Lawsuits, Investigations & Settlements

Seyfarth Synopsis:  Plaintiffs secure a second judgment in a federal website accessibility lawsuit while most of the others successfully fended off motions to dismiss. 

2018 has been a bad year for most businesses that have chosen to fight website accessibility cases filed under Title III of the ADA.  Plaintiffs filing in federal court secured their second judgment on the merits in a website accessibility lawsuit, bringing the federal court judgment score to 2-0 in their favor.  Additionally, in twenty-one cases where defendants filed early motions to dismiss, judges have allowed eleven to move forward.  While a forty percent dismissal rate doesn’t seem bad, most of the cases that were dismissed had a common set of unique facts that most defendants don’t have. Below is a rundown of the most noteworthy 2018 cases and trends.

At the end of August, Southern District of Florida Judge Marcia Cooke issued the second judgment on the merits in a federal court website accessibility lawsuit and it was in favor of the plaintiff.  (The first judgment was in the Winn Dixie case after a bench trial.)  Judge Cooke held on summary judgment that retailer GNC’s website violated the ADA because the evidence in the record “suggests that the Website is inaccessible.”  The court cited to the plaintiff’s expert’s testimony and automated test results to reach this conclusion, and excluded the testimony of the GNC’s expert based on his lack of qualifications.  Judge Cooke refused to order a remedy at the summary judgment phase, but said that she found “highly persuasive the number of cases adopting WCAG 2.0 Success Level AA as the appropriate standard to measure accessibility.”

In June, the U.S. Court of Appeals for the Eleventh Circuit held that a prior private settlement of a website accessibility lawsuit in which the defendant had made a commitment to make its website more accessible did not moot a subsequent lawsuit brought by another plaintiff against the same defendant.  The Court reasoned that the website remediation work was not yet complete, and the second plaintiff had sought other relief that was not addressed by the settlement.  The Court also noted that if the defendant failed to comply with its settlement obligations, the second plaintiff would have no recourse since it was not a party to the prior settlement agreement.

In July, the Eleventh Circuit became the second federal appellate court to explicitly address whether the ADA covers websites.  The Court found that the plaintiff had stated an ADA claim against the defendant because the alleged barriers on its website prevented him from accessing the goods and services of its stores.  Specifically, the blind plaintiff alleged that he could not access the store locator function or purchase a gift card online using his screen reader software.  This case does have a silver-lining for defendants with web-only businesses though:  The Eleventh Circuit’s analysis followed prior precedent holding that a public accommodation is a physical place, and plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.  This puts the Eleventh Circuit mostly in line with the Ninth Circuit which has held that websites with no nexus to a physical place are not covered by the ADA, and is the only other federal appellate court to have ruled on the issue.

In eleven other decisions, district court judges in Ohio, Pennsylvania, New York, Florida and Michigan allowed website accessibility cases to move forward into discovery, rejecting defendants’ requests for early dismissal.  In most of these cases, the judges rejected the arguments that requiring businesses to make their websites accessible to people with disabilities in the absence of legal standards or regulations is a denial of due process, and that courts should not address website accessibility claims until the Department of Justice issues regulations.

In August, Judge Schwab of the Western District of Pennsylvania issued a pointed decision against a retailer because he found the aggressive tactics of its defense lawyer to constitute bad faith.  Specifically, after receiving a demand letter from the plaintiffs who later filed in Pennsylvania, the retailer filed a pre-emptive lawsuit in Utah against the plaintiffs seeking declaratory relief concerning their website-related obligations under the ADA, and asserting state law claims of negligent representation, fraud, fraudulent non-disclosure, and civil conspiracy.  When the plaintiffs then filed their lawsuit in Pennsylvania, the retailer filed a motion to dismiss based on, among other things, the “first filed” rule which gives the court in the later filed action discretion to dismiss the latter case to avoid duplicative litigation and promote judicial comity.  Judge Schwab said he did not have to apply the “first filed” rule where there was evidence of bad faith by defense counsel, and also said he would consider sanctions if defense counsel tried this forum-shopping tactic again in future cases.  Judge Schwab further held that the ADA covers websites and allowed the case to move forward in Pennsylvania.  Meanwhile, the lawsuit in Utah is still pending after the defense attorney in question withdrew from the case and the retailer filed a First Amended Complaint.

