ADA Accessibility Lawsuit

Seyfarth Synopsis: A new Ohio law will require notice and opportunity to cure as a prerequisite for a plaintiff’s recovery of attorney’s fees in physical accessibility lawsuits.

Businesses across the country have been asking Congress to provide some relief from ADA “drive by” and “gotcha” lawsuits about physical access barriers at public accommodations facilities.  Federal efforts to amend the ADA stalled early in 2018, but a new Ohio law may provide businesses in that state with some advance notice and an opportunity to cure physical access violations before being held liable for paying the plaintiff’s attorney’s fees – at least under Ohio accessibility laws.

In 2018, the U.S. House of Representatives passed the ADA Education and Reform Act of 2017, H.R. 620, which would have prohibited a plaintiff from filing a federal ADA lawsuit based on failure to remove an architectural barrier unless the plaintiff has first given the businesses notice of the alleged violations and an opportunity to provide a plan to address them.  H.R. 620 gained no traction in the U.S. Senate, however.

Ohio Governor Kasich recently signed House Bill 271, which will require a plaintiff, to be eligible for attorney’s fees, to provide a notice of an alleged accessibility law violation in advance of filing a civil action.  After serving notice, the plaintiff cannot file a lawsuit until the property owner or responsible party fails to respond or fails to remediate the violations under certain conditions and in certain time frames.  A plaintiff who provides notice but fails to allow the defendant opportunity to remediate the property as specified in the bill may forfeit entitlement to attorney’s fees, as specified in the bill.  That said, a plaintiff who does not provide notice may still be able to recover fees if the trial court determines attorney’s fees are appropriate due to the nature of the violations.

House Bill 271 says it applies to alleged violations of Ohio and federal accessibility laws (except housing discrimination), but since no state law can affect the remedies and procedures available under the federal ADA, it will not impact the recovery of attorney’s fees in ADA lawsuits.  Time will tell as to whether this legislation will cause a decrease in the number of physical accessibility lawsuits filed in Ohio, but we remain skeptical.

Edited by Minh N. Vu

Seyfarth Synopsis:  2017 saw an unprecedented number of website accessibility lawsuits filed in federal and state courts, and few courts willing to grant early motions to dismiss.

Plaintiffs were very busy in 2017 filing ADA Title III lawsuits alleging that public accommodations’ websites are not accessible to individuals with disabilities. Here is our brief recap of the 2017 website accessibility lawsuit numbers, major developments, and our thoughts for 2018.

  • In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. We arrived at this number by searching for lawsuits with certain key terms and then manually reviewing the results to remove any cases that did not concern an allegedly inaccessible website.  Our numbers are conservative, as it is very likely that not every website accessibility lawsuit’s description – upon which we based our search – contained our search terms. This caveat applies to all of the data set forth below.
  • Of the 814 federal cases, New York and Florida led the way with more than 335 and 325 cases, respectively. Surprisingly, California only had nine new website accessibility lawsuits in 2017, most likely because plaintiffs filed in state court.  Federal courts in Arizona (6), Georgia (9), Illinois (10), Massachusetts (15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania (58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of website accessibility lawsuits.
  • In California state courts, plaintiffs filed at least 115 website accessibility lawsuits in 2017 under the state’s non-discrimination laws. We compiled this data based on searches we performed for lawsuits by four blind plaintiffs represented by two California law firms.
  • In New York state courts, plaintiffs filed at least six website accessibility lawsuits in 2017. All were putative class actions.
  • Defendants in at least 13 federal website accessibility cases filed motions to dismiss or for summary judgment where there were no unusual circumstances like a prior court order or settlement agreement that obligated the defendant to make its website accessible. The courts denied all but two of those motions and let the cases proceed to discovery.
    • In one case where the defendant, Bang & Olfusen, won its motion to dismiss, the court noted that the plaintiff had failed to plead a nexus between the physical place of public accommodation and the website in question. In the other case, the court dismissed the claims made against Domino’s because requiring the defendant to comply with a set of web accessibility guidelines that are not yet law would violate due process principles.  The Domino’s decision is on appeal and will be reviewed by the Ninth Circuit in 2018.  Our post about these cases is here.
    • In the 11 cases where the federal judges refused to dismiss website accessibility claims and allowed the cases proceed to discovery, the defendants had unsuccessfully argued that the principles or due process and the doctrine of primary jurisdiction should be the basis for dismissal. One of our posts discussing some of these decisions is here.
    • In three decisions, the courts were open to the concept that providing telephonic access to the goods and services offered at the public accommodation may satisfy the ADA, but they refused to dismiss the cases at the outset on this basis.
  • The first trial in a website accessibility lawsuit took place in 2017. Florida U.S. District Judge Scola presided over this bench trial and concluded that grocer Winn Dixie had violated Title III of the ADA by having an inaccessible website.  Judge Scola also found that the $250,000 cost to remediate Winn Dixie’s website was not an “undue burden” and ordered Winn Dixie to make its website conform with the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).
  • Three defendants were able to dismiss website access lawsuits early because they had already entered into consent decree or settlement agreements with previous plaintiffs which required them to make their websites conform to the WCAG 2.0 within a specified amount of time. That said, not all courts agree that a prior settlement — as opposed to a binding judgment or court order — can be the basis for a dismissal.
  • The Department of Justice’s (DOJ) rulemaking to create new website accessibility regulations is now officially dead, as we recently blogged. The lack of clear rules will lead to more litigation and inconsistent judicially-made law.  In fact, it appears that the DOJ will not be issuing any new regulations under Title III of the ADA about any subject, according to the agency’s December 26 announcement in the Federal Register repealing all pending ADA Title III rulemakings.

