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

Seyfarth Synopsis: In 2023, the number of ADA Title III lawsuits filed in federal court declined but still exceeded 8,200 for a second year in a row.

From 2013 to 2021, federal court ADA Title III case filings climbed steadily to a staggering 11,452 in 2021.  The number of filings fell dramatically by 24% in 2022, and then declined another 5% to 8,227 in 2023.  That said, this is still a very big number and triple the number of cases filed in 2013 when we first started tracking these lawsuits.

Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023.

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023: 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]

For the second year in a row New York led the country in ADA Title III federal filings with 2,759 cases.  California came in second again with 2,380 filings, and Florida stayed in third place, with 1,415 cases.  Of these top three states, Florida was the only one that saw an increase in the number of federal suits from 2022 to 2023. 

Rounding out the top ten were Texas (224), Illinois (202), Pennsylvania (189), Tennessee (134), Missouri (121), Georgia (120) and New Jersey (115).  All of these states had fewer filings than in 2022, except for Illinois and New Jersey – both of which recorded their highest number of ADA Title III case filings since we began tracking filings in 2013.

Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2023 – December 31, 2023

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2023 – December 31, 2023:  New York: 2,759; California: 2,380; Florida: 1,415; Texas: 224; Illinois: 202; Pennsylvania: 189; Tennessee: 134; Missouri: 121; Georgia: 120; New Jersey: 115]

Two states leaving the Top 10 were Colorado and Massachusetts.  Colorado plummeted to only 33 cases, and Massachusetts saw 57 filings.  New to the Top 10 chart are Illinois and New Jersey.

At the other end of the spectrum, Alaska, Montana, Nebraska, North Dakota, South Dakota, West Virginia and Wyoming had no filings in 2023.  Each year, we have a slightly different list of states, but North Dakota wins the award for no ADA Title III filings going back to 2013. 

California, New York, Florida ADA Tile III Federal Lawsuits 2013-2023.

[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2023: California: 2013: 995; 2014 1,866; 2015: 1,659; 2016: 2,458; 2017: 2,751; 2018: 4,249; 2019: 4,794; 2020: 5,869; 2021: 5,930; 2022: 2,519; Florida: 2013: 816; 2014: 1,553; 2015: 1,338; 2016:1,663; 2017: 1,488; 2018: 1,941; 2019: 1,885; 2020: 1,208; 2021: 1,054; 2022: 1,350; New York: 2013: 125; 2014: 212; 2015: 366; 2016: 543; 2017: 1,023; 2018: 2,338; 2019: 2,635; 2020: 2,238; 2021: 2,774; 2022: 3,173; 2023: 2,380, 2,759, 1,145]

January (571) and December (553) were the least busy times for filings.  Considering the number of holidays at that time of the year, and the potential for bad weather in many parts of the US, that’s not surprising.  However, January 2022 was very busy with 850 filings.  August (842) was the busiest month of 2023, followed by March (774) and June (769) – both consistently high filing month in prior years as well.  Filings remained steady throughout the year, and consistent with the highs and lows of 2022 in roughly the 550-850 per month range.

Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2023 – December 31, 2023.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2023 – December 31, 2023: January: 571; February: 714; March: 774; April: 635; May: 618; June: 769; July: 704; August: 842; September: 703; October: 713; November: 631; December: 533]

What to make of this data?  Are ADA Title III filings going to continue to slow year over year? Or are we seeing the start of a plateau? Or will numbers come roaring back in 2024, making 2022 and 2023 the outliers?  Only time will tell, obviously, but here’s our thinking.