The positive decisions for defendants this year have come from judges in Virginia, Florida, and Ohio.   Judges in Virginia and Ohio dismissed six lawsuits against credit unions about their allegedly inaccessible websites because the plaintiff was not eligible to join the defendant credit unions.  These are fairly unique facts that most defendants defending website accessibility suits will not have, however.

There were four pro-defendant rulings in Florida, but one has been reopened because of the Eleventh Circuit’s holding that a prior settlement does not moot a subsequent lawsuit, discussed supra.  In the second Florida case, Judge Gayles of the Southern District of Florida dismissed an ADA lawsuit because the plaintiff had not alleged that barriers on the website impeded his access to a physical place of public accommodation.   In the third case, Judge Presnell of the Middle District of Florida dismissed a case  because the plaintiff had not alleged that he really intended to return to the location and lacked standing.  In the fourth case, Judge Presnell said that “alleging the mere existence of some connection or link between the website and the physical location is not sufficient.”  Judge Presnell distinguished “an inability to use a website to gain information about a physical location” versus “an ability to use a website that impedes access to enjoy a physical location” and said the former is not sufficient to state a claim.  The judge dismissed the case because the plaintiff’s allegations were about obtaining information, not impeding access.

The takeaway from these recent decisions is that — while the defense strategy for every website accessibility lawsuit must be evaluated on its own set of facts — most courts are not willing to dismiss these cases early except in limited circumstances.  Thus, defendants looking to fight must be prepared to go through discovery and at least summary judgment, if not trial.

Edited by Kristina Launey.

Seyfarth Synopsis: If ADA Title III federal lawsuit numbers continue to be filed at the current pace, 2018’s total will exceed 2017 by 30%, fueled largely by website accessibility lawsuit continued growth.

We have completed our mid-year analysis of the ADA Title III lawsuit numbers and the results are striking.

ADA Title III Lawsuits (All Types)Plaintiffs filed 4965 federal ADA Title III lawsuits in just the first six months of 2018, as compared to 7,663 for all of 2017.  If the filings continue at the same rate, there will be close to 10,000 ADA Title III lawsuits for all of 2018 – a 30% increase over 2017.

[Graph: ADA Title III Lawsuits in Federal Court: 2013-2018: 2013: 2722; 2014: 4436, 63% increase over 2013; 2015: 4789, 8% increase over 2014; 2016: 6601, 37% increase over 2015; 2017: 7663, 16% increase over 2016; 2018: 4965 Federal ADA Title III lawsuits filed through June 2018, 30% Projected Increase over 2017 *Number of projected lawsuits based on current filing rate.]

In addition, for the first six months of 2018, New York (1026 lawsuits) has overtaken Florida (882 lawsuits) for the honor of having the second highest number of ADA Title III lawsuits, with California (2155 lawsuits) retaining its number one position as the most busy jurisdiction for ADA Title III filings.

[Graph: Top 10 States for ADA Title III Federal Lawsuits January – June 2018: CA 2155, NY 1026, FL 882, AZ 87, PA 73, TX 68, GA 65, LA 57, MA 49, NJ 48.]
ADA Title III Lawsuits (Website Accessibility).  Plaintiffs filed more website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017.  There were at least 1053 of such lawsuits in the first six months of 2018, compared to 814 in all of 2017.  If the filings continue at this rate, there could be more than 2000 website accessibility lawsuits filed in federal court for 2018.

[Graph: Federal Website Accessibility Lawsuits 2017 v. 2018 (First Six Months): 2017: 814; First Half of 2018: 1053.]
The New York federal courts have the most website accessibility lawsuits (630 lawsuits).  The Florida courts lag behind with only 342 lawsuits, and the remaining 10 states have anywhere from 1 to 24 lawsuits apiece.

