Synopsis:  SCOTUS denies serial plaintiff’s attempt to dismiss her case and avoid the court’s consideration of a critical legal issue in ADA Title III lawsuits – tester standing.

U.S. Supreme Court Building
U.S. Supreme Court Building

As we reported several weeks ago, serial plaintiff Deborah Laufer tried to evade the U.S. Supreme Court’s (SCOTUS) consideration of a very important legal issue —the standing of testers — by dismissing her case in the district court and then asking SCOTUS to dismiss her case as moot.  She claimed that she was dismissing all of her pending ADA Title III lawsuits because she did not want the allegations of misconduct against her prior counsel, Tristan Gillespie, to “distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself.”

Acheson Hotels, the Petitioner in the SCOTUS proceeding, vigorously opposed the dismissal request, arguing that Laufer was “abandoning her case to pave the way for Laufer and similar plaintiffs to resume their campaign of extortionate ADA suits against unwitting small businesses without the hindrance of an adverse ruling from this Court.”  Acheson’s brief further argued that the “Court should not reward Laufer’s effort to insulate lower-court rulings upholding ‘tester’ standing from Supreme Court review.” 

Just yesterday, SCOTUS issued the following Order:  “The respondent’s request that the Court dismiss the case as moot at this time is denied. The question of mootness will be subject to further consideration at oral argument in addition to the question presented.” 

In short, it seems SCOTUS may well consider the very important question presented by this case:  Whether a self-appointed Americans with Disabilities Act “tester” has 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.  Laufer had to move forward with filing her brief on the merits on August 2, 2023 and the matter is now fully briefed.

Oral argument is set for October 4, 2023.

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.

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 Vu and Lotus Cannon

Seyfarth Synopsis:   New Eleventh Circuit decision says amusement park operators must base rider eligibility requirements on actual risks and cannot simply adopt manufacturer recommendations, even when required by state law.

How many natural limbs must a person possess to ride a roller coaster or other thrill-ride at an amusement park?  Until now, many parks simply adopted manufacturer recommendations, as required by state law.  A recent Eleventh Circuit decision upends this practice, demanding manufacturers and/or amusement parks conduct safety assessments that are tailored to specific rider eligibility requirements.

In Campbell v. Universal City Development Partners, Ltd. the plaintiff sued a waterpark under Title III of the ADA (“ADA”) after the park would not let him ride an aqua coaster because he did not meet the rider eligibility requirement of two natural, grasping hands.  (The plaintiff does not have a right hand and does not use a prosthetic.)  The plaintiff alleged that the park’s requirement violated the ADA which prohibits the imposition of discriminatory eligibility criteria unless those criteria are “necessary.”  The District Court for the Middle District of Florida granted the park summary judgment, finding that the criteria were “necessary” under the ADA because they were created by the ride’s manufacturer and Florida law requires compliance with manufacturer requirements.   The district court reached this conclusion even though the manufacturer had not identified any specific risks for riders with missing limbs. 

The district court holding did not sit well with the U.S. Department of Justice (DOJ) which filed an amicus brief in support of the plaintiff. The Eleventh Circuit also did not agree with the district court, vacating judgment for the park and remanding the case for further proceedings. 

In reaching its decision, the Eleventh Circuit first held that the park bore the burden of proof to show that the limb requirement was “necessary.”  Second, the Court held that following state law mandating compliance with manufacturer requirements did not make the requirement “necessary” because state law cannot trump federal law (in this case, the ADA) when the two conflict. Third, the Court rejected the argument that compliance with manufacturer requirements is “necessary” because manufacturers have a comparative advantage in identifying safety risks.  The Court noted that the manufacturer had not actually identified any “actual risk” for people who are missing limbs.  The only safety risk that the manufacturer had identified relating to riders with disabilities concerned the impact of prosthetic limbs falling from the ride and striking someone, and as well as risks for riders with sight disabilities.  The Court said: “[W]e hold that a manufacturer-imposed safety requirement is ‘necessary’ only to the extent it is related to actual risks to the health and safety of guests.”  Finally, the Court stated that the need for administrative efficiency did not make the criteria “necessary” because the criteria themselves were not based on actual risk.

