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Seyfarth Synopsis: Ninth Circuit overturns district court’s dismissal of website accessibility lawsuit on due process and primary jurisdiction grounds, remands case to proceed with discovery.

On January 15, 2019, the Ninth Circuit Court of Appeals issued the fifth federal appeals court ruling on the issue of website accessibility, and there is no doubt that it is a victory for plaintiffs and their lawyers.  However, there are some pro-defense nuances that are worth pointing out.

By way of background, the district court had concluded that the ADA does apply to Domino’s website and mobile app, but dismissed the lawsuit before discovery because:  (1) Holding Domino’s in violation of the ADA when there are no legal technical standards for public accommodations websites would be violation of due process; and (2) under the primary jurisdiction doctrine, courts should hold off on deciding cases where enforcement agencies with special expertise should weigh in first.

The Ninth Circuit  agreed with the district court that the ADA applies to Domino’s website and app.  In so doing, the court said that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”  The Ninth Circuit did not agree with the district court on the due process point, however, finding that Domino’s has been on notice since 1996 of DOJ’s position that its website and app must provide effective communication.  (We note, however, that none of the DOJ documents cited by the court actually mention mobile apps.)  The Ninth Circuit also said the district court erred in applying the primary jurisdiction doctrine, noting that since the DOJ is not going to issue any regulations about websites and mobile apps, applying the doctrine would just “needlessly delay” the resolution of the claim, and the application of the ADA to the facts of the case “are well within the court’s competence.”  The Ninth Circuit’s rejection of these due process and primary jurisdiction arguments, which are often mounted by defendants in website accessibility cases, is not entirely surprising as many district courts have also reached the same conclusion, and the district court’s decision in this case was an outlier.

The Ninth Circuit concluded by making clear that it was not expressing any opinion about whether Domino’s website or mobile app comply with the ADA.  The court instructed the district court to proceed with discovery and then decide whether Domino’s website and app comply with the ADA’s effective communication and full and equal enjoyment mandates.

From the defense perspective, there are several useful points in the decision.

First, the Ninth Circuit reaffirmed its position that, to be covered by the ADA, a website or mobile app must have a nexus to a physical place of public accommodation. The court stated that this nexus was “critical” to its analysis in the Domino’s case where the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises – which are places of public accommodation.”  The Ninth Circuit said in a footnote that it was not deciding whether “the ADA covers the websites or apps of a physical place of public accommodation where the inaccessibility does not impede access to the goods and services of a physical location.”

Second, the Ninth Circuit left open the possibility that a 24/7 toll-free phone line could be a way to provide access in lieu of an accessible app or website.  The court did not have to consider the question of whether a telephone hotline could be an adequate alternative to an accessible website or mobile app because the district court’s holding was not based on the phone line.  However, the Ninth Circuit said in a footnote that “the mere presence of a phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.”  This statement suggests that, with discovery on the effectiveness of the phone line, summary judgment for Domino’s could be a possibility.

Third, in response to Domino’s complaint that the DOJ has failed to provide clear direction as to what public accommodations must do to comply with the ADA with respect to their websites, the Ninth Circuit reiterated that “the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”

Fourth, the Ninth Circuit said that “due process constrains the remedies that may be imposed.”  Thus, defendants may be able to make the due process argument later in a case if a violation of the ADA is found and the court must fashion injunctive relief.

In sum, while this decision adds to the growing body of website accessibility case law that favors plaintiffs, there are some useful nuggets.  That said, we predict the number of website accessibility lawsuits in California federal courts will increase dramatically in 2019.  While this case was on appeal, plaintiffs largely opted to file their website accessibility cases in California state court but this decision clears the way for more federal filings.

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: Due process, DOJ’s failure to enact regulations, and whether the ADA covers websites arguments dominated the recent Domino’s Ninth Circuit oral argument.

In the increasing morass of varying state and federal district court opinions in website accessibility cases, we will soon have two additional federal appellate decisions to provide more guidance of precedential value to federal trial courts.  Most recently, on October 12, the Ninth Circuit heard the parties’ oral arguments in Robles v. Domino’s Pizza.  On October 4, the Eleventh Circuit heard oral argument in Gil v. Winn-Dixie.  We attended the Robles argument.

