Search results for: new york

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Image of a shopping cart on top of a computer.

By: Lotus Cannon and Kristina Launey

Seyfarth Synopsis: Are web-only businesses subject to Title III? A Minnesota federal court joins the controversy and says yes.

Courts around the country are split on the issue of whether a “place of public accommodation” subject to Title III of the Americans with Disabilities Act must have a physical location where it serves the public.  A federal trial court in Minnesota recently denied a web-only business’s motion to dismiss, ruling that web-only businesses are covered by Title III, siding with the courts that have concluded that no physical place is required.

Recognizing the disagreement among federal appellate and trial courts on this issue, as well as the fact that the Eighth Circuit Court of Appeals (within which the District of Minnesota sits) has not opined on the issue, the Court went to great lengths to justify its decision that a “public accommodation” does not have to be a physical place.

First, the Court sought to distinguish the Third, Sixth, and Ninth Circuit decisions finding that public accommodations are limited to “physical structures” by stating that those cases were about whether the ADA applied to the content of insurance policies, not websites. 

Second, the Court stated that those courts had “allowed the canon of noscitur a sociis to play too great a role in their analysis.”  This cannon of statutory construction states that a word is known by the company it keeps and is used to interpret ambiguous words.  The Court insisted that the application of this rule “ignores the maxim that a remedial statute should be read broadly” and runs counter to the “ADA’s intent, which Congress enacted ‘to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.’” 

Third, the Court gave no weight to the dictionary definition of the word “place” in the phrase “place of public accommodation” because that definition, in the Court’s view, was “inconclusive.”

Fourth, the Court noted that Congress’ failure to amend the ADA to explicitly include websites should not be construed as Congress’s intention to exclude websites. To the contrary, the Court posited that the lack of legislative action could be interpreted as an understanding that no amendment is required to cover online-only businesses.

The bottom line is that the Court found the exclusion of online-only businesses from the ADA’s coverage inconsistent with the ADA’s mandate to ensure equal access for individuals with disabilities to businesses’ goods and services, noting that shopping via retail websites is not meaningfully different from shopping at physical stores. 

While we have yet to see other district courts in the Eighth Circuit weigh in on this issue, this decision may spark a trend of web accessibility lawsuits in Minnesota and the Eighth Circuit, as we have seen from plaintiff-friendly rulings in New York. 

Edited by: Minh N. Vu

By Minh N. Vu, Kristina Launey, and Susan Ryan

Seyfarth Synopsis: The two-year decline in ADA Title III filings stopped in 2024, with plaintiffs increasing filings back to 8,800 complaints in 2024.

When we first started tracking ADA Title III lawsuits in 2013, the total for the year was only 2,722.  The number climbed steadily to an all-time high of 11,452 in 2021, and then fell to 8,694 in 2022.  2023 saw another decrease to approximately 8,200 filings.  What would 2024 bring? More of the same or a return to the ADA Title III litigation heyday?  The answer is: something in between.

In 2024, plaintiffs filed 8,800 ADA Title III complaints in federal district courts.  This represents a 7% increase from 2023.  And it’s more than triple the number of filings we saw in 2013, when we first started compiling these numbers.

[Total Number of ADA Title III Federal Lawsuits Filed Each Year, January 1, 2013 – December 31, 2024; 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; 2022: 8,694 – 24% decrease from 2021; 2023: 8,227 – 5% decrease from 2022; 2024: 8,800 – 7% increase over 2023]

After two years of being behind New York, California regained its top position with 3,252 filings.  That’s a whopping 37 percent increase over 2023, but still significantly lower than its all-time high of 5,930 in 2021.  One law firm drove the increase by filing 2,598 of these cases. 

New York took second place, with 2,220 cases.  We attribute the decrease to several plaintiffs’ firms now filing in New York or New Jersey state court after several unfavorable decisions from NY federal judges. 

Florida came in third for the seventh year in a row, with 1,627 cases.  Rounding out the top ten were Texas (224) Illinois (199), Pennsylvania (143), Missouri (135), Minnesota (134), New Jersey (134) and Georgia (107).  Minnesota is a newcomer to the top ten list, taking the space left by Tennessee, which dropped out of the list.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2024 – December 31, 2024:  New York: 3,252; California: 2,220; Florida: 1,627; Texas: 224; Illinois: 199; Pennsylvania: 143; Missouri: 135; Minnesota: 134; New Jersey: 134; Georgia: 107]

Every year, there are some states with no ADA Title III filings at all.  This year, those states are Alaska, Hawai’i, Iowa, Montana, Vermont and West Virginia.  Surprisingly enough, North Dakota, which has had zero lawsuits from 2013 – 2023, broke its streak with two pro se cases in 2024 about pool lifts – a topic we’ve heard little about in a while. 

