Seyfarth Synopsis: If ADA Title III federal lawsuit numbers continue to be filed at the current pace, 2018’s total will exceed 2017 by 30%, fueled largely by website accessibility lawsuit continued growth.

We have completed our mid-year analysis of the ADA Title III lawsuit numbers and the results are striking.

ADA Title III Lawsuits (All Types)Plaintiffs filed 4965 federal ADA Title III lawsuits in just the first six months of 2018, as compared to 7,663 for all of 2017.  If the filings continue at the same rate, there will be close to 10,000 ADA Title III lawsuits for all of 2018 – a 30% increase over 2017.

[Graph: ADA Title III Lawsuits in Federal Court: 2013-2018: 2013: 2722; 2014: 4436, 63% increase over 2013; 2015: 4789, 8% increase over 2014; 2016: 6601, 37% increase over 2015; 2017: 7663, 16% increase over 2016; 2018: 4965 Federal ADA Title III lawsuits filed through June 2018, 30% Projected Increase over 2017 *Number of projected lawsuits based on current filing rate.]

In addition, for the first six months of 2018, New York (1026 lawsuits) has overtaken Florida (882 lawsuits) for the honor of having the second highest number of ADA Title III lawsuits, with California (2155 lawsuits) retaining its number one position as the most busy jurisdiction for ADA Title III filings.

[Graph: Top 10 States for ADA Title III Federal Lawsuits January – June 2018: CA 2155, NY 1026, FL 882, AZ 87, PA 73, TX 68, GA 65, LA 57, MA 49, NJ 48.]
ADA Title III Lawsuits (Website Accessibility).  Plaintiffs filed more website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017.  There were at least 1053 of such lawsuits in the first six months of 2018, compared to 814 in all of 2017.  If the filings continue at this rate, there could be more than 2000 website accessibility lawsuits filed in federal court for 2018.

[Graph: Federal Website Accessibility Lawsuits 2017 v. 2018 (First Six Months): 2017: 814; First Half of 2018: 1053.]
The New York federal courts have the most website accessibility lawsuits (630 lawsuits).  The Florida courts lag behind with only 342 lawsuits, and the remaining 10 states have anywhere from 1 to 24 lawsuits apiece.

[Graph: Federal Website Access Lawsuits January – June 2018: At Least 1053 Lawsuits: Ca 5, FL 342, GA 1, IL 6, MA 21, NY 630, OH 4, OR 5, PA 24, TX 7, VA 7, NC 1.]
Website accessibility lawsuits are only partly responsible for the increase in the overall number of ADA Title III lawsuits.  We continue to see many lawsuits about the accessibility of public accommodations physical facilities.  We have recently seen a number of class action lawsuits about hotel shuttle services and online hotel reservations systems.

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those cases from the count.  Our website accessibility lawsuit data comes from searches using key words in the Courthouse New Service database which we then manually analyze.  Both processes result in lists of cases that we know exist, but there may be a few we have missed. In addition, our review did not include any accessibility cases brought in state courts under state law such as California’s Unruh Act that were not removed to federal court.

Florida is one of the top states for ADA Title III filings.  As we previously reported, in 2015, California, Florida, New York, Texas, and Arizona had 3,847 ADA Title III lawsuits.  This accounts for 80% of the lawsuits filed nationwide.  Businesses are complaining, and the news media is paying attention.  Miami Local 10 News, an ABC affiliate, reported on the surge of ADA Title III lawsuits nationwide and three local small businesses that were sued by a serial plaintiff who filed more than a hundred and thirty lawsuits in 2015.  Seyfarth’s ADA Title III Team Leader, Minh Vu, provided legal commentary for the story in an interview with reporter Christina Vazquez.

Our research department has crunched the numbers from the federal court docket and the verdict is that the ADA Title III plaintiff’s bar and their clients are still busy filing lawsuits.  Here are the findings:

  • In 2015, 4,789 ADA Title III lawsuits were filed in federal court, as compared to 4,436 in 2014.  That 8% increase is modest compared to the surge we saw, and reported in 2014.  In 2014, the number of ADA Title III lawsuits increased 63% over the 2,722 lawsuits filed nationwide in 2013.

