By Kristina Launey and Minh Vu

Seyfarth Synopsis: A California federal court decided after a trial that a blind plaintiff did not have standing to bring a lawsuit about an inaccessible website under Title III of the ADA, and California’s Unruh Act only protects people who try to access inaccessible websites while they are physically in California.   

We are seeing a trend in recent federal decisions in ADA Title III cases involving websites: Courts are finding that not being able to access information on a website, with no other adverse consequences, is not sufficient to establish the “concrete” harm required to have standing to sue.  In March, the Second Circuit issued a decision holding that a plaintiff had to allege “downstream consequences from failing to receive the required information [on a website] in order to have an Article III injury in fact.”  In that case, the plaintiff had failed to allege that his inability to obtain accessibility information about a hotel on its website actually impacted his ability to stay at that hotel or travel to the area of the hotel.

This week, District Judge Dale Fisher of the Central District of California held, after a bench trial, that plaintiff Andres Gomez did not have standing to bring a website accessibility lawsuit under Title III of the ADA because he had not shown any downstream consequences resulting from his encounter with the inaccessible website, nor a genuine intent to return to the website.  (Plaintiff Andres Gomez has filed well over 100 website accessibility lawsuits in California federal courts in the past three years alleging businesses have violated the ADA by having websites that are allegedly inaccessible to blind individuals.)

In the Court’s Findings of Fact and Conclusions of Law After Court Trial, the Court found that while Gomez had visited the inaccessible website to search for car rental companies in Los Angeles for a future trip, he did not credibly demonstrate that he would have a reason to return to defendant’s website.  Demonstrating a genuine intent to return to a business is critical to establishing standing to bring an ADA Title III claim because a plaintiff must show an imminent future harm for the prevention of which injunctive relief by the Court is necessary.  (The ADA only provides for injunctive relief to prevent future harm, not damages for past harm.)  The Court found that “defendant’s car rental locations would not be easy or even convenient choices for Gomez, and Gomez did not testify to any instance where he has actually rented a car in California or elsewhere.”  The Court observed that “there is no apparent reason to visit a website – certainly not for a second time – unless you intend to purchase or use the products or services described on the website.”

The Court also said a plaintiff must prove that the inability to access information on a website had consequences to have standing to sue:

Although the website’s inaccessibility allegedly initially prevented Plaintiff from learning the locations of Defendant’s rental cars, Plaintiff knew by the time he filed his Complaint that the locations were nowhere near El Monte and he did not demonstrate that they were close to any train or bus stations, or the airport that Plaintiff would have used to get to a California rental car agency in the first place. In short, Plaintiff did not demonstrate that this service was relevant to him, so the harm he suffered by being unable to access the website was merely “informational” and “dignitary.”

Judge Fisher thus held that “information” and “dignitary” harm is not sufficient to establish standing to sue and dismissed Gomez’s ADA claim.

The Court also dismissed Gomez’s California Unruh Act claim, finding that the statute does not apply to persons who were not physically in California (Gomez was in Florida when he visited the defendant’s website) when they experienced discrimination by a California-based business.

By Minh N. Vu

Seyfarth Synopsis:  A recent Second Circuit decision holds that a plaintiff’s encounter with an alleged legal violation on a website, without more, does not give that plaintiff standing to sue under Title III of the ADA.

New York federal courts have been inundated with website accessibility lawsuits in recent years and continued to lead the country with 2,074 cases filed in 2021.  By comparison, California came in at a distant second with only 359 filings for the same period.  Most of these 2,000+ New York lawsuits have been filed by a relatively small number of firms on behalf of blind plaintiffs who make vague and conclusory allegations about how they could not access the goods and services on dozens, if not hundreds of websites. Usually, these boilerplate complaints contain no information about what goods and services the plaintiffs actually wanted to access or why they needed these goods and services.

Thanks to a recent ruling by the U.S. Court of Appeals for the Second Circuit in Harty v. West Point Realty, defendants in these lawsuits should now have a stronger basis for getting the cases dismissed for lack of standing.  To have standing to bring a federal lawsuit, a plaintiff has to show that he or she has suffered a harm that is “concrete” and “particularized”.  In West Point, the Second Circuit made clear that simply encountering a barrier to access on a website is not a concrete and particularized injury.  In that case, the plaintiff sued a hotel located in West Point, Florida under the ADA for having a website with allegedly insufficient accessibility information (ADA regulations require that certain information be provided on the websites of hotels regarding their accessible features for people with mobility, vision, and hearing disabilities).  The Second Circuit upheld the district court’s dismissal of the lawsuit for lack of standing, finding that “[b]ecause [the plaintiff] asserted no plans to visit West Point or the surrounding area, he cannot allege that his ability to travel was hampered by West Point Realty’s website in a way that caused him concrete harm.”

