By: Ashley S. Jenkins and Minh N. Vu

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

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

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

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

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

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

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


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

By Minh Vu and John Egan

Seyfarth Synopsis: Three businesses prevail in website accessibility lawsuits in New York and California. 

Defending website accessibility lawsuits can be an expensive and difficult battle for public accommodations, but there have been a few bright spots for businesses this summer.

1.     On July 14, 2021, Judge Brian Cogan of the United States District Court for the Eastern District of New York dismissed  a website accessibility lawsuit against a print and online newspaper publisher. The Court determined that the plaintiff—a deaf individual who claimed that the media company’s website violated the ADA by not having closed captioning for its videos—failed to state a claim for violation of Title III of the ADA because the website did not fall within the definition of a “place of public accommodation” under Title III of the ADA.  The court found “[n]either a newspaper publisher nor a digital media content provider falls within any of the twelve enumerated places of public accommodation categories under the ADA” and “defendants are also not sufficiently analogous to any of the public accommodations listed in the statute to be deemed to be a public accommodation.”  This decision is of particular interest to businesses that do not clearly fit within the definition of place of public accommodation, but are nevertheless faced with website accessibility lawsuits as plaintiffs are pushing the boundaries of the law.

On the separate issue of whether a business that does fall within the twelve enumerated categories of public accommodations — but has no physical place where it offers goods and services — is covered by the ADA, the court noted that this was still an open question in the Second Circuit.

2.     On August 16, 2021, Judge Eric Komittee of the U.S. District Court for the Eastern District of New York in dismissed another lawsuit alleging that a newspaper publisher’s website violated the ADA because it contained videos without closed captioning. The court found that Title III of the ADA only covers the goods and services of a physical place of public accommodation, and the website is not a physical place.  The decision contained a very thorough discussion of the statute and relevant case law, and concluded (as did Judge Cogan in the above case) that the Second Circuit has yet to decide this issue.

Judge Komittee parted ways with Judge Weinstein of the Southern District of New York who decided in Blick Art.  Judge Weinstein relied on the Second Circuit’s decision in Allstate v. Pallozzi to conclude that websites of online-only businesses are covered by Title III of the ADAThis interpretation was a stretch because in Pallozzi, the Second Circuit held that Title III of the ADA applied to the terms of an insurance policy purchased at an actual insurance office.  Judge Komittee aptly pointed out that the goods and services offered by the insurance office in Pallozzi were clearly covered by Title III of the ADA because an “insurance office” is explicitly listed in the statute’s definition of a “public accommodation,” whereas websites are nowhere to be found in that definition.

These two recent decisions from the Eastern District of New York are welcome news for “internet-only” businesses facing steadily increasing numbers of ADA website and mobile app lawsuits in this particular district.  Businesses need to keep in mind, however, that just as many judges in the Southern District of New York have found that online-only businesses are covered by Title III of the ADA.  Furthermore, other judicial circuits such as the First Circuit do not limit the ADA’s coverage to businesses that have physical places where goods and services are offered, and district courts in that circuit have applied that precedent to find online-only businesses to be covered by Title III of the ADA.

3.     On the other side of the country, the California Court of Appeals for the Fourth Appellate District issued a decision on September 8, 2021 affirming a defense jury verdict reached in Thurston v. Omni Hotels Management Corporation. The blind plaintiff had filed this state court action under California’s Unruh Act claiming that the defendant had discriminated against her by having a website that she could not access with her screen reader.  At issue on appeal was the trial court’s instruction to the jury that, to state a claim, the plaintiff had to establish that she “attempted  to use [the hotel’s] website for the purpose of making a hotel reservation (or to ascertain the hotel’s prices and accommodations for the purpose of considering whether to make a reservation).” The jury found no such intent, resulting in a verdict for the hotel.

The Court of Appeals affirmed the judgment, finding that a plaintiff must demonstrate an intent to use a defendant’s services to have standing to bring a claim under the Unruh Act.  The Court explained that its decision was consistent with a 2019 California Supreme Court decision holding that “a person who visits a business’s website with intent to use its services and encounters terms and conditions that exclude the person from full and equal access to its services has standing under the Unruh Act, with no further requirements that the person enter into an agreement or transaction with the business.” The Court of Appeals in Thurston noted that the Supreme Court specifically stated that defendants can — on summary judgment or at trial — dispute that a plaintiff had the required requisite intent.

UPDATE:  On November 1, 2021, District Judge Cogan issued a decision holding that a website is not a place of public accommodation.