First, while we do not track state court lawsuit filings due to less reliability in reporting sources, we know anecdotally and from experience that some of the largest filers have moved to filing in state courts instead of federal courts.  We saw this in New York, in California, and even in states not historically high in Title III lawsuits like New Jersey.  The continued decrease in California filings is particularly striking (from an all-time high of 5,930 in 2021 to 2,380 in 2023).  We think there are a number of factors that have contributed to the decrease.  First,  many California federal judges are routinely dismissing state law claims for damages that plaintiffs like to add to their ADA lawsuits on the theory that they are an end run around more stringent state court filing requirements.  These actions have made federal court a less attractive venue for plaintiffs seeking to recover damages which cannot be obtained under the ADA.  Second, a prolific Southern California plaintiff’s firm split up several years ago resulting in fewer filings.   

In Florida, a prolific law firm stopped filing cases after one of its attorneys became the subject of a disciplinary proceeding and was suspended from the practice of law for six months.  Some of the unsavory findings from this disciplinary proceeding may have dampened the enthusiasm of some other plaintiff’s attorneys to file ADA Title III lawsuits.  Nationwide, it is quite possible that we’ll see an uptick in filings this year now that the SCOTUS punted on deciding whether plaintiff testers have standing to sue in Acheson v. Laufer.  SCOTUS will have another chance to consider the issue if it grants the Petition for Certiorari in Langer v. Kisor, however.

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.

By Minh Vu, Kristina Launey, and Susan Ryan

Seyfarth Synopsis: The decline in ADA Title III lawsuits that began in 2022 continues in 2023.  New York remains the filing hotspot.

Continuing the trend discussed in our 2022 blog posts here and here, the number of lawsuits filed in federal courts alleging violations of Title III of the Americans with Disabilities Act (ADA) is decreasing from its 2021 high.  2022’s final numbers showed 24.1% fewer cases filed than in the previous year.  Thus far into 2023, the numbers are even fewer.  4,081 cases were filed between January and June of this year, representing a 17% drop from the 4,914 cases filed between January and June 2022.

[Mid-Year ADA Title III Federal Lawsuit Filings 2017-2023: 2017: 4,127; 2018: 4,965, 20% Increase from 2017; 2019: 5,592, 12% Increase from 2018; 2020: 4,751, 15% Decrease from 2019; 2021: 6,304, 33% Increase from 2020; 2022: 4,914, 22% Decrease from 2021; 2023: 4,081, 17% Decrease from 2022]

The number of federal lawsuits filed in the first six months of this year is lower than the number of suits filed in 2017 for the same period.  That is quite a dramatic change. 

The drop in California federal lawsuit filings is just as stark:  California federal courts only saw 1,020 lawsuits for the first half of this year, as opposed to the first half of 2022 when there were 1,587.  That’s a 35.8% decline.

New York has continued to lead the nation in ADA Title III filings.  In 2022, the Empire State stood at 1,819 filings at the end of June and at 3,173 at year’s end.  2023’s mid-year tally is 1,477 cases.  This is fewer than last year, but still ahead of the other states by a significant margin.  Florida, coming in third, had 740 filings—about half of New York.

New York has been a hot venue for ADA Title III filings for years now:

[New York Mid-Year ADA Title III Federal Lawsuit Filings 2017-2023: 2017: 410; 2018: 1,026; 2019: 1,212; 2020: 756; 2021: 1,423; 2022: 1,819; 2023: 1,477]

Here are the top five states with the highest number of cases filed so far this year:

[2023 Mid-Year Federal ADA Title III Filings for Top 5 States: PA: 127; TX: 130; FL: 740; CA: 1,020; NY: 1,477]