[Graph: Federal Website Access Lawsuits January – June 2018: At Least 1053 Lawsuits: Ca 5, FL 342, GA 1, IL 6, MA 21, NY 630, OH 4, OR 5, PA 24, TX 7, VA 7, NC 1.]
Website accessibility lawsuits are only partly responsible for the increase in the overall number of ADA Title III lawsuits.  We continue to see many lawsuits about the accessibility of public accommodations physical facilities.  We have recently seen a number of class action lawsuits about hotel shuttle services and online hotel reservations systems.

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.  Our website accessibility lawsuit data comes from searches using key words in the Courthouse New Service database which we then manually analyze.  Both processes result in lists of cases that we know exist, but there may be a few we have missed. In addition, our review did not include any accessibility cases brought in state courts under state law such as California’s Unruh Act that were not removed to federal court.

Seyfarth Synopsis: Responding to the surge of website accessibility lawsuits filed under Title III of the ADA, 103 members of Congress from both parties sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits.

Just yesterday, a bi-partisan assembly of 103 members of the House of Representatives, led by Congressmen, Ted Budd (R-NC) and J. Luis Correa (D-CA), wrote a letter to Attorney General Jeff Sessions, urging the U.S. Department of Justice (“DOJ”) to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urges the Department to “provide guidance and clarity with regard to website accessibility under the … ADA.”

The congressional support for this letter arises on the heels of a recent surge in website accessibility lawsuits against public accommodations in every sector alleging that websites that are not accessible by people with disabilities violate the ADA. In 2017, a number of courts rejected defendants’ attempts to obtain early dismissals of these cases and supermarket chain, Winn Dixie, lost the first trial in a website accessibility case. These decisions opened the proverbial floodgates and resulted in at least 814 federal lawsuits in 2017 about allegedly inaccessible websites, including a number of putative class actions. The federal lawsuit numbers for 2018 will likely be substantially higher as our tracking shows that there were 349 suits just in January and February of 2018. Despite the monumental increase in litigation and urgent need for clear guidance, the DOJ abandoned its rulemaking on website accessibility standards for public accommodations websites at the end of 2017, seven years after it said it would issue regulations on this issue.

With the number of website accessibility lawsuits on the rise and courts allowing most of these cases to move forward, members of Congress are feeling pressure from the business community to take action against this cottage industry of lawsuits. Indeed, as expressed in the letter:

[B]usinesses of every shape and size throughout the country are being threatened with legal action by private plaintiffs for unsubstantiated violations of the ADA. This problem is expanding at a rapid rate since the Internet allows such actions to be filed from anywhere, and there are no restrictions or limitations on making such complaints. The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.

We support the original spirit and intent of the ADA. However, unresolved questions about the applicability of the ADA to websites as well as the [DOJ’s] abandonment of the effort to write a rule defining website accessibility standards, has created a liability hazard that directly affects businesses in our states and the customers they serve.

Although the members of Congress who endorsed the letter acknowledged Congress’ own responsibility to provide legal clarity through the legislative process, they implored the DOJ to provide “even basic direction on compliance” and to “help resolve this situation as soon as possible.”

It is unclear whether this letter will spurn any prompt action from the DOJ. Given the current Administration’s aversion to increased regulation, it is unlikely that the DOJ will re-start its website accessibility rulemaking any time soon. And unlike the Obama Administration which weighed in on the private lawsuits brought against Winn-Dixie, M.I.T. and Harvard University, the Trump Administration declined to file a brief in a website accessibility case last year despite the district court’s invitation. Thus, we will have to wait and see how Attorney General Sessions and the DOJ react to the congressional letter. In the meantime, we expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.

On May 21, a California state court in Los Angeles held on summary judgment that the Whisper Lounge restaurant violated California’s Unruh Act by having a website that could not be used by a blind person with a screen reader, and ordered the restaurant to make its website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA.  The court also ordered the restaurant to pay $4,000 statutory damages.  This is the second decision by a California state court on the merits of a website accessibility case.  The first decision concerned the Bags n’ Baggage website.  In 2017, a Florida federal judge conducted the first trial in a website accessibility case against Winn Dixie and held that the grocer’s website violated the ADA because it was not accessible to the blind plaintiff, and ordered Winn Dixie to make its website conform to WCAG 2.0 AA.