Seyfarth Synopsis: A second California Court of Appeal rules that websites with a nexus to a physical place of business are covered by Title III of the Americans with Disabilities Act, while a California trial court insists that online-only websites are covered as well, contradicting the U.S. Court of Appeals for the Ninth Circuit.

On June 18, 2020, the California Court of Appeal for the Fourth Appellate District became the second California Court of Appeal to rule, in Martinez v. San Diego County Credit Union (SDCCU), that websites with a nexus to a physical place of business where customers go are covered by Title III of the Americans with Disabilities Act (ADA).  The first decision, in Thurston v. Midvale, was issued in September 2019 by the Second Appellate District Court of Appeal and affirmed the trial court’s ruling that Midvale violated the ADA and California Unruh Civil Rights Act by having a restaurant website that could not be used by a blind person with a screen reader. The SDCCU decision reversed a trial court’s decision that the website of a credit union with physical banking location was not a “public accommodation” under the ADA. These two California state court appellate decisions are consistent with the position of the federal U.S. Court of Appeals for the Ninth Circuit, which has also held that a website with a nexus to a physical place of business where customers go is covered by the ADA on the theory that the website is a service or benefit of a place of public accommodation.

The SDCCU decision is noteworthy because the Court of Appeal discussed at length what it means to have a “nexus” to a physical place of business. It noted that the courts have not yet articulated a single standard on this issue, but that most federal circuits and one California Court of Appeal (Midvale) have found that a nexus exists if the facts show the website “connect[s] customers to the goods and services of [the defendant’s] physical” place.  This standard is much less demanding standard than in, say, the 11th Circuit, which requires plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.

The SDCCU Court of Appeal expressly withheld its opinion on whether a website with no nexus to a physical place (i.e. an online-only business) is covered by the ADA since the defendant credit union had a physical location.

On that question, at least one California state trial court (in Riverside County) has (recently) decided that an online-only business is covered under Title III of the ADA.  In Martinez v. Kydia Inc., the trial court acknowledged the U.S. Court of Appeals for the Ninth Circuit had reached the opposite conclusion in several cases but chose not to follow these holdings. Instead, the Court of Appeal framed the issue as “whether equality applies to a non-physical marketplace within the meaning of Title III of the ADA.” The court noted that there is “no direct guidance in California through the district courts”, and that it was “not persuaded” by the Ninth Circuit’s Domino’s (and Target) decision because there was a nexus in those cases, before examining decisions in out-of-state district courts on the issue. The SDCCU Court of Appeal cited dicta in the Thurston v. Midvale Court of Appeal decision that “Congress intended the ADA to ‘keep pace with rapidly changing technology’ and “[e]xcluding websites just because they are not built of brick and mortar runs counter to the purpose of the statute.”

The takeaway from these cases is that in California state and federal courts, the websites of brick and mortar businesses falling into the definition of a “public accommodation” under Title III of the ADA are covered by the law. Whether online-only businesses are covered by Title III of the ADA remains an open question in California state court, with at least one trial court now saying the answer is yes.

Edited by Minh N. Vu

By Minh N. Vu, Julia Sarnoff, Kristina Launey

Seyfarth synopsis: California Court of Appeal affirms ruling that inaccessible restaurant website violated the Unruh Act and orders that restaurant website comply with WCAG 2.0 Level AA.

Before September 3, 2019, there were four substantive California state trial court decisions in website accessibility cases, and the verdict score was tied at 2-2.  Plaintiffs obtained summary judgment in two website accessibility cases concerning the websites of a retailer (Davis v. BMI/BND Travelware) and a restaurant (Thurston v. Midvale Corporation), while defendants secured summary judgment in a website accessibility case concerning a credit union website (the case has been appealed) and a defense jury verdict in a case concerning an inaccessible hotel website. Defendant Midvale Corporation pursued an appeal, which has resulted in very favorable precedent for website accessibility plaintiffs and their lawyers.

In a 33-page published decision, the California Court of Appeal affirmed the California Superior Court’s summary judgment ruling that Midvale violated the California Unruh Civil Rights Act by having a restaurant website that could not be used by a blind person with a screen reader.  The Court of Appeal also affirmed the trial court’s injunction mandating that Midvale make the restaurant website comply with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. Because the plaintiff’s Unruh Act claim was based on a violation of Title III of the ADA, the court’s analysis focused on whether Midvale violated the ADA by having an inaccessible website.

