsuits.

The blind plaintiff in Griffin v. Dept. of Labor Credit Union sued the credit union under Title III of the ADA alleging its website was not accessible to him through his screen reader software.  Reviewing the district court’s dismissal of the case for lack of standing, the Fourth Circuit held that the plaintiff did not have standing to bring his claim because he had not suffered an injury in fact and was not facing an imminent injury in the future.  The Court cited to the fact that the plaintiff could never become a member of the defendant credit union whose membership was limited to current and former employees of the Department of Labor and their immediate families and households.  This position contradicts a few decisions from judges in other jurisdictions who concluded that the inability obtain information about a business that a plaintiff could never actually patronize is an injury in fact sufficient to establish standing.  Although the Fourth Circuit said its holding was intended to apply narrowly to the scenario before it, its thoughtful elaboration of the standing requirements still provides support for defendants seeking to dismiss cases where the complaint fails to plead a credible desire or need to obtain goods or services from the defendant’s website.

The Fourth Circuit began with the well-established principle that a plaintiff “must allege an injury that is concrete, particularized, and immediately threatening.”  The court found that the “inability to obtain information is sufficiently concrete to constitute injury in fact only when the information has some relevance to the litigant.” The fact that the plaintiff could never be a member of the credit union made the information on the website not relevant to him.  While most businesses will not have as favorable facts (i.e. a law making it impossible for the plaintiff to ever be a customer), the “relevance” requirement can be applied to other situations and puts the onus on plaintiffs to ultimately put forth evidence that they have a reason or need to actually take advantage of the goods and services offered by a business to have standing.

The court also found that the plaintiff’s injury was not “particularized.” It explained that “[t]here must be some connection between the plaintiff and the defendant that “[]differentiate[s]” the plaintiff so that his injury is not “common to all members of the public.”  In other words, while everyone in the U.S. may have access to a particular allegedly inaccessible website, a plaintiff would have to demonstrate some connection between him/her and the business in order to establish standing.  In Griffin’s case, there was no connection because he could never be a member of the credit union.

The court also concluded that Griffin faced no “imminent” harm resulting from not being able to access the website for information because he could never be a member of the credit union in the first place.  In response to Griffin’s argument that he faced imminent harm because he was a tester, the court said that while the status of being a tester does not undermine the plaintiff’s standing, it also does not create standing.  Testers must still meet the “injury in fact” requirements like all other litigants.

The Fourth Circuit also affirmed the dismissal of the case in Carroll v. Northwest Federal Credit Union on the same grounds involving a blind plaintiff who allegedly could not access the website of a credit union that he could never join.

Plaintiffs may file fewer website accessibility lawsuits in the Fourth Circuit as a result of these decisions, as it appears that that courts in this Circuit will be applying Article III standing requirements more rigorously than courts in other jurisdictions.

Edited by Kristina Launey

By Minh N. Vu and Kristina M. Launey

Domino’s filed its petition for writ of certiorari with the U.S. Supreme Court today, June 13, 2019, asking the Court to review and overturn the Ninth Circuit’s decision which allowed a website accessibility lawsuit to proceed against Domino’s.  Domino’s styled the question presented as “Whether Title III of the ADA requires a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.”  See here for our report on the Ninth’s Circuit decision, and here for a copy of the Petition.  The Court will generally act on a petition within 6 weeks – Robles now has 30 days to file a response, then Domino’s a reply, at which time the Justices will review and determine whether to entertain the appeal.

By: Kristina M. Launey and Samuel Sverdlov

Seyfarth Synopsis: A SDNY judge dismissed a website accessibility lawsuit finding that the company mooted the allegations in the complaint by remediating the accessibility barriers and that the Court lacked personal jurisdiction since the company does not transact business in New York.

New York federal courts are a hotbed for ADA Title III litigation — of the over 10,000 ADA Title III lawsuits filed in 2018, at least 2,338 were filed in New York federal courts, including 1,564 ADA Title III website accessibility lawsuits, which are likely fueled in part by a few very plaintiff-friendly decisions out of the Southern District of New York (SDNY).