The court in the Whisper Lounge case rejected – as most courts on similar facts have – the restaurant’s argument that the website is not a place of public accommodation under the Americans with Disabilities Act (ADA).  The court found that the restaurant’s website “falls within the category of ‘services….privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

Next, the court noted that the restaurant presented no evidence in opposition to the plaintiff’s showing that the website was inaccessible on February 20, 2017 – the date the plaintiff said she attempted to use the website.  The restaurant only submitted a declaration stating that the declarant was generally able to use the screen reader NVDA on the website from 2014 through 2017, without addressing the specific barriers the plaintiff said prevented her from using the website.

The restaurant also argued that it provided access to the information on its website by having a telephone number and email.  The Court rejected this argument as well, finding that the provision of a phone number and email does not provide “equal enjoyment of the website”, as the ADA requires, but instead imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate access like sighted customers.  Thus, the court reasoned, the email and telephone number do not provide effective communication “in a timely manner” nor protect the independence of the visually impaired.  The court did not say whether a toll-free number that is staffed 24-hour a day would have yielded a different outcome.

Finally, the Court rejected the restaurant’s argument that the WCAG 2.0 AA is not yet a legal requirement, finding that the Complaint did not seek to hold the restaurant liable for violating the WCAG 2.0 AA.  Rather, the Complaint alleged that the website discriminated against the plaintiff by being inaccessible and sought an injunction to require the restaurant to make its website accessible to the blind.  The Court also rejected the restaurant’s arguments that requiring it to have an accessible website violated due process and the court should wait until the Department of Justice issues regulations addressing website accessibility.  The Court noted that the fact that the restaurant was redesigning its website did not render the case moot because the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

The decision does have a silver lining for the defense bar.  The Court noted that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination.  The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

Seyfarth Synopsis:  A Missouri federal judge orders a theatre to provide, upon request, captioning services for the deaf for all theatrical performances.

A federal judge in Missouri recently ordered a 4500-seat indoor theatre to provide open or closed captioning for all theatrical performances upon request with two weeks’ notice, in a lawsuit brought by deaf patrons and advocacy organizations.

The Fabulous Fox Theatre in St. Louis, Missouri initially offered no captioning services of any kind for its theatre productions. After the plaintiffs filed their lawsuit, the theater agreed to provide captioning on a handheld device for one prescheduled Broadway-style performance per production (usually on a Saturday matinee), if it receives a request for captioning two weeks before the show. The theatre provided stands for the devices only at designated accessible seats because the fire marshal considered them to be a fire hazard. The plaintiffs maintained that captioning should be available for all shows, and that the theatre should provide stands for the handheld devices at all seats, not just accessible seats. They also sought an injunction requiring the theatre to (a) publicize the availability of captioning; (b) provide a means to request captioning; and (c) provide a method for people to purchase tickets by non-telephonic means, including e-mail.

The judge agreed with the plaintiffs on every issue but one. The judge held that providing captioning for only one show per Broadway-style production denied plaintiffs the equal opportunity to participate in the theatre’s performances because it limited their ability to choose from a number of different performances that were available to non-disabled patrons. The court also found that the theatre had failed to meet its obligation to provide auxiliary aids and services to ensure effective communication with the plaintiff. The theatre did not attempt to argue that providing captioning for all performances upon request would be an undue burden or fundamental alteration of its performances. Accordingly, the court ordered the theatre to provide captioning for all theatrical performances upon request with two weeks’ notice. The court also – with no discussion – ordered the theatre to publicize the availability of captioning, provide a means to request captioning, and provide a method of buying tickets through non-telephonic means, including e-mail. The court did not require the theatre to provide stands for the captioning devices at non-accessible seats, due to fire safety concerns.

The decision serves as a reminder that Title III of the ADA requires public accommodations to provide auxiliary aids and services to individuals with disabilities to ensure effective communication with them, unless doing so imposes an undue burden or fundamentally alters the nature of the goods and services provided. Organizers of events that are open to the public should keep this in mind and have a plan for ensuring effective communication for participants and spectators with different types of disabilities, as there have been a number of lawsuits filed in the past several years over the lack of captioning for live events.

