Search results for: pro se

Screenshot 2025-10-27 083335
Image of an AI chip.

By: Minh N. Vu

Seyfarth Synopsis:  Pro se plaintiffs are filing more ADA Title III and FHA complaints using AI tools that enable harassing litigation tactics.

One of the trends we did not predict at the beginning of this year was how AI tools such as Copilot, Gemini, and ChatGPT would change the landscape of lawsuits and claims brought under Title III of the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA).  After seeing our clients hit by an unusually high number of pro se complaints and lawsuits that appear to involve the use of AI tools, we decided to take a look at the numbers.

Turns out, there have been 40% more federal pro se ADA Title III lawsuits filed in 2025 than 2024, based on a comparison of average monthly numbers.  Federal pro se FHA lawsuits jumped by a whopping 69% during this same period.  According to our LexMachina search, pro se plaintiffs filed 1,774 federal lawsuits alleging ADA Title III violations for all of 2024, compared to 1,867 in the first nine months of 2025.  Pro se plaintiffs filed 421 federal lawsuits alleging FHA violations in all of 2024, compared to 531 in the first nine months of 2025.  These numbers do not include complaints filed in state court or before administrative agencies where most fair housing grievances are brought.

Most pro se litigants we encounter are using AI tools to help them litigate.  The tell-tale signs of such use include the citation of non-existent cases (with parentheticals, no less), descriptions of case holdings that are completely wrong, substantive briefs “written” in less time than it would take anyone to type the document, and work product that does not match the plaintiff’s spoken English skills. 

NBC recently reported that many litigants are utilizing ChatGPT to bring lawsuits instead of hiring counsel.  And while some may say this is a positive development for the private enforcement of the ADA and FHA, there are also adverse consequences.  Unconstrained by rules of professional ethics or the fear of being disbarred, pro se litigants have been known to file briefs with fake cases and bombard defendants with frivolous accusations, demands or motions.  We’ve seen pro se plaintiffs generate briefs to oppose routine extension and pro hac vice motions that opposing counsels would rarely oppose.  These actions drive up defense costs substantially, and create more work for judges that must intervene to stop the bad behavior. 

Some courts have taken action to sanction pro se litigants that have used AI tools improperly, and have dismissed some cases outright for the misuse of such tools.  U.S. District Judge Christopher Boyko of the District of Ohio has a standing order banning the use of AI in the preparation of any document filed with the court.  We predict more judges will be addressing the abusive use of AI in the future.

What are companies targeted by aggressive pro se plaintiffs to do?  While it may be tempting to just pay to make these pro se plaintiffs go away, capitulation will only reward and encourage more bad behavior.  Mounting a vigorous defense in meritorious cases — including seeking sanctions for when a pro se plaintiff uses AI tools to mislead the court or harass defendants — may be a better option.

Screenshot 2026-02-18 085732
Person throwing wrench at computer.

By: Ashley S. Jenkins, Kristina M. Launey, John W. Egan

Seyfarth synopsis: The DOJ filed a Statement of Interest opposing the settlement of a website accessibility class action in California federal court, arguing it does not ensure increased access and disproportionately compensates plaintiffs’ attorneys over the class members with vision disabilities.  The DOJ also asserted that Class Counsel’s settlement website is not accessible to the blind.

As we predicted, the U.S. Department of Justice (“DOJ”) has been less active in enforcing Title III of the Americans with Disabilities Act (“Title III”) with regard to public accommodations websites during this administration.  Thus, imagine our surprise when DOJ announced on February 2, 2026, that it had filed a Statement of Interest (SOL) opposing a proposed settlement of a federal class action lawsuit concerning the accessibility of a retailer’s website.  

What is the Lawsuit About?

The lawsuit, Alcazar v. Fashion Nova Inc., USDC ND Cal. Case No. 4:20-cv-01434, alleged that Fashion Nova operates an online retail website that is not accessible to blind individuals, in violation of Title III and California’s Unruh Civil Rights Act (“Unruh Act”).  The plaintiff sought injunctive relief requiring modifications to Fashion Nova’s website on behalf of a nationwide class, and state statutory damages on behalf of a California subclass consisting of all legally blind individuals who attempted to access Fashion Nova’s website using screen reading software during the applicable limitations period through the final judgment in the action.   

