By Minh N. Vu

Seyfarth Synopsis: California federal trial court grants summary judgment for plaintiff, finding Domino’s violated the ADA by having a website that is inaccessible to the blind and orders Domino’s bring its website into compliance with the WCAG 2.0 guidelines.

Five years after the lawsuit was first filed, federal district court judge Jesus Bernal ruled on June 23 that Domino’s had violated Title III of the Americans with Disabilities Act (ADA) by having a website that was not fully accessible to plaintiff, who is blind.  This litigation saga has involved an appeal to the Ninth Circuit by plaintiff which reversed the district court’s dismissal of the case, a petition for certiorari filed by Domino’s which was denied, and numerous skirmishes in district court on remand which eventually culminated in the court’s June 23 order granting plaintiff’s motion for summary judgment on the ADA claim as it relates to Domino’s website, but allowing the case to continue regarding Domino’s mobile app.

Here are some highlights from the decision:

  • Under Ninth Circuit precedent, web-only businesses are not covered by the ADA. However, websites that have a nexus to a physical place of public accommodation are covered. Domino’s argued that the ADA does not cover its website and mobile app because it does not own the physical stores where the pizza would be picked up, and there is no “nexus” between the website/mobile app and the stores.  Judge Bernal rejected this argument, stating that the Ninth Circuit had already found that the alleged inaccessibility of the website and app “impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.”
  • The court noted that no expert found that the website was fully accessible, including Domino’s expert who said that he could not place a future order using a screen reader. Based on this fact, the court concluded that Domino’s had violated the ADA with regard to its website.  The court ordered Domino’s to “bring its website into compliance with the WCAG 2.0 guidelines.”  Interestingly, the court did not specify which level of WCAG compliance would be required:  A, AA, or AAA, nor did it specify a time table for compliance.
  • The court concluded that having a phone line where plaintiff could place an order did not provide equivalent access when he was placed on hold for over 45 minutes on the two occasions he tried to call.
  • The court found that the ADA claim was not moot because the website was still not fully accessible and the accessibility of the mobile app remained disputed.
  • Plaintiff sought $4,000 for each of the multiple visits he made to the Domino’s website, but Judge Bernal found that there was only “a single overarching violation: Defendant maintained a website that screen readers cannot read.  For this same reason, each of the Plaintiff’s individual visits to the website encountered the same barrier and therefore the same violation.”  We note that while the $4,000 damages award is not significant, plaintiff will be entitled to recover his attorneys’ fees as well.   The fee award should be substantially higher given the length and intensity of this litigation.

Disability rights advocates and the plaintiff’s bar are undoubtedly pleased about most aspects of this decision.  We will report on further developments as they unfold.

Edited by Kristina M. Launey

By Eden Anderson

Seyfarth Synopsis: A federal judge precluded the plaintiff from multiplying his statutory damages under the Unruh Act by his alleged number of visits to the defendant’s business.

California’s Unruh Civil Rights Act (“Unruh Act”) provides for the recovery of the greater of actual damages or $4,000 in statutory damages for “each particular occasion” of access denial.  (Civil Code § 55.56(f).)  Citing this statutory language, plaintiffs in disability access litigation frequently allege multiple visits to (or deterrence from visiting) a defendant’s property and cite the frequency of their visits as a basis for making unreasonable settlement demands.  For example, if a plaintiff claims to have visited a property on 15 occasions and encountered access barriers on each occasion, they will demand $60,000 plus attorneys’ fees to settle.

While some judges have awarded such relief, on June 16, 2021, Judge Beth Labson Freeman of the Northern District of California issued an order in Johnson v. Garlic Farm Truck Center, LLC capping the plaintiff’s statutory damages recovery to $4,000 in spite of allegations that the plaintiff visited the property and encountered access barriers on three occasions.