While this decision requires amusement parks to do more than just rely on manufacturer eligibility requirements, it does not prevent them from imposing legitimate eligibility requirements on riders based on actual risks.  The problem in this case was that no relevant risk assessment had been conducted by the public accommodation or manufacturer to justify the limb requirement.  

The decision also contains some useful nuggets.  For example, the Court recognized that “necessary” eligibility criteria include those that protect the health safety of the person with a disability, not just the health and safety of other riders.  This is a win for public accommodations because the current regulations only allow for the exclusion of individuals with disabilities when their participation poses a “direct threat” to the health and safety of others.   Further, the Court concluded that the term “necessary” includes more than what is required for safety and could include administrative feasibility.  On this issue, the park argued that it needed to rely on manufacturer requirements because it could not make individualized assessments for every rider.  The Court said it did not need to address this issue because the manufacturer requirement itself was lacking (i.e., not based on an assessment of “actual risk”) so the case did not present the question of whether a legitimate rider requirement could be applied to all similarly situated riders.

In sum, amusement parks should be reviewing rider eligibility requirements that impact people with disabilities to see if they are based on an assessment of actual risks.  If not, they should revise those rider requirements or conduct/commission additional risk assessments.

Edited by Kristina Launey

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: AB 1757 would adopt WCAG 2.1 Level AA as the de facto standard for websites and mobile apps that can be accessed from California and impose liability for statutory damages on business establishments and website developers.

In a classic gut and amend move mid-way through the Legislative Session, on June 12 the California Assembly’s Judiciary Committee replaced the entire content of an existing bill on courts, AB 1757, with language that would effectively make WCAG 2.1 Level AA the required standard for the websites and mobile apps of “business establishments” covered by the Unruh Civil Rights Act.  And, in an unprecedented step, the bill would allow individuals with disabilities as well as business establishments to sue third party developers that create noncompliant websites and mobile apps.

The digest summarizing the bill tries to make it look business-friendly by couching it as imposing a limit on the availability of statutory damages under the Unruh Act and Disabled Persons Act (DPA) to plaintiffs.  The bill would allow plaintiffs with disabilities to recover damages where the “website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public,” and the plaintiff (1) personally encountered a barrier to equal access or (2) was deterred from accessing all or part of the website or the content of the website due to the website’s inaccessibility.  However, these principles are already in existing caselaw so business establishments are not getting any new benefits from these provisions.  Instead, this bill would significantly expand the legal liability of business establishments, as well as their third party web developers, for websites and mobile apps that do not conform to WCAG 2.1 AA.

First, the bill adopts WCAG 2.1 AA as de facto standard for websites and mobile apps for the entire United States, not just California.  Under existing law, a plaintiff seeking to establish a violation of the Unruh Act based upon a website or mobile app must show that the business has violated the Americans with Disabilities Act (ADA).  This is the only avenue for establishing a violation because the California Court of Appeals has held that having an inaccessible website does not constitute “intentional discrimination,” and intent must be shown for a plaintiff to prevail on an Unruh Act claim that is not based upon a violation of the ADA.  

The ADA does not presently mandate compliance with WCAG 2.1 AA for the websites or mobile apps of public accommodations.  Instead, the ADA mandates that public accommodations provide auxiliary aids and services as necessary to ensure “effective communication” with individuals with disabilities in the provision of their goods and services.  While having a website and mobile app that can be used by individuals with disabilities is one way of ensuring effective communication, the U.S. Department of Justice (DOJ) and the courts have left open the possibility that public accommodations can ensure effective communication of the information on their websites/mobile apps in some other fashion.  In 2022, the DOJ issued a Guidance on website accessibility stating that “businesses … have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication” and references WCAG as “helpful guidance.”

In addition to the “flexibility” afforded businesses under the ADA when providing “effective communication,”  a business under the ADA can claim that providing effective communication presents an “undue burden” or fundamentally alters the nature of the goods and services it provides.  AB 1757 contains no such defenses.