In 2022, the district court for the Northern District of CA certified a nationwide class, and a California subclass. 

Proposed Settlement Terms

After the court certified the classes, the parties reached agreement on a proposed class action settlement consisting of the following key terms:

  • Injunctive Relief:  Fashion Nova agreed to modify its website “as needed” to achieve substantial conformance with WCAG [Web Content Accessibility Guidelines] 2.1.  It also promised to adopt and implement a website accessibility policy that comports with the remedial measures within 180 days after the agreement becomes effective.
  • Monetary Relief:  Fashion Nova agreed to pay approximately $2.43 million to California class members who submit valid claims, with a limitation of $4,000 per household for each member of the class that does not opt-out.  Any amount remaining would be paid to a specified blind advocacy organization or another organization agreed by the parties and approved by the Court.
  • Attorneys’ Fees: Fashion Nova agreed to pay $2.52 million in fees and costs to plaintiffs’ counsel.
  • Optional Measures:  Under the proposed agreement, Class Counsel may, but is not required to, perform an accessibility audit of Defendant’s website at its own cost and expense.    

DOJ’s Position

The DOJ argues in its SOL that the Court should reject the proposed settlement because the injunctive relief would not meaningfully increase accessibility, and the monetary payments disproportionately favors the attorneys over the members of the class.

DOJ specifically cited to the following deficiencies in the proposed agreement:

  • The absence of concrete steps to ensure that the website will become fully accessible for consumers; 
  • The absence of a mechanism for monitoring or enforcement because Class Counsel is not required to do any monitoring; and
  • Disproportionately high attorneys’ fees for Class Counsel, considering the limited value of the agreement to class members.

DOJ also stated “the United States does not oppose relief that would actually make a website available to individuals who are blind or have low vision; rather, we oppose using a civil claim principally to enrich class counsel on the backs of persons with disabilities instead of vindicating the rights of persons with disabilities.”  (emphasis added)

The DOJ also noted incredulously that the website of the settlement administrator that blind individuals must use to submit claims is not accessible to screen reader users. The agency even engaged a digital accessibility consultant who inspected the administrator website and identified various accessibility barriers.

DOJ also called out the volume of similar lawsuits filed by plaintiff and Class Counsel alleging inaccessible websites.  It noted and identified the 20 cases that the plaintiff had filed in 2020 and 2021 “alleging the same four accessibility barriers.”  It stated that Class Counsel had “filed the same exact lawsuit, on behalf of repeat plaintiffs” between 2019 and 2023 in over 500 cases, “with the vast majority ending in a non-disclosed individual settlement.”

And in a notable footnote, the DOJ stated that “[t]he United States does not endorse WCAG as the appropriate or necessary standard for the provision of auxiliary aids and services under Title III of the ADA.  We merely apply the standard that plaintiff has elected in the proposed settlement to the claims administration website for that same settlement.”  This position seems inconsistent with DOJ’s many settlement agreements which adopt WCAG 2.0 AA or 2.1 AA as the accessibility standard.

The DOJ urged the Court to reject the settlement as not meeting the requirements of FRCP 23 that it be fair, reasonable, and adequate to remedy the alleged disability-based discrimination against class members.

Takeaways and Next Steps

The Alcazar proposed class settlement is noteworthy because most website accessibility lawsuits resolve early and confidentially on an individual basis.  But even more interesting is DOJ’s position about the settlement and its barely concealed hostility towards plaintiffs’ attorneys representing serial plaintiffs.  The SOL sends a clear message that DOJ will scrutinize ADA Title III proposed class action settlements in ways that the plaintiffs’ bar may not appreciate.  DOJ’s scrutiny may result in more cases resolving privately on a confidential non-class basis.   

On February 12, 2026, the Court heard the parties’ Motion for Final Approval of Class Settlement.  We await its decision.

Edited by: Minh N. Vu

Screenshot 2025-11-24 130713
Image of a QR tag.

