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: 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: In an apparent effort to stop one plaintiff’s lawsuit spree, the Nevada Attorney General moves to intervene in a federal ADA Title III lawsuit arguing that the plaintiff failed to provide notice to the state agency responsible for enforcing Nevada’s antidiscrimination law before filing suit.

On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months.

The motion to intervene argues that Title III of the ADA requires private plaintiffs to – before filing in federal court – provide 30 days’ notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit.  The Nevada Attorney General explained that the notice gives the state enforcement agencies an opportunity to conduct their own investigation and take action.  The brief notes that there is an exception to this notice requirement where a plaintiff has actual notice that the defendant does not intend to comply with the law, but Mr. Zimmerman did not plead that he had actual notice of any such intent.  This is an interesting argument that could be a useful defense strategy in some ADA Title III cases, though it has been rejected as the basis for a dispositive ruling by the Ninth Circuit in Botosan v. Paul McNally Realty.

The Nevada Attorney General’s motion to intervene is not the first time that a state attorney general has stepped in to thwart the actions of serial plaintiffs filing accessibility lawsuits.  Last year, the Arizona Attorney General intervened in and secured the dismissal of 1700 cases filed against Arizona businesses under the Arizonians with Disabilities Act (not the ADA), as we reported here.

Stay tuned for more developments in Nevada – a state that only had 6 ADA Title III lawsuits in all of 2016.

Seyfarth Synopsis: A state court has granted the Arizona Attorney General’s Motion To Dismiss approximately 1,700 Arizona access lawsuits on grounds that the organizational and individual plaintiffs lacked standing to sue.

As we previously reported here, the Arizona Attorney General responded to a surge of approximately 1,700 access suits filed in that state’s courts by moving to consolidate, to intervene in, and to dismiss all of such actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler.  According to a recent communication from the Arizona AG’s office describing his court appearance on February 17, 2017,  the Arizona trial court judge on that date orally granted the AG’s motion to dismiss virtually all of the consolidated cases with prejudice and directed the AG to submit a proposed form of judgment.

There currently is no written decision laying out the Court’s reasoning for its decision, so it is not clear which of the AG’s arguments persuaded the court to issue this decision.  The AG’s Motion to Dismiss challenged both the individual’s (Ritzenthaler’s) and AIDF’s standing to bring claims under what the AG described as the “rigorous” standing requirements of Arizona law. The AG presented several arguments about how the Plaintiffs failed to meet these requirements.  First, the AG argued that the Plaintiffs failed to allege that they patronized the businesses that they sued.  Second, the AG asserted that the Plaintiffs failed to allege an actual barrier to their access.  The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’”  The AG then stated that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.”  Third, the AG  asserted that Plaintiffs’ claims were insufficient because they failed to sufficiently allege denial of access based upon their particular, identified disability.  Fourth, the AG argued that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint.  Fifth, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief:  That the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

If the court issues a written opinion explaining the basis for his ruling, we will update you.

In an interesting peripheral note, the Arizona Attorney General’s office has notified affected parties that the Court also stated that it would consider applications for attorneys’ fees and costs following its ruling, and noted that, should any affected party be interested in filing a fee petition, it should keep in mind that any fee request “must be in sufficient detail to enable the court to assess the reasonableness of the time incurred.”  Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188 (App. 1983).  Based upon the AG’s comments, this portion of the ruling apparently extends beyond the AG’s own attorneys’ fees and costs, potentially including any defendant who hired counsel to defend against Plaintiffs’ 1,700 dismissed actions prior to entry of the stay.

Edited by Minh Vu.

Seyfarth Synopsis: A disability advocacy group behind approximately 1,700 Arizona access lawsuits breaks new ground by filing suit against the Arizona Attorney General, in an unusual counter-attack to the AG’s motion to dismiss those cases for lack of standing. 

As we previously reported here, the Arizona Attorney General (“AG”) responded to a surge of access suits filed in that state’s courts by moving to consolidate and to intervene in all actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler.  The state court granted the AG’s motions on September 23.  Soon thereafter the AG filed a Motion to Dismiss and For Judgment on the Pleadings.

In a further twist on this story, AIDF and Ritzenthaler have now sued AG Mark Brnovich in his official capacity for mandamus relief against the AG and for attorneys’ fees and costs.  Specifically, the Plaintiffs seek an order that the AG must initiate an investigation into the violations that have been alleged in approximately 9,000 complaints allegedly filed with the AG’s office.  Plaintiffs argue that the AG is required to investigate such complaints under state law, and has failed to do so. Plaintiff further alleges that non-compliance with the state’s accessibility statute is widespread, apparently citing an AIDF press release.