The defendant in Garlic Farm did not respond to the complaint and the court granted the plaintiff’s motion for default judgment.  In assessing the plaintiff’s request for $12,000 in statutory damages, the court questioned why the plaintiff would make three visits to a property he knew was in violation of disability access laws.  The court also found troubling the fact that the plaintiff’s counsel had filed over 5,000 Unruh Act cases in federal district courts in California, and that the Complaint inconsistently alleged that the access barriers “prevented [plaintiff] from returning to the business,” yet also that he had visited the property three times.  The court concluded the plaintiff’s “[b]ehavior,” the “incongruity” in his allegations, and the sheer volume of disability access cases his counsel was pursuing indicated that “Mr. Johnson is primarily interested in increasing statutory damages.”  The court thus limited statutory damages recovery to $4,000, noting that “[d]istrict courts in the Ninth Circuit have limited statutory damages under the Unruh Act when plaintiffs engage in this behavior.”

This decision is also notable because the Court’s concerns about the plaintiff’s tactics were raised sua sponte—by the Court on its own accord—and not by the defendant, who had not even appeared in the case.  The order also provides defendants a clear decision they can rely upon to counter unreasonable settlement demands.

Edited by Kristina Launey

By Kristina Launey

Seyfarth Synopsis: A recent order from the Eleventh Circuit signals that the court is seriously considering a rehearing in Gil v. Winn-Dixie.

As previously reported, the Eleventh Circuit made waves recently overturning a 2018 Florida federal court’s trial verdict ruling that Winn Dixie’s inaccessible website violated the ADA. On April 15, the plaintiff filed a Petition for Rehearing en banc, arguing that the issues in the case are of exceptional importance and that, inter alia, the panel deviated from prior Eleventh Circuit precedent in rejecting the “nexus” standard.  On April 22, counsel for numerous advocacy groups including the National Federation of the Blind, National Council on Independent Living, and National Association of the Deaf, filed a motion for leave to file amicus briefs in support of the rehearing.  Yesterday, May 20, the Court ordered Winn Dixie to file a response to the Petition for Rehearing by June 1.  The Court noted its particular interest in Winn Dixie’s response to the plaintiff’s mootness argument — that the appeal was moot and since the actions required by the district court’s injunction had long since been complete (in the three years it took the Eleventh Circuit to hear and decide the appeal).  This action by the Court signals to us that the Court is seriously considering a rehearing – as it could have otherwise simply denied the Petition without hearing Winn Dixie’s position.  We’ll keep you posted.

By the Seyfarth ADA Title III Specialty Team

Seyfarth Synopsis:  The Seyfarth ADA Title III Specialty Team shares thirty tips for how to provide great service to people with disabilities in three fun and informative videos.

Celebrate Global Disability Awareness Day by learning more about how to provide a great experience for your customers with disabilities!  Our popular three-part video series ADA 30:  30 Tips for 30 Years contains practical advice on how to make your facilities more accessible to people with disabilities, make reasonable modifications to your normal practices and procedures to ensure access, and effectively communicate with individuals who are have sight, hearing, and speech disabilities.  Most of these tips cost nothing to implement — awareness of the issues and how to respond is all that’s required.

The links to the videos are below:

By Kristina M. Launey & Minh N. Vu

Seyfarth SynopsisADA Title III website accessibility lawsuits filed in federal courts in 2020 jumped a surprising 12% over 2019, in spite of a mid-year pandemic dip in filings.

The numbers are in for total website accessibility lawsuit filings in federal courts in 2020, and to our surprise they show a significant increase from 2019. The total number of lawsuits filed in federal courts alleging that plaintiffs with a disability could not use websites because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them, in 2020 was 2,523–almost 300 more than in 2019.  While certainly not akin to the explosive 177% increase in these suits from 2017 to 2018, it is a meaningful increase over the relatively level 2018 and 2019 filing counts.

[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). *The number of cases that could be identified through a diligent search.]

This is especially remarkable in light of the drop in filings in April 2020 to the lowest number we’ve seen in quite a while during the height of the pandemic shutdowns across the country, with courts closing, law firms moving to remote work, and lawyers with children adjusting to homeschooling and doing their day jobs.  As shown in the chart below, even though filings started out the year lower than 2019 (likely due more to some New York attorneys focusing on Braille gift card lawsuits instead of website accessibility lawsuits and less due to the nascent pandemic), they bottomed out at 62 in April (a third of the 183 filings from the same month in 2019). Filings then slowly increased again, jumping to 300 in August (compare to 270 in 2019), 293 in October (compare to 140 in 2019) and 299 in December (compare to 119 in 2019).  We have not yet crunched the Q1 2021 numbers but anecdotally believe those high monthly filing numbers have continued into 2021.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2020 – Dec. 2020): Jan. 2020 (187), Feb. 2020 (174), Mar. 2020 (167), Apr. 2020 (62), May 2020 (119), Jun. 2020 (150), Jul. 2020 (269), Aug. 2020 (300), Sep. 2020 (274), Oct. 2020 (293), Nov. 2020 (228), Dec. 2020 (299), *The number of cases that could be identified through a diligent search.]