The Second Circuit also made clear that the plaintiff’s inability to obtain information from the website alone was not a sufficient injury to confer standing.  On this point, the Court stated:

“[e]ven assuming that Harty can allege that he was deprived of information to which he is entitled by the ADA, he must also allege downstream consequences from failing to receive the required information in order to have an Article III injury in fact. In other words, Harty must show that he has an “interest in using the information … beyond bringing [his] lawsuit.  That he has not done. Harty, therefore, has not alleged an informational injury sufficient for Article III standing.”

In short, to bring a lawsuit about a website’s compliance with the ADA, a plaintiff has to show that he or she had a need for the information, goods and services offered by the website and that there were “downstream consequences” resulting from the alleged inability to use the website.

The Second Circuit is not the first Court of Appeals to reach this conclusion.  The Tenth Circuit and Fifth Circuit have all adopted this principle in the past year.  The Eleventh Circuit, on the other hand, recently decided that simply encountering a violation on a website could result in a concrete and particularized injury needed for standing.  Could there be a Petition for Certiorari to the Supreme Court forthcoming?

For the time being, West Point is binding on district courts in the Second Circuit, including those in New York where the vast majority of website accessibility lawsuits have been filed.  West Point’s usefulness for businesses defending website accessibility lawsuits will depend on the nature of the website at issue in a lawsuit and, of course, how well a complaint is drafted.  At a minimum, it will be more difficult for a plaintiff to claim that he or she was harmed by the inaccessibility of a website that offers unique goods, services, and information for which he or she does not have a need.

Edited by Kristina Launey & John Egan

By Kristina M. Launey & Minh N. Vu

Seyfarth SynopsisADA Title III website accessibility lawsuits filed in federal courts in 2021 jumped 14% over 2020, besting the 12% 2020 increase aided by a huge November 2021 spike in filings.

The numbers are in for total website accessibility lawsuit filings in federal courts in 2021, and they show a whopping 14% increase from 2020. The total number of lawsuits filed in federal courts alleging that plaintiffs with a disability could not use websites because they were not designed to be accessible and/or work with assistive technologies in 2021 was 2,895–372 more than 2020. This 14% increase in the number of lawsuits in 2021 exceeds the 12% increase we saw in 2020.  While these numbers pale by comparison to the explosion of cases we saw from 2017 to 2018 (an increase of 177%), the recent increases are still very significant.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2020: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (12% increase from 2019); 2021: 2,895 (14% increase from 2020). *The number of cases that could be identified through a diligent search.]

In the first 10 months of 2021, there were between 170 and 260 filings per month except for March and August with 329 and 139, respectively.  The filings surged in November 2021 to 499 largely due to one NY law firm which filed 357 of those suits.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2021 – Dec. 2021): Jan. 2021 (234), Feb. 2021 (256), Mar. 2021 (329), Apr. 2021 (220), May 2021 (196), Jun. 2021 (242), Jul. 2021 (172), Aug. 2021 (139), Sep. 2021 (179), Oct. 2021 (183), Nov. 2021 (499), Dec. 2021 (246), *The number of cases that could be identified through a diligent search.]

New York, Florida, and California federal courts continued to be the busiest by far, with California stealing the #2 spot from Florida in 2021. New York federal courts saw 2,074 lawsuits in 2021 (continuing upward from 1,694 in 2020, 1,354 in 2019, and 1,564 in 2018).  California saw 359 lawsuits (up from 223 in 2020, 120 in 2019, and 10 in 2018), and Florida saw 185 (continuing a downward trend of 302 in 2020, 526 in 2019, and 576 in 2018) lawsuits, as shown in the chart below. In fourth place at 167, Pennsylvania was only slightly down from its 173 lawsuits filed in 2020. Colorado dropped out of the top 10, and Illinois returned to the fifth spot with 34 suits—2 more than its tally of 32 in 2020 but (down from 91 lawsuits in 2019). Connecticut and Indiana remained in the top 10 with relatively meager numbers at 14 and 7, respectively, and newcomers Oregon and Wisconsin rounded out the top 10 with 5 and 4 filings, respectively.

These numbers do not account for the many demand letters sent out by law firms which never result in lawsuits, as well as lawsuits filed in state courts (mostly in California) which are more difficult to track.  These numbers also do not include lawsuits filed alleging that a mobile app is inaccessible, unless the lawsuit also alleged an inaccessible website.  In an unscientific search in 2019, we came across 203 lawsuits alleging a violation of the ADA due to inaccessible mobile apps all filed by three attorneys in Florida and New York; this year that number was closer to 50.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2021: NY 2,074, CA 359, FL 185, PA 167, MA 41, IL 34, CT 14, IN 7, OR 5, WI 4. *The number of cases that could be identified through a diligent search.]

