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By Minh Vu

Seyfarth Synopsis:  Miniature horses trained to perform work or tasks for a person with a disability must be allowed in public accommodations in most instances.

The news is not particularly uplifting these days, so we thought our readers would enjoy seeing clips of former California Governor Arnold Schwarzenegger’s miniature horse, Whisky (the clips also features Lulu, his mini-donkey) (see here and here). Under the ADA regulations, miniature horses that are individually trained to perform work or tasks for a person with a disability must be allowed in public accommodations just like a service animal as long as they are housebroken, not too large, under the owner’s control, and would not compromise legitimate safety requirements.  We have no idea whether Whisky is trained to perform any work or tasks for anyone, but (s)he is awfully cute.

For more information about service animals, which the ADA defines to only include dogs, check out this very helpful FAQ from the Department of Justice.

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Seyfarth Synopsis: The U.S. Health and Human Services Department Office for Civil Rights issued a bulletin reminding healthcare and other entities receiving federal funds that their anti-discrimination obligations under Section 1557 and the Rehabilitation Act remain in place in this time of COVID-19 emergency.

By Kristina M. Launey and Minh N. Vu

In this unprecedented time of COVID-19 emergency, there have been reports on the news that healthcare providers may need to make tough choices between patients due to various factors, including the shortage of much-needed life-saving equipment.  On March 28, 2020, the U.S. Health and Human Services Department (“HHS”) Office for Civil Rights (“OCR”) issued a bulletin reminding entities receiving federal funds for programs subject to Section 1557 of the Affordable Care Act (“Section 1557”) and Section 504 of the Rehabilitation Act (“Section 504), that their anti-discrimination obligations under those laws remain in place and must continue to be observed.

The bulletin warned: “individuals with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence of absence of disabilities.”  Rather, covered entities, which receive federal funding for health programs or activities, should make decisions regarding whether an individual is a candidate for treatment “based on an individualized assessment of the patient based on the best available objective medical evidence.”

The bulletin is intended to help health care providers meet the HHS’s goal of “leaving no one behind” during an emergency, according to OCR Director Roger Severino, and that persons with disabilities “should not be put at the end of the line for health services during emergencies.”

To accomplish this, the bulletin reminded health care providers and other covered entities of some key obligations under Section 1557 and the Rehabilitation Act: providing effective communication with individuals who have hearing and vision related disabilities; making emergency messaging available in multiple formats, including audio, large print, captioning, and accessible websites; addressing needs of individuals with disabilities, including those with mobility impairments, using assistive devices or durable medical equipment, and immunosuppressed conditions in emergency planning.  Of course, the bulletin notes, some actions or accommodations may not be required, if they may fundamentally alter the nature of a program, pose an undue burden, or a direct threat.  While not required, the bulletin recommends covered entities “consider adopting” practices to make use of multiple outlets and resources for messaging to reach individuals with disabilities, and stocking facilities with items to help people maintain independence such as hearing aid batteries, canes, and walkers.

Significantly, though relegated to a footnote, the bulletin emphasized that it is more than just a recommendation; due to the COVID-19 public health emergency, it is a statement of policy not subject to the notice and comment requirements of the Administrative Procedure Act, over which the OCR will exercise its enforcement authority.

The OCR bulletin came on the heels of a complaint filed with the OCR by disability rights advocacy groups based in Washington State concerning a plan under development by the Washington State Department of Health and the Northwest Healthcare Response Network to ration health care during the COVID-19 pandemic.  The complaint alleges that the “rationing scheme places the lives of disabled people at serious risk” and “discriminates against people with disabilities in violation of … the Americans with Disabilities Act (ADA), Section 504 … and Section 1557.”

We cannot close without restating the bulletin’s reminder to us all to practice social distancing; clean your hands often; cover coughs and sneezes; and call your healthcare provider if you believe you may be infected. http://www.coronavirus.gov.

By Minh Vu, Kristina Launey and Susan Ryan

Seyfarth Synopsis:  The ADA Title III federal lawsuit numbers in 2019 topped 11,000 for another all-time record.