Sitting on the Domino’s Ninth Circuit panel were Ninth Circuit Judges Watford and Owens, and Arizona District Court Judge Zipps.  Judges Watford and Owens actively questioned all parties while Judge Zipps only listened.  The judges seemed to be leaning in Robles’ favor, expressing skepticism at many of Domino’s arguments, especially with respect to the main issue on appeal: Whether the court can apply the ADA to websites of public accommodations without regulatory guidance from the Department of Justice (DOJ).  Below is a summary of the key arguments and judges’ comments:

Primary Jurisdiction/Due Process.  The main issue on appeal is whether U.S. District Judge Otero erred in granting Domino’s motion to dismiss the case on primary jurisdiction and due process grounds.  Robles argued that the lack of specific website accessibility regulations does not eliminate the statutory obligation to comply with the ADA, and that Domino’s is not exempted from the ADA and its implementing regulations because DOJ was working on such regulations at one time.  Robles pointed out that DOJ has terminated the rulemaking process since the District Court ruled.  Robles stated that the court does not need the DOJ to rule on this issue – in fact, that the DOJ said in a recent letter (to Congressman Ted Budd) mentioning this very case that it was not going to act.

Frustration with DOJ’ s Inaction.  Not surprisingly, the DOJ continued to come up numerous times during the Domino’s argument.  Judge Watford stated that all “agree it’s a highly undesirable state for the law to be in” and “it’s DOJ that’s mainly at fault – it should have happened a long time ago.”  Domino’s asked whether the Court could certify the question for the DOJ to answer.  Judge Watford did not believe any mechanism to do so existed.  Judge Owens interjected that the DOJ could have intervened, but did not. “This shows the problem with your primary jurisdiction argument. It’s like a Samuel Beckett play – we’re just waiting and it’s not going to happen.”  Isn’t that an inherent due process problem, Domino’s asked?  “The court’s job is to interpret the law as best it can.”  If the Supreme Court doesn’t like it, it doesn’t like it.

Coverage of Websites by the ADA.  The question of whether the ADA covers websites also came up at several points.  Domino’s took the position that the ADA covers the communication on websites, but not the websites themselves – a position that Judge Owens said was contrary to what Domino’s said in District Court.  Judge Watford pointed out that the DOJ has said the ADA covers websites on numerous occasions.  In response, Domino’s said the DOJ’s latest position on this topic was a footnote in the U.S. Solicitor General’s brief filed in the McGee v. Coca Cola case which did not involve a website.  The footnote simply noted district courts have grappled with the question of whether the ADA applies to goods and services offered over the Internet.  Judge Watford said if that footnote is “all you’ve got, you’re on extremely shaky ground… you don’t have much to stand on there.”

What is an accessible website? Domino’s argued, as a possible explanation for DOJ’s inaction: “there is no such thing as an accessible website, and there never will be.” He cited the plaintiff’s expert’s statement in Winn-Dixie, also cited by the Eleventh Circuit judges in that oral argument, that the expert had never seen a website that complies with the Web Content Accessibility Guidelines (WCAG).  To illustrate the difficulty businesses face in applying the guidelines, Domino’s posited how detailed the alt-text behind a picture of a basketball needs to be to conform to the guidelines – if it has LeBron James’s autograph on it, for example, does the alt-text need to go to that level of detail, or can it just say “basketball.”  He thinks the regulatory effort was stymied because the DOJ couldn’t “wrap its head around” this.

Judge Watford disagreed, “I don’t think it’s as dire as you painted”.  The Judge added, skeptically, “You want us to just throw our hands up and say this is just impossible, there’s no way to figure this out.  I don’t think that’s correct.”  Judge Watford noted any particulars as to what businesses need to do to have an accessible website can be worked out in the remedy stage.  At various points, counsel for Robles and the National Federation of the Blind (NFB), as Amicus, as well as Judge Owens, remarked that the lower court had not decided whether Domino’s website was required to be, and was or was not, accessible – let alone by what standard accessibility should be measured.  Thus, those issues were not before this Court.  Judge Watford asked, since it appears the WCAG is the “only game in town”, “how could compliance with anything else render a website’s content accessible to people with vision disabilities”? (Note that in its oral argument, Winn-Dixie, appealing the district court’s order that the grocer conform its website to the WCAG, argued that such an order constituted “legislating from the bench”, which denies businesses due process.)