Here are some highlights from the decision:

Websites with a physical nexus are subject Title III.  The court held that that Title III of the ADA applies to a restaurant website because the website has a nexus with a physical place.  Citing to the federal Ninth Circuit Court of Appeals’ decision in Domino’s, the Court held that “including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with the changing technology to effectuate the intent of the statute.”  The Court also provided a detailed analysis of when a website has a sufficient nexus to a physical place of public accommodation, noting that a sufficient nexus existed in this action because “the website connects customers to the services of the restaurant.”  The Court declined to consider the plaintiff’s “wholly hypothetical question” of whether Title III of the ADA governs a website unconnected to a physical place of public accommodation offering only purely internet-based services or products.  This ruling is good news (for the moment) for businesses that do not have a physical location where customers go.

Third Party Content.  In response to Midvale’s argument that its website did not really connect customers to its location because customers are directed to a third party reservation service website to make a reservation, the Court of Appeal said “appellant offers no legal support for its theory that it cannot be liable for ADA discrimination if hires someone else to do the discrimination.”  This comment and the related analysis suggest that the court would be inclined to hold businesses accountable for the inaccessibility of websites of third parties with whom they contract to provide services to customers.

Alternative Means of Effective Communication. The court held that there was no triable issue of fact about whether the restaurant’s provision of a telephone number and email address on its website was a reasonable alternative means of providing effective communication because the restaurant’s telephone line and email address were available only during the restaurant’s hours of operation.  Because a sighted individual could obtain information about the restaurant 24 hours a day by visiting the website, the Court reasoned that the telephone number and the email did not provide effective communication in a “timely manner” since “the use of either [the telephone number or email] required [the plaintiff] to depend upon another person’s convenience to obtain information.”  The court did not address, however, whether a toll-free number that is staffed 24 hours a day would have yielded a different outcome.  This leaves open the possibility that a different outcome may be achieved with a different set of facts.

Due Process. The court rejected Midvale’s argument that the trial court violated its due process rights by improperly equating ADA compliance with WCAG 2.0 AA compliance.  While agreeing that WCAG 2.0 AA is not yet a legal standard, the court determined that the trial court “clearly rejected liability based on non-compliance with the guidelines and premised liability on the website’s inaccessibility.”  The court also rejected Midvale’s argument that the trial court’s injunction implies that Midvale should have known WCAG 2.0 AA compliance was legally required under the ADA.  The court found that “the more obvious implication [of the trial court’s injunction] is that the trial court determined appellant could not or would not redesign its website to comply with ADA standards without specific guidance, and so it selected what it believed to be a widely used technical standard to provide the needed guidance.”

WCAG 2.0 AA Injunction Not Overbroad or Uncertain.  The court rejected Midvale’s argument that the trial court’s injunction to make the restaurant website comply with WCAG 2.0 AA is overbroad or uncertain because experts can differ on whether a website conforms to these guidelines.  It reasoned that experts can weigh in on Midvale’s compliance with the injunction and that this should be not be a bar to an injunction because trial courts routinely assess expert testimony.

Standing.  The court held that Midvale forfeited its claim that the plaintiff lacked standing to obtain an injunction because it failed to raise this argument in opposing plaintiff’s motion for summary judgment.  However, the court pontificated that the plaintiff did have standing to obtain an injunction under the Unruh Act because she testified that she visited the website multiple times, both before and after the lawsuit was filed, and that she encountered barriers each time.  Additionally, the court noted that the plaintiff testified to having at least some general interest in the restaurant (it was on a list of places she was interested in visiting), and claimed that she was deterred from visiting the restaurant’s website as a result of the barriers she encountered.  It is possible, however, that the court’s finding on the standing issue could have been different, or at least more robustly analyzed, if Midvale had raised these arguments earlier in opposition to the plaintiff’s motion for summary judgment.

This decision and the Ninth Circuit’s decision in Domino’s are both highly favorable to plaintiffs seeking to bring a lawsuit against a business with a brick and mortar presence in California.  Thus, we predict a continued increase in the number of website accessibility lawsuits filed in California state and federal courts unless the U.S. Supreme Court agrees to hear the Domino’s case and reverses the Ninth Circuit, or Congress takes action to amend the ADA.

On May 21, a California state court in Los Angeles held on summary judgment that the Whisper Lounge restaurant violated California’s Unruh Act by having a website that could not be used by a blind person with a screen reader, and ordered the restaurant to make its website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA.  The court also ordered the restaurant to pay $4,000 statutory damages.  This is the second decision by a California state court on the merits of a website accessibility case.  The first decision concerned the Bags n’ Baggage website.  In 2017, a Florida federal judge conducted the first trial in a website accessibility case against Winn Dixie and held that the grocer’s website violated the ADA because it was not accessible to the blind plaintiff, and ordered Winn Dixie to make its website conform to WCAG 2.0 AA.