What’s in store for 2018? If the Ninth Circuit upholds the Domino’s district court’s dismissal on due process grounds, the number of California website accessibility lawsuits in federal court may go down dramatically.  Even if that occurs, we see no end to the website accessibility lawsuit surge elsewhere and expect that new plaintiffs’ firms will continue to enter the scene.  While the current administration’s DOJ is not likely to push the website accessibility agenda, its inaction will not stop the lawsuits.  Only an amendment to the ADA can do that, which we believe is highly unlikely.  Thus, the best risk mitigation effort for covered entities is still to make their websites accessible as soon as possible, with the assistance of ADA Title III legal counsel experienced in website accessibility issues and reputable digital accessibility consultants.

Edited by Kristina Launey

By Jon D. Meer

When defendants win in a Title III ADA accessibility case, they are entitled to seek their reasonable attorneys’ fees.  To recover, defendants have to show that the claims were “frivolous, unreasonable or without foundation.”  While most claims that are dismissed on summary judgment would seem to meet this standard, district courts often deny fees to prevailing defendants.

The Ninth Circuit has now endorsed a second chance to seek fees against plaintiffs who pursue appeals of their claims.  In the very recent decision in Martinez v. Columbia Sportswear USA Corp and Eddie Bauer LLC, Case No. 12-16331 (9th Cir. June 9, 2014), the Ninth Circuit awarded the defendants all of their fees on appeal, because “it was clear at the time that the district court entered final judgment that the claims had no basis in law or fact.”  Thus, even though the district court had denied the defendants’ request for fees at the time of final judgment, the Ninth Circuit held that a case that did not seem frivolous at the time of summary judgment may later be found frivolous if the plaintiff pursues an appeal.

Even better, the Ninth Circuit—which is often perceived as too friendly to the pursuit of ADA accessibility lawsuits—ordered that both the plaintiff and his counsel were both responsible for paying the defendants’ fees.

So, if fees are denied by the district court, defendants may get a second chance to seek fees on appeal.  At the appellate level, a case may seem more frivolous and a fee award from an appellate court is likely to be very difficult to overturn.  To take advantage of this strategy, defendants should consider the following:

  • Inform plaintiff’s counsel that defendants will seek fees on appeal, even if fees were denied by the district court
  • Consider waiving fees on appeal in exchange for plaintiff’s dismissal of the appeal—given that fees on appeal are a realistic possibility
  • Seek fees on appeal against both the plaintiff and the plaintiff’s counsel
  • Seek fees based on a reasonable rate with precise documentation of the hours worked and the billing rates of the lawyers on the appeal—don’t give the court an excuse to cut the amount of fees requested

To be sure, a realistic threat of paying attorneys’ fees can help to deter entrepreneurial lawsuits.  While a threat of fees might have little impact at the inception of litigation, defendants now have more support for a subsequent chance at fees on appeal.  Plaintiffs beware.