Plaintiffs filed at least 11,053 ADA Title III lawsuits in federal court in 2019 — 890 (or 8.8%) more than in 2018. This is the highest number since we started tracking these lawsuits in 2013, when there were only 2,722 such lawsuits.  These numbers include Title III lawsuits filed on all grounds — physical facilities, websites and mobile applications, service animals, sign language interpreters, and more.  These numbers do not include the significant number of disability access lawsuits filed in state courts which are much more difficult to accurately track.

[Graph: Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2019: 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]

California, New York, and Florida continued to lead the country with the highest number of lawsuits by a long shot, with 4,794, 2,635, and 1,885 lawsuits, respectively.  These three states saw 84% of all the ADA Title III lawsuits nationwide, with California and New York each breaking their own records for the number of ADA Title III lawsuits, as shown in the graph below.

[Graph: California, New York, and Florida ADA Title III Lawsuits in Federal Court (2013-2019): 2013: CA 995, FL 816, NY 125; 2014: CA 1,866, FL 1,553, NY 212; 2015: CA 1,659, FL 1,338, NY 366; 2016: CA 2,468, FL 1,663, NY 543; 2017: CA 2,751, FL 1,488, NY 1,023; 2018: CA 4,249, FL 1,941, NY 2,338; 2019: CA 4,794, FL 1,885, NY 2,635]

Georgia, Texas, Pennsylvania, Illinois, New Jersey, Colorado, and Alabama also made the top ten but trailed very far behind with Georgia leading the second pack with 243 lawsuits.  Arizona fell out of the top ten with a dramatic decrease in lawsuit numbers (94 in 2018 to 13 in 2019), replaced by Illinois which had 190 lawsuits in 2019 — a 171% increase over 2018.

Businesses in North Dakota, South Dakota, and Vermont continued to be ADA Title III lawsuit-free for the third consecutive year (2017-2019).

[Graph: Top 10 States for ADA Title III Federal Lawsuits 2018 Compared to 2019; CA 2018: 4,249, 2019: 4,794; NY 2018: 2,338, 2019: 2,635; FL 2018: 1,941, 2019: 1,885; GA 2018: 160, 2019: 243; TX 2018: 196, 2019: 239; PA 2018: 129, 2019: 193; IL 2018: 70, 2019: 190; NJ 2018: 70, 2019: 95; CO 2018: 75, 2019: 81, AL 2018: 70, 2019: 79]

For the lawsuit trends in 2019 that drove these numbers, see our year end roundup post.

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.

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By: Minh N. Vu and Samuel Sverdlov

Seyfarth Synopsis:  Purveyors of porn are being sued for offering online videos without closed captioning.

We really can’t make this stuff up. Lawsuits by deaf plaintiffs against public accommodations for failing to provide closed captioning for videos on their websites are not uncommon. But last week, a deaf man sued three porn websites in federal court in New York claiming that online porn videos must have closed captioning which would provide a transcription of any dialogue, as well as a description of sounds in the video. The plaintiff claimed that the porn purveyors’ failure to provide closed captioning on the videos prevented him from full enjoyment of videos such as Hot Step Aunt Babysits Disobedient Nephew – Sofi Ryan – Family Therapy, Sexy Cop Gets Witness To Talk, A— Lesbian Action and Dirty Talk, The Guy Talked a Woman to A— Sex, Daddy 4K – Allison Comes To Talk About Money To Her Naughty Father, 18 YO Blonde Stripper DP in Homemade Gangbang Porn, and Beautiful Newbie Jasmine Interviewed Before A— Crea—e, in violation of Title III of the ADA, the New York State Human Rights Law, the New York City Human Rights Law, and the New York State Civil Rights Law.

Putting aside jokes about whether the dialogue is that critical or how one would describe the various sounds in these videos, these lawsuits do raise some interesting legal questions. For example, are the websites, which are not likely to be associated with any physical place of public accommodation, covered by Title III of the ADA? There is no precedent from the Court of Appeals for the Second Circuit on this issue, though some New York district judges in the Circuit think they are. The porn websites may also contain content posted by third parties for which the sites may have immunity under the Communications Decency Act of 1996, as one Massachusetts federal judge recently found in another case involving closed captioning of online videos posted on university websites.  We’ll keep a close eye on this one and apprise you of any legally noteworthy developments.

