Seyfarth Synopsis: ADA 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.