By: Pamela C. Huynh

Seyfarth Synopsis:  Does the ADA require retailers to add QR codes to product tags? The Southern District of New York says no.

On November 18, 2025, Judge Vernon S. Broderick dismissed a complaint brought by a blind plaintiff who claimed that retailer Lululemon violated Title III of the Americans with Disabilities Act (ADA) by failing to provide QR codes or digital tags on merchandise. The plaintiff argued that QR codes would allow her to access product information using her smartphone.

The Court reiterated that the ADA does not require businesses to alter their inventory or products to accommodate customers with disabilities.  The Court observed that digital tags/QR codes are part of the merchandise, and requiring them would be akin to requiring bookstores to carry Braille books—something courts and the Department of Justice have said the ADA does not mandate.  The decision relied on a line of cases emphasizing that the ADA ensures equal access to goods and services, not changes to the goods themselves.

The court also rejected the plaintiff’s claim that the retailer failed to provide her with auxiliary aids and services because she did not allege that she informed store employees of her disability or requested assistance.

This is the second decision in favor of retailers concerning digital tags and QR codes.  Plaintiff’s firm advanced these same claims in Bunting v. Gap, Inc., and lost before an EDNY judge last year. 

The takeaway from these decisions is that while digital tags and/or QR codes may become an industry standard in the future, they are not required by the ADA.  And most importantly, it is still legal and acceptable to provide prompt service to customers with sight disabilities who need assistance. 

Edited by: Minh N. Vu

Tuesday, June 17, 2025
2:00 p.m. to 3:00 p.m. Eastern
1:00 p.m. to 2:00 p.m. Central
12:00 p.m. to 1:00 p.m. Mountain
11:00 a.m. to 12:00 p.m. Pacific

REGISTER HERE

About the Program

Owners and operators of real estate – whether it be lodging facilities, shopping centers, retail stores, warehouses, or office buildings — must navigate the complex set of laws that prohibit discrimination against members of the public who have disabilities.  This webinar will explain how the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act (Section 504) apply (or do not apply) to various property types, provide an overview of the key requirements, and offer practical guidance on how to comply and minimize litigation.

 Key topics include:

  • ADA, FHA, and Section 504 Requirements: Understanding the obligations of real estate owners under these laws
  • Debunking Common Myths:  Addressing the most widespread misconceptions
  • Common Landlord Pitfalls:  Understanding the most common pitfalls for landlords
  • Consequences of Non-Compliance: Exploring the legal ramifications of non-compliance and enforcement actions.

Speakers

Minh N.Vu, Partner, Seyfarth Shaw LLP
Michael E. Steinberg, Partner, Seyfarth Shaw LLP
Ashley S. Jenkins, Associate, Seyfarth Shaw LLP

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Image of electric car charging port.

By Minh N. Vu and John W. Egan

Seyfarth synopsis:  Public accommodations planning to add EV charging stations to their properties should take note of these proposed guidelines and file comments by November 4, 2024.

Recognizing that more and more retailers, shopping malls, lodging facilities, gas stations, and restaurants are providing EV charging stations (“EVCS”) for customer use on their properties, the U.S. Access Board (“Access Board”) initiated a formal rulemaking process last week that proposed guidelines for EVCS accessibility (“EVCS Guidelines”) that would amend the requirements for buildings and facilities covered by the Americans with Disabilities Act (“ADA”).  Once the Access Board completes its process, the U.S. Department of Justice (“DOJ”) will undertake its own rulemaking process to incorporate the new guidelines into the existing ADA Standards for Accessible Design and they will become legally binding standards for public accommodations.  Because the ADA prohibits the DOJ from making any changes to Access Board final guidelines that would reduce accessibility, now is the time for public accommodations and covered entities to provide input by submitting comments by the November 4, 2024 deadline. 

A brief summary of the major requirements are below.

What EVCS will be covered?  Once the DOJ finalizes and adopts the proposed guidelines as legally binding regulations, the EVCS Guidelines will apply to all new EVCS.  Existing EVCS will need to comply with the EVCS Guidelines when they are altered to the maximum extent feasible.  As for ECVS that have already been installed when the ECVS Guidelines take effect, the DOJ will need to decide how the requirements will apply to them and if any modifications will be necessary.   In similar prior situations where the DOJ has added newly covered existing elements to regulatory requirements — such as swimming pools and spas — the DOJ has required compliance within a certain time frame if it is readily achievable to do so.

