Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years.  In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013.  In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)
ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions.  Here are the numbers for the top ten states:

  1. CA: 2468
  2. FL: 1663
  3. NY: 543
  4. AZ: 335
  5. TX: 267
  6. GA: 193
  7. UT: 124
  8. PA: 102
  9. MN: 96
  10. CO: 92
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits.  Other states that experienced significant increases include Arizona, California, Colorado, and Georgia.  Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers?  While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits.  There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps.   This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105).  We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility.  Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit.  Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation.  There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

Seyfarth Synopsis: Fighting a web accessibility lawsuit could invite DOJ’s intervention, as did a Florida retailer’s recent Motion for Judgment on the Pleadings.

Fighting a website accessibility lawsuit is very tempting to many frustrated businesses, but can be a risky decision. One such risk – Department of Justice intervention in the lawsuit – came to fruition for one such business on Monday in Gil v. Winn Dixie, when the DOJ filed a Statement of Interest in the case pending in the Southern District of Florida.

In the lawsuit, Gil alleged that he attempted to access the goods and services available on the Winn-Dixie website, but was unable to do so using his screen reader technology or any other technology provided on the Winn-Dixie website. Accordingly, he claimed the website is inaccessible in violation of Title III of the Americans with Disabilities Act.

Triggering the DOJ’s somewhat unexpected involvement in this prolific plaintiff’s (by our count, as of October 20, 2016, Gil’s attorney had filed 43% of the 244 federal website accessibility cases filed this year) lawsuit was Winn-Dixie filing a Motion for Judgment on the Pleadings.  The DOJ states that Winn-Dixie admitted in the Motion that, through its website, patrons can order prescription refills to be picked up at the store pharmacy; search for nearby stores; and gather information on store hours, products, and services. Winn-Dixie argued that it has “no obligation under the ADA to ensure that Mr. Gil and other blind patrons can access these and other services and advantages offered through its website” because under the Eleventh Circuit law, only physical locations are subject to Title III of the ADA. The DOJ could not stand by and let this position go unchallenged:

“Because Winn-Dixie Stores’ argument cannot be squared with the plain language of the statute, the regulations, or with federal case law addressing this issue, the United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services, such as accessible electronic technology. This obligation means that websites of places of public accommodation, such as grocery stores, must be accessible to people who are blind, unless the public accommodation can demonstrate that doing so would result in a fundamental alteration or undue burden.”

DOJ’s authority is the ADA’s requirement that public accommodations provide auxiliary aids and services – including accessible electronic information technology – at no extra charge to ensure effective communication with individuals with disabilities, unless it would result in a fundamental alteration or undue burden.

In response to Winn-Dixie’s position that Title III applies only to its physical location. DOJ cited the language of the ADA which says that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.”  DOJ also argued Title III’s application to the website at issue is consistent with every other court decision to have addressed the coverage of websites with a nexus to brick and mortar locations. DOJ went on to state its view that even websites with no nexus to a brick and mortar location are also covered under Title III of the ADA – a position that has been explicitly rejected by the Ninth Circuit.

Coming on the heels of the DOJ’s intervention in the MIT and Harvard cases, and one retailer’s loss on summary judgment when fighting a web accessibility lawsuit in Colorado Bags N’ Baggage, this case demonstrates that litigating a website accessibility case has broader implications than just winning or losing on the merits.  Few businesses want the DOJ inquiring into their ADA Title III compliance practices, of which websites are only a part.

Edited by Minh Vu.