New York and Florida federal courts continued to be the busiest with 1,694 (up from 1,354 in 2019 and 1,564 in 2018) and 302 (continuing a downward trend of 526 in 2019 and 576 in 2018) lawsuits, respectively, as shown in the chart below. California and Pennsylvania maintained their third and fourth positions, with lawsuits in each of those states almost doubling in 2020 over 2019.  Pennsylvania had 173 lawsuits in 2020. The number of California lawsuits continued to jump from 10 in 2018 to 120 in 2019 to 223 in 2020. Colorado moved up from ninth place in 2019 to edge out Illinois for the fifth spot with 43 suits over Illinois’s 32 suits (down from 91 lawsuits in 2019). This number does not account for the many demand letters sent out by California firms that never result in lawsuits and lawsuits filed in state courts which are much more difficult to track.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2019: NY 1,694, FL 302, CA 223, PA 173, CO 43, IL 32, MA 24, CT 11, GA 8, IN 7. *The number of cases that could be identified through a diligent search.]

This growth in New York federal website accessibility lawsuits is remarkable considering lawsuit filings slowed considerably in the midst of the 2020 pandemic, and some of the most prolific New York plaintiffs’ firms turned their attention to Braille gift card cases in late 2019 and early 2020. The New York surge began in 2017 after New York federal judges allowed website accessibility cases to proceed to discovery in lawsuits against Blick Art and Five Guys.

It will be interesting to see if the website accessibility lawsuit numbers will decrease in Florida for 2021 in light of the Eleventh Circuit Court of Appeal’s decision in Gil v. Winn Dixie.  That decision reduces the number of websites covered by the ADA by holding that only those whose inaccessibility create an intangible barrier to access to the goods, services and facilities of a place of public accommodation state a claim.

Even more remarkable is that these numbers also do not include lawsuits filed alleging the inaccessibility of mobile apps (unless the lawsuit also alleged an inaccessible website).  In an unscientific search, 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.

***

About our methodology:  Our 2020 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.  We also removed a number of lawsuits from the 2020 count brought against state and local government entities under Title II of the ADA for having inaccessible websites.

By Minh N. Vu

Seyfarth Synopsis:  The Eleventh Circuit’s much-anticipated decision in Gil v. Winn Dixie sets a higher bar for plaintiffs in website accessibility lawsuits and creates a conflict among judicial circuits that could result in Supreme Court review; Gil promptly filed a Petition for Rehearing en banc.

After two and a half years of deliberation, the Court of Appeals for the Eleventh Circuit finally issued a decision in Gil v. Winn Dixie, overturning the trial court’s finding that Winn Dixie violated the ADA by having an inaccessible website.  Rather than clarifying the state of the law on website accessibility, the decision makes the law on website accessibility even more complicated.

Plaintiff Gil, who is blind, sued grocery retailer Winn Dixie alleging that the business violated the ADA by having a website that he could not access using screen reader software.  He claimed that he wanted to use the website to order prescriptions which he would pick up at the store.  He later also claimed that he wanted to download online coupons onto his rewards card for use at the store.  After a bench trial, the district court concluded that the website was not accessible to screen reader users and that Winn Dixie had violated the ADA.  The district court found that it did not need to decide whether websites are covered by the ADA because, in this case, the website was “heavily integrated” with Winn Dixie’s physical stores (which are undoubtedly public accommodations) and acted as a “gateway” to them.  The court issued a detailed injunctive relief order which, among other things, required Winn Dixie to make its website conform to the Web Content Accessibility Guideline 2.0 Level AA – a privately developed set of criteria for web accessibility that has not been adopted as a legal standard under the ADA for public accommodations websites.

Two and a half years after hearing oral argument on Winn Dixie’s appeal, the Eleventh Circuit reversed the lower court’s determination in favor of the Plaintiff, 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, privilege’s, or advantages of Winn Dixie’s physical stores.