How many accessible EV charging spaces are required?  The EVCS Guidelines contain a chart setting forth the minimum number of required accessible EV charging spaces (“ACSs” or “ACS” singular) based on the total number of charging spaces provided at each EVCS.   For example, if an EVCS has one to 25 charging spaces, then one must be accessible.  If an EVCS has 26 to 50 charging spaces, then two must be accessible.  If a property has different types of EVCS (e.g. DCFC chargers versus AC Level 2 chargers), then the number of required ACSs must be calculated separately for each EVCS type.  The EVCS Guidelines also make clear that existing required accessible parking spaces cannot be turned into ACSs.  However, similar to accessible parking, ACSs would display International Symbol of Accessibility (ISA) signage and be restricted to individuals with accessible parking placards.  

Interestingly, the Access Board is asking for comment on a possible alternative approach that would require a greater number of ACSs, but none would be reserved for exclusive use by individuals with accessible parking placards.  In this scenario, the ACSs would be marked to indicate that they are the last ones to be used by people who do not have an accessible parking placard.  In its commentary, the Access Board expressed concern that this framework would be difficult, if not impossible to enforce, and would increase the costs of the regulation.

Where must the accessible EV charging spaces be located?  Recognizing that new EVCSs will most likely be added to existing parking lots and their location may be dictated by existing infrastructure, the EVCS Guidelines do not require that ACSs be located on the shortest route to the nearest accessible entrance to a public accommodations facility.  The ACSs need only be the closest to the accessible entrance relative to non-accessible charging spaces.  For example, if there are two ACSs in a group of ten charging spaces, those ACSs need to be the two that are closest to the facility entrance.

The EVCS Guidelines do require that ACSs be connected to the facility entrance on the same site by an accessible route.  Additionally, where there is a pedestrian route between the EVCS and so-called “site arrival” points, such as public sidewalks and transportations stops, that route must be accessible as well.  Complying with these accessible route requirements could be quite expensive, or possibly infeasible, for public accommodations seeking to add new EVCS to an existing parking lot with excessive slopes, or where for infrastructure, safety, or practical reasons, EVCS need to be located far away from the facility entrance or other site amenities.  

What does an accessible EV charging space look like?  The EVCS Guidelines require ACSs to be at least 132” wide, 240” long, and 98” high and adjacent 5’ wide access aisle.  Both the space and access aisle must be level (i.e. have slopes no greater than 1:48), except where in-ground connectors are used in the charging space.  ACSs must also display the ISA symbol, much like current accessible parking spaces.  The EVCS Guidelines also contain special rules for pull-through charging spaces where drivers do not need to exit the vehicle.

What are the physical accessibility requirements for EV chargers?  EV chargers serving ACSs must comply with existing ADA requirements for clear floor/ground space, reach range, and operable parts.  In addition, the EV charger must have a screen that can be viewed at 40” above the ground.

What are the effective communication requirements for EV chargers?  The EVCS Guidelines require that every EV charger – not just the ones serving ACSs – have the following communications features:  (1) volume control; (2) status indicators that are both visually discernable for the deaf, as well as discernable by touch or sound for those with low vision; (3) a method other than color to communicate information for the color blind; (4) audible signals that are conveyed visually or with a tactile indication; (5) if provided, two-way communication that is usable by the deaf or hard of hearing; and (6) if provided, real-time video that has sufficient quality to support communication with sign language.  The Access Board does not state whether these features are available on any EV chargers available today.

Issues for public accommodations to consider now.  As the above key provisions makes clear, regardless of the ultimate form of the regulations, there will be many requirements for EVCS. Public accommodations should comment on the EVCS Guidelines by November 4 if they disagree with any of the proposed requirements.  Public accommodations that are installing EVCS now should try to ensure these proposed requirements are incorporated as they are not likely to change significantly between now and finalization. 