Edited by Kristina Launey

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By Minh N. Vu

Seyfarth synopsis:  ADA Title III lawsuits flooded federal courts in 2019 and will likely continue to do so in 2020 with new theories for the courts to consider. 

We are still tallying up the end-of-year numbers, but the number of ADA Title III lawsuits filed in federal courts by the end of November 2019 (10,206) exceeded the number of such lawsuits filed in all of 2018 (10,163).  California courts continue to be the busiest with roughly 43% of the lawsuits, with New York and Florida courts taking second and third place with  24% and 18% of the market share, respectively.  With plaintiffs and their lawyers constantly conjuring up new claims, businesses are not likely to see any relief from these types of suits in 2020.

What types of lawsuits are trending now?

Braille Gift Card Lawsuits.  Starting in October of 2019, more than a dozen blind plaintiffs represented by five attorneys have filed at least 243 lawsuits in the Southern and Eastern Districts of New York alleging that retailers and other businesses have violated the ADA and New York state and city laws by failing to offer for sale gift cards that have all the information printed on the cards shown in Braille. These cases are assigned to at least twenty-nine different judges. A firm in southern California has also jumped on the bandwagon, filing Braille gift card lawsuits in California state court and sending out a number of pre-suit demand letters. Most defendants are digging in for a fight so we expect to see many motions to dismiss filed in the first quarter of 2020.

Website and Mobile App Accessibility Lawsuits.  Although we are still tallying the numbers, lawsuits alleging inaccessible websites and mobile apps accounted for at least a fifth of the total number of ADA Title III lawsuits filed in federal courts in 2019. Most plaintiffs in these cases are blind and claim that the websites in question do not work with their screen reader software which reads website content aloud. A much smaller number of plaintiffs are deaf and are suing about the lack of closed captioning for online videos.

Plaintiffs continue to file these website and mobile app accessibility lawsuits, though the rate at which they were being filed seemed to slow down in the fourth quarter of 2020. The change may be attributable to the fact that some of the lawyers who were filing many of these website accessibility suits in New York have turned their attention to Braille gift card lawsuits.

The big news from 2019 on the website accessibility front was the U.S. Supreme Court’s refusal to hear Domino’s appeal from a Ninth Circuit Court of Appeals decision allowing a blind plaintiff to pursue his lawsuit against the pizza chain for having an allegedly inaccessible website and mobile app. Businesses had hoped that the Supreme Court would hear the case and perhaps take some action to curtail the tsunami of website and mobile app lawsuits.

In 2019, Plaintiffs also made significant headway in persuading California state courts that inaccessible websites violate the state’s non-discrimination statute, including one appellate affirmation of a judgment in favor of blind plaintiff. In fact, one California Superior Court judge decided that the ADA applies to websites of businesses with no physical location where customers go. In reaching this conclusion, this California judge rejected federal Ninth Circuit precedent that the ADA only applies to websites of public accommodations with a nexus to a physical location.

Hotel Accessibility Information on Reservations Websites.  A number of plaintiffs filed lawsuits against hotels for allegedly failing to provide sufficient information about the accessibility of their accessible guest rooms and common areas on their websites, as required by the ADA Title III regulations, to allow travelers with disabilities to make informed decisions about whether a hotel meets their needs. In response to this flurry of lawsuits, many hotels have updated their websites to provide the required information. Now some plaintiffs are filing lawsuits alleging that hotels are not making accessible rooms available for sale on websites operated by third party online travel agencies.

Accessible Hotel Room Dispersion.  Title III of the ADA requires hotels to provide accessible rooms in a range of different room types (e.g. rooms with two beds, premium views, suites) so that people with disabilities have room choices that are comparable to those offered to people without disabilities. One plaintiff in particular has filed more than a hundred lawsuits under this theory, and we have no reason to think she will stop in 2020.

Inaccessible Facilities.  Historically the most prolific category for accessibility lawsuits, we have continued to see in the lawsuit filing numbers and in our practice many lawsuits about allegedly inaccessible physical public accommodations facilities such as hotels, retail stores, restaurants, and shopping centers in 2019. We do not expect this to change in 2020.