If you’re wondering why California has so few website accessibility cases relative to New York, it’s because many plaintiffs prefer to file in state court where the law is generally more favorable toward plaintiffs, especially when the defendant is an online-only business.  We will be keeping an eye on Florida in 2022 to assess the impact of the Eleventh Circuit’s decision to wipe the Gil v. Winn Dixie case entirely out of the casebooks on grounds of mootness.  Before doing so, however, the Eleventh Circuit had issued a decision that established a fairly high hurdle for plaintiffs seeking to demonstrate an ADA violation in a website accessibility case, suggesting that the Eleventh Circuit may well reach the same conclusion again.  This decision could have a chilling effect on Florida plaintiffs in these types of cases.

***

About our methodology:  Our 2021 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability.  For example, there were a number of lawsuits in 2018-2021 (a very large explosion of such suits in 2021 in California) brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities.

By Minh N. Vu

Seyfarth synopsis:  The DOJ issued a new guidance on website accessibility that contains basic information about the ADA’s requirements for lay people but no new information for legal practitioners.

We can only speculate as to whether it was a response to the recent demand of 181 disability advocacy groups for regulations on website accessibility, but this past Friday, March 18, the U.S. Department of Justice (DOJ) issued an unexpected “Web Accessibility Guidance” for state and local governments and public accommodations under Titles II and III of the Americans with Disabilities Act (ADA).  Those looking for new legal insights from DOJ on this subject will be disappointed because the Guidance merely reiterates what experienced legal practitioners in this area already know based on DOJ’s prior statements.  The Guidance seems to be targeted at business owners and government employees who are unfamiliar with the DOJ’s position on website accessibility and/or legal basis for that position.  In fact, the DOJ’s press release explains that the Guidance “offers plain language and user-friendly explanations to ensure that it can be followed by people without a legal or technical background.”

The Guidance discusses the importance of website accessibility to people with disabilities and provides some examples of common barriers on websites.  In the section called “How to Make Web Content Accessible to People with Disabilities,” DOJ acknowledges that “[t]he Department of Justice does not have a regulation setting out detailed standards,” but insists that “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”  The DOJ further says that “[b]usinesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication.  But they must comply with the ADA’s requirements.”  (Emphasis added.)  Unfortunately, the DOJ does not discuss what it means by “flexibility.”  Likewise, the DOJ states that “[b]usinesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.”  (Emphasis added.)  But again, the DOJ does not specify the options from which businesses and state and local governments may “choose” to accomplish this goal.

On the question of how to make one’s website accessible, the DOJ states that “[e]xisting technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards, which the federal government uses for its own websites.”  Interestingly, while Section 508 requires conformance to WCAG 2.0 Level AA, DOJ has been insisting on the more demanding WCAG 2.1 Level AA in its recent settlements with places of public accommodation under Title III.

The Guidance then reminds covered entities that the DOJ considers website accessibility a priority and lists some settlements reached by the DOJ with state and local governments and businesses.  We saw some questions on social media after the issuance as to why the Guidance does not cover intranets (employee-facing technologies).  That would be covered by Title I of the ADA, which is enforced by the EEOC, not the DOJ.

Our takeaway?  After four years in which the Trump DOJ did very little to require businesses and state and local governments to make their websites accessible, the Biden DOJ felt the need to announce that website accessibility is back on the Civil Rights Division’s enforcement agenda, just as we predicted it would be.  Whether the DOJ takes any further action toward enacting regulations on this subject, as the 181 advocacy groups called upon it to do, remains to be seen.

Edited by Kristina Launey and John Egan

By Kristina M. Launey and Minh Vu

Seyfarth Synopsis: The Eleventh Circuit has refused to reconsider its decision to vacate its prior order and the trial court’s judgment because of mootness; meanwhile disability rights advocates demand regulatory action from DOJ on accessible websites.

On March 2, 2022, the Eleventh Circuit Court of Appeals denied Winn-Dixie’s request that the full panel of judges reconsider a single Eleventh Circuit judge’s order dismissing the appeal and district court proceeding as moot.  This ends what had been an over-six year saga in one of the most-watched website accessibility cases in the country.  Here’s your Cliffs Notes version of this drama:

In June 2017 a Florida federal trial court ruled in favor of the blind plaintiff, finding Winn-Dixie’s inaccessible website violated the ADA, holding Winn-Dixie responsible for third party content on its website, and ordering, among other things, that the website be brought into conformance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA by December 1, 2017.  According to court filings, Winn-Dixie complied with the order.