[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2024: 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; 2022: 2,519; 2023: 2,380; 2024: 3,252; 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; 2022: 1,350; 2023: 1,415; 2024: 1,627; 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; 2022: 3,173; 2023: 2,759; 2024: 2,220]

Filings remained fairly steady throughout the year, ranging from a low of 633 in January (often a low month) to a high of 815 in October.  July and August were tied for second place with 750 filings each month.  The only other month of the year below 700 filings was June with 676.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2024 – December 31, 2024: January: 633; February: 739; March: 792; April: 710; May: 730; June: 676; July: 749; August: 750; September: 739; October: 815; November: 744; December: 723]

What’s in store for 2025?  We predict the numbers will remain between 8,000 and 9,000.  Although we predict less enforcement of Title III of the ADA by the Trump Administration’s Department of Justice (DOJ), the reduction will have little impact on the number of lawsuits filed because the DOJ rarely had to file suit to enforce the law, even under Democratic administrations.  Whether private citizens and advocacy groups will step up enforcement efforts to fill the void remains to be seen.  We do expect private lawsuits to increase, though they will likely file more in state courts than federal courts, according to the trends we’ve anecdotally been seeing. We only report on federal lawsuit filings – not state filings – because the state court reporting services are less reliable for accurate data. For more predictions and our 2024 year in review, please see our prior post.

A note on our methodology: Our research involves 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.

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Image of a legal gavel.

By: Pamela C. Huynh, Minh N. Vu and John W. Egan

Seyfarth Synopsis:  Concerned that serial plaintiffs are not actually ensuring that defendants are removing access barriers under their confidential settlement agreements, EDNY Judge Cogan takes charge. 

Be careful what you ask for – that’s the adage that a serial plaintiff and her attorney should have considered before asking U.S. District Judge Cogan to make defendants pay the $9,000 they still owed under a settlement agreement resolving an ADA Title III access suit.  Instead, they got a harsh rebuke and a decision that conditioned their judgment for the overdue payment on their (1) disclosure to the court of all of confidential settlement agreements for past EDNY lawsuits, and (2) submission of evidence that remediation has been completed under all of those agreements. 

The plaintiff in this case had sued the defendants, a restaurant and an affiliated property company, with a “cookie-cutter complaint” listing more than 15 pages of physical accessibility violations.  The parties resolved the case in open court with an agreement that required a $10,000 settlement payment and only a handful of changes to the restaurant.  When the defendants failed to pay $9,000 of the settlement, the plaintiff filed a motion with the court seeking an order compelling payment, but did not reference any of the remediation work required under the agreement.

Judge Cogan was not pleased.  He first pointed out that he had no authority to order injunctive relief to remedy a breach of the agreement, and that the only relief available was a judgment for $9,000.  Next, Judge Cogan expressed concern “that Title III of the ADA has primarily become a tool not used to ensure disabled persons can access privately operated public accommodations but instead used by a specialized plaintiff’s bar against ‘mom and pop’ operations (i.e., bodegas, bars, restaurants, retail and convenience stores) to extract attorneys’ fees.”  Judge Cogan also pointed out that the vast majority of ADA Title III settlements result in a “plain vanilla stipulation of dismissal (or a notice of dismissal if the defendant agrees to settle before appearing),” where, “[f]or all the court knows, nothing happened except the payment of a nominal sum to the plaintiff and the payment of a far more substantial fee to the plaintiff’s lawyers.”   “[T]o ensure that this action has been brought for plaintiff’s benefit, and not the benefit of her attorney,” Judge Cogan stated that the court would stay the judgment for the outstanding $9,000 until the plaintiff proved that the remedial changes required in the agreement at issue — as well as in all other agreements reached by her in cases filed before the court— have been fully implemented.  The decision also required plaintiff to provide copies of all of her other settlement agreements from cases before this court for its review. 

Plaintiff promptly filed a letter seeking clarification of the decision in which she also pointed out that the time for the defendants to complete the remediation had not yet expired so she did not reference it in her original motion.  In response, the court issued a Final Injunction and Order that differed from the prior decision.  The Final Injunction and Order entered a judgment against defendants, jointly and severally, for the $9,000 owed under the settlement agreement, and directed the defendants to complete the agreed-upon remediation by May of this year.   The Court then issued a clarifying Order, that same day, indicating that “[t]he only cases requiring proof of performance are those that have been brought before the undersigned.” 

While the Final Injunction and Order and clarifying Order tempered the initial decision, the matter is another example of district judges in New York becoming more frustrated that Title III of the ADA has become “a means of securing fees for plaintiff’s attorney[s]” and not a means of improving accessibility for individuals with disabilities.  It appears that judges in New York may be more willing to take matters into their own hands to ensure that when serial ADA litigants resolve cases, remediation of access barriers is actually the result.