Thus, in contrast to the current state of the law under the ADA which would apply to an Unruh Act lawsuit, AB 1757 dictates that websites and mobile apps themselves must provide “effective communication” and a website or mobile app is presumed to provide equally effective communication if it complies with the Web Content Accessibility Guidelines 2.1 Level AA.  In short, the bill creates a de facto requirement that all websites and mobile apps that can be accessed by people in California conform to the WCAG 2.1 Level AA and contains no defenses or exceptions for undue burden.  This is a tall order considering that even federal government websites right now are only required to comply with the less demanding requirements of WCAG 2.0 Level AA (and, as DOJ recently reported, many of those websites do not). Moreover, because all websites in the United States can be accessed in California, WCAG 2.1 AA will become the de facto national standard for website accessibility.

Second, the bill contains no transition period for covered businesses.  Another troubling aspect of the bill is the absence of a transition period for business establishments and their developers to bring existing websites and mobile apps into conformance with WCAG 2.1 Level AA.  In our experience, bringing existing websites into conformance with this standard can take many months, significant resources, training of web content managers and developers, and the assistance of expensive website accessibility consultants and web developers.

Third, the bill does not address undue hardship on small businesses.  As we know, most small businesses do not create their own websites and have no understanding of how to make a website conform with WCAG 2.1 AA.  It is unlikely that they will have the resources to comply with WCAG 2.1 AA with no transition period.  Even the DOJ acknowledged in its now defunct website accessibility rulemaking for public accommodations that a transition period may be necessary and that small businesses may need a different compliance timetable.  The threat of greater legal exposure could result in small businesses taking their websites down, which could have dire consequences for their ability to drive business.

Fourth, liability for website and mobile app developers will drive up the cost of website development.  AB 1757 would give individuals with disabilities and business establishments the new right to sue web developers for creating websites that do not conform to WCAG 2.1 Level AA.  While this new cause of action will likely incentivize website/mobile app development companies to create WCAG 2.1 AA conforming websites, it will also drive the cost of website development higher and could cause small web developers out of business.

It should be noted that the language in the existing bill, AB 1757, was taken from AB 950 which died in the Assembly Appropriations Committee. That Committee Analysis found that the bill would result in various costs, including a cost of $800,000 if just 50 plaintiffs or public prosecutors brought lawsuits under the bill. While we do not track lawsuit filings in California state courts, we know from our federal court filing statistics that the Committee’s estimates on the number of lawsuits is much too low.  There were 3,255 website accessibility lawsuits filed in federal court in 2023—an all-time high.

One would think that the business community – public accommodations and website developers – would be opposing this bill or working to amend it, but we hear that business groups are supporting the bill.  We and many other defense lawyers practicing in this space are perplexed by this reaction.

AB 1757 is presently in the Senate Judiciary Committee for consideration of these amendments. If approved by the requisite committees and vote of the full Senate, the bill would then return to the Assembly for concurrence in the amendments by September 14 before going to the Governor for his approval.  If this bill becomes law in its present state, it could well open the floodgates of website and mobile app accessibility lawsuits in California.

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: New York federal courts have generally been friendly to plaintiffs in website accessibility lawsuits, but a few recent decisions are demanding more of plaintiffs to establish standing.

While federal New York courts (particularly the Southern District) have historically been a friendly jurisdiction for ADA website plaintiffs, there have been a string of recent decisions dismissing website accessibility cases for lack of standing that signal judicial frustration with the plaintiff’s bar and serial filers.