As we previously reported, in April 2021, the Eleventh Circuit Court of Appeals overturned the trial court’s verdict, finding that (1) the retailer did not violate the ADA because its website is not a place of public accommodation, and (2) the website did not pose an “intangible barrier” to his access to the goods, services, privileges, or advantages of Winn-Dixie’s physical stores.

Just a week later after the Eleventh Circuit’s order, the plaintiff filed a request that an en banc panel of judges reconsider the ruling, arguing that the issues in the case are of exceptional importance and that, among other things, the panel deviated from prior Eleventh Circuit precedent in rejecting the physical “nexus” standard.

At the end of 2021, the Eleventh Circuit dismissed the appeal as moot, vacated its prior decision as well as the district court judgment below, and remanded the case to the district court to dismiss as moot.  The Court concluded that the entire matter was moot because the injunction had expired while the appeal was pending for over four years.

Winn-Dixie apparently didn’t like this ruling and asked the Eleventh Circuit for rehearing en banc on whether the appeal and underlying case are moot.  The Eleventh Circuit has now denied that petition, putting an end to this six year saga unless Winn-Dixie decides to ask the Supreme Court to review the decision. Since the chances of the case being accepted by the Supreme Court are miniscule, this matter is likely over.

How does the Eleventh Circuit’s dismissal of the appeal and vacating of the judgment below affect the legal landscape?  The substantive decisions by the district court (often cited by plaintiffs) and the Eleventh Circuit (cited by defendants for a short time) are effectively erased from the case books and can no longer be cited for any purpose.  On balance, this is a good outcome for plaintiffs in the Eleventh Circuit because the decision set a very high standard for a violation.  The court had concluded, for example, the plaintiff’s inability to order prescriptions online for pick up at the store because of the website’s inaccessibility was not a barrier to his access to Winn-Dixie’s goods and services at the store.

Another Saga Begins (Anew?)

Meanwhile, on February 28, 2022, 181 advocacy groups—some of which had also at one time filed Amicus Briefs in the Winn-Dixie litigation—collectively published a “Joint Letter to Enforce Accessibility Standards” to Kristen Clarke, the head of the US Department of Justice (DOJ) Civil Rights Division which is responsible for enforcing the ADA.  The groups—led by the American Council of the Blind, American Federation for the Blind, the National Disability Rights Network, and the National Federation of the Blind—asked DOJ to “adopt enforceable online accessibility standards by the end of the current Administration.”

Cliffs Notes version of the regulatory saga: In 2010, DOJ issued an Advanced Notice of Proposed Rulemaking for Title II and Title III website regulations for state/local governments and public accommodations, respectively.  While there was some non-substantive activity around issuing accessibility standards for the websites of state and local governments covered by Title II of the ADA in 2016, the DOJ did not issue a single proposed rule during the entire Obama Administration.  In 2017, the Trump DOJ terminated these rulemaking efforts altogether.

The absence of regulations regarding web accessibility has been problematic for public accommodations which were hit with over 7,851 federal website lawsuits from the beginning of 2017 to the end of 2020.  This number does not include the numerous lawsuits filed in California state courts or demand letters that never turned into lawsuits.  The lack of clear standards has resulted in a body of law with conflicting decisions, and has made it very difficult for businesses to demand accessible websites from their web developers and web content from software vendors.  Thoughtful regulations that set clear standards and take into account the challenges businesses face in developing and maintaining accessible websites would be welcome by the business community and advocates alike.   While we have seen greater activity by the Biden DOJ in the website accessibility enforcement space recently, it would be surprising to see this Administration issue website accessibility final regulations in fewer than three years.  It is not impossible, but also not likely.

 

By Minh Vu, Kristina Launey and Susan Ryan

Seyfarth Synopsis:  Plaintiffs continue filing ADA Title III lawsuits in record numbers with no sign of stopping.

As regular readers of this blog know, the number of ADA Title III lawsuits filed in federal court in 2020 dipped slightly under 11,000, but the plaintiffs’ bar came roaring back in 2021. There were at least 11,452 federal filings last year – an all-time record since we started keeping track in 2013 when there were only 2,722 suits.  That’s a 320% increase in eight years.