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Image of a pen resting on an agenda labeled 2025.

By Minh N. Vu

Seyfarth Synopsis: 2024 saw some interesting developments and an uptick in lawsuit filings from 2023; expect less ADA Title III enforcement and rulemaking activity from DOJ in 2025.

The first quarter of this century concluded with yet another busy year for ADA Title III litigation.  While we are still finalizing the numbers, 2024 saw a meaningful increase in federal ADA Title III lawsuits from 2023.  There were also some noteworthy facts and moments. 

Most Prolific Lawsuit Filers.  According to our search in Courthouse News Service, four law firms each filed more than 100 federal ADA Title III lawsuits last year.  So Cal Equal Access Group was the most prolific, filing a whopping 2,598 federal ADA Title III lawsuits in 2024.  Stein Saks in New York trailed behind with 395 lawsuits, followed by Sconzo Law which filed 193 lawsuits, and Gottlieb Associates with 190 lawsuits.  Indeed, the twenty most prolific firms were responsible for more than 4,000 of the federal filings last year. This, of course, doesn’t include lawsuits filed in state courts or demand letters that never appear on court dockets.  

Self-Service Kiosks.  While there have been a number of cases regarding self-service technologies over the years, the two most significant class action battles we have seen regarding the accessibility of self-service check-in kiosks to the blind continue after the federal district courts certified national injunctive relief and California damages classes.  One case went to trial and resulted in a judgment for the plaintiff who submitted fee petition in excess of $10M.  Both cases are on appeal.  These cases underscore the importance of considering accessibility when purchasing self-service kiosks and other self-service technologies.  While providing prompt employee assistance can be an alternative to having fully accessible self-service kiosks when no private information is involved, businesses must seriously consider whether such assistance will likely be provided where the kiosks are installed.

Nondairy Milk Litigation Against Coffee Retailers.  One law firm filed class action lawsuits on behalf of various alleged lactose intolerant/dairy allergic plaintiffs against a number of coffee retailers claiming that the additional charge all customers must pay for customizing beverages with non-dairy milk constitutes disability discrimination under the ADA.  Two federal courts have granted motions to dismiss the complaints with leave to amend, and the ADA Title III plaintiff’s bar does not seem interested in jumping on what appears to be a losing bandwagon.

Website Accessibility.  Plaintiffs continued to file large numbers of lawsuits alleging that blind users have been denied access to websites with digital barriers, and the DOJ pursued aggressive enforcement actions on this basis. While few of these cases are litigated, let alone on a class basis, in 2024 a California law firm obtained class certification in one such suit and thereafter settled the case (subject to court approval) for more than $6M in damages and fees.  In an interesting turn, the federal court rejected the proposed class action settlement because, under the agreement, any unclaimed funds would revert back to the defendant.  The court’s rejection of the class settlement may spell trouble for the resolution of that case.

Also, on the subject of websites, in 2024, the U.S. Department of Justice (“DOJ”) issued final regulations containing accessibility requirements for the websites, mobile apps, and other web content of state and local governments, as we have previously discussed.  Just a few days ago, the DOJ followed up with a “resource” document to help covered entities “figure out what they should do to comply with the rule.”  These regulations and the resource document provide a useful roadmap for (but are not binding upon) public accommodations that are developing digital accessibility policies, programs, and processes. 

The DOJ.  Anecdotally — based on our own handling of DOJ investigations for clients — it seems that U.S. Attorneys’ Offices across the country significantly ramped up their ADA Title III enforcement efforts in the past four years.  We saw many more investigations into complaints concerning physical access barriers at public accommodations, websites, and hotel reservations practices.  In one settlement agreement with a hotel company, the DOJ expressed its position – not expressly stated in the ADA regulations for hotel reservations – that (1) accessible hotel rooms must be bookable via loyalty program points, and (2) accessible rooms must be bookable on some third party reservation services.

Physical Access Barriers.  We continued to see a number of lawsuits about physical access barriers in public accommodations, as well as complaints about service animals being subjected to pet fees or paperwork requirements. 

What’s in store for 2025?

We predict that the ADA Title III plaintiff’s bar and their clients will continue to file lawsuits at roughly the same level as 2024.  Most cases will be about physical or digital access barriers.  A smaller percentage will be about operational issues such as a failure to make reasonable modifications to normal policies, practices, and procedures, or provide auxiliary aids and services to ensure effective communication.  In the effective communication category, a new type of case has emerged involving blind plaintiffs alleging that public accommodations must provide digital wayfinding technology, instead of providing employee assistance to read written information or navigate the facility.  We see this as an uphill battle for plaintiffs as the regulations explicitly allow employee assistance to facilitate effective communication.