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Be sure to subscribe to our blog to receive notices of developments throughout the year!

Edited by Kristina Launey

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By Minh N. Vu and John W. Egan

Seyfarth Synopsis:  Enterprising plaintiffs in New York are suing more than 100 businesses under a new theory – – that ADA Title III requires Braille gift cards.

Between Thursday, October 24 and as recently as last Friday, over 100 putative class action lawsuits (and counting) have been filed against businesses for violations of ADA Title III, as well as the New York State and City Human Rights Laws in the United States District Courts for the Southern and Eastern Districts of New York.  The complaints are nearly identical and assert the same theory: A business that provides a gift card for purchase, but does not offer a Braille version, is committing discrimination against individuals who are blind or have visual impairments.

There are 11 plaintiffs and 4 law firms that have filed these cases.  Coincidentally, these are the same litigants and attorneys who have filed hundreds of lawsuits against businesses (including some of the same business targeted in these gift card cases) for allegedly inaccessible websites over the past several years.  In fact, based on our research, these plaintiffs and their attorneys, taken together, were responsible for approximately one-third of all federal website accessibility lawsuits filed in New York last year.

Businesses facing a barrage of website accessibility lawsuits and demand letters must now deal with this new threat based on what certainly appears to be a coordinated and wide-ranging legal challenge.

The gift card complaints allege that the plaintiff is blind and contacted the defendant earlier this month to inquire as to whether its gift cards are provided in Braille.  When each defendant allegedly responded that a Braille gift card was not available, the plaintiff commenced a lawsuit shortly thereafter.  The complaints cite at least one retailer that sells a gift card with its name in Braille, recites the ubiquity and importance of gift cards in the retail industry, and relies on the provision of Braille materials as an example of an auxiliary aid or service in ADA regulations.

Without “giving away the store,” we believe that there are compelling defenses to these cases and look forward to how the judges in the SDNY and EDNY will respond.  Stay tuned to the Blog for further updates on this developing story.

Edited by Kristina M. Launey

By Kristina M. Launey and Minh N. Vu

Seyfarth Synopsis: Website accessibility lawsuit filings in federal court in 2019 are on track to exceed 2018.  Will we see an increase in filings as a result of the Supreme Court’s decision not to review the Ninth Circuit’s Order in Robles v. Domino’s?

As of June 30, 2019, we counted 1204 website accessibility lawsuits filed in federal courts since January 1, 2019, for a projected total of 2408 by year end. This would constitute a seven percent increase over 2018’s numbers.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court Jan. 1, 2017 to Jun. 30, 2019: 2017: 814; 2018: 2,258, 177% Increase over 2017; 2019: Total: 1,204 as of June 2019, Projected: 2,408, Projected 7% Increase over 2018]

As in past years, New York continued to lead the way, with 676 lawsuits filed from January 1, 2019 to June 30, 2019.  Florida and California followed with 336 and 74 lawsuits, respectively.

[Graph: All States Where Federal ADA Title III Website Accessibility Lawsuits Have been Filed Jan. 1 to Jun. 30, 2019: NY: 676; FL: 336; CA: 74; PA: 44; IL: 30; MA: 19; WI: 8; IN: 6; NJ: 4; CN: 2; TX: 2; DC: 1; ID: 1; VA: 1]

There were 5,592 federal ADA Title III lawsuits of all types (not just website accessibility) filed in the first half of 2019, so website accessibility suits make up roughly 22 percent of the overall number of cases.

For the first time, we looked at website accessibility lawsuits by month for 2019 and there was a significant decrease in the number of filings in September:  From 272 in August to 135 in September. It may be that attorneys were holding off on filing new lawsuits until the Supreme Court issued its decision regarding Domino’s Petition for Certiorari.  On average, seven website accessibility lawsuits were filed in federal court each day in 2019.

[Graph: Total Number of Website Accessibility Lawsuits Filed By Month in 2019 (Jan. 1 to Sept. 30, 2019): January: 240; February: 211; March: 185; April: 183; May: 197; June: 188; July: 261; August: 272; September: 135; On average, there were approximately 7 website accessibility lawsuits filed per day.]