The court in the Whisper Lounge case rejected – as most courts on similar facts have – the restaurant’s argument that the website is not a place of public accommodation under the Americans with Disabilities Act (ADA).  The court found that the restaurant’s website “falls within the category of ‘services….privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

Next, the court noted that the restaurant presented no evidence in opposition to the plaintiff’s showing that the website was inaccessible on February 20, 2017 – the date the plaintiff said she attempted to use the website.  The restaurant only submitted a declaration stating that the declarant was generally able to use the screen reader NVDA on the website from 2014 through 2017, without addressing the specific barriers the plaintiff said prevented her from using the website.

The restaurant also argued that it provided access to the information on its website by having a telephone number and email.  The Court rejected this argument as well, finding that the provision of a phone number and email does not provide “equal enjoyment of the website”, as the ADA requires, but instead imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate access like sighted customers.  Thus, the court reasoned, the email and telephone number do not provide effective communication “in a timely manner” nor protect the independence of the visually impaired.  The court did not say whether a toll-free number that is staffed 24-hour a day would have yielded a different outcome.

Finally, the Court rejected the restaurant’s argument that the WCAG 2.0 AA is not yet a legal requirement, finding that the Complaint did not seek to hold the restaurant liable for violating the WCAG 2.0 AA.  Rather, the Complaint alleged that the website discriminated against the plaintiff by being inaccessible and sought an injunction to require the restaurant to make its website accessible to the blind.  The Court also rejected the restaurant’s arguments that requiring it to have an accessible website violated due process and the court should wait until the Department of Justice issues regulations addressing website accessibility.  The Court noted that the fact that the restaurant was redesigning its website did not render the case moot because the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

The decision does have a silver lining for the defense bar.  The Court noted that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination.  The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

Website accessibility is an evolving and complicated topic, about which we’ve written many times.  Thanks to delayed regulations and the Department of Justice’s changing positions on the issue, businesses have been caught off guard and plaintiffs’ attorneys are capitalizing on the uncertainty.  We have seen a surge of demand letters and lawsuits against public accommodations alleging inaccessible websites.  Like we do with Title III lawsuits generally, we are tracking web accessibility lawsuits to keep you up to date on the trends.

Since January 1, 2015, 61 lawsuits alleging that a defendant’s inaccessible website violates Title III of the ADA have been filed or removed to federal court. These cases have been filed in five states – Pennsylvania, California, New York, Massachusetts, and Washington – with a small handful of plaintiffs filing virtually all of the lawsuits. The most litigious plaintiffs include Dominick Martin (9 suits, CA), Christian Diaz (8 suits, NY, mostly class actions), Robert Jahoda (6 suits, PA), Edward Davis (5 suits, CA), Jose Del-Orden (3 suits, NY, mostly class actions) and Cheryl Thurston (3 suits, CA). In Pennsylvania, Michelle Sipe and Jill Gross, often filing jointly with Access Now, Inc., Scott Lacey, Jessica Hodges, and Debra Rozear, currently have a combined total of 19 cases.

We are often asked which industry is most targeted by web accessibility suits.  Retailers are the clear winner, as can be seen in the chart below.Chart graphic


Also of note are the lawsuits about which we’ve previously written filed against universities and online-only businesses.

Only three of these businesses sued have actively fought the lawsuits thus far. Both the universities and a bank filed motions to dismiss the lawsuits, but the judges rejected those motions and allowed the cases to proceed to discovery.

Most of these lawsuits have settled, though new cases continue to be filed.

Finally, it is interesting to note that one plaintiff filed six cases in California against various retailers alleging that he was unable to apply for a job through the defendants’ allegedly inaccessible online job application processes and that the defendants offered no acceptable alternative accommodations for his vision disability.  This employment-related website accessibility issue falls outside this blog’s ADA Title III focus (and thus is not included in our data), but is still an important cautionary tale for all businesses who use online application processes. In addition, while we do not include Title II lawsuits in our data, we note that one such Title II web accessibility suit was recently filed against the Ohio Secretary of State.

Our methodology: As with our national lawsuit data, the effort to come up with these numbers is a labor-intensive, manual process. Because Pacer does not keep track of the type of ADA Title III lawsuits filed, there is no way to capture this information short of reading every complaint filed. Our analysis revealed that there have been at least 61 Title III website cases filed in or removed to federal court since January 2015. In other words, there is always the possibility of some human error and we hope you’ll forgive us if the numbers are slightly off.