The finding that websites are not places of public accommodation under the ADA is consistent with the position the Eleventh Circuit has taken in prior cases.  In support, the Court cited to the statutory definition of the term “public accommodation” which, it noted, was an “expansive list of physical locations” that does not include websites.

The Court acknowledged that Gil could state a claim for a violation of the ADA if he could show that the website constituted an “intangible barrier” to his access to the goods, services, privilege’s, or advantages of Winn Dixie’s physical stores, but found that Winn Dixie’s website did not present such a barrier.  The Court based this conclusion on two key facts:  (1) No goods or services could be purchased on the website; and (2) “all interactions with Winn-Dixie which can be (although need not be) initiated on the website must be completed in-store: prescription pick-ups and redemption of coupons.”

The Court distinguished this case from its prior decision in Rendon v. Valleycrest Productions, Ltd. where it held that the producers of the Who Wants to Be A Millionaire game show violated the ADA by providing only a telephonic means — which was not accessible to people who were deaf or had limited dexterity — of competing for a spot on the show.  The Eleventh Circuit emphasized that in Rendon, the telephone screening process was the “sole access point for individuals to compete for the privilege of being a contestant on the game show” and thus “acted as an ‘intangible barrier’ that prevented the plaintiffs from ‘accessing a privilege’ of a physical place of public accommodation (the game show).”  The Court found that the Winn Dixie website, in contrast, had “limited functionality” and was “not a point of sale.”

The Court also distinguished the case from Robles v. Domino’s where the Ninth Circuit concluded that the plaintiff had stated a claim against Domino’s under the ADA by alleging that the pizza delivery company had an inaccessible website.  The Eleventh Circuit underscored that purchases could be made on the Domino’s website, unlike the Winn Dixie website.

The Eleventh Circuit also went out of its way to point out that it did not agree with the Ninth’s Circuit’s position that a website with a “nexus” to a physical place of public accommodation is covered by the ADA.  The Court said:  “[W]e decline to adopt the “nexus” standard.  In sum, we do not find Robles persuasive, either factually or legally.”

We could say much more about the sixty-seven page decision, but we’ll leave you with a few immediate reactions.

First, there are now at least three different theories of liability for website accessibility adopted by federal courts of appeal.  In the Eleventh Circuit, to establish a violation of the ADA based on an inaccessible website, a plaintiff must show that the inaccessibility of the website prevented him or her from accessing the goods, services, privileges, or advantages of a physical place of public accommodation.  In the Ninth Circuit, a plaintiff would only have to show that an inaccessible website has a nexus to a physical place of public accommodation to establish ADA liability.  In the First Circuit — which has not yet considered a website accessibility case — a plaintiff would have a strong argument under current precedent that a website that falls into one of the twelve categories of businesses in the ADA’s definition of the term “public accommodation” would be covered under the ADA, even if it has no physical place of public accommodation.

Second, while the Winn Dixie decision makes the Eleventh Circuit a less attractive venue for plaintiffs seeking to file website accessibility lawsuits than before, such plaintiffs can always choose to file in a different circuit where the precedent is more favorable.  Thus, we do not believe this decision will have much impact on the number of website accessibility lawsuits filed.

Third, the likelihood of the U.S. Supreme Court taking up this issue has certainly increased now that there is a conflict between the Eleventh Circuit and the Ninth Circuit as to when an inaccessible website belonging to a physical place of public accommodation violates the ADA.

Stay tuned to find out if Plaintiff Gil files a Petition for Certiorari.

April 15, 2021 UPDATE:  Earlier today, plaintiff Juan Carlos Gil filed in the Eleventh Circuit Court of Appeals a Petition for Rehearing en bancGil argues that the issues in the case are of exceptional importance and that, inter alia, the panel deviated from prior Eleventh Circuit precedent in rejecting the “nexus” standard.

Edited by Kristina Launey

Seyfarth Synopsis: Congressmen Budd, Hudson, and Correa reintroduce the Online Accessibility Act which would govern the application of the ADA to websites and mobile applications.