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  • California, Florida, New York, Texas, and Arizona had the most ADA Title III lawsuits —  a total of 3,847 cases.  This accounts for 80% of the lawsuits filed nationwide.
  • Although California and Florida continue to be the most popular venues for ADA Title III lawsuits, the number of cases filed in those states in 2015 decreased by 11% and 14% respectively.
  • Arizona experienced a surge in lawsuits.  Plaintiffs in Arizona filed 25 times more cases in 2015 than they did in 2014, for a total of 207 lawsuits in 2015.  Other states with substantial increases in the number of lawsuits were Georgia (from 20 to 96), Illinois (from 29 to 84), New York (212 to 366).

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  • Federal courts in Alaska, Montana, North Dakota, South Dakota, and Wyoming had no ADA Title III lawsuits.
  • Who are the plaintiffs filing these suits? Our docket review revealed the top filers in 2015 were:
    • Howard Cohan (FL/IL/LA) – 429
    • Martin Vogel (CA) – 198
    • Theresa Brooke (AZ/CA) – 175
    • Patricia/Pat Kennedy (FL) – 173
    • Tal Hilson (FL) – 136
    • Jon Deutsch (TX) – 113
    • Michael Rocca (CA) – 102
    • Shirley Lindsay (CA) – 83

We do wish to add a disclaimer:  Our research involved a painstaking manual process of going through all federal cases that were coded as “ADA-Other” and culling out the ADA Title II cases in which the defendants are state and local governments.  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.  And, we only counted federal filings.  Some plaintiffs — such as those in California, which has ADA Title III-corollary state statutes — may file lawsuits in state court that never make it to federal court, and thus, are not included in our numbers.

We’ve done the review and crunched the numbers:  It appears that the surge of ADA Title III lawsuits we saw from 2013 to 2014 is holding strong, though possibly leveling off.

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You may recall that there was a 60% increase in the number of ADA Title III lawsuits between 2013 and 2014 (2479 vs. 4436).  In the first six months of 2015, 2114 Title III lawsuits were filed.  While we think that the number of lawsuits filed in the second half of 2015 will be slightly greater than the first half, the total will not likely be much different from the 2014 total.  This means that the 2014 surge was probably not an aberration but, more likely, the new normal.  Although we did not analyze the types of ADA Title III lawsuits filed in 2015 (e.g. architectural barriers, operational issues, or digital accessibility), our practice has seen a surge of private litigant claims based on allegedly inaccessible websites.

Where are the lawsuit hotspots?  The favorites remain the same:  California, Florida, and New York.  That said, a few states are seeing more action than before.  For example, Idaho had four lawsuits in the first half of 2015 even though it had none for 2013 and 2014.  Arizona had 19 lawsuits filed during this six month period even though it only had 8 in all of 2014.  Minnesota had 42 lawsuits in the first six months of 2015 as compared to the 14 it had in all of 2014.  Wyoming, Dakota, Montana, and Nebraska continue to be ADA Title III lawsuit-free.

We’ll keep tracking the filings and update our findings for all of 2015 in January 2016.

Marcapitolianne Wilson of Chain Store Age Media reported today that the “ADA Education and Reform Act of 2015”, H.R. 3765, introduced yesterday, October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL), seeks to address ADA “drive-by” lawsuits. This is a topic about which we’ve reported about numerous times, such as here. Wilson reported Tom McGee, president and CEO of the International Council of Shopping Centers (ICSC), a group endorsing the proposed legislation believes the bill will “ensure[] resources are focused on improving access while protecting businesses from abusive lawsuits.” The article notes ICSC cited our blog’s data, which shows that from 2013 to 2014 the number of ADA Title III lawsuits surged by more than 63%.

What would the bill require?

The bill would require that DOJ’s Disability Rights Section, in consultation with property owners and representatives of the disability rights community, develop a program to educate State and local governments and property owners on effective and efficient strategies for promoting access to public accommodations for persons with a disability, such as training for Certified Access Specialist professionals.