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

Has the world become more inaccessible?  We don’t think physical facilities are any less accessible than they were in 2013.  If anything, they should be more accessible as new buildings built in compliance with the ADA Standards for Accessible Design replace old ones and more time has passed for businesses to engage in readily achievable barrier removal in pre-ADA facilities.  So what is driving these huge numbers?  We haven’t finished our tally for 2021 but we know that in 2020, more than 2,500 lawsuits were filed in federal court about the accessibility of websites – a type of lawsuit that was rare to non-existent back in 2013.  In addition, in 2021, a number of firms filed dozens, if not hundreds, of cookie-cutter website accessibility lawsuits.  Plaintiffs’ lawyers also filed hundreds of lawsuits on a new theory that that hotels violated the ADA by failing to disclose sufficient information about their accessible rooms on reservations websites.  One firm filed over 550 of these cases starting at the end of 2020 and continuing through 2021.  And, of course, the cases alleging physical access barriers in facilities such as shopping centers, restaurants, and hotels keep on coming – even in 2020-21 when indoor activities were often shut-down.

What do the numbers tell us?

California remains a lawsuit hotbed, no doubt because plaintiffs can add a state law discrimination claim under the Unruh Act and get $4,000 in statutory damages for every incident of discrimination without even having to prove an actual injury.  The 5,930 California filings accounted for just over half the total number of filings nationwide.  New York was a distant second, with 2,774 lawsuits, and Florida was third, with only 1,054 lawsuits.  In short, there were more ADA Title III suits filed in California than in all other 49 states combined.

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

Rounding out the top ten were Texas (337), Pennsylvania (161), Georgia (160),  Nevada (130), Colorado (102), Illinois (99), and Tennessee (91).  Nevada and Tennessee are newcomers to the top ten, displacing New Jersey and Massachusetts which fell to eleventh and thirteenth places with 70 and 51 lawsuits, respectively.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2021 – December 31, 2021: California: 5, 930; New York: 2,774; Florida: 1,054; Texas: 337; Pennsylvania: 161; Georgia: 160; Nevada: 130; Colorado: 102; Illinois: 99; Tennessee: 91]

There were no ADA Title III federal lawsuits at all in Alaska, Delaware, Idaho, Iowa, Montana, Nebraska, and North Dakota.

March and November 2021 were the busiest months for new filings with 1,108 and 1,148 cases, respectively, while July and December 2021 were the least busy filing months with 743 and 732 filings.  Even plaintiffs’ lawyers have to go on vacation and celebrate the holidays, it seems.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2021 – December 31, 2021: January: 1,108; February: 994; March: 1,240; April: 1,018; May: 1,003; June: 941; July: 743; August: 864; September: 836; October: 825;  November: 1,148; December: 732]

We predict 2022 will be comparable to 2021 unless there is another COVID-related shutdown, but that seems unlikely at this point.  Plus, ADA Title III lawyers have adapted to working remotely and are more productive than ever.

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

By Eden Anderson

Seyfarth Synopsis: The DOJ issued guidance on two COVID-era access issues, confirming outdoor business operations must comply with the ADA and prohibiting medical providers from adopting blanket bans on companion accompaniment.

The Department of Justice (DOJ) recently updated its Common Questions About COVID and the ADA (“Common Questions”) to include information on issues of interest to businesses with outdoor operations, including so called “streateries,” and to medical providers.  For restaurants and retailers that created sidewalk and parking-lot retail and eating areas to adapt to pandemic health restrictions, the DOJ makes clear those areas must be accessible to individuals with disabilities. For medical providers, the DOJ emphasizes a case-by-case analysis must be conducted of companion accompaniment requests.  The previous version of the DOJ’s Common Questions addressed only how the pandemic did not alter rules for admission of service animals and issues of more relevance to employers, including whether long COVID qualifies as a “disability.”  The newly added FAQs provide important new guidance for businesses grappling with COVID-era operational challenges.

Outdoor Business Operations Must Comply with the ADA

The new information confirms that outdoor restaurant and retail areas, many of which were introduced during the pandemic, must comply with the ADA.  Businesses must ensure there is an accessible route from the accessible parking to the outdoor eating or retail area by making sure outdoor fixtures (e.g., sandwich boards, heaters, planters, chairs, tables, umbrellas, etc.) are not blocking the path of travel.  Additionally, businesses must ensure there is an accessible route through any outdoor eating or retail space, that any outdoor check out area is accessible, and that outdoor operations do not block accessible parking spaces.

The guidance also reminds businesses with outdoor operations to be cognizant of objects that protrude into the sidewalk at heights that cannot be detected by a person with visual disability (e.g., umbrellas, canopies, table tops, tree branches or displays).  Even if the protruding object is something maintained by the city such as, for example, a tree branch, the business is obligated to report the issue to the city to have the tree trimmed.

Medical Providers Cannot Adopt Blanket Bans on Patient Companions

For medical providers trying to balance patient and provider safety with their ADA obligations, the DOJ warned that, even in the midst of the pandemic, a “blanket” rule banning all non-patients from entry into a medical facility would be impermissible.  Rather, the medical provider must consider whether a patient with disability needs someone with them to equally access medical care, and balance that need against legitimate safety concerns associated with COVID transmissibility.