By Kristina M. Launey

On February 18, 2021, U.S. Representatives Ted Budd (R-NC), Richard Hudson (R-NC), and Lou Correa (D-CA) re-introduced the Online Accessibility Act in Congress as H.R. 1100. The bill would codify the principle declared by some courts, such as the Ninth Circuit in Domino’s, that a website (and mobile app) that is not accessible can violate the ADA, and set a standard by which accessibility is measured for the purpose of compliance with the ADA.

To accomplish this, the bill would add a Title VI to the ADA that would prohibit discrimination against individuals with disabilities by any private owner or operator of a customer-facing website or mobile application and impose the following specific requirements:

WCAG as the Access Standard:  The bill would deem any website and mobile application that is in “substantial compliance” with the WCAG 2.0 AA (the “Standard”), or any subsequent version published by the World Wide Web Consortium (W3C) to also be compliant with the new ADA Title VI. For websites that are not in substantial compliance with the Standard, the bill would authorize an “alternative means of access” that is equivalent to access to the content available on the website or mobile application.

Creation of Regulations: The bill would direct the U.S. Access Board – not the U.S. Department of Justice (DOJ) — to issue and publish standards (and to amend them to keep up with technological advances), and to propose and issue regulations on the topic.  This is a change from the ADA Title III regime where only DOJ has the right to issue legally-binding standards.

Notice and Cure: The bill would require an individual plaintiff to notify the website or mobile app owner or operator of the alleged noncompliance and then allow the owner or operator 90 days to cure the alleged noncompliance before the individual may file a complaint with the DOJ.  Disability rights advocates have consistently opposed notice and cure provisions in prior attempts to amend the ADA and they are likely to oppose them in this bill as well.

DOJ Enforcement: The bill would require the DOJ to investigate alleged violations of the new Title VI, as well as to periodically review customer-facing websites and mobile applications for compliance, and authorize the DOJ to file a civil lawsuit upon reasonable belief that an entity has violated Title VI.  Remedies available in such an action would include equitable relief (i.e., fix the website/mobile app), monetary damages to aggrieved persons, and a civil penalty in the amount of $20,000 for the first and $50,000 for any subsequent violation.  A court would be required to consider any good faith effort to comply with Title VI in determining the amount of civil penalty to assess.

Private Right of Action After Exhausting Prerequisite Actions:  An individual with a disability would only be able to file a civil enforcement action after providing notice to the website/app’s owner and operator(s), filing a complaint with the DOJ, and receiving notice that the DOJ will not pursue the matter after an investigation.  In any such lawsuit, the plaintiff would be required to state with particularity the specific barriers to access on the website or mobile application.

In a press release announcing the legislation, Rep. Budd said: “Every year, thousands of website accessibility lawsuits are filed by plaintiffs alleging that certain websites were not ADA compliant. Our bill solves that problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”

Rep. Hudson touted the Act, in sentiments echoed in part by Rep. Correa, as one that would: “improve web access for individuals with disabilities, as well as support small businesses. Especially as many small businesses struggle to stay afloat during the current pandemic, we must curtail frivolous and abusive litigation while continuing to push for web accessibility for everyone.”

Does this bill stand a chance?  Unlikely, but these Representatives have been persistent in trying.  Other short-lived attempts at ADA reform in Congress over the past years including the ADA Notification Act (H.R. 881 of 2011), the ADA Education and Reform Act (H.R. 620 of 2018), the “ADA Compliance for Customer Entry to Stores and Services Act” or “ACCESS Act” (H.R. 4099 of 2019), and 2020’s Online Accessibility Act, and even letter writing efforts between these Representatives and the DOJ, and Senators and the DOJ.  These efforts have not gained much traction because they did not receive support from disability rights advocates.  We do not see that situation changing during a Biden Administration.

Edited by Minh N. Vu

By Minh N. Vu

Seyfarth synopsis:  California District Judges are not convinced that hotel reservations websites have to provide detailed accessibility information.

As we reported last month, a plaintiff’s firm in California that calls itself the Center for Disability Access has filed on behalf of fewer than 10 plaintiffs nearly 500 lawsuits against hotels in California claiming that the hotel accessibility information provided on the hotels’ reservations websites was not sufficiently detailed, in violation of Title III of the Americans with Disabilities Act and California’s Unruh Act.  We recently reported on decisions dismissing three of these cases.  Since then, the courts have issued four additional decisions dismissing these lawsuits.  The judges in these cases all agree that the ADA regulation in question does not require the hotels disclose the detailed accessibility information demanded by the plaintiffs.  The plaintiffs in three of the dismissed cases have filed Notices of Appeal to the Ninth Circuit.