Edited by Kristina M. Launey

Canine Companion
Service dog guiding their human companion.

By: Kristina Launey and Minh Vu

Seyfarth Synopsis: The Sixth Circuit Court of Appeals approved state-owned hospital’s exclusion of nursing student’s service animal that posed a direct threat to patients and staff with severe allergies where no reasonable alternatives existed to mitigate the threat.

The Sixth Circuit Court of Appeals recently issued a decision in Bennett v. Hurley Med. Ctr. concerning the use of a service animal in a state-owned hospital under Title II of the ADA that provides useful guidance on how health care facilities should assess whether a service animal poses a direct threat to the health and safety of others. This decision is also relevant for private health care facilities because the direct threat analysis is the same under Title III of the ADA.

The plaintiff was a nursing student who worked at a hospital as part of her educational program for four hours once a week for six weeks. She has a panic disorder and her service dog was trained to recognize symptoms of a forthcoming panic attack so that she could immediately take her medications.  

The hospital at first approved the student’s request that her service dog accompany her on her rotation. However, on the very first day one staff member and one patient experienced allergic reactions to the dog. In response, the hospital revoked its approval of the service animal. The hospital offered the alternative accommodation of crating the service dog on a separate floor from those with allergies in the hospital and plaintiff taking necessary breaks to be with the service dog. The hospital had determined that relocating patients and staff with dog allergies from the floor where the plaintiff had to work (her university program supervisor was on that floor) would be unworkable and directly compromise patient care.

The court first held that the hospital had not engaged in intentional discrimination by refusing to allow the plaintiff to have her dog accompany her on rotations. The court concluded that the hospital’s decision was motivated by staff and patient complaints of allergic reactions to the dog – not the disability.

The court then considered whether the hospital had violated Title II of the ADA by not modifying its policy to accommodate the service dog on Plaintiff’s rotations. After reviewing the DOJ’s implementing regulations, DOJ guidance, and “scant” relevant case law to determine what constitutes reasonable accommodation of a service animal in a healthcare setting, the court concluded that “service animals are permitted as a reasonable accommodation unless they are ‘out of control,’ ‘not housebroken,’ would fundamentally alter the activities of the public entity, or, if, after conducting an individualized assessment of the animal, the public entity concludes that the service animal poses a direct threat.” The court then concluded that the service dog’s presence did constitute a direct threat because of the actual allergic reactions that took place and the lack of a workable alterative to mitigate that threat. Specifically, the court found that separating the service dog from allergic patients and staff was not possible.

While this decision provides helpful guidance to health care facilities on the issue of service animal access, it should not be viewed as license to exclude service animals from such facilities. The U.S. Department of Justice has taken the position that blanket exclusions of service animals from health care facilities are not permissible, consistent with the principle that exclusions based on the direct threat defense must be based on an individualized assessment of the circumstances presented. Here, there was concrete evidence of the direct threat and the hospital demonstrated that there was no way to mitigate it.

Open laptop with hands pointing to the screen.
Open laptop with hands pointing to the screen.

Seyfarth Synopsis: Department of Justice (DOJ) issues proposed website accessibility regulations applicable to state and local governments under Title II of the ADA.

Almost precisely a year after the Department of Justice (DOJ) announced its intent to begin the rulemaking process to enact website accessibility regulations applicable to state and local governments under Title II of the Americans with Disabilities Act (ADA), the DOJ has published its Notice of Proposed Rulemaking (NPRM) to the Federal Register for publication today, August 4, 2023.