Edited by Kristina Launey.

Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law – employment law – California’s Fair Employment and Housing Act.

Over the past few years, we have frequently written about the proliferation of demand letters and lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws. One firm that pursued many web accessibility actions under Title III and California’s Unruh Act (including a success in the Bags N’ Baggage case decided in plaintiff’s favor by a California state court) is now going after employers.  In recent demand letters and lawsuits, they are alleging that employment websites are not accessible to blind job seekers, in violation of California’s Fair Employment and Housing Act (FEHA), California’s corollary to Title I of the ADA.

While this blog, and Seyfarth’s Disability Access Team, are focused on disability access issues affecting places of public accommodation that provide goods and services to the general public (not employees, though many of our team members are employment specialists as well), this emerging litigation trend is worthy of our discussion here because it is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs’ attorneys.  But there is one big difference – the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations. Title III is unique from other anti-discrimination statutes in that it requires (with exceptions) businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. FEHA prohibits discrimination against individuals in employment.  It requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation.  The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

In the cases filed thus far, such as those by Dominic Martin, Roy Rios, and Abelardo Martinez in Orange County and San Diego Superior Courts in California last week, the plaintiffs argue that they are blind residents of California who want to enter the workforce, attempted to apply using the defendant’s online application, but could not because it was inaccessible to individuals with disabilities. They claim the WAVE tool confirmed the website’s inaccessibility (an automated tool like WAVE, while useful, cannot be relied upon to determine whether a website is accessible or not, let alone useable by an individual with a disability).  In these lawsuits, the plaintiffs claim that they twice asked the defendant to remove the barriers and were ignored.  Plaintiffs also claim that removing the barriers would take only a few hours (which anyone who has worked in the website accessibility space knows is rarely if ever possible).  Plaintiffs allege these requests that defendant remove the barriers were requests for reasonable accommodation, though they were sent by the plaintiff’s attorney and not the actual individual seeking employment; thus possibly perceived as litigation demand letters rather than legitimate requests for reasonable accommodation.  The plaintiffs allege that the companies did not respond and that they have a policy to deny disabled individuals equal employment by refusing to remove the barriers on the website.  Each plaintiff alleges only a single legal claim for violation of FEHA, even expressly noting he is not asserting claims for violation of any federal law or regulation.

Will these claims find any success in the courts under the applicable law?  We will be watching.  In the meantime, businesses that have been focusing efforts on consumer-facing websites to mitigate risk under Title III should be aware of this new trend (if you have not already received such a letter).

Edited by: Minh N. Vu.

By Minh N. Vu

Seyfarth Synopsis:  HR 620 requires potential plaintiffs to provide businesses with notice of architectural barriers and give them an opportunity to remove them before filing suit. 

Today, the House of Representatives passed the ADA Education and Reform Act (HR 620) by a vote of 225 to 192, with 12 Democrats voting for the bill.  As we recently reported , the number of ADA Title III lawsuits has risen dramatically in the past four years.  HR 620 is primarily an attempt to stem the tide of lawsuits brought by serial plaintiffs who bring dozens, if not hundreds, of lawsuits against businesses based on relatively minor physical access barriers found in their facilities for quick settlements.

HR 620 requires a would-be plaintiff to send the business a pre-suit notice that specifies (1) the alleged barriers in the facility, with a citation of the section of the ADA that has been violated; (2) “the circumstances under which the individual was actually denied access to a public accommodation;” and (3) whether a “request for assistance in removing the barrier was made.”  A lawsuit can only be filed after sending this notice if the business does not respond within 60 days with a description of the improvements that it will make to remove the barrier.  If the business responds as required, but fails to remove the barrier or make “substantial progress” toward removing the barrier within 120 days, a lawsuit can be filed.  HR 620 also requires the U.S. Department of Justice (DOJ) to develop a program to educate state and local governments and property owners about the ADA’s requirements, and directs the Judicial Conference of the United States to develop a model program to promote the use of alternative dispute resolution mechanisms (including a stay of discovery during mediation – similar in concept to what some courts already require by local rule, such as in the Northern District of California) to facilitate early resolution rather than litigation  of ADA claims based on alleged architectural barriers.

