Seyfarth Synopsis: Not long after a similar Congressional appeal, Senators sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits plaguing businesses.
On Wednesday, September 12, 2018, Senator Chuck Grassley (Iowa) announced that he and Senator Mike Rounds (South Dakota) sent a letter to United States Attorney General Jeff Sessions seeking clarification on whether the Americans with Disabilities Act (ADA) applies to websites. Senators Joni Ernst (Iowa), Thom Tillis (North Carolina), Mike Crapo (Idaho), and John Cornyn (Texas) also joined in the request.
The letter urges the Department of Justice to help resolve uncertainty regarding website accessibility obligations under the ADA because “for the ADA to be effective, it must be clear so that law abiding Americans can faithfully follow the law. Right now it is not clear whether the ADA applies to websites. This leaves businesses and property owners unsure of what standards, if any, govern their online services.”
The letter noted that the DOJ has issued no guidance or regulations to provide clarity, and that conflicting court decisions have created even more confusion, which plaintiffs’ attorneys are “exploiting” for “personal gain”, “sending threatening demand letters and filing hundreds of lawsuits against small and medium-sized businesses across the country – from banks and credit unions to retailers and restaurants”.
The letter references our data, published in our July 17, 2018 blog, that more ADA website accessibility lawsuits were filed in the first half of 2018 than in all of 2017. It also cites Administrative Office of the U.S. Courts data that show filings of certain ADA cases increasing 521 percent from 2005 to 2017. These statistics show, the Senators write, that this litigious trend will only continue to grow unless the DOJ takes action.
The Senators recognize that businesses would rather spend money serving their disabled customers than “paying money to avoid a shakedown by trial lawyers who do not have the interests of the disabled at heart.”
Noting the DOJ’s December 2017 withdrawal of the website accessibility rulemaking process, in which the DOJ said it was evaluating the need for regulations, the Senators emphasize that lack of clarity only benefits plaintiffs’ lawyers while “clarity in the law will encourage private investment in technology and other measures that will improve conditions for the disabled.”
The Senators close by urging the DOJ to promptly take actions, including filing statements of interest in currently pending litigation, to resolve the current uncertainty, and to brief the Senators’ staff on the DOJ’s intentions on this issue by September 28, 2018.
This letter comes not long after a bi-partisan assembly of 103 Members of Congress wrote a similar letter to the Attorney General in June. It remains unclear whether this letter will spurn any prompt action from the DOJ. Given the current Administration’s aversion to increased regulation, it is unlikely that the DOJ will re-start its website accessibility rulemaking any time soon. And, though the Senators urge the DOJ to take any actions in its power—including filing statements of interest—the DOJ has thus far been unwilling to do so. Unlike the Obama Administration which weighed in in favor of plaintiffs on the private lawsuits brought against Winn-Dixie, M.I.T. and Harvard University, the Trump Administration declined to file a brief in a website accessibility case last year despite the district court’s invitation. Thus, we continue to wait and see how Attorney General Sessions and the DOJ react to the Senate letter. In the meantime, we, like the Senators, expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.