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.

Seyfarth Synopsis:  The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.  Businesses should seek advice now on how to manage risk in this chaotic environment.

As we predicted, website accessibility lawsuits and threatened claims have become big business for the plaintiffs’ bar.  More law firms are filing lawsuits or sending demand letters alleging individuals with disabilities are denied access to a business’s goods and services due to inaccessible websites than ever.  The number of lawsuits filed in federal court since the beginning of 2015 has surged to at least 244 as of October 20, 2016.  Retailers have been the most popular targets, followed by restaurant and hospitality companies.

Number
Number of federal website lawsuits by industry from January 2015 to October 20, 2016: Academic (3), Dating Services (1), Entertainment (9), Financial (2), Gaming (1), Hospitality (12), Insurance (1), Medical (8), Personal Services (4), Restaurant (45), Retail (148), Sports (2), Utility (1), Vehicle Manufacturer (7)

We analyzed the data to find that five firms dominate the space, but we have seen more and more attempting to get in on the action.

Plaintiff's firms filing the most federal website lawsuits since January 2015: Block Leviton (3%), Carlson Lynch (45%), Law Office of Joseph R. Manning Jr. APC (7%), Lee Litigation Group (33%), Nelson Boyd (5%), Newport Trial Group (19%), Scott R. Dinin, PA (106%), Stewart, Murray & Associates Law Group (6%), Other Firms (8%)
Plaintiff’s firms filing the most federal website lawsuits since January 2015: Block Leviton (1%), Carlson Lynch (18%), Law Office of Joseph R. Manning Jr. APC (3%), Lee Litigation Group (14%), Nelson Boyd (2%), Newport Trial Group (8%), Scott R. Dinin, PA (43%), Stewart, Murray & Associates Law Group (3%), Other Firms (8%)

Florida, Pennsylvania, New York, and California federal courts have 95% of the lawsuits at this point, but, with two months left in the year, that could change.

States with the most federal website lawsuits being filed since January 2015: California (29), Massachusetts (5), Pennsylvania (43), Washington (5), Florida (124)
States with the most federal website lawsuits since January 2015: Arizona (1), California (29), Florida (124), Indiana (1), Massachusetts (5), New York (35), Pennsylvania (43), Texas (1), Washington (5)

We have previously reported that several law