Supporters of the bill say that — because there are so many technical requirements that businesses can violate unknowingly (e.g., the toilet paper roll is half an inch too far away from the toilet, or the mirror is 1” too high) — providing businesses with notice and an opportunity to remove barriers is a good thing and does exactly what the law was designed to do — make businesses accessible.  Opponents say that the amendment will cause businesses to sit back and take no action to comply with the law until they receive a notice.  In addition, they claim that attorneys will be reluctant to take on these cases because there is no chance to receive a fee award by a court if a business does in fact remove the barriers identified in the notice.

Whether HR 620 (or some form of it) will ever become law remains to be seen, as the Senate has taken little action on this issue.  That said, HR 620 is the most significant development thus far in the effort to deter serial ADA lawsuit filers and may provide some momentum for legislative reform.

Edited by Kristina Launey

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

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge in 2017, fueled largely by website accessibility claims; while legislative reform efforts continue to mitigate the physical accessibility portion of those lawsuit numbers.

The results of our 2017 ADA Title III lawsuit count are in, putting a fifth consecutive year (since we began tracking in 2013) of growth in the number of ADA Title III lawsuits filed in federal court.  In 2017, 7,663 ADA Title III lawsuits were filed in federal court — 1,062 more than in 2016. While a bit slower growth than in 2016 (which saw an 1,812, or 37% year over year increase) over 2015, this 16% increase is almost double the 2014-2015 8% increase, demonstrating a continued upward trend in the number of filings.

ADA Title III Lawsuits in Federal Court: 2013-2017: 2013 (2722); 2014 (4436, 63% increase over 2013); 2015 (4789, 8% increase over 2014); 2016 (6601, 37% increase over 2015); 2017 (7663, 16% increase over 2016)

California and Florida continue to be hotbeds of litigation, with 2,751 and 1,488 lawsuits (up from 2,468 in CA in 2016 and down from 1,663 in FL) respectively. New York is the big story, having almost doubled its 543 lawsuits filed in 2016 to 1023 in 2017.  Utah moved up in the ranks, with a more than doubling of federal lawsuit filings, from 124 to 360. Nevada, not in the top 10 states for filings in 2016, is relatively close behind with 276 lawsuits, while the 2016 holder of the fifth spot, Texas, dropped to number nine, cutting its 267 2016 number down by more than half, to 129.  Arizona, with 335 lawsuit filings in 2016, dropped out of the top 10 in 2017.  Colorado’s numbers also more than doubled, from 92 in 2016 to 215 in 2017; and New Jersey newly entered the top 10 this year with 108 lawsuits.  Georgia, held its sixth spot on the chart, also holding fairly steady at 187 lawsuits, a slight decrease from the 193 filed in 2016.  Finally, Pennsylvania showed relatively modest growth, increasing by 80 lawsuits over its 102 2016 count.  Here are the numbers for the top ten states:

  1. CA: 2751
  2. FL: 1488
  3. NY: 1023
  4. UT: 360
  5. NV: 276
  6. CO: 215
  7. GA: 187
  8. PA: 182
  9. TX: 129
  10. NJ: 108
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2751); FL (1488); NY (1023); UT (360); NV (276); CO (215); GA (187); PA (182); TX (129); NJ (108)

Similar to last year, while physical accessibility lawsuits remain common, these numbers continue to be driven largely by the vast numbers of website accessibility lawsuit filings, many by new attorneys in familiar (CA, FL, NY) jurisdictions.  The extreme increase in New York is likely due at least in part to 2017 federal court decisions that have likely embolded plaintiffs’ attorneys in that jurisdiction.  Note that these numbers of course do not include the many demand letters plaintiffs sent to businesses asserting website accessibility claims, do not include lawsuits filed only in state courts, and are conservative estimates, as our research methods are sound in finding at least the numbers we report here, and it is entirely likely we have not captured every ADA Title III filed in federal court.