Case in point:  EDNY Judge Cogan’s opinion in Winegard v. Golftec Intellectual Property LLCThe plaintiff in that case had a hearing disability and sued over non-captioned video content on the business’s website.  In granting the motion to dismiss, the Court applied the standing requirements from the Second Circuit’s decision in Calcano v. Swarovski North Am. Ltd. dismissing a consolidated case alleging that the defendants failed to provide gift cards in Braille in violation of the ADA.  Judge Cogan found that the allegations that the plaintiff visited the defendant’s website on a specific date and “on subsequent days” to attempt to watch golf-related videos was not enough to establish an intent to return to the website in the future, and further stated:

To find standing on the paltry allegations here would allow any sensory-impaired person to sit down at their computer, visit 50 websites (possibly after being referred to them by their non-sensory-impaired lawyer), and bring 50 lawsuits.  Standing requires more.

Judge Cogan also determined that “the fact that plaintiff is a serial filer” made it less plausible that his stated intent to return to the website was genuine:

With 49 cases and counting, the range of . . . [plaintiff’s] interests would have to be unusually substantial, ranging from industrial supplies to etiquette classes to robotics to freediving and spearfishing to instructions for assembling a “Nashville Hot Chicken” kit

. . . .   

While “the ADA serves the important function of facilitating full participation in American life for those with disabilities,” Judge Cogan noted, mass litigation that “allows for a quick recovery of attorney’s fees [through a settlement] with relatively minimal difficulty:”

. . . saps judicial resources, wastes attorneys’ and litigants’ time, and ultimately mock[s] the statutes mission. . . . The limited resources of the federal courts need to be marshalled for resolving genuine disputes, not to provide a platform for extracting nuisance settlements that do little, if anything, to further the important goals of the ADA.  

(citation omitted).

In Rendon v. Berry Global Inc., the blind plaintiff sued a business-to-business website for having investor relations-related content that he could not access using his screen reader. SDNY Judge Colleen McMahon dismissed the case, observing that the Second Circuit ruling in Calcano “raised the bar appreciably for adequately pleading standing to seek injunctive relief in ADA cases” (quotation omitted).  The Rendon complaint failed to allege details regarding past visits to the website or the frequency of past visits, what they were hoping to learn, why they became interested in investing, or why they planned to return.  While the Court did allow the plaintiff to file an amended complaint, it did so with the following admonishment:

If Plaintiffs can figure out a way to assert a concrete and particularized injury they are welcome to try; however I would suggest that they think about where to bring suit, as well as whether to bring suit. 

In Suris v. Crutchfield New Media, LLC, EDNY Judge Nina Morrison held that the plaintiff lacked standing because he failed to offer any factual context for his alleged intent to return to the website, as distinguished from a number of referenced cases where New York district courts found that the intent to return element was adequately pled.  The Court also determined that plaintiff’s claims were moot in any event, relying on declarations attesting that the businesses manually reviewed and remediated 4,000 videos on the website, instituted new processes to ensure that future content would be captioned, and was in the process of hiring a digital accessibility vendor.

While it remains to be seen whether these decisions indicate a shift in the legal landscape in this jurisdiction, it appears that more New York judges are getting tired of being the most favored venue for serial website accessibility plaintiffs.

By Minh N. Vu

Seyfarth synopsis:  The opening brief in Acheson Hotels v. Laufer, the first case to reach the U.S. Supreme Court in more than 18 years, was filed today.

Today, Petitioner/Defendant Acheson Hotels LLC filed its opening brief in the first ADA Title III case before SCOTUS in over eighteen years.  In our view, the decision in Acheson v. Laufer will either (1) open the floodgates for individuals with disabilities to visit businesses they do not intend to patronize in order to test and sue them for ADA non-compliance, or (2) make it a little bit harder for such individuals to sue. 

As we discussed in an earlier post when SCOTUS granted Certiorari, the question before the Court is whether a person with a disability has standing to sue a business for non-compliance with ADA requirements if that person has no interest in ever patronizing that business.    

In Acheson, the plaintiff visited the hotel’s website and alleged that it was missing accessibility information required by the ADA.  The district court concluded that the plaintiff was not injured by the alleged violation and did not have standing to sue because she had no interest in patronizing the hotel.  The First Circuit disagreed and reversed, holding that an intent to patronize the business was not necessary for standing.  We think that SCOTUS granted Certiorari because the First Circuit’s decision does not align with its more recent decisions on standing and there is a bona fide circuit split on this issue.