Telephonic Access.  At one point, Domino’s counsel stated that that people who could not use the website could call a 1-800 number.  Judge Watford reminded him that banner displaying the number was not on the Domino’s website at the time Robles attempted to access it.  The Judge did not say that the phone number could not provide a lawful alternative to access but said “we can debate whether that would be adequate.”  Amicus Counsel for the NFB expressed skepticism about whether the phone could ever be an adequate substitute, and argued that this was an issue of fact.

The Ninth Circuit will likely issue its order in the next three to twelve months.

Edited by Minh N. Vu.

This morning, October 12, in sunny Pasadena, California, the Ninth Circuit Court of Appeals heard oral argument in the Robles v. Dominos case. The main issue on appeal was whether the district court erred in applying the doctrines of primary jurisdiction and due process as the basis for granting Domino’s motion to dismiss Robles’s claims that Dominos violated Title III of the Americans with Disabilities Act due to an inaccessible website. The parties and judges had a lively 30-minute discussion, after which the Court took the matter under submission.

In addition to the main issue on appeal, the parties, amicus counsel, and the judges discussed whether the ADA applies to websites in the first place, whether the website is a communication or a service, alternatives to an accessible website such as telephone, whether this is an effective communication case or not, and why the prior and current Administrations’ DOJ haven’t issued regulations.

Next week we’ll discuss our impressions and implications of this hearing.  Have a great weekend everyone.

Seyfarth Synopsis: Florida court rules that plaintiff must allege more than being unable to learn about a brick-and-mortar business to state a claim that an allegedly inaccessible website violates the ADA. 

Allegations that an inaccessible website prevents a blind plaintiff from “learning” about a brick-and-mortar location are insufficient to state an ADA claim, according to one recent federal court decision in Florida. In Price v. Everglades College, the plaintiff alleged that he called a private university to learn about the institution, but was directed instead to its website.  While attempting to visit the website, he allegedly discovered that his screen reader software could not access information provided there, and Plaintiff thereafter filed suit under Title III of the ADA.  Defendant filed a motion to dismiss on the grounds that Plaintiff had failed to state an ADA claim.

The Court granted the motion. It held that allegations that the plaintiff could not learn about the university were insufficient, and that instead the plaintiff had to plead facts sufficient to demonstrate that the alleged digital barriers prevented him from enjoying access to the university’s brick-and-mortar facilities.  Plaintiff did not allege, for example, that he could not apply to the university, pay tuition, or use the student portal.

Courts in the 11th Circuit have required that a nexus exist between the website at issue and a physical business location (some courts from other Circuits do not follow this approach).  Price clarifies that a plaintiff cannot satisfy this nexus requirement in this jurisdiction by alleging “the mere existence of some connection or link” between the inaccessible website, on one hand, and a brick-and-mortar location, on the other.

The decision is welcome news for businesses barraged by increasing numbers of website accessibility lawsuits in recent months and a challenging litigation landscape in 2018.  The decision is also noteworthy for institutions of higher learning, which have also been targeted in these cases as reported in the national news media.  Decisions such as Price may be helpful in defending serial ADA website lawsuits filed by individuals with only tenuous connections to the businesses and institutions they sue.

Edited by Minh N. Vu and Kristina M. Launey.

Seyfarth Synopsis: DOJ’s response to members of Congress about the explosion in website accessibility lawsuits contains some helpful guidance for public accommodations fighting these claims.

As we reported in June, 103 members of the House of Representatives from both parties asked Attorney General Jeff Sessions to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urged the Department of Justice (DOJ) to “provide guidance and clarity with regard to website accessibility under the … ADA.”

DOJ’s September 25 response did not do what the members asked, but it did provide some helpful guidance and invited Congress to take legislative action to address the exploding website accessibility litigation landscape. DOJ first said it was “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.” (This is helpful – to at least know this issue has not fallen totally off DOJ’s radar.) It continued:

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.