What is the reason behind the decrease in federal ADA Title III lawsuits?  There are likely a number of factors.  First, in ADA Title III cases filed in California plaintiffs routinely add state law claims for statutory damages under the Unruh Act and Disabled Persons Act.  Many California federal judges have recently dismissed these claims for monetary damages right out of the gate on the theory that they are an end run around more stringent state court filing requirements. This has made federal court a less attractive venue for plaintiffs.  Second, one California firm that used to file many hundreds of cases each year had some legal troubles of its own then lost quite a few attorneys in the past two years and filed fewer cases as a result.  Third, one prolific Florida law firm stopped filing cases after one of its attorneys became the subject of a disciplinary proceeding and was recently suspended from the practice of law for six months.  Some of the unsavory findings from this disciplinary proceeding may have dampened the enthusiasm of some other plaintiff’s attorneys to file ADA Title III lawsuits.  Finally, earlier this year, the U.S. Supreme Court agreed to hear a case about the standing of serial plaintiffs which could make it harder for them to continue filing hundreds of lawsuits a year.  Attorneys representing these plaintiffs may be holding off on filing new cases while SCOTUS decides this issue.

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 from the count.

By Minh N. Vu

Seyfarth Synopsis:  The Plaintiff in Acheson v. Laufer dismisses her lawsuit with prejudice and asks SCOTUS to dismiss its pending review based on mootness.

In an unexpected and bizarre turn of events, Deborah Laufer, the plaintiff in the much-watched Acheson v. Laufer case pending before the U.S. Supreme Court (“SCOTUS”), has decided to dismiss that case and all of her other pending ADA Title III lawsuits with prejudice.  What is more, she filed a brief in the matter before SCOTUS stating that her case is now moot and should be dismissed.  The hotel defendant, Acheson, intends to oppose the requested dismissal.

Ms. Laufer’s stated reason for abandoning all of her pending ADA Title III lawsuits is the bizarre aspect of this recent development.  In her brief, she informed SCOTUS that an attorney who had represented her in the past in unrelated ADA Title III cases, Tristan Gillespie, had recently been suspended from the practice of law by the U.S. District Court for the District of Maryland for unethical behavior.  She told SCOTUS that she did not want “the allegations of misconduct against Mr. Gillespie” to “distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself.  She accordingly has decided to dismiss all of her pending cases with prejudice.” 

A review of the Order suspending Mr. Gillespie and Report and Recommendation (the “Report”) from the three-judge panel that presided over disciplinary proceeding reveals unsavory details of one law firm’s handling of its ADA Title III “tester” litigation.  The thirty-one page Report recounts that Mr. Gillespie worked for the Thomas Bacon P.A. firm when he filed hundreds of ADA Title III lawsuits on behalf of Laufer and another disabled individual while simultaneously working full-time as an Assistant District Attorney for Fulton County, Georgia.  The Bacon Firm had filed over 600 lawsuits on behalf of Laufer and nearly 200 for the other tester plaintiff.  In fact, Thomas Bacon of the Bacon Firm represented Laufer before SCOTUS until this most recent filing requesting dismissal of the matter.

Among other findings, the court in the Gillespie disciplinary proceeding found that Gillespie (1) inflated his hours in many fee petitions, (2) never discussed the terms of any settlement agreements with his clients (instead giving them to his investigator/“expert”, Daniel Pezza, to collect signatures), (3) dismissed over 100 pending ADA lawsuits before his disciplinary hearing without consulting with his clients who were the plaintiffs in the actions, and (4) made payments to his investigator and so called “expert” Pezza who also happened to be the father of Laufer’s grandchild, thereby raising the possibility that Gillespie was inappropriately sharing fees with Laufer, in violation of ethics rules.  The Report stated that the “arrangement smacks of purchasing an interest in the subject matter of the litigation in which the lawyer is involved” and was, therefore, “highly problematic.”  However, as Laufer’s relationship with Pezza did not come to light until the end of the investigation, the Court did not make any findings on whether Laufer received any money from Pezza.  Laufer submitted a Declaration in the SCOTUS matter denying that she ever received money from Pezza.

The Report is a must-read for lawyers representing ADA Title III serial plaintiffs as the Court examined in great detail the types of questionable practices that should be avoided, such as the making of demands for attorneys’ fees in settlement agreements that are much higher than the fees actually incurred.  Gillespie tried to argue that his inflated fee demands represented future fees to be incurred for monitoring compliance, but the court was not persuaded.