We believe there will be a significant change in how the DOJ enforces Title III of the ADA.  In the first Trump Administration, the DOJ seemingly conducted very few investigations into allegedly inaccessible websites or other digital content. The second Trump Administration will likely repeat this approach.  The DOJ may also be more flexible in negotiating resolutions with public accommodations.  One thing is certain:  The DOJ under President Trump will not be looking to expand the scope of the ADA’s coverage.

The incoming administration will also be less likely to weigh in on any private party ADA Title III lawsuits through intervention or filing of Statements of Interest – at least in favor of plaintiffs.  And, finally, given the Trump Administration’s mandate to reduce regulations, new regulatory activity in the ADA Title III space will be very unlikely.  This means pending rulemakings for accessible self-service kiosks and EV charging stations at the U.S. Access Board may stall.

Stay tuned to our blog for updates, and Happy 2025!

Edited by Kristina Launey & John W. Egan

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Image of computer and coffee mug

By: John W. Egan and Minh N. Vu

Seyfarth Synopsis: A recent decision holding that web-only businesses cannot be sued over the accessibility of their website under the ADA is the first of its kind in the Southern District of New York and may cause forum-shopping serial plaintiffs and their counsel to shift to state court. 

The Chief Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York (SDNY) issued a ruling this week dismissing a website accessibility lawsuit filed under the ADA because the website was not associated with any physical location where goods and services are provided to the public.  This decision, in Mejia v. High Brew Coffee Inc., is a noteworthy development because it conflicts with the decisions of many other judges in the SDNY who have held that website-only businesses are covered under the ADA.  The first decision in New York federal court came from Judge Weinstein of the Eastern District of New York (EDNY) in Andrews v. Blick Art Materials, concluding that the ADA covers websites as places of public accommodations.  It should be noted, however, that not all EDNY District Judges have followed Judge Weinstein’s lead.  In 2021, Winegard v. Newsday (Komitee, J.) and Suris v. Gannett (Cogan, J.) went another way, holding that the defendant newspaper publishers did not qualify as a covered “place of public accommodation” under the ADA.  In the months following those two decisions, we noted a 43 percent decrease in the number website accessibility filings in the EDNY.

In High Brew Coffee, the plaintiff alleged he is a blind screen reader user who could not purchase “a twelve pack of Double Expresso flavored coffee” on two occasions because the website was inaccessible.  After reciting the split among the U.S. Courts of Appeals on the question of whether the ADA covers websites without any connection or relationship to physical places of public accommodation, Chief Judge Swain analyzed the Second Circuit’s decision in Pallozzi v. Allstate Life Ins. Co.  That case has been cited by other SDNY District Judges to support their conclusion that websites are places of public accommodation, even though Pallozzi merely held that the ADA’s non-discrimination provisions applied to the allegedly discriminatory terms of an insurance policy purchased at an actual, brick and mortar insurance office.

Chief Judge Swain agreed with the EDNY Judges who interpreted Pallozzi to hold that the ADA regulates the sales of insurance policies at insurance offices, and held that the existence of a physical place is a “conditional precedent . . . [to concluding that] the goods and services sold by that place of public accommodation are swept within the ADA’s remit.” The Chief Judge also analyzed the text of the covered categories of “places of public accommodation” enumerated in the ADA for their plain meaning, and considered Congressional intent dating back more than thirty years.  Chief Judge Swain reasoned that nearly all of the “establishments” listed in the ADA have physical locations, and declined to find (as some other courts had) that the inclusion of a “travel service” and “other service establishment” among the categories of covered public accommodations supports the application of the ADA to an online-only retailer with no physical storefront. 

Interestingly, Chief Judge Swain did not originally preside over this case; the matter was re-assigned to her the after the defendant’s motion to dismiss was fully briefed.  We will not speculate as to whether the Chief Judge decided it was necessary for her to express her views on this matter, or whether this decision will have an impact on other Judges in the SDNY who have yet to weigh in on this issue.  We do predict, however, that this decision may cool (somewhat) the website accessibility lawsuit frenzy that has besieged New York’s federal courts.  In 2023, 77 percent of the 2,794 website accessibility lawsuits filed in federal court were in New York.  After this decision, more serial plaintiffs and their attorneys may choose to file their cases in state court instead.  As we previously reported, we started observing more state court filings in New York, and other jurisdictions such as California, New Jersey, and Pennsylvania in 2023.  The High Brew Coffee ruling may cause this trend to accelerate in New York.

Additionally, it is possible that the plaintiff will appeal the District Court order in High Brew Coffee to the Second Circuit which would provide much needed clarity on this issue.  Stay tuned for further updates.   

Edited by: Kristina M. Launey

By Minh Vu, Kristina Launey and Susan Ryan

Seyfarth Synopsis: The decline in ADA Title III lawsuits that began in 2022 comes to a halt in 2024 and California retakes its mantle of “national filing hotspot.”