Meanwhile, Congress has continued legislative efforts to provide business some relief from “drive-by” physical accessibility lawsuits.  The ADA Education and Reform Act of 2017, introduced January 24, 2017 as H.R. 620 by Texas Representative Ted Poe, would, among other things, codify a “notice and cure period” that would prohibit a plaintiff from filing a lawsuit based on failure to remove an architectural barrier unless the plaintiff has first given the businesses notice of the alleged violations and an opportunity to provide a plan to address them.  On October 30, 2017, the House Committee on the Judiciary reported the bill, and it is scheduled for referral to the House Judiciary Subcommittee on Constitution and Civil Justice on February 8, 2017.  Some states also continued their own legislative reform efforts, such as Florida HB 727, effective July 1, 2017; and in Nevada the State Attorney General intervened in a federal ADA Title III lawsuit by a serial plaintiff who had filed at least 275 lawsuits seven months.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2018.

Seyfarth Synopsis:  2017 saw an unprecedented number of website accessibility lawsuits filed in federal and state courts, and few courts willing to grant early motions to dismiss.

Plaintiffs were very busy in 2017 filing ADA Title III lawsuits alleging that public accommodations’ websites are not accessible to individuals with disabilities. Here is our brief recap of the 2017 website accessibility lawsuit numbers, major developments, and our thoughts for 2018.

  • In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. We arrived at this number by searching for lawsuits with certain key terms and then manually reviewing the results to remove any cases that did not concern an allegedly inaccessible website.  Our numbers are conservative, as it is very likely that not every website accessibility lawsuit’s description – upon which we based our search – contained our search terms. This caveat applies to all of the data set forth below.
  • Of the 814 federal cases, New York and Florida led the way with more than 335 and 325 cases, respectively. Surprisingly, California only had nine new website accessibility lawsuits in 2017, most likely because plaintiffs filed in state court.  Federal courts in Arizona (6), Georgia (9), Illinois (10), Massachusetts (15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania (58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of website accessibility lawsuits.
  • In California state courts, plaintiffs filed at least 115 website accessibility lawsuits in 2017 under the state’s non-discrimination laws. We compiled this data based on searches we performed for lawsuits by four blind plaintiffs represented by two California law firms.
  • In New York state courts, plaintiffs filed at least six website accessibility lawsuits in 2017. All were putative class actions.
  • Defendants in at least 13 federal website accessibility cases filed motions to dismiss or for summary judgment where there were no unusual circumstances like a prior court order or settlement agreement that obligated the defendant to make its website accessible. The courts denied all but two of those motions and let the cases proceed to discovery.
    • In one case where the defendant, Bang & Olfusen, won its motion to dismiss, the court noted that the plaintiff had failed to plead a nexus between the physical place of public accommodation and the website in question. In the other case, the court dismissed the claims made against Domino’s because requiring the defendant to comply with a set of web accessibility guidelines that are not yet law would violate due process principles.  The Domino’s decision is on appeal and will be reviewed by the Ninth Circuit in 2018.  Our post about these cases is here.
    • In the 11 cases where the federal judges refused to dismiss website accessibility claims and allowed the cases proceed to discovery, the defendants had unsuccessfully argued that the principles or due process and the doctrine of primary jurisdiction should be the basis for dismissal. One of our posts discussing some of these decisions is here.
    • In three decisions, the courts were open to the concept that providing telephonic access to the goods and services offered at the public accommodation may satisfy the ADA, but they refused to dismiss the cases at the outset on this basis.
  • The first trial in a website accessibility lawsuit took place in 2017. Florida U.S. District Judge Scola presided over this bench trial and concluded that grocer Winn Dixie had violated Title III of the ADA by having an inaccessible website.  Judge Scola also found that the $250,000 cost to remediate Winn Dixie’s website was not an “undue burden” and ordered Winn Dixie to make its website conform with the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).
  • Three defendants were able to dismiss website access lawsuits early because they had already entered into consent decree or settlement agreements with previous plaintiffs which required them to make their websites conform to the WCAG 2.0 within a specified amount of time. That said, not all courts agree that a prior settlement — as opposed to a binding judgment or court order — can be the basis for a dismissal.
  • The Department of Justice’s (DOJ) rulemaking to create new website accessibility regulations is now officially dead, as we recently blogged. The lack of clear rules will lead to more litigation and inconsistent judicially-made law.  In fact, it appears that the DOJ will not be issuing any new regulations under Title III of the ADA about any subject, according to the agency’s December 26 announcement in the Federal Register repealing all pending ADA Title III rulemakings.