Returning to the pending lawsuit before SCOTUS, it is unclear whether the Court will dismiss this case – the first ADA Title III case to reach the high court in eighteen years — because it is moot.  While that is the most likely outcome under ordinary circumstances, the unsavory facts surrounding Laufer’s mass voluntary dismissal, along with the sharp conflict among the Courts of Appeals concerning the standing of ADA Title III “testers” to assert claims, present a strong case for SCOTUS to move forward with its review. 

Stay tuned for developments.

Edited by Kristina Launey and John Egan

By Minh N. Vu

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

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

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

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

Edited by John Egan

By Lotus Cannon and Minh Vu

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

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

Cases in point: 

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

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

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

Edited by Kristina Launey

By Minh VuKristina Launey and Susan Ryan

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

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

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

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2022: 2013:  2,722; 2014: 4,436 63% increase over 2013; 2015: 4,789 8% increase over 2014; 2016: 6,601 38% increase over 2015; 2017: 7,663 16% increase over 2016; 2018: 10,163 33% increase over 2017; 2019: 11,053 9% increase over 2018; 2020: 10,982 1% decrease from 2019; 2021: 11,452 4% increase over 2020; 2022: 8,694 24% decrease from 2021]

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

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2022 – December 31, 2022:  New York: 3,173; California: 2,519; Florida: 1,350; Texas: 348; Pennsylvania: 245; Tennessee: 145; Missouri: 142; Georgia: 136; Colorado: 117; Massachusetts: 71]
[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2022: California: 2013: 995; 2014 1,866; 2015: 1,659; 2016: 2,458; 2017: 2,751; 2018: 4,249; 2019: 4,794; 2020: 5,869; 2021: 5,930; 2022: 2,519; Florida: 2013: 816; 2014: 1,553; 2015: 1,338; 2016:1,663; 2017: 1,488; 2018: 1,941; 2019: 1,885; 2020: 1,208; 2021: 1,054; 2022: 1,350; New York: 2013: 125; 2014: 212; 2015: 366; 2016: 543; 2017: 1,023; 2018: 2,338; 2019: 2,635; 2020: 2,238; 2021: 2,774; 2022: 3,173]

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

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

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

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

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

A note on our methodology: Our research involved a painstaking manual process of going through all federal cases that were coded as “ADA-Other,” manually culling out the ADA Title II cases in which the defendants are state and local governments, and categorizing them by state.  The manual process means there is the small possibility of human error.

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

Photo showing hand holding a crystal ball

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***

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

Edited by Kristina Launey

By Minh Vu, Kristina Launey, and Susan Ryan

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

Mid-year numbers in prior years were as follows:

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

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

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

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

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

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

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

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

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

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

By Michael Steinberg

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

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

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

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

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

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

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

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

Edited by Minh Vu

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: Second Circuit issues scathing decision directed at “mad lib”-style serial ADA Title III complaints, and affirms-on the basis of standing-the dismissal of four lawsuits alleging that retailers violated the ADA by not providing gift cards containing Braille.

As we previously reported, from the end of 2019 through the first few months of 2020, a group of serial ADA plaintiffs barraged New York federal courts with over 200 boilerplate lawsuits alleging that retailers and other businesses violated the ADA and New York state and city laws by failing to offer for sale gift cards in Braille.  In 2020, Judge Woods of the SDNY dismissed four of these cases, and plaintiffs appealed to the Second Circuit.

On June 2, 2022, the U.S. Court of Appeals for the Second Circuit affirmed the dismissals in a scathing decision that expresses the Court’s ire with the hundreds of boilerplate lawsuits that have inundated New York federal courts in recent years.  The decision further makes clear that plaintiffs who do not allege specific facts to establish their standing to sue will have their claims dismissed — a theme that continues from the Second Circuit’s recent decision in Harty v. West Point Realty.  In that case, the Court held that ADA plaintiffs must allege “downstream consequences” of being deprived information on a website to establish an Article III standing.