Many commentators predict that the U.S. Supreme Court’s denial of review of the Robles v. Domino’s Ninth Circuit decision will result in a surge of website accessibility lawsuits.  To test this theory, we counted the number of lawsuits filed from January 1, 2019 to October 7, 2019 – the date the Supreme Court declined to hear the case.  There were 1906 website accessibility lawsuits filed up to and including October 7, 2019, for a daily average of seven filings. We will see how the post-Domino’s number stacks up in the coming months.

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By Minh N. Vu

Seyfarth Synopsis:  The Supreme Court Leaves the Ninth Circuit’s Robles v. Domino’s decision intact, dashing businesses’ hope for some relief from website accessibility lawsuits.

The Supreme Court today issued its much anticipated decision on Domino’s  Pizza’s Petition for Certiorari in the Robles v. Domino’s website accessibility case, and it is not good news for businesses.  The Supreme Court declined to review the Ninth Circuit’s decision holding that (1) Title III of the ADA covers websites with a nexus to a physical place of public accommodation, and (2) imposing liability on businesses for not having an accessible website does not violate the due process rights of public accommodations even in the absence of website accessibility regulations.  The denial of certiorari means the case will go back to the District Court to be litigated on the merits.  We predict the case will settle soon after remand.

Business groups had hoped that the Supreme Court would take up the Domino’s case and issue a decision that would end — or at least minimize — the tsunami of website accessibility lawsuits that have hit public accommodations nationwide.  That has not happened, leaving the business community with no real options for relief.  The Department of Justice has no plan to issue any regulations on website accessibility and the likelihood that Congress will take any legislative action is low.  The decision is a significant victory for disability rights advocates and the cottage industry of plaintiff’s lawyers who will likely celebrate with more lawsuit filings.

Edited by Kristina Launey and John Egan

By John W. Egan

Seyfarth Synopsis: Businesses are defending record numbers of ADA Title III cases every year.  A recent decision in New York underscores the challenges business face when ADA plaintiffs are more interested in protracted litigation than settlement. 

The number of ADA Title III lawsuits filed annually has increased more than 300 percent in the last five years.  Government officials and a few judges dealing with burgeoning caseloads have taken steps to reign in abuses.  Judges have disciplined attorneys for filing indiscriminate claims without a sufficient basis, state attorneys general have stepped in to curb high volume filers of these cases, and members of Congress have urged DOJ to resolve regulatory uncertainty that has sent the number of website accessibility claims soaring to new heights.

There are hundreds, if not thousands, of requirements for physical accessibility with which businesses must comply.  Unlike local building code enforcement, non-compliance with ADA design standards is not simply redressed by a fine.  Violation of these standards can give rise to a lawsuit in which a prevailing plaintiff can recover reasonable attorneys’ fees under the ADA’s fee-shifting provisions and, in some jurisdictions, an award of damages under state and municipal disability access laws.

In addition to fending off an increasing barrage of ADA lawsuits, businesses face the prospect of expending even more resources when the other side resists settlement in favor of litigation.  A New York federal judge recently issued a decision criticizing a plaintiffs-side ADA firm that reportedly had no interest in settling an ADA case, even where the businesses were willing to remediate (and did remediate) ADA violations identified in the Complaint.

In Range v. 535 Broadway Group, LLC, Plaintiff asserted ADA, state and city law claims against a clothing store that occupied two stories in a multi-story, mixed use Manhattan building.  While the case was pending, Defendant remediated nearly all alleged barriers and attempted, unsuccessfully, to obtain a settlement demand from Plaintiff.  The court ultimately dismissed the ADA claim, and heavily criticized Plaintiff’s firm in doing so in its opinion.

The court stated that the firm was “impeding the progress of the case” by refusing to provide a global settlement demand and expressing “little interest” in resolving claims over barriers that Defendant had already remediated.  The court cited other reported decisions critical of the firm’s “litigation gamesmanship,” which was reportedly part of its “repertoire” in ADA cases.