ADA Title III filings have decreased each year since 2022.  2024 changes the narrative with an uptick in filings, albeit a small one.  In 2021, we saw the highest mid-year total since we started keeping count in 2017: 6,304 ADA Title III lawsuit filings in the first six months of the year.  Since then, however, the numbers have fallen. 

At the mid-year point in 2022, there were 4,914 ADA Title III lawsuits filed, compared to 4,081 at the same point in 2023.  We wondered if the trend would continue and if so, just how far the numbers would fall.  Well, the numbers are in, and the filings are slightly up from 2023 but still below 2022.  From the beginning of January to end of June of 2024, 4,280 ADA Title III lawsuits were filed in federal courts.  If this trend continues for the rest of the year, the projected number of suits for 2024 will be around 8,500 – slightly higher than 2023 but lower than 2022.

[Mid-Year ADA Title III Federal Lawsuit Filings 2017-2024; 2017: 4,127; 2018: 4,965, 20% Increase from 2017; 2019: 5,592, 12% Increase from 2018; 2020: 4,751, 15% Decrease from 2019; 2021: 6,304, 33% Increase from 2020; 2022: 4,914, 22% Decrease from 2021; 2023: 4,081, 17% Decrease from 2022; 2024: 4,280, 5% Increase from 2023]

In addition, New York’s reign as a top filing destination for ADA Title III plaintiffs for the first six months of 2024 has come to an end.  1,106 lawsuits were filed in the first half of 2024, down from a high of 1,819 in 2022 and 1,477 in 2023. 

Sunny California – which had been the dominant state until 2022 – retakes the top spot.  So far this year, there have been 1,588 ADA Title III filings in the California federal district courts, a significantly higher number than New York.  In third place was Florida, with 781, about half of California’s total.  Rounding out the top five are Texas and Pennsylvania, maintaining their positions from last year and the year before.

Here are the top ten states with the highest number of cases filed so far this year:

[2024 Mid-Year Federal ADA Title III Filings for Top 10 States: TN: 40; GA: 53; MO: 54; MN: 65; IL: 76; PA: 81; TX: 114; FL: 781; NY: 1,106; CA: 1,588]

What accounts for the rise in ADA Title III filings and for the trade-off in spots between California and New York?  With regard to the latter, serial plaintiffs represented by a New York law firm responsible for hundreds of filings each year have been filing in New York state court, resulting in fewer filings in New York federal court.  There have also been some filings in New Jersey state court.  Notwithstanding this shift to New York and New Jersey state courts, the overall number of federal lawsuits is still higher than last year, indicating that 2024 has seen more accessibility litigation.  We attribute this increase in part to a significant increase in federal lawsuits filed in Minnesota – from 5 in 2023 to 65 so far in 2024.  Sixty-three of these suits have been filed by the same law firm on behalf of three plaintiffs. 

Check back with us in January 2025 when will have final numbers for the entire year.

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those from the count.

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Plaintiffs filed 2,794 website accessibility lawsuits in federal court in 2023 – a 14% decrease from 2022. 

After 2022’s record-setting year for website accessibility lawsuits filed in federal court, the 2023 filings dropped by 14%.  The total number of lawsuits filed in federal court 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 2023 was 2,794–461 fewer than 2022. This 14% decrease in the number of lawsuits in 2023 takes us below even 2021 filing totals, but still above the total number of lawsuits filed in 2020 (and any year prior). 

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2023: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (14% increase from 2019); 2021: 2,895 (12% increase from 2020); 2022: 3,255 (12% increase from 2021), 2023: 2,794 (14% decrease from 2022). *The number of cases that could be identified through a diligent search.]

Website accessibility lawsuits made up 34 percent of the total number of ADA Title III lawsuits filed in federal court in 2023 (2794 out of 8227 cases).  In 2022, website accessibility lawsuits made up 37 percent of all the ADA Title III lawsuits filed in federal court (3225 out of 8694 cases).  Also, as shown in the graph below, the number of filings per month ranged from a low of 162 cases in December to a high of 308 cases in August. 

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2023 – Dec. 2023): Jan. 2023 (210), Feb. 2023 (228), Mar. 2023 (307), Apr. 2023 (241), May 2023 (212), Jun. 2023 (281), Jul. 2023 (248), Aug. 2023 (308), Sep. 2023 (170), Oct. 2023 (232), Nov. 2023 (195), Dec. 2023 (162). *The number of cases that could be identified through a diligent search.]

New York federal courts continued to be the busiest by a wide margin, with Florida retaining the #2 position, and Pennsylvania slotting in as #3.  Illinois passed California for the #4 spot. New York federal courts saw 2,152 lawsuits filed in 2023 (continuing a solid trend of 2,560 in 2022, 2,074 in 2021, 1,694 in 2020, 1,354 in 2019, and 1,564 in 2018).  Florida was a distant second with 385 lawsuits, up from 310 in 2022.  California federal courts saw only 30 lawsuits in 2023, down from 126 in 2022.  Pennsylvania came in at 143 in 2023.