These statements are not surprising, as DOJ (granted, under the previous Administration) has made them on other occasions.  But here’s the part of the letter that is helpful for businesses:

Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

(emphasis added). The fact that public accommodations have “flexibility” in how to comply with the ADA’s effective communication requirement has been lost in the past eight years, even though DOJ made this point in its 2010 Advanced Notice of Proposed Rulemaking (ANPRM) for websites.  In that document, DOJ stated that a 24/7 staffed telephone line could provide a compliant alternative to an accessible website.  The few courts to have considered this argument in the context of an early motion to dismiss have recognized its legitimacy, but have allowed cases to move forward into discovery on this and other issues.  There have been no decisions on the merits addressing the viability of having a 24/7 telephone option in lieu of an accessible website.

The statement that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA” is new and significant.  It is a recognition that a website may be accessible and usable by the blind without being fully compliant with the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1.  The statement confirms what some courts have said so far:  That the operative legal question in a website accessibility lawsuit is not whether the website conforms with WCAG, but whether persons with disabilities are able to access to a public accommodation’s goods, services, and benefits through the website, or some alternative fashion.

In response to the members’ concern about the proliferation of website litigation lawsuits, DOJ said:  “Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.”  DOJ is essentially putting the ball back in the Congressional court, where little is likely to happen.

Edited by Kristina M. Launey.

Seyfarth Synopsis:  Plaintiffs secure a second judgment in a federal website accessibility lawsuit while most of the others successfully fended off motions to dismiss. 

2018 has been a bad year for most businesses that have chosen to fight website accessibility cases filed under Title III of the ADA.  Plaintiffs filing in federal court secured their second judgment on the merits in a website accessibility lawsuit, bringing the federal court judgment score to 2-0 in their favor.  Additionally, in twenty-one cases where defendants filed early motions to dismiss, judges have allowed eleven to move forward.  While a forty percent dismissal rate doesn’t seem bad, most of the cases that were dismissed had a common set of unique facts that most defendants don’t have. Below is a rundown of the most noteworthy 2018 cases and trends.

At the end of August, Southern District of Florida Judge Marcia Cooke issued the second judgment on the merits in a federal court website accessibility lawsuit and it was in favor of the plaintiff.  (The first judgment was in the Winn Dixie case after a bench trial.)  Judge Cooke held on summary judgment that retailer GNC’s website violated the ADA because the evidence in the record “suggests that the Website is inaccessible.”  The court cited to the plaintiff’s expert’s testimony and automated test results to reach this conclusion, and excluded the testimony of the GNC’s expert based on his lack of qualifications.  Judge Cooke refused to order a remedy at the summary judgment phase, but said that she found “highly persuasive the number of cases adopting WCAG 2.0 Success Level AA as the appropriate standard to measure accessibility.”

In June, the U.S. Court of Appeals for the Eleventh Circuit held that a prior private settlement of a website accessibility lawsuit in which the defendant had made a commitment to make its website more accessible did not moot a subsequent lawsuit brought by another plaintiff against the same defendant.  The Court reasoned that the website remediation work was not yet complete, and the second plaintiff had sought other relief that was not addressed by the settlement.  The Court also noted that if the defendant failed to comply with its settlement obligations, the second plaintiff would have no recourse since it was not a party to the prior settlement agreement.

In July, the Eleventh Circuit became the second federal appellate court to explicitly address whether the ADA covers websites.  The Court found that the plaintiff had stated an ADA claim against the defendant because the alleged barriers on its website prevented him from accessing the goods and services of its stores.  Specifically, the blind plaintiff alleged that he could not access the store locator function or purchase a gift card online using his screen reader software.  This case does have a silver-lining for defendants with web-only businesses though:  The Eleventh Circuit’s analysis followed prior precedent holding that a public accommodation is a physical place, and 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.  This puts the Eleventh Circuit mostly in line with the Ninth Circuit which has held that websites with no nexus to a physical place are not covered by the ADA, and is the only other federal appellate court to have ruled on the issue.

In eleven other decisions, district court judges in Ohio, Pennsylvania, New York, Florida and Michigan allowed website accessibility cases to move forward into discovery, rejecting defendants’ requests for early dismissal.  In most of these cases, the judges rejected the arguments that requiring businesses to make their websites accessible to people with disabilities in the absence of legal standards or regulations is a denial of due process, and that courts should not address website accessibility claims until the Department of Justice issues regulations.