For example, while a person with a mobility disability would not need a companion to assist them with mobility while in a medical facility, a person with Down Syndrome who cannot speak and who is in severe pain may need a companion to be allowed entry to ensure effective communication.  In other instances, a medical provider may instead allow for a companion’s remote participation in the patient’s care; for example, where a patient suffers a traumatic brain injury and wants their COVID-positive spouse to be involved in care discussions (we note the COVID-positive is likely key here, as the DOJ would likely otherwise require the companion be allowed in person absent extreme circumstances).  These three examples provided by the DOJ illustrate how fact-intensive the effective communication inquiry can be, with the DOJ encouraging providers to “think creatively” about how to best serve the needs of a patient with disability.

Given the importance of outdoor dining during the pandemic, it is important to ensure that your outdoor business operations are accessible.  For medical providers, the new guidance underscores the importance of ensuring that your staff conducts a case-by-case analysis of companion requests from individuals with disabilities.

Edited by Kristina Launey and Minh Vu

By Minh Vu

Seyfarth synopsis:  Winn-Dixie has asked the Eleventh Circuit to recall its decision to dismiss the appeal and underlying lawsuit as moot and that the decision be reconsidered by a full panel of Eleventh Circuit judges.

A few weeks ago we reported on the Eleventh Circuit’s decision to dismiss as moot the appeal filed by Winn-Dixie challenging a district court’s finding that the grocery retailer had violated the ADA by having an inaccessible website.  In its decision, the Eleventh Circuit didn’t just dismiss the appeal and its prior decision reversing the district court.  It also vacated the district court’s judgment for Plaintiff and remanded the case to the district court with an order that the district court dismiss the case as moot. The Eleventh Circuit’s action to dismiss the district court’s prior judgment on grounds of mootness is very surprising as the case was not moot at the time of the district court’s judgment and issuance of an injunction.  The appeal to the Eleventh Circuit only became moot because – by the time the Eleventh Circuit issued a decision on the appeal more than three years after the district court decided that Winn-Dixie had violated the ADA — the district court’s injunction requiring Winn-Dixie to make its website accessible had already expired and the website had been made accessible.

The Eleventh Circuit’s decision to dismiss the entire case as moot put an end to a five-year litigation saga — or so we thought.  However, several days after the decision, Winn-Dixie filed a motion to recall and stay the decision so that it can file a petition for rehearing en banc (i.e., a full panel of judges) on whether the appeal and underlying case are moot.  In the motion, Winn-Dixie argued that they “are not moot because, among other things, formal declaratory relief was entered below and the issue is capable of repetition, yet evading review, and the panel’s order conflicts with decisions of the United States Supreme Court and this Court and involves questions of exceptional importance concerning the ability of litigants to seek appellate review after a full trial on the merits.”  Plaintiff Gil opposed this motion.  How the Eleventh Circuit rules on Winn-Dixie’s forthcoming petition for rehearing en banc is to be determined, but only a tiny fraction of such petitions are usually granted.

In sum, the Winn-Dixie saga continues into its sixth year, underscoring the larger point that litigating these cases requires a long term commitment from both sides to paying hefty attorneys’ fees which are not always recoverable.  While plaintiffs in ADA lawsuits will be awarded reasonable fees and costs if they secure a judgment in their favor, in this rather unusual case, the fees that had been awarded to plaintiff Gil may be in jeopardy if the Eleventh Circuit’s order to vacate the district court’s judgment and dismiss the case as moot stands.  (This is somewhat ironic because plaintiff Gil had argued in his petition for rehearing en banc that only the appeal — not the district court’s judgment – was moot, but the Eleventh Circuit wound up vacating both and placing Gil’s fees in jeopardy.)  Unlike plaintiffs in ADA Title III cases, defendants can only recover fees if the claims on which they prevailed were frivolous or groundless – a more demanding standard.  The prospect of high defense costs is one reason why so many ADA Title III resolve early.

By: Ashley S. Jenkins and Minh N. Vu

Seyfarth Synopsis:  Hotels have been fighting a tsunami of hotel reservations website lawsuits with good results so far.

In the past few years, a dozen or so plaintiffs represented by a handful of law firms have sued many hundreds of hotels for allegedly not providing enough accessibility information about their accessible rooms and common areas on their reservations websites, as required by ADA regulations.  While some hotels have resolved these claims early, many have chosen to fight these suits, with some excellent results.  Below are some highlights.