[Graph: Federal ADA Title III Website Accessibility Lawsuits per State, Jan. 2023 – Dec. 2023: NY 2,152, FL 385, PA 143, IL 42, CA 30, NJ 25, MA 7, MN 3, WI 3, NC 1, IN 1, CO 1, OR 1. *The number of cases that could be identified through a diligent search.]

[Graph: New York, Florida, Pennsylvania, and California Federal ADA Title III Website Accessibility Lawsuits 2017-2023: NY: 2017 (335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022 (2,560), NY (2,152); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021 (185), 2022 (310), 2023 (385); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173), 2021 (167), 2022 (216), 2023 (143); CA: 2017 (9), 2018 (10), 2019 (121), 2020 (223), 2021 (360), 2022 (126), 2023 (30).]

If you’re wondering why California has so few website accessibility cases relative to New York, it is likely because judges in New York federal courts – with a few exceptions – have historically been more favorable toward plaintiffs, especially when the defendant is an online-only business.  Although the Court of Appeals for the Second Circuit has yet to decide whether online-only businesses are covered by the ADA, most district court judges in New York to have addressed the issue have concluded that they are.   

In contrast, in California, both federal and state courts of appeals have reached the conclusion that online only businesses are not covered by the ADA, making it virtually impossible for plaintiffs to sue online-only businesses for accessibility violations.  Thus, we predict fewer website accessibility cases in both California state and federal courts in the future.  That said, in our practice we continue to see a significant numbers of demand letters, and lawsuits filed in California state courts, which are not included in our federal lawsuit numbers.

Why was there an overall decrease in the number of website accessibility lawsuits filed in federal courts throughout the country last year?  While there is no way to know for certain, we think there are at least four factors in play. 

First, and most significantly, we noticed that a number of plaintiffs’ firms responsible for historically significant numbers of filings started filing website accessibility lawsuits in state courts in NY, NJ, and PA in 2023, instead of federal court.  Since these filings are difficult to track, it may well be that the total number of website accessibility lawsuits increased year-over-year when accounting for state court filings.  

Second, some of the plaintiffs’ lawyers who used to file a substantial number of these lawsuits seem to be less active in this space. 

Third, more businesses are making website accessibility a priority, and so perhaps websites are more accessible than they were five years ago. 

Fourth, many businesses have already been sued over the accessibility of the websites at least once and are potentially more likely to push back with the assistance of their consultants and/or counsel, providing something of a disincentive to serial ADA filers.   

In August 2023, the U.S. Department of Justice issued new regulations under Title II of the ADA requiring websites and mobile apps of state and local governments to conform to the Web Content Accessibility Guidelines version 2.1, Level AA (WCAG 2.1 AA) within two or three years, depending on their size.  Will these new rules impact the number of website accessibility lawsuits filed against public accommodations?  We think it’s unlikely.  Will the DOJ issue regulations in the near future covering the websites and mobile apps of public accommodations?  We think this too is unlikely, and any proposed regulations would most certainly be halted if there is a change in administration. 

The bottom line is that lawsuits alleging inaccessible websites will continue to be a significant percentage of the ADA Title III filings in federal court for the indefinite future, particularly because the requirements for an accessible website continue to evolve.  While federal government agencies only have to comply with WCAG 2.0 AA to be accessible, the DOJ adopted the more stringent WCAG 2.1 AA as a legally binding accessibility standard for state and local governments in August 2023.  Just a few months later, the World Wide Web Consortium (WC3) issued WCAG 2.2 AA which added a number of new requirements.  And then just a month ago W3C issued a first draft of WCAG 3.0.  Version 3.0 is a total revamp of the guidelines and, per the WC3, is “a new model and guidelines to make web content and applications accessible to people with disabilities.” 

***

About our methodology:  Our 2023 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. 

Edited by John W. Egan

pexels-katrin-bolovtsova-6077326
Judge banging a gavel.

By Lotus Cannon and Minh Vu

Seyfarth Synopsis:  SDNY Judge Mary Kay Vyskocil dismisses with prejudice a website accessibility lawsuit with vague allegations about plaintiffs’ standing.

The U.S. District Court for the Southern District of New York (SDNY) has been a highly favored venue for serial plaintiffs bringing website accessibility lawsuits for years – at least in part because many judges have refused, at the outset of a case, to dismiss complaints with boilerplate allegations about a plaintiff’s standing to sue.  However, last year, we saw one decision from SDNY Judge Colleen McMahon that conducted a more rigorous standing analysis in website accessibility cases, and last week another SDNY Judge Mary Kay Vyskocil took a similar approach.  Judge Vyskocil dismissed with prejudice a website accessibility complaint for lack of standing after a meaningful analysis of the plaintiffs’ boilerplate complaint.