While Acheson is a website case, SCOTUS’s decision will also be relevant to the standing analysis for cases involving alleged physical barriers because, to have standing to sue, plaintiffs must demonstrate a desire to return to the allegedly non-compliant facilities in the future.  If plaintiffs can satisfy this requirement by simply claiming that they intend to return as testers to evaluate compliance, all plaintiffs will seemingly be able to meet this requirement.  On the other hand, if SCOTUS determines that an intent to patronize is necessary, plaintiffs will need to work a little harder to allege facts demonstrating their desire to patronize the business in the future (prior visits, their reasons for visiting, proximity to their residence, etc.). 

Plaintiff/Respondent’s brief is due August 2, 2023.  No argument date has been set.

Edited by John W. Egan

By John W. EganDov Kesselman, and Ashley S. Jenkins

A recent “Dear Colleague” letter issued jointly by the U.S. Department of Justice (DOJ) and the Office of Civil Rights of the Department of Education (OCR) places colleges and universities on notice of recent enforcement activities under Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) directed at digital accessibility.  Referencing recent consent decrees entered into between OCR and more than 50 institutions of higher learning in just the last year, the Letter sends a clear message that institutions should meaningfully address the accessibility of their online properties and communications.

The Letter describes the increasing reliance by colleges, universities, and post-secondary institutions on not only their own websites, but also third-party social media and third-party platforms like YouTube, Spotify, and Apple Podcasts, to deliver services, programs, and activities.  It cites broad obligations to provide disability access, not only to students, but to members of the public as well.

Specifically, the Letter references the recent court-approved consent decree in an ADA enforcement action commenced by the DOJ against the University of California at Berkeley, which addressed the accessibility of Berkeley’s online content, including thousands of hours of free coursework made available to the public.  This agreement, as well as the 50-plus consent decrees that OCR entered into with covered entities over the last year that are also referenced in the Letter, have a number of common themes that provide insight into the DOJ’s and OCR’s position on these issues:

  • Digital Accessibility Standard: Adoption of an institution-wide digital accessibility standard, such as Web Content Accessibility Guidelines (WCAG), Version 2.0 or 2.1, Level AA; 
  • Broad Remedial Coverage: Requirement to audit digital properties and content via a qualified consultant.  Audit methodologies to include not only automated scanning tools, but also manual code review and testing with a screen reader.  Audit scope to cover not only university websites but also third party social media and other sites where they post content, with a corresponding remedial obligation for identified accessibility barriers;
  • New Content to Be Accessible With Institutional Controls: New content on the university website and third-party sites all subject to the institution’s selected digital accessibility standard, with certain agency reporting obligations, and the requirement to develop a plan to maintain accessibility going forward; and
  • Means To Provide Feedback: Posting of an accessibility statement and/or means for individuals to notify the university of any alleged technology-based barriers or related commentary.

Further, the Letter references a 20-part internet video series developed by OCR, which, while not exhaustive, does address digital accessibility concepts and methods of execution. It covers topics such as digital access in education, how people with disabilities use various forms of assistive technology, related federal regulations, and coding techniques for the elimination of barriers, including through the use of mini lessons.  Additionally, the Letter references the Department of Education’s intention to publish a Notice of Proposed Rulemaking (NPRM) to amend Section 504 regulations, which may address digital accessibility.

Based on these developments, now is the time for colleges and universities to review, with the advice of qualified counsel, their policies, procedures, and protocols addressing key areas of regulatory focus, such as:

  1. Accessibility of digital content on university websites and social media platforms;  
  2. Procurement of accessible technologies from third parties, such as vendors that provide athletics, library, merchandising/e-commerce functionality on institution websites;
  3. Audits for WCAG conformance and existing consultant contracts and relationships; and
  4. The terms of previous settlement agreements or consent decrees, and the institution’s ongoing compliance with these terms. 

We will continue to monitor these regulatory and enforcement activities and will provide additional reporting on future developments.

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 

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