In August, Judge Schwab of the Western District of Pennsylvania issued a pointed decision against a retailer because he found the aggressive tactics of its defense lawyer to constitute bad faith.  Specifically, after receiving a demand letter from the plaintiffs who later filed in Pennsylvania, the retailer filed a pre-emptive lawsuit in Utah against the plaintiffs seeking declaratory relief concerning their website-related obligations under the ADA, and asserting state law claims of negligent representation, fraud, fraudulent non-disclosure, and civil conspiracy.  When the plaintiffs then filed their lawsuit in Pennsylvania, the retailer filed a motion to dismiss based on, among other things, the “first filed” rule which gives the court in the later filed action discretion to dismiss the latter case to avoid duplicative litigation and promote judicial comity.  Judge Schwab said he did not have to apply the “first filed” rule where there was evidence of bad faith by defense counsel, and also said he would consider sanctions if defense counsel tried this forum-shopping tactic again in future cases.  Judge Schwab further held that the ADA covers websites and allowed the case to move forward in Pennsylvania.  Meanwhile, the lawsuit in Utah is still pending after the defense attorney in question withdrew from the case and the retailer filed a First Amended Complaint.

The positive decisions for defendants this year have come from judges in Virginia, Florida, and Ohio.   Judges in Virginia and Ohio dismissed six lawsuits against credit unions about their allegedly inaccessible websites because the plaintiff was not eligible to join the defendant credit unions.  These are fairly unique facts that most defendants defending website accessibility suits will not have, however.

There were four pro-defendant rulings in Florida, but one has been reopened because of the Eleventh Circuit’s holding that a prior settlement does not moot a subsequent lawsuit, discussed supra.  In the second Florida case, Judge Gayles of the Southern District of Florida dismissed an ADA lawsuit because the plaintiff had not alleged that barriers on the website impeded his access to a physical place of public accommodation.   In the third case, Judge Presnell of the Middle District of Florida dismissed a case  because the plaintiff had not alleged that he really intended to return to the location and lacked standing.  In the fourth case, Judge Presnell said that “alleging the mere existence of some connection or link between the website and the physical location is not sufficient.”  Judge Presnell distinguished “an inability to use a website to gain information about a physical location” versus “an ability to use a website that impedes access to enjoy a physical location” and said the former is not sufficient to state a claim.  The judge dismissed the case because the plaintiff’s allegations were about obtaining information, not impeding access.

The takeaway from these recent decisions is that — while the defense strategy for every website accessibility lawsuit must be evaluated on its own set of facts — most courts are not willing to dismiss these cases early except in limited circumstances.  Thus, defendants looking to fight must be prepared to go through discovery and at least summary judgment, if not trial.

Edited by Kristina Launey.

Seyfarth Synopsis: Not long after a similar Congressional appeal, Senators sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits plaguing businesses.

On Wednesday, September 12, 2018, Senator Chuck Grassley (Iowa) announced that he and Senator Mike Rounds (South Dakota) sent a letter to United States Attorney General Jeff Sessions seeking clarification on whether the Americans with Disabilities Act (ADA) applies to websites. Senators Joni Ernst (Iowa), Thom Tillis (North Carolina), Mike Crapo (Idaho), and John Cornyn (Texas) also joined in the request.

The letter urges the Department of Justice to help resolve uncertainty regarding website accessibility obligations under the ADA because “for the ADA to be effective, it must be clear so that law abiding Americans can faithfully follow the law. Right now it is not clear whether the ADA applies to websites. This leaves businesses and property owners unsure of what standards, if any, govern their online services.”

The letter noted that the DOJ has issued no guidance or regulations to provide clarity, and that conflicting court decisions have created even more confusion, which plaintiffs’ attorneys are “exploiting” for “personal gain”, “sending threatening demand letters and filing hundreds of lawsuits against small and medium-sized businesses across the country – from banks and credit unions to retailers and restaurants”.

The letter references our data, published in our July 17, 2018 blog, that more ADA website accessibility lawsuits were filed in the first half of 2018 than in all of 2017.  It also cites Administrative Office of the U.S. Courts data that show filings of certain ADA cases increasing 521 percent from 2005 to 2017. These statistics show, the Senators write, that this litigious trend will only continue to grow unless the DOJ takes action.

The Senators recognize that businesses would rather spend money serving their disabled customers than “paying money to avoid a shakedown by trial lawyers who do not have the interests of the disabled at heart.”