Whether or not this tactic is an effective litigation strategy remains to be seen.  The AG’s pending Motion to Dismiss challenges both the individual’s (Ritzenthaler’s) and the organizations’ standing to bring their claims under Arizona law.  According to the AG, Arizona has a “rigorous” standing requirement, which the plaintiffs in the consolidated matters fail to meet for several reasons.  First, they fail to allege that they patronized or attempted to patronize the defendants’ businesses.  Second, the AG argues that the plaintiffs fail to allege an actual barrier to their access.  The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’”  The AG then states that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.”  Third, the AG asserts that plaintiffs fail to sufficiently allege standing because they did not allege denial of access based upon an identified disability.  In other words, the plaintiffs do not link an identified instance of non-compliance to their particular disability.  Fourth, the AG argues that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint.  Finally, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief, i.e., that the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

The AG argues that the various Plaintiffs in these consolidated actions should not be given leave to amend such deficiencies in the pleadings, due to a “documented history of bad faith, abusive tactics, and dilatory motives.”   To support this assertion, the AG notes that plaintiffs have filed over 1,700 deficient complaints in 2016, and have “extracted” about $1.2 million from those lawsuits.  The AG also contends that the plaintiffs’ proposed “Universal Amended Complaint” still fails to adequately plead standing, further demonstrating undue delay.  It also, perhaps, demonstrates futility of amendment under these circumstances.

These, first-of-their-kind, cross actions between an enforcement agency and a serial plaintiff may continue to provide additional data and insight into assertions of lawsuit abuse in the disability access context.   We will continue to monitor these actions and keep posting on developments.

Edited by Kristina Launey and Minh Vu.

Seyfarth Synopsis:  The number of access lawsuits has surged in both Arizona state and federal courts, prompting an unprecedented intervention by the Arizona Attorney General.

By our count, nearly 300 ADA Title III lawsuits have been filed in federal court in Arizona this year to date.  This number represents a dramatic increase from 2015 when only 207 lawsuits were filed for the entire year.  In 2013 and 2014, there were only 20 and 8 of such lawsuits, respectively.

Four plaintiffs filed 284 of these nearly 300 2016 Arizona federal court lawsuits:  Damien Mosley (132 suits), Advocates for Individuals with Disabilities Foundation, Inc. (AIDF) (57 suits); Advocates for Individuals with Disabilities LLC (AID) (formerly known as Advocates for American Disabled Individuals, LLC (AADI)) (71 suits); and Santiago Abreau (24 suits).

Even more astonishing is the number of cases AIDF and AID/AADI have filed in Arizona state court under the Arizonians with Disabilities Act (AzADA) since January 2015.  The AzADA is similar to the federal ADA but allows plaintiffs to recover compensatory damages.  Under the ADA, prevailing private plaintiffs can only obtain injunctive relief and attorneys’ fees and costs.

The number of lawsuits filed by AIDF, AID, and AADI in Arizona state court (all in Maricopa County) in 2015 and 2016, according to our own research, are:

  • AID/AADI: 503 cases
  • AIDF: 1121 cases

In total, these plaintiffs have filed 1,624 cases since the beginning of 2015.  Compare that to the 584 suits filed in Arizona federal courts since the beginning of 2015.  Then compare that to the data we’ve collected on lawsuits filed in other states and nationwide.

Apparently alarmed by the number of suits flooding the Arizona court system, the Arizona Attorney General has filed a motion asking the Arizona state court in Maricopa County to consolidate all of the pending cases filed by AADI and to allow his intervention to stop what he calls a “systemic abuse of the judicial system.”  The motion provides two grounds for intervention.  First, it states that these lawsuits “imperils the State enforcement regime established by the Legislature” by signaling to other plaintiffs that it is more profitable to file these private suits than to utilize the state’s investigation and enforcement regime created by the AzADA which provides opportunities for a pre-litigation resolution.  Second, the State of Arizona has a strong interest in how the courts apply and interpret the AzADA’s statutory scheme.

Though outcry over the years over ADA lawsuit abuse has been consistent, as well as multiple legislative attempts at reform with little meaningful effect, we are not aware of any other instance when an enforcement agency has stepped in to address the actions of a serial plaintiff.  We will keep you updated on the developments.

Edited by Kristina Launey.

By: Kevin A. Fritz

The Department of Justice recently issued a final rule increasing — due to inflation adjustment — the civil monetary penalties that a court can impose on a public accommodation in an enforcement action brought by the Attorney General under Title III of the ADA.  The amounts of adjustments are determined according to a formula set forth in the Federal Civil Penalties Inflation Adjustment Act, the statute which provides for the regular evaluation of civil monetary penalties to ensure that they maintain their deterrent effect. Applying the formula to Title III, the adjustment increases the maximum civil penalty for a first violation from $55,000 to $75,000, and for a subsequent violation the maximum rose from $110,000 to $150,000.  If you are wondering what constitutes a “violation” when, for example, there are multiple barriers at a particular facility, or multiple facilities are involved in a single enforcement action, Title III of the ADA states that “in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered entity has engaged in more than one discriminatory act shall be counted as a single violation.”

The adjustments will start applying for violations that occur on or after April 28, 2014. With the monetary stakes now raised, businesses should be all the more vigilant to stay in compliance with all Title III requirements.

Edited by:  Minh N. Vu and Kristina Launey