Center for Disability Access Lawsuits.  As we’ve reported, a southern California firm named the Center for Disability Access a/k/a Potter Handy (CDA), has now filed over 565 of these cases with nine different plaintiffs.  These plaintiffs insist that the ADA regulations require the disclosure of very specific details, down to detailed measurements, for some accessibility features in accessible rooms.  Most hotels do not currently provide this degree of detailed information, based on guidance the U.S. Department of Justice (DOJ) issued when these regulations were first adopted.

So far there have been nearly ninety district court decisions rejecting these demands for detailed disclosures and dismissing these lawsuits.  These courts have found that — based on the DOJ’s guidance — such a detailed list of disclosures is not required.  The CDA has appealed four adverse decisions to the Ninth Circuit Court of Appeals, two of which are scheduled for oral argument on February 14, 2022.

Two recent decisions in these CDA lawsuits are noteworthy because they were dismissed on the ground of mootness rather on the merits like the others.  In Langer v. Music City Hotel LP , U.S. District Judge Phyllis Hamilton of the Northern District of California held that a hotel’s voluntary modification of the accessibility information on its hotel reservations website successfully mooted the ADA Title III claim.  The court dismissed the case and declined to exercise supplemental jurisdiction over plaintiff’s state law claims under California’s Unruh Act.  Similarly, in Whitaker v. Montes, U.S. District Judge Edward Chen held that while defendants must prove that “the allegedly wrongful behavior could not reasonably be expected to recur” to establish that a case is moot, the hotel had met that heavy burden by taking prompt action to update the accessibility information on its website.  “Although websites can easily be changed, it still took time, effort, and money for the Hotel to make that change, and now that the website information is up, there is little incentive for the Hotel to take it down,” the court reasoned.

Tenth Circuit Finds No Standing for Repeat Plaintiff Deborah Laufer.  Plaintiff Deborah Laufer has filed at least 300 lawsuits in the past five years against hotels all over the U.S. alleging that they have not provided sufficient accessibility about their hotels on their reservations websites.  The Tenth Circuit recently issued a very detailed decision in Laufer v. Looper holding that Ms. Laufer did not have standing to sue a hotel for insufficient accessibility information because she had no concrete plans to visit the town in which the inn was located or to book a room at the inn.  Thus, the alleged lack of accessibility information on the website did not result in the “concrete injury” that is necessary for her to have standing to sue.  The court explained: “[A] violation of a legal entitlement alone is insufficient under Spokeo and TransUnion to establish that Ms. Laufer suffered a concrete injury.  Article III standing requires a concrete injury even in the context of a statutory violation. And that concrete injury must affect the plaintiff in a personal and individual way.” (citations and internal quotations omitted).

The Tenth Circuit’s analysis in Laufer reminded us of the California Court of Appeal’s decision in Thurston v.Omni in which it found that a plaintiff must demonstrate an intent to use a defendant’s services to have standing to bring a claim under the Unruh Act.  The plaintiff there claimed that she had standing because she encountered a barrier on the defendant’s website that prevented her from using it.  The Court of Appeals found this injury to be of no consequence for standing purposes because a jury had found that she had no intent to do business with the hotel.

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There will be more decisions in cases alleging deficient accessibility information on reservations websites coming out this year.  Decisions in the pending Ninth Circuit appeals – depending on what they say – will either put an end to hundreds of pending suits or encourage more lawsuits.  Stay tuned for more developments.

By Minh N. Vu

Seyfarth synopsis:  We predict 2022 will look a lot like 2021 with roughly the same number of lawsuits and DOJ pushing the boundaries of the ADA.

Like 2020, 2021 was a tough year for businesses.  Still dealing with the constantly-changing COVID-19 landscape, businesses were also bombarded with what may be another record number of ADA Title III federal lawsuits as well as rejuvenated U.S. Department of Justice (DOJ) enforcement activities.  Here are our predictions for 2022.

DOJ Enforcement Activities.  After little activity in the Trump era (except for the significant withdrawal of the web accessibility rulemaking effort), as we predicted, the new Biden Administration DOJ ramped up enforcement activity in 2021 and is pushing the law’s boundaries.  For example, in two recent settlements concerning vaccine websites of two retailers, the DOJ required conformance with WCAG 2.1 AA, even though the legal standard for the accessibility of its own websites and those of other federal agencies (under Section 508 of the Rehabilitation Act) is WCAG 2.0 AA. (DOJ has yet to issue regulations adopting any version of the WCAG for public accommodations websites and there is no pending rulemaking to do so.)  As another example, at the end of 2021, DOJ sued a chain of 23 medical eye centers that provide eye care and outpatient surgery for not having personnel to lift patients who cannot independently transfer onto exam chairs or surgery tables.  The Biden DOJ also filed four Statements of Interest in pending lawsuits in support of ADA plaintiffs within twelve months – a dramatic change from the Trump DOJ which rarely weighed in on any ADA issues.  We expect in 2022 and beyond that the DOJ will continue to be more aggressive in its enforcement of Title III of the ADA, try to expand the reach of the ADA, and be more supportive of plaintiffs in their private lawsuits.