Noting the DOJ’s December 2017 withdrawal of the website accessibility rulemaking process, in which the DOJ said it was evaluating the need for regulations, the Senators emphasize that lack of clarity only benefits plaintiffs’ lawyers while “clarity in the law will encourage private investment in technology and other measures that will improve conditions for the disabled.”

The Senators close by urging the DOJ to promptly take actions, including filing statements of interest in currently pending litigation, to resolve the current uncertainty, and to brief the Senators’ staff on the DOJ’s intentions on this issue by September 28, 2018.

This letter comes not long after a bi-partisan assembly of 103 Members of Congress wrote a similar letter to the Attorney General in June.  It remains unclear whether this letter will spurn any prompt action from the DOJ.  Given the current Administration’s aversion to increased regulation, it is unlikely that the DOJ will re-start its website accessibility rulemaking any time soon.  And, though the Senators urge the DOJ to take any actions in its power—including filing statements of interest—the DOJ has thus far been unwilling to do so.  Unlike the Obama Administration which weighed in in favor of plaintiffs on the private lawsuits brought against Winn-Dixie, M.I.T. and Harvard University, the Trump Administration declined to file a brief in a website accessibility case last year despite the district court’s invitation. Thus, we continue to wait and see how Attorney General Sessions and the DOJ react to the Senate letter.  In the meantime, we, like the Senators, expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.

Seyfarth Synopsis:  Is it a service animal or an emotional support animal?  Do I have to allow both?  How to tell one from the other, and the rules that apply.

We get a lot of questions about service and emotional support animals.  It’s obvious that there is a lot of confusion out there.  Here is how to tell one from the other, and the rules that apply to both.

Public Accommodations.  Under Title III of the federal Americans with Disabilities Act (ADA) and virtually all state laws, a service animal is an animal that has been trained to perform work or tasks for the benefit of a person with a disability.  Emotional support animals—also called therapy or comfort animals—have not been trained to perform work or tasks.  Instead, they provide a benefit just by being present.  Public accommodations (e.g. restaurants, theatres, stores, health care facilities), are allowed to ask only two questions to determine if an animal is a service animal:  (1) Do you need the animal because of a disability? and (2) What work or tasks has this animal been trained to perform?  The second question is the key:  If the person is unable to identify the work or tasks that the animal has been trained to perform, then the animal is not a service animal.

Under the ADA, only a dog or miniature horse (no, we are not joking) can serve as service animals.  The ADA requires public accommodations to allow service animals to accompany their owners anywhere the owners can go, although the Department of Justice made clear a few years ago that they can be prohibited from swimming pools (in the water) as well as shopping carts.  The ADA provides no protection for emotional support animals in public accommodations.  The Department of Justice has a very helpful FAQ about service animals, and the Washington Post recently published a story that is also useful.

When developing policies, public accommodations must comply with both federal and state law, and some states provide greater protections.  For example, in some states, any type of animal (not limited to dogs and miniature horses) can be a service animal provided it has been trained to perform work or tasks.  Some states may provide protection for emotional support animals as well.  Virtually all states protect service animals in training, which are not addressed by the ADA.  Thus, public accommodations must tailor their policies to account for state requirements, or adopt a policy that will comport with the broadest of all state laws nationwide.

Housing.  The federal Fair Housing Act (FHA) applies to residential facilities and provides protection for emotional support animals in addition to service animals.  Thus, property managers, condo associations, co-op boards, and homeowners associations need to keep this in mind when dealing with requests from homeowners and tenants relating to these types of animals.  The Department of Housing and Urban Development’s most recent guidance on this topic is here.

Airplanes.  The Air Carrier Access Act (ACAA), not the ADA, governs accommodations for people with disabilities on airplanes.  The Department of Transportation (DOT) is responsible for enforcing the ACAA rules.  Historically, the rules have required accommodations for emotional support animals, but recent abuses of the rules by passengers seeking to bring all manner of animals such as peacocks and pigs onto planes has caused the DOT to revisit this issue in a pending rulemaking.

Compliance Strategy.  All businesses should have a written policy concerning service and emotional support animals that takes into account federal law, state law, the nature of the business, and the ability of employees to make decisions about whether an animal should be allowed onto the premises.  Having a written policy and training employees on the policy is key to ensuring that they know how to respond when one of these animals shows up on the premises.

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.