We will follow up with another post with more substantive analysis, but here are some key points from the NPRM:

  • Entities Covered.  The proposed regulation would apply to public entities as defined by Title II of the ADA, which means state and local governments, as well as any department, agency, special purpose entity, or other instrumentality of a state, or state or local government.
  • Digital Properties Covered.  The content of websites and mobile apps, and specifically the information and sensory experiences (such as text, images, sounds, controls, and animations) that websites and mobile apps convey, as well as conventional electronic documents posted there, such as PDFs, Word documents, and Excel files.  Such web content that a public entity makes available to the public, or uses to offer its services, programs, or activities to the public, would be covered. 
  • Accessibility Requirements.  Covered websites and mobile apps will need to comply with the Web Content Accessibility Guidelines (WCAG), Version 2.1, Levels A and AA.
  • Timeframe For Compliance.  Within two years of the publication of the final rule, public entities with a population of 50,000 or more (as per the U.S. Census) would need to comply.  Public entities with a population of less than 50,000, as well as special district governments (public entities that perform designated functions) would have up to three years to comply.
  • Exceptions.  Critically, there are a number of exceptions, both with general application, and directed at specific types of public entities.  We summarize the key exceptions to the WCAG 2.1 AA conformance requirement as follows:
    1. Fundamental Alteration/Undue Burden.  The requirements do not apply to any actions that would result in a fundamental alteration of a service, program, or activity of a public entity, or impose an undue financial and administrative burden.  That determination would need to be made by the head of the public entity or his or her designee, and set forth in writing;   
    2. Archived Web Content.  Content maintained exclusively for reference, research or recordkeeping (among other factors), as well as pre-existing conventional electronic documents (Word documents, Excel files, etc.) would not be covered, except for electronic documents that are used by the public to gain access to government programs, services or activities;
    3. Third Party Content.  Content posted by a third party that is available on a covered website or mobile app;
    4. Linked Third Party Content.  Web content by third parties that is linked to a covered website or mobile app also would not be covered, unless used by the public entity to allow the public to access its services, programs or activities; and
    5. Certain Password-Protected Files.  Certain online documents protected by passwords that are unique to the individual, or documents or information related to the coursework of a public school, college or university, would be excluded as well, subject to further conditions and exceptions.

The proposed regulations also provide that a public entity can alternatively use a “conforming alternate version” of a covered website or mobile app as defined by WCAG 2.1, or provide “equivalent facilitation” to provide access, which means using alternative designs, methods or techniques that result in substantially equivalent or greater accessibility and usability of the website or mobile app for individuals with disabilities. Public comments are due no later than October 3, 2023.  Stay tuned for further updates and analysis.

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

By  John W. Egan and Ashley S. Jenkins

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

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

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

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

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

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

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

Edited by Kristina M. Launey 

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

By Minh N. Vu

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

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

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

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

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

Edited by Kristina Launey

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By Minh N. Vu and John W. Egan

Seyfarth Synopsis: The U.S. Access Board published an ANPRM on September 21, 2022 requesting public comment on nine questions as it prepares draft regulations addressing the accessibility of self-service kiosks.

As previewed in the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) (as we previously covered), the U.S. Access Board recently issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) for Fixed Self-Service Transaction Machines (“SSTMs”) (a.k.a. self-service kiosks).  The U.S. Access Board—the federal agency that develops accessibility standards that become regulations under ADA Title III once adopted by the DOJ—is requesting public comment on nine questions (listed below) as it works on proposed accessibility requirements for self-service kiosks.

Self-service kiosks typically utilize touchscreens and visual displays which allow customers to access services or perform functions themselves that are traditionally provided by employees of the business.  These devices present financial and operational incentives to businesses, allowing them to have fewer employees serving customers, offer a largely contact-free customer experience, and give customers the option to skip the line for in-person service.  However, these kiosks can be impossible to use by people who are blind if there is no audio output for visual information, or controls that can be perceived without sight.  Persons who use scooters and wheelchairs can also have difficulty using self-service kiosks if the controls are out of reach from their seated position, the screen is too high, or there is no clear floor space in front of the machine.

Self-service kiosks have sprouted up everywhere in recent years.  They are used to order food, buy tickets of all kinds, pay for parking, check-in to a hotel or healthcare provider, get a rental car, and rent movies.  But unlike ATMs and fare machines that long predate them, self-service kiosks do not have specific accessibility requirements set forth in the ADA Standards for Accessible Design (“2010 Standards”) which apply to public accommodations and commercial facilities.  The absence of technical standards does not mean that there are no legal requirements, however.  The U.S. Department of Justice (“DOJ”) made clear in a recent Statement of Interest (“SOI”) that public accommodations have a duty to ensure effective communication for the goods and/or services offered through self-service kiosks.  This can be done by providing an accessible kiosk that people with disabilities can use independently, or with employee assistance that provides an equivalent experience.  In the SOI, the DOJ found that providing employee assistance at a self-service check-in kiosk was not sufficient where the process resulted in placing blind patients with appointments at the end of the line for people with no appointments.