The bill would also make it unlawful for any person to send a demand letter alleging a violation of the ADA unless the letter specifies details about the alleged denial of access circumstances, the address of the property, the specific sections of the ADA violated, and whether a request was made to remove an architectural barrier, and whether the barrier to access was permanent or temporary. Failure to comply with that provision subjects the demanding party to a fine. It also would amend the ADA to provide that a civil action based on failure to remove architectural barriers in existing public accommodations may not be brought unless the complaining party has first provided specific notice to the owner or operator of the public accommodation, after which the owner or operator would have 60 days to provide a written description of improvements to remove the barrier, and the owner or operator has not made those improvements within 120 days.

Finally, the bill directs the US Judicial Conference to, with property owners and representatives of the disability rights community, develop a model program to promote the use of alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve claims of architectural barriers to access. The goal of the program would be promote access quickly and efficiently without costly litigation. As many are aware, such a program already exists in the U.S. District Court for the Northern District of California. Its General Order 56 requires a stay of discovery except for certain disclosures until after a joint inspection, meet and confer, and mediation with the Court’s ADR unit has occurred.

We will continue to follow this legislation as it moves through the process.

By Minh N. Vu

We are pleased to report that The Economist took an interest in our research which showed a 63% surge in the number of ADA Title III lawsuits filed in 2014.  The Economist published an article (to come out in the print edition on April 25) entitled “Hobbling businesses: A law designed to help people with disabilities enriches lawyers instead”, based on our findings and the background that we and others provided.  Happy reading.

By Minh N. Vu and Susan Ryan

In August 2014, we reported that the number of ADA Title III lawsuits filed against public accommodations rose by nearly 9% in 2013 over 2012. At that time, we predicted that there could be a 40% increase in the number of lawsuits filed in 2014 based on 6 months of data. Now that we have all the data, the actual number is far higher: There was a 63% surge, resulting in a grand total of 4,436 ADA Title III lawsuits filed in 2014.

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How Does This Compare to The Number of ADA Employment Lawsuits?

Just to put this into perspective, for comparison purposes we looked at the number of lawsuits filed under Title I of the ADA which prohibits discrimination on the basis of disability in employment. As the below chart shows, those numbers remained very steady in 2012-2014, and numbered well under half the total Title III cases filed in 2014.

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Where Are Most of These Cases Filed?

California continues to lead the country with the highest number of ADA Title III lawsuits (1866), with Florida coming in a close second (1553). New York (212), Pennsylvania (135), and Alabama (117) hold the distant third, fourth, and fifth place slots. These five states also saw the largest percentage increase in the number of lawsuits.

In stark contrast, there was not a single ADA Title III lawsuit filed in 2014 in Idaho, Montana, Nebraska, North Dakota, South Dakota, and Wyoming.

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What is driving these higher lawsuit numbers, 25 years after the passage of the ADA?

Although we have not studied every complaint to answer this question, we did notice some trends in 2014 in our own practice. In addition to the usual lawsuits alleging physical access barriers at hotels, retailers, and shopping centers, we handled a number of cases brought by plaintiffs alleging a failure to provide accessible pool lifts, mostly in Florida. Some of these cases were clearly frivolous because the hotels did have pool lifts. Plaintiffs represented by one law firm filed more than 60 class action lawsuits in the Western District of Pennsylvania. Many of these alleged that the parking lots of various retailers, restaurants, and banks do not have compliant accessible parking spaces.   We also handled federal class actions alleging that some retailers’ point of sale devices are not accessible to the blind.

Who is filing these lawsuits?

We looked at our top five jurisdictions to see who some of the repeat filers were in 2014 under both ADA Title II (state and local government defendants) and Title III (public accommodations (private sector businesses)). In Florida, a plaintiff named Howard Cohan filed 529 such suits. In California, a plaintiff named Martin Vogel filed 124 suits. In Pennsylvania, a plaintiff named Christopher Mielo brought 21 lawsuits. In New York, a plaintiff named Zoltan Hirsch brought 24 lawsuits. In Alabama, a plaintiff named David Higginbotham filed 16 lawsuits.