Stay tuned for this developing situation.

 

Please join us on Thursday, March 11 for a webinar entitled ADA Title III Pandemic Year Updates: Hot Issues and Litigation Trends.

The COVID 19 pandemic caused a slight slowdown in ADA Title III lawsuit filings in 2020 but the ADA Title III plaintiffs’ bar quickly adapted and the courts are again flooded with these suits like never before. In this webinar, Seyfarth’s ADA Title III Team leaders will address how the pandemic has affected the ADA Title III landscape, how the Biden Administration will likely approach ADA Title III enforcement, and the type of lawsuits plaintiffs are bringing this year.

If you need an auxiliary aid or service to participate in this webinar, please email Kelly Sokolowski at ksokolowski@seyfarth.com by Thursday, March 4.

Click here to register and attend.

Date/Time:

Thursday, March 11, 2021
2:00 p.m. to 3:00 p.m. Eastern
1:00 p.m. to 2:00 p.m. Central
12:00 p.m. to 1:00 p.m. Mountain
11:00 a.m. to 12:00 p.m. Pacific

By Minh Vu, Kristina Launey, and Susan Ryan

Seyfarth Synopsis: ADA Title III lawsuits filed in 2020 fell slightly from last year’s high, but still topped 10,000 for the second time since we started tracking these lawsuits in 2013.

Maybe it was adjusting to working from home, overseeing children during the work day, or just the shock of the pandemic, but the ADA Title III plaintiffs’ bar filed far fewer lawsuits in April and May 2020.  This ultimately led to an overall reduction in the number of cases filed in 2020 as compared to 2019.

Plaintiffs filed 10,982 ADA Title III lawsuits in 2020, compared to 11,053 filed in 2019. That’s a reduction of less than 1%.  Considering that the country was gripped by a pandemic for much of 2020, this is still quite a large number of lawsuits.

[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]

The months of April and May saw a steep decline in filings (572 and 538 respectively), but they rebounded quickly in June, with 857 filings.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2020 – December 31, 2020: January: 971; February: 927; March: 886; April: 572; May: 538; June: 857; July: 954; August: 1,079; September: 1,049; October: 1,072;  November: 983; December: 1,094]

These numbers include Title III lawsuits filed on all grounds — physical facilities, websites and mobile applications, service animals, Braille Gift cards, sign language interpreters, mask-wearing requirements, hotel reservations websites, and more.  These numbers do not include the significant number of disability access lawsuits filed in state courts which are more difficult to accurately track.

In what should be a surprise to no one, California had the most federal filings – 5,869.  New York landed in second place, with 2,238, and Florida was third, with 1,208.  California broke its record for lawsuits by a staggering 22%.  New York and Florida saw decreases in their numbers; New York was down slightly, but Florida had the lowest number of filings since 2013.

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

Texas and Georgia rounded out the top five, with 285 and 240 filings, respectively.  Texas regained 4th place from Georgia, increasing from 239 to 285 filings in 2020.  Georgia decreased slightly in 2020 from 243 to 240.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2020 – December 31, 2020: California: 5, 869; New York: 2,238; Florida: 1,208; Texas: 285; Georgia: 240; Illinois: 172; Pennsylvania: 163; Colorado: 132; New Jersey: 70; Massachusetts: 66]

Other states with more than 100 filings included Illinois (172), Pennsylvania (163) and Colorado (132).  Illinois and Pennsylvania traded places from 2019, and Colorado surpassed New Jersey, increasing by a healthy margin over its 81 cases in 2019.

For a more in depth look at the types of cases driving these numbers, see our year end roundup post.

What do we think will happen in 2021?  As we predicted in early January, 2021 is shaping up to be a very busy year.  In January 2021, 1,108 cases were filed – the most ever in a single month.  To provide some perspective, in 2013, there were 2,722 filings for the entire year.  If the filings continue at their current rate, 2021 will be another record-breaking year for ADA Title III filings in federal court.

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