The ANPRM notes that the accessibility of similar equipment is already covered in non-public accommodation contexts.  For example, the design and functionality of self-service kiosks in U.S. post offices must comply with accessibility requirements that apply to federal agencies employing such devices under Section 508 of the Rehabilitation Act of 1973 (“Section 508”).  Similarly, regulations under the federal Air Carrier Access Act already cover the accessibility of airport kiosks that allow customers to independently print boarding passes, check luggage, receive essential information about their flights, change seat locations, and pay various fees.  According to the ANPRM, the Access Board is evaluating whether, and to what extent, similar requirements should be issued for public accommodations.  Under the ADA, the Access Board is responsible for drafting the technical standards but they do not become binding on public accommodations until the DOJ incorporates them into its own ADA regulations.  The DOJ will not have much leeway to change the technical standards at that time, but it will be solely responsible for determining when the requirements will become effective and similar implementation issues. 

Included in the ANPRM is a matrix prepared by the Access Board that compares the current accessibility requirements for (1) ATM and Fare Machines under the ADA, (2) applicable hardware under Section 508, and (3) airport kiosks under the Air Carrier Access Act.  There are a number of commonalities among the requirements, which may provide insight on how the Access Board will approach these issues.  They include:

  • The usability of operable parts for individuals with disabilities;
  • Speech output requirements, privacy considerations (i.e. headset/audio jack), and user ability to change volume, interrupt and/or repeat audible content;
  • Numeric keys and other controls that are discernable by touch/tactile sense, and their format and organization;
  • Display screen requirements, character/font size, and visibility;
  • Braille instructions on the devices; and
  • Clear or unobstructed floor space or area in front of the devices.

The ANPRM specifically requests public comment on the following questions:

“Question 1. . . . Are there capabilities, functions, or other objective criteria that should define the types of devices covered as SSTMs or self-service kiosks?”

“Question 2. Are there other types of electronic devices providing unattended interaction that should be addressed by this rulemaking? If so, what are they?”

“Question 3. Are there types of self-service electronic devices that should not be covered by this rulemaking? If so, why not?”

“Question 4. Should the Board’s rule require all fixed or built-in SSTMs and self-service kiosks in each location to be accessible? If not, why, and what should the number be? Are there some facilities or locations that should have a higher number of accessible devices than others?”

“Question 5. The Board seeks comment on this planned approach [of incorporating more recent, Section 508 standards for kiosks] for the proposed supplementary guidelines for SSTMs and self-service kiosks outlined in this ANPRM.”

“Question 6. Should requirements for ATMs and fare machines in the current ADA and ABA Accessibility Guidelines be updated as part of this rulemaking to address additional features covered in the Revised 508 Standards and the DOT rule pertinent to the accessibility of ATMs and fare machines?”

“Question 7. The Board seeks comment from users and manufacturers of self-service transaction machines and self-service kiosks on their experiences in using or designing accessible machines and the benefits and costs associated with the proposed requirements.”

“Question 8. The Board seeks comments on the numbers of small entities that may be affected by this rulemaking and the potential economic impact to these entities; these include small businesses, small non-profits and governmental entities with a population of fewer than 50,000. The Board also seeks feedback on any regulatory alternatives that may minimize significant economic impacts on small entities.”

“Question 9. Should SSTM and self-service kiosk which accept credit and debit cards be required to accept contactless payment systems?”

Because it is very unlikely the DOJ will change the technical standards that issue from the Access Board in its own rulemaking process, self-service kiosk manufacturers and businesses that currently employ these technologies (or are considering employing them in the future) such as retailers, restaurants, banks, lodging facilities, institutions of higher learning, and other covered entities, should submit public comments by the deadline of November 21, 2022.

Edited by Kristina M. Launey