After reviewing Defendant’s motion for dismissal based on the pleadings, Plaintiff’s firm requested to amend the Complaint to withdraw the federal claim and assert only state and city law claims for damages.  The court “rejected . . . . that maneuver as a thinly veiled attempt . . . to forum shop and seek a do-over in state court.”  Plaintiff then opposed dismissal of the very same ADA claim he previously agreed to withdraw, and advanced an interpretation of the applicable regulation relating to accessible route requirements for multi-story buildings that was, the court noted, inconsistent with his attorney’s position in another case in the same jurisdiction.  The court went so far as to describe the argument as one Plaintiff’s attorneys “kn[ew] is a loser.”

According to the court, “[s]uch freewheeling advocacy is of no use to a judge, . . . flirts with violating Rule 11 . . . .[,]” and “waste’s everyone’s time.”  The court dismissed the ADA claim, but exercised supplemental jurisdiction over Plaintiff’s New York City Human Rights Law claim, which the court held could not be dismissed on a motion for judgment on the pleadings.

Businesses are defending a record number of ADA lawsuits annually.  As a remedial statute that awards attorneys’ fees to a prevailing plaintiff, businesses are often incentivized to reach a settlement before expending significant resources in litigation.  The emergence of plaintiffs-side attorneys interested in pursuing protracted litigation, despite a business’s interest in an early resolution, represents an additional concern for businesses seeking to limit their exposure from predatory ADA lawsuits.

Edited by Minh N. Vu

By Kevin Fritz and Latoya Liang

Seyfarth Synopsis: In a recent decision, the Seventh Circuit agreed with the Fourth Circuit in holding that a plaintiff who is legally barred from using a credit union’s services cannot demonstrate an injury in fact that can support standing to sue.  

The plaintiff in Carello v. Aurora Policeman Credit Union, a blind man, sued the Aurora Policeman Credit Union under Title III of the Americans with Disabilities Act (ADA) alleging its website was not accessible to him through screen reader software. The plaintiff alleged both dignitary and informational harm.  The District Court dismissed the case for lack of standing. On appeal, the Seventh Circuit Court of Appeals affirmed, finding neither of these alleged harms satisfied the injury-in-fact requirement to confer standing.

The Court found that the plaintiff could never be a member of the Credit Union because the Illinois Credit Act requires that membership to a credit union be only open to groups of people who share a “common bond.” Accordingly, the Aurora Policeman Credit Union limits its membership to specified local city and county employees, of which the plaintiff was neither.  Instead, the plaintiff was a “tester,” visiting websites solely for the purpose of testing (and suing for) ADA (non)compliance.

While the Seventh Circuit said that dignitary harm can sometimes be a cognizable injury, it concluded that not all dignitary harms are sufficiently concrete to be injuries in fact to confer standing to sue.  The Seventh Circuit said Illinois law prevented the plaintiff’s dignitary harm from ever materializing into a concrete injury because the Illinois Credit Act was a neutral legal barrier, making it impossible for the plaintiff to ever be a customer, and eliminating the personal impact of the injury.  Simply stated, without a connection between the plaintiff and the Credit Union that distinguished him from other members of the public, the plaintiff’s harm was too abstract.

The Seventh Circuit also rejected the argument that that the Credit Union caused the plaintiff informational harm by failing to make the text on its website accessible to his screen reader.  The Court noted that an informational injury only occurs when a defendant refuses to provide a plaintiff with information that a law entitles him to obtain and review for some substantive purpose.  Here, the plaintiff was only complaining about not being able to easily access the information which is publicly available on the website.

The Seventh Circuit’s position echoes two Fourth Circuit decisions which we reported on here.  While plaintiffs will undoubtedly try to limit the significance of these cases, they clearly send a message that judges in these circuits are giving website accessibility cases a hard look before allowing them to move forward.  The plaintiff’s bar will likely respond by avoiding these jurisdictions and filing in more plaintiff-friendly jurisdictions where some district courts have held that the inability obtain information about a business that a plaintiff could never actually patronize is an injury-in-fact sufficient to establish standing.

Edited by: Minh Vu and Kristina Launey