A Note About Our Methodology

Our data comes from PACER, the federal court electronic docket system. When filing a new lawsuit, a plaintiff has two ADA codes to choose from: “Americans with Disabilities: Employment” or “Americans with Disabilities: Other.” The “other” category refers to ADA Titles II or III. Our diligent librarian, Susan Ryan, obtained the ADA Title III case numbers by reviewing each of the case names (and where necessary, the complaints) to eliminate all Title II cases. As far as we know, no one else has undertaken this task, so you are hearing it here first on this blog.

Edited by Kristina M. Launey

(Photo) Online ShoppingBy Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.

Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.

Does Title III of the ADA apply to web-only businesses? Continue Reading Ninth Circuit Hears Arguments: Are Web-Only Businesses “Places of Public Accommodation” Subject to Title III?

Webinar_Flat_Icon_Set_REZERVAPlease join Seyfarth Shaw’s ADA Title III team members Minh Vu and Kristina Launey, along with SSB Bart CEO Tim Springer, for a preview of the Defending Digital Accessibility Lawsuits presentation they’ll give at this year’s California State University Northridge Annual International Technology and Persons with Disabilities Conference.  This 45-minute webinar will provide a brief overview of applicable laws and recent settlements, and practical tips for proactive preparation and avoidance, or remedial defense, against digital accessibility complaints and litigation.

Click here to register for the webinar.

By Kristina M. Launey

On Monday, the National Association of the Deaf (NAD) announced a settlement agreement between it and VUDU, Inc., a wholly owned streaming entertainment subsidiary of Walmart, in which VUDU has agreed to caption 100% of movies and television programs streamed online through VUDU’s Video on Demand Service.  NAD is a non-profit civil rights advocacy group of, by, and for deaf and hard of hearing individuals.  In the agreement, VUDU agreed to, by January 16, 2015, ensure every title in its online catalog is closed-captioned or subtitled, and to caption all newly-acquired content as soon as that content is made available to the public.

The agreement does not address whether Vudu or the providers of the videos and other content Vudu streams on its service is responsible for providing the captioning; Vudu simply commits to provide the content with captioning or subtitles.  The only exception to this general commitment is in cases where a video programming owner provides Vudu with non-English-language-based content containing English language subtitles.  In that case, the agreement allows Vudu to use that English-subtitled version in lieu of Closed Captioning as long as Vudu has used diligent efforts to obtain Closed Captions or subtitles that describe the audio content of programming, such as speaker identification, sound effects and music description.  The agreement prohibits subtitles from being used for programming required to be captioned under the Communications and Video Accessibility Act or when Closed Captions or Subtitles for the Deaf and Hard of Hearing are available. 

The agreement also requires Vudu to provide customer service representatives with documentation and training regarding handling questions about captioning issues.

The agreement remains in effect until May 31, 2018.

Captioning of videos and other online content has been a hot topic recently in the ADA Title III space in various forms.  In 2011, NAD sued Netflix over its streaming service and received mixed results due to a conflict in the courts as to whether a web-only video streaming business is a place of public accommodation covered by Title III of the ADA, as we reported here and here.  Ultimately, NAD and Netflix entered into a consent decree that, similar to the Vudu agreement, required closed captions in 100% of Netflix’s streaming content.  In a different context, the Department of Justice is working on rules that would govern the obligation of movie theaters to show movies with closed captioning and audio description, but has only issued proposed regulations.  In yet another slightly different context, a Court rejected a deaf plaintiff’s claims that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks and that Redbox Digital failed to closed-caption all of its online videos that were available for streaming.  The Court reasoned that a public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities in the form of captioned videos at its kiosks.  The Court also found, following Ninth Circuit precedent, that Redbox Digital did not have to caption its library of web-based videos for deaf or hard-of-hearing consumers because a website is not a place of public accommodation under Title III.

This is a new frontier, and clearly a high priority for deaf advocates.

Edited by Minh N. Vu