The plaintiffs – two self-described testers who are blind – sued an online retailer, claiming that  the retailer’s website violated the ADA and the New York State Human Rights Law because of various technical barriers that the plaintiffs allegedly encountered.  The plaintiffs had previously filed multiple lawsuits against operators of various commercial websites.

The Complaint allegations were vague but similar to those that some other SDNY judges have considered sufficient to establish standing at the outset of a lawsuit.  The plaintiffs alleged that they visited the website for the purpose of purchasing products, goods, and/or services and that each encountered various technical barriers, such as “redundant links” and “improperly labeled headings.”  As to their intent to return to the website, the plaintiffs alleged that they were “highly interested” in purchasing Defendant’s products and intended to purchase certain goods and services in the future, and intended to return to the website once the alleged accessibility barriers were removed.

The Court held that Plaintiffs’ conclusory allegations failed to establish an injury in fact to confer standing.  The Court noted that Plaintiffs each alleged only a single visit to the website and alleged no facts supporting their interest in the products or services on the website, such as how they learned of the website, what piqued their interest in the website, what particular products they viewed or were interested in purchasing, and whether they searched for comparable products elsewhere.

The Court pointed to the plaintiffs’ other “carbon-copy complaints,” nine of which were filed on the same day as the Complaint at issue, as further evidence that Plaintiffs did not suffer an injury in fact, referencing the Second Circuit’s Calcano decision blasting “Mad-Libs-style” complaints.

Notably, while dismissals based on lack of standing are typically without prejudice, the Court issued the decision with prejudice and denied Plaintiffs’ leave to amend. The Court justified its decision with Plaintiffs’ refusal to amend the Complaint even after the defendant pointed out all the pleading deficiencies in its pre-motion letter to the Court.

The Court also dismissed Plaintiffs’ NYSHRL claim based on lack of standing, rather than following the usual course of declining to exercise subject matter jurisdiction over state law claims. 

This decision suggests that some SDNY judges may be fed up with the volume of “cut and paste” complaints in their courts and actually requiring Plaintiffs to plead facts, as opposed to boilerplate conclusions, to establish standing.  Let’s see if this becomes a trend. 

Edited by John W. Egan

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Price tag hanging from shirt.

By Minh N. Vu & Lotus Cannon

Seyfarth Synopsis:  Federal court in New York reaffirms that reading information aloud to customers who are blind or low vision is still an acceptable auxiliary aid or service and retailers do not have to offer accessible goods.

On January 30, 2024, U.S. District Judge Rachel Kovner of the Eastern District of New York ruled that a clothing retailer does not have to provide digital labels for its products (some offer digital labels on product tags, such as QR codes, which can be scanned and read aloud by screen readers on mobile phones).  The decision is a nice win for retailers, particularly since the plaintiff never asked for assistance while in the store, but instead filed a claim based on the theory that retailers that do not provide digital labels on their products, irrespective of whether they were willing and able to provide one-on-one assistance to blind or low vision customers, violate Title III of the ADA. 

The plaintiff, who is blind, sued Gap claiming that the lack of digital labels on products sold at its stores violates Title III of the ADA as well as New York State and New York City disability access laws by: 1) denying customers with disabilities full enjoyment of its goods and services; and 2) failing to provide “auxiliary aids and services” to ensure effective communication. 

The Court held that Gap does not have to provide digital labels because a place of public accommodation does not have to offer accessible versions of its goods or products, or alter its goods or services to make them accessible, so long as it provides access to its existing goods and services.  Since product labels are part of, and intertwined with, the products sold, they are not required to be accessible.  The Court also cited to 36 C.F.R. § 36.307(a) which provides unequivocally that a public accommodation is not required under Title III “to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.”  Additionally, the Court relied on the Second Circuit’s decision addressing the Braille gift cards in Calcano v. Swarovski N. Am. Ltd. 

The Court also found that the complaint had not plausibly alleged that Gap stores failed to provide the plaintiff with auxiliary aids or services to ensure effective communication because there was no allegation that the plaintiff asked for assistance from in-store employees to read the product labels aloud or other auxiliary aids.  And in response to the plaintiff’s argument that she would not be able to access the label information at home, Judge Kovner held that the ADA’s mandate to provide auxiliary aids and services “is not, by its terms, concerned with regulating the performance of products in consumers’ homes.” 

Interestingly, the Court dismissed the Complaint without prejudice, and gave the plaintiff thirty days to file an amended complaint.