What’s in store for 2018? If the Ninth Circuit upholds the Domino’s district court’s dismissal on due process grounds, the number of California website accessibility lawsuits in federal court may go down dramatically.  Even if that occurs, we see no end to the website accessibility lawsuit surge elsewhere and expect that new plaintiffs’ firms will continue to enter the scene.  While the current administration’s DOJ is not likely to push the website accessibility agenda, its inaction will not stop the lawsuits.  Only an amendment to the ADA can do that, which we believe is highly unlikely.  Thus, the best risk mitigation effort for covered entities is still to make their websites accessible as soon as possible, with the assistance of ADA Title III legal counsel experienced in website accessibility issues and reputable digital accessibility consultants.

Edited by Kristina Launey

Seyfarth Synopsis:  In denying Dave & Buster’s motion to dismiss and for summary judgment, a federal judge said that telephonic access might be an alternative to having an accessible website, but cannot decide until the record is much more developed.

No court has yet decided whether a public accommodation can comply with Title III of the ADA’s equal access mandate by providing telephonic access to the information and services on a website blind people cannot use with a screenreader.  However, last week federal Judge Philip Gutierrez of the Central District of California recognized it as a possibility, while allowing a website accessibility lawsuit against Dave & Buster’s to move forward to discovery.

In Gorecki v. Dave & Buster’s, Dave & Buster’s filed a motion to dismiss and for summary judgment at the outset of the case, arguing that it had complied with the law by providing telephonic access to the information and services on its website.  Specifically, it had placed an “accessibility banner” on its website stating: “If You Are Using A Screen Reader And Are Having Problems Using This Website, please call 1 (888) 300-1515 For Assistance.”  Dave & Buster’s had staffed the line with a “receptionist.”  In response, the court acknowledged that the Department of Justice had stated in 2010 that telephonic access could be a means of complying with law in lieu of having an accessible website.  However, the court found that the plaintiff had raised a genuine dispute as to whether having the phone line and receptionist satisfies the ADA because—among other things—Dave & Buster’s failed to submit evidence that the accessibility banner itself was accessible (i.e., could be read) to screen reader users.  The court concluded that “the record as it stands is insufficient to address compliance, so the court disagrees with D&B that the mere appearance of the phone number on the Website renders Gorecki’s claim moot.”

Our takeaway from this holding is that a defendant seeking to show that it is providing access to the information and services on its website through a telephone line must submit more robust evidence about how that telephonic provides equal access.

The court also rejected Dave & Buster’s three other arguments for dismissal.  First, the court said that holding Dave & Buster’s liable for a Title III violation in the absence of regulations about websites would not violate due process because the DOJ made clear “as early as 1996” that websites are covered under the law, and plaintiff was not advocating for adherence to any particular set of accessibility standards such as the Web Content Accessibility Guidelines 2.0.  Second, the court said dismissal was not appropriate under the doctrine of primary jurisdiction because “a finding of liability regarding the Website’s compliance with the ADA does not require sophisticated technical expertise beyond the ability of the Court.”  These two holdings echo the same or similar holdings by virtually every other court that has considered these issues.  Finally, the court stated that plaintiff did not necessarily have to request an accommodation from Dave & Buster’s before filing suit.

Judge Gutierrez’s decision is the third in which the Manning law firm in Newport Beach, CA has successfully rebuffed motions to dismiss website claims by defendants in federal court.  The firm has appealed to the Ninth Circuit the one unfavorable decision it received in Robles v. Dominos Pizza. The opening brief will is due to be filed this week.