Last week, the business community received a favorable opinion from the SDNY.  On June 4, 2019, Judge Katherine Polk Failla of the SDNY granted The Kroger Company’s motion to dismiss an ADA Title III website accessibility lawsuit on two grounds: (1) the company mooted the plaintiff’s claims; and (2) the Court lacks personal jurisdiction over Kroger for this lawsuit.

This is the first decision that we’re aware of from a district court in the Second Circuit to grant a motion to dismiss a website accessibility lawsuit on mootness grounds.  Here, the Court was persuaded by an affidavit from a company representative which stated that:

  • Kroger has undertaken efforts to comply with WCAG 2.0 since before the lawsuit was filed;
  • The website currently complies with WCAG 2.0;
  • The company representative personally confirmed that the specific barriers the plaintiff alleged have been remedied;
  • Kroger has no plans of becoming non-compliant with WCAG 2.0; and
  • Kroger intends to maintain its website in compliance with WCAG 2.0.

Interestingly, the affidavit neither detailed the steps taken by the company to ensure that its website complies with WCAG 2.0, nor stated whether the company has adopted written policies or procedures regarding website accessibility.  Further, the affidavit did not detail the level of conformance with WCAG 2.0 the website has reached (A, AA, or AAA).  Nonetheless, the Court was persuaded that the company’s actions sufficiently mooted the plaintiff’s claims.  To that end, the Court rejected the notion that a website accessibility lawsuit can never be mooted (which the Court stated would amount to a “sweeping, technology-specific exception to the mootness doctrine”), and stated that “ADA cases involving websites are subject to the same mootness standard as their ‘structural’ counterparts.”  In contrast, other judges in the SDNY have denied motions to dismiss website accessibility lawsuits based on mootness.  See Sullivan v. Study.com LLC, 2019 WL 1299966 (S.D.N.Y. Mar. 21, 2019); Wu v. Jensen-Lewis Co., 345 F.Supp.3d 438 (S.D.N.Y. 2018); Del-Orden v. Bonobos, Inc., 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017).

The Court found dismissal appropriate for the independent reason that it does not have personal jurisdiction over Kroger to hear this lawsuit.  Although the plaintiff claimed that Kroger’s website provides a variety of services such as “the ability to … find information on promotions and coupons, discern the calories content of food, [as well as] preferred cook time and temperature,” the Court found that “[n]one of these factors, considered together or in isolation, is enough to confer personal jurisdiction.”  Rather, the Court held that the plaintiff had the burden to establish that he actually used the website to effect a commercial transaction in New York.  Here, the Court reviewed Kroger’s website, and found that Kroger, an Ohio-based corporation, has no retail presence in New York, and does not deliver goods and services to customers with a New York zip code.  Accordingly, the Court found that Kroger “[d]oes not sell, through the Website, goods or service to New York residents.”

As both mootness and personal jurisdiction defenses are highly fact-specific, this decision will not be useful in all website accessibility cases.  However, for businesses facing website accessibility lawsuits that either have already invested substantial resources on remediation or do not transact business in the jurisdiction where the lawsuit is brought, this case could prove useful.

Edited by Minh N. Vu

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: A Committee in the New York State Senate aims to develop a legal standard for the accessibility of business websites under New York law, in response to the exponential increase in website accessibility litigation in the state. Whether state legislation could stem this tide, or instead make matters worse for businesses, remains to be seen.

According to a recent article published in the New York Law Journal, a committee of state legislators in New York plan to develop a legal standard for website accessibility, in the wake of years of regulatory inactivity by the federal government.

As we have previously written about, various state and municipal jurisdictions have laws on the books requiring that government agencies and contractors provide accessible websites. New York, however, would be the first state in the country to directly hold business websites to an accessibility standard.

Ironically, this legislative effort appears, from the NYLJ article at least, to be motivated by a concern over the surge of website accessibility filings and their impact on businesses.

A State Website Accessibility Standard To Reign In Federal Lawsuits?