A victory for public accommodations, this decision reinforces the following legal principles:  (1) businesses do not have to provide accessible goods, such as digital labels; (2) reading product and other information to customers who are blind or low vision is an acceptable auxiliary aid in the retail context; and (3) individuals with disabilities cannot assert a claim that they were denied auxiliary aids or services unless they actually asked for them.  To benefit from this legal framework, businesses must ensure that employees are properly trained to promptly provide assistance to customers with disabilities upon request.

Edited by John Egan

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

Seyfarth Synopsis: In 2023, the number of ADA Title III lawsuits filed in federal court declined but still exceeded 8,200 for a second year in a row.

From 2013 to 2021, federal court ADA Title III case filings climbed steadily to a staggering 11,452 in 2021.  The number of filings fell dramatically by 24% in 2022, and then declined another 5% to 8,227 in 2023.  That said, this is still a very big number and triple the number of cases filed in 2013 when we first started tracking these lawsuits.

Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023.
[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023: 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; 2022: 8,694 24% decrease from 2021; 2023: 8,227 5% decrease from 2022]

For the second year in a row New York led the country in ADA Title III federal filings with 2,759 cases.  California came in second again with 2,380 filings, and Florida stayed in third place, with 1,415 cases.  Of these top three states, Florida was the only one that saw an increase in the number of federal suits from 2022 to 2023. 

Rounding out the top ten were Texas (224), Illinois (202), Pennsylvania (189), Tennessee (134), Missouri (121), Georgia (120) and New Jersey (115).  All of these states had fewer filings than in 2022, except for Illinois and New Jersey – both of which recorded their highest number of ADA Title III case filings since we began tracking filings in 2013.

Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2023 – December 31, 2023
[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2023 – December 31, 2023:  New York: 2,759; California: 2,380; Florida: 1,415; Texas: 224; Illinois: 202; Pennsylvania: 189; Tennessee: 134; Missouri: 121; Georgia: 120; New Jersey: 115]

Two states leaving the Top 10 were Colorado and Massachusetts.  Colorado plummeted to only 33 cases, and Massachusetts saw 57 filings.  New to the Top 10 chart are Illinois and New Jersey.

At the other end of the spectrum, Alaska, Montana, Nebraska, North Dakota, South Dakota, West Virginia and Wyoming had no filings in 2023.  Each year, we have a slightly different list of states, but North Dakota wins the award for no ADA Title III filings going back to 2013. 

California, New York, Florida ADA Tile III Federal Lawsuits 2013-2023.
[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2023: 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; 2022: 2,519; 2023: 2,380; 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; 2022: 1,350; 2023: 1,415; 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; 2022: 3,173; 2023: 2,759]

January (571) and December (553) were the least busy times for filings.  Considering the number of holidays at that time of the year, and the potential for bad weather in many parts of the US, that’s not surprising.  However, January 2022 was very busy with 850 filings.  August (842) was the busiest month of 2023, followed by March (774) and June (769) – both consistently high filing month in prior years as well.  Filings remained steady throughout the year, and consistent with the highs and lows of 2022 in roughly the 550-850 per month range.

Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2023 – December 31, 2023.
[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2023 – December 31, 2023: January: 571; February: 714; March: 774; April: 635; May: 618; June: 769; July: 704; August: 842; September: 703; October: 713; November: 631; December: 553]

What to make of this data?  Are ADA Title III filings going to continue to slow year over year? Or are we seeing the start of a plateau? Or will numbers come roaring back in 2024, making 2022 and 2023 the outliers?  Only time will tell, obviously, but here’s our thinking.

First, while we do not track state court lawsuit filings due to less reliability in reporting sources, we know anecdotally and from experience that some of the largest filers have moved to filing in state courts instead of federal courts.  We saw this in New York, in California, and even in states not historically high in Title III lawsuits like New Jersey.  The continued decrease in California filings is particularly striking (from an all-time high of 5,930 in 2021 to 2,380 in 2023).  We think there are a number of factors that have contributed to the decrease.  First,  many California federal judges are routinely dismissing state law claims for damages that plaintiffs like to add to their ADA lawsuits on the theory that they are an end run around more stringent state court filing requirements.  These actions have made federal court a less attractive venue for plaintiffs seeking to recover damages which cannot be obtained under the ADA.  Second, a prolific Southern California plaintiff’s firm split up several years ago resulting in fewer filings.   

In Florida, a prolific law firm stopped filing cases after one of its attorneys became the subject of a disciplinary proceeding and was suspended from the practice of law for six months.  Some of the unsavory findings from this disciplinary proceeding may have dampened the enthusiasm of some other plaintiff’s attorneys to file ADA Title III lawsuits.  Nationwide, it is quite possible that we’ll see an uptick in filings this year now that the SCOTUS punted on deciding whether plaintiff testers have standing to sue in Acheson v. Laufer.  SCOTUS will have another chance to consider the issue if it grants the Petition for Certiorari in Langer v. Kisor, however.

A note on our methodology: Our research involves 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.