In the four cases that were consolidated into Calcano v. Swarovski North America Ltd., each plaintiff allegedly called the customer service offices at the respective businesses, asked whether the business sold gift cards in Braille, and was told that they did not.  Each plaintiff also alleged that they live near defendants’ stores, that they had been customers there “on prior occasions,” and that they would “immediately” purchase Braille gift cards once they became available.

The Second Circuit said these allegations were insufficient to show that plaintiffs faced a “material risk of future harm” that is “sufficiently imminent and substantial” to confer standing to sue under Title III of the ADA.  “[T]he central inquiry is not whether the complaint pleads the magic words that a plaintiff ‘intends to return,’” and therefore faces an imminent harm, but rather whether, under the “totality of all relevant facts,” plaintiff plausibly alleged a real and immediate threat of future injury (emphasis added).

In concluding that plaintiffs did not demonstrate a real and immediate threat of future injury, the Court noted the following:

  • Plaintiffs failed to allege any details about their past visits or the frequency of those visits, including what stores they visited, what they purchased, or even why they want to purchase Braille gift cards so urgently that they intend to do so “immediately;”
  • In only one out of the four cases did plaintiffs provide an accurate address for the defendant’s retail location (in one instance erroneously reciting a store address in Manhattan when defendant did not have a location anywhere in that borough). And in the one complaint where the business address was correctly stated, plaintiff alleged that his residence in the Bronx was “close” to the subject store near Columbus Circle in Midtown Manhattan, even though that trip that could be up to an hour away; and
  • Plaintiffs’ jurisdictional allegations simply “parrot[ed]” the Second Circuit’s language in a prior ADA Title III decision, which the court deemed “legal conclusion[s] couched as factual allegations.”

Most importantly, in evaluating the plausibility of plaintiffs’ allegations, the court refused to ignore the broader context of their litigation tsunami — citing that each of the four litigants were responsible for filing 81 out of the over 200 “essentially carbon copy complaints.”  In two of Calcano’s complaints, the court noted that only 26 of approximately 6,300 words, consisting of party names, dates, addresses and states of incorporation, were different, with both complaints including the very same typos.

Along the same vein, the court went further:

This backdrop of Plaintiffs’ Mad-Libs-style complaints further confirms the implausibility of their claims of injury. As noted above, Murphy asserts that he would return to a Kohl’s that doesn’t exist. Dominguez seeks to go back to Banana Republic for its food.  Thorne doesn’t even allege where he lives, making an assessment of proximity to a Jersey Mike’s impossible.  Calcano plans to travel from somewhere in the Bronx to Columbus Circle for a shaving supply gift card.  And all of these plans depend on the availability of braille gift cards even though Plaintiffs never explain why they want those cards in the first place. Although we might excuse a stray technical error or even credit an odd allegation standing alone as an idiosyncratic preference—to do so here in light of the cumulative implausibility of Plaintiffs’ allegations would be burying our heads in the sand. “[J]udicial experience and common sense” suggest that the errors, oddities, and omissions in the complaints are a result of their mass production, and they render each Plaintiff’s cookie-cutter assertion of standing implausible.

(Citation omitted.)

We note that in affirming the dismissal of these four cases on standing grounds, the Second Circuit majority did not reach the question of whether gift cards are covered by Title III of the ADA.  Judge Lohier, however, issued a concurring opinion that sharply disagreed with the majority’s reasoning on standing, as well as the lower court’s determination that a gift card is a “good” that is not required to be accessible under the ADA.

On this Blog, we have previously questioned whether the year-over-year increase in ADA Title III filings has been due to an uptick in discrimination, or more likely, because more lawyers elect to file more claims.  From the defense perspective, it is nice to see the Second Circuit majority in Calcano refusing to “bury . . . [their] heads in the sand.”