The NYLJ article cites statistics published on our blog that ADA plaintiffs filed an astounding 1,564 website accessibility lawsuits in New York federal courts in 2018, which amounted to more than two-thirds of all federal website cases filed throughout the country last year.

The representative leading this initiative, State Sen. Diane Savino, referred to plaintiffs-side attorneys commencing these lawsuits as “ambulance-chaser[s]” who are “exploiting loopholes in the law” to look for quick settlements, and described the cases as having the potential to “bankrupt a small business.”

Senator Savino attributed the surge in website accessibility filings to “a real lack of regulation from the federal level down to the states.” Accordingly, the Internet and Technology Committee that she chairs will “try to develop a set of standards [for website accessibility] recognizing . . . that there are not four walls of the internet.”

It is laudable that Senator Savino and her Committee are attempting to tackle the surge in “surf by” ADA lawsuits. That said, we are not sure how developing a legal standard for business websites at the state level will mitigate the surge in federal lawsuits.

In our experience, most website accessibility lawsuits in New York are filed in federal court. Since Title III of the ADA does not provide for damages, New York plaintiffs typically add “tag-along” claims under state (and municipal) law for damages. However, as demonstrated from states’ attempts to reign in physical barrier cases, no state law can affect the remedies and procedures available under the federal ADA.

Would Legislation Provide Relief To Businesses, Or Create More Uncertainty?

Website accessibility lawsuits are usually based on the ADA’s general mandate that public accommodations provide people with disabilities equal access to their goods, services, and accommodations, specifically through auxiliary aids and services to ensure that their communication with individuals with disabilities is “effective.”

These regulations expressly state that a business can choose which auxiliary aid or service to provide, however, as long as the method is effective, free of charge, and safeguards the privacy and independence of the individual with a disability. Requiring New York businesses to conform their websites to a set of accessibility standards such as the Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1, without more, would reduce the flexibility that businesses currently have in how they provide “effective communication” as to the content and services available on websites and other digital assets.

In addition, federal courts are addressing website accessibility issues on a case-by-case basis. A body of case law is thus developing in this area, albeit with distinctions across jurisdictions. A state law standard that is inconsistent with these rulings may add to the confusion for businesses.

An Opportunity For Governmental Direction?

In her remarks, Senator Savino described states as “the incubators of ideas,” which is particularly opportune in the area of website accessibility, where federal regulators “have dragged their feet.” The prospect of legislation in this area presents, in our view, an opportunity for a governmental body to provide reasoned and balanced direction on this issue, which has been lacking at the federal level.

Nevertheless, the devil is in the details. The task of regulating this area effectively and fairly will involve the consideration of a number of issues. For example:

  • A standard that accounts for user experience. We know that compliance with every WCAG 2.1 AA requirement is challenging and requires extensive resources and expertise that most businesses do not have. Should the legislation prioritize frequent user journeys (e.g., browsing and searching for products, placing orders, and searching for brick and mortar business locations) over less traveled areas of a website?
  • Legacy content. Should any technical standard apply only to new content or new websites? Should it apply only to existing content that has been updated or modified within a specified period of time?
  • Safe harbor. Businesses modify their digital properties much more frequently than their physical, “brick and mortar” spaces. Updates and new content can inadvertently impact the accessibility of a website or other digital asset. Website “bugs” do not equate to intentional discrimination. Regulations should contain a safe harbor or cure period for accessibility issues introduced by an update or change to a website or digital asset.
  • An implementation period. Businesses must be given sufficient time to comply with the standard, and should be afforded a “safe harbor” from private claims during this period. There are simply not enough accessibility experts out there to assist businesses to make their websites accessible. Small businesses in particular must have a longer time period for compliance.
  • Third party website developers. Most businesses know little about website development and hire third party vendors to create and/or update their websites. From our experience, most of these third party vendors do not have the expertise to create and maintain accessible websites and other digital assets. Any legislation must recognize and address the difficult position that businesses are in because they are the ones in the lawsuit crosshairs, not the website developers.
  • Third party content. Many businesses have embedded third party content (e.g., maps) on their websites, over which they frequently have little or no means to change (other than removing the content entirely). Legislation over the accessibility of business websites should recognize these practical limitations on accessibility efforts.
  • Alternative access for complex content. Detailed charts and graphics with embedded text, and other complex content, can present challenges for screen reader users. These features can be very burdensome and expensive for businesses to address. Should legislation exempt complex content, or permit businesses to provide an alternative means of providing the information?
  • Small business considerations. Any legislation must acknowledge that small businesses generally cannot afford to hire expensive accessibility consultants and have little leverage to make their website development vendors conform their websites to accessibility guidelines. Strict adherence to these criteria, as Senator Savino alluded to in the NYLJ article, could bankrupt many small businesses.
  • Future technology. One of the challenges of regulating this area is the fast-paced nature of technological change. Any legislation needs to promote, rather than discourage, businesses in exploring new technologies that could reduce the costs of compliance and provide enhanced access to digital content for individuals with disabilities.

It is positive that elected leaders are taking note that the litigation environment over the accessibility of websites is becoming increasingly untenable for businesses. Should new legislation limit damages for website access violations, or require some procedure or process before a litigant can file a claim?

A litigant can visit the websites of businesses much faster than he or she can visit (and encounter barriers to access) at “brick and mortar” locations. Should a few minutes of internet browsing give rise to dozens of class action lawsuits over accessibility? Accordingly, should the law provide for enhanced standing requirements in website accessibility cases to ensure that plaintiffs have a legitimate stake in the case? What can be done to reign in litigants who file lawsuits resulting in quick settlements en masse?

There are many issues for the Committee to consider, and it is critical to include practitioners who are “on the ground” working through these issues to develop sensible legislation that will advance the dual goals of accessibility and reducing the crushing number of lawsuits.

Edited by Kristina M. Launey

 

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf’s (NAD) online video captioning lawsuit against Harvard is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university’s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.

Physical Nexus Argument Rejected. The First Circuit has held in a case about an allegedly discriminatory insurance policy that a business can be a public accommodation covered by Title III of the ADA even if it is not associated with a physical place where customers go. Harvard argued that this precedent did not apply to cases involving websites, but the Court was not persuaded. The Court also said that even if the law did require Harvard’s websites to have a nexus with a good or service provided at a physical location, the Plaintiffs had sufficiently alleged such a nexus because some of the allegedly inaccessible videos could, for example, pertain to courses taught at the school.

University Content Posted on Third Party Websites. The Court said whether Harvard could be legally responsible for content it posts on third party websites (e.g. YouTube, iTunesU, and SoundCloud) depends on facts which have yet to be developed, including whether the university has control over how the content is displayed, and whether captioning the content would provide meaningful access. The Court also noted that the university may be able to show that providing captioning would fundamentally alter the nature of the service provided or be an undue burden.

CDA Immunity for Third Party Content. In a meaningful initial victory for Harvard, the Court acknowledged that the Communications Decency Act (CDA) shields Harvard from liability under Title III of the ADA and the Section 504 of the Rehabilitation Act with respect to two categories of content: (1) content hosted on a third party-server (not belonging to Harvard) that is hyperlinked in its existing form to content that is hosted on a Harvard platform or website (“Embedded Content”) and (2) content is hosted on a Harvard platform or website that Harvard did not create, produce, or substantially alter (“Third Party Content”). The CDA shields website operators, including educational institutions, from being treated as the publisher or speaker of material posted on the website by third party users. While the Court’s holding reduces the number of videos that remain at issue in the case, the Court was not willing to immediately exclude all content posted by students, individual faculty members, or other scholars as requested by Harvard. The Court said discovery into Harvard’s role with respect to such content is needed to see if it really is third party content exempted by the CDA.

To Be Continued… We will continue to monitor this long- running case. NAD filed the lawsuit in 2015, alleging Harvard violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on its websites. In November 2016, the court denied Harvard’s motion to stay or dismiss on the primary jurisdiction doctrine, finding the court did not need the DOJ’s expertise to rule on the issue. The present order noted that in the time intervening the two motions, the parties engaged in settlement talks and negotiations to resolve or narrow the issues, but could not reach an agreement.