Important Appellate Decisions.  In April 2021, the Eleventh Circuit Court of Appeals overturned a Florida district court decision that grocery retailer Winn-Dixie had violated the ADA by having an inaccessible website. The Eleventh Circuit found that the website barriers in question did not prevent the plaintiff from accessing the goods and services offered at the retailer’s stores.  In May 2021, the plaintiff filed a petition for rehearing en banc.  We thought the Court would not rule until 2022 but then a decision issued at the end of 2021.  The Court dismissed the appeal as moot, vacated its prior decision as well as the district court judgment below, and remanded the case to the district court to dismiss as moot.  We will discuss this outcome in a forthcoming post, but with this case dismissed, there are no federal appeals involving website accessibility pending.

On the opposite side of the country, the lodging industry is awaiting decisions from the Ninth Circuit Court of Appeals in four cases concerning an ADA Title III regulation that requires hotels to disclose information about the accessibility of the hotel on their reservations websites.  As we previously reported, one law firm in southern California filed over 565 lawsuits on behalf of a handful of plaintiffs alleging that the defendant hotels did not provide enough information about their accessible rooms and/or common areas on their reservations websites.  Nearly 90 district courts have rejected the plaintiffs’ demands for more information, and four of those decisions are on appeal.  How the Ninth Circuit decides these cases will impact hundreds of lawsuits that are stayed pending these appeals.  Oral argument in two of the cases is scheduled for February 14, 2022.

Federal Lawsuit Filings.  We are still crunching the numbers but the number of ADA Title III lawsuits filed in federal courts in 2021 will certainly top 11,000, and likely will continue that upward trajectory in 2022.

Website Accessibility Lawsuits.  As we reported at the end of 2021, lawsuits concerning allegedly inaccessible websites – usually by blind plaintiffs who use screen-readers to access websites –  continue to be filed at a rapid pace.  The Southern District of New York is now a favored venue for the plaintiff’s bar, along with California state and federal courts.   Website accessibility lawsuit activity in Florida quieted down after the Eleventh Circuit’s pro-business Winn-Dixie decision which has now been vacated as discussed above.  Perhaps as a result of this ruling, some plaintiff’s lawyers in Florida have now taken to filing their website accessibility discrimination complaints with Florida county human rights commissions instead of in federal court.  The benefit of filing under state and local non-discrimination laws is that plaintiffs can recover damages, unlike under the ADA which only provides for injunctive relief.

COVID-19 Related Litigation.  The pandemic and mask-wearing requirements imposed by businesses resulted in a relatively small number of lawsuits by plaintiffs alleging that they should be exempt from mask requirements because of a disability.  A number of these lawsuits were dismissed early without meaningful legal analysis, but some continue to be litigated.  Thus, we may see some substantive decisions this year on whether businesses have an obligation to modify their mask (and/or in some cases mandatory vaccination) policies for people with legitimate disabilities and what those modifications look like.

Revived Rulemaking for Equipment and Furniture.  The Obama DOJ repeatedly stated it would propose regulations for non-fixed equipment and furniture (including hotel beds) but issued no proposed regulations during the entire eight years of the Administration.  In 2017, consistent with its anti-regulation agenda, the Trump Administration pulled the plug on this rulemaking effort altogether.  In December 2021, the DOJ announced that it would issue an Advanced Notice of Proposed Rulemaking (ANPRM) in the Fall of 2022 on equipment and furniture.  While clear rules for beds in accessible hotel rooms would be very helpful for the hotel industry, we are not going to be holding our breath given DOJ’s prior inaction on this issue.

Meanwhile, the U.S. Access Board announced that it will issue an ANPRM for fixed self-service transaction machines, self-service kiosks, information transaction machines, and point-of-sale devices by April 2022.  Since an ANPRM precedes the issuance of a proposed rule, it will be many years before there will be regulations on these self-service technologies that apply to public accommodations.  Regulations issued by the Access Board are not binding on public accommodations until the DOJ (or any other federal agency) adopts them in a rulemaking of its own.  It’s a two-step process that will take years.  That said, the absence of regulations does not necessarily mean that self-service machines do not need to be accessible, as the DOJ previously stated in 2014.

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In sum, it’s going to be a busy year for businesses on the ADA Title III front. Businesses are well-advised to review their current accessibility policies, procedures, practices, and training programs to ensure compliance with the ADA and equivalent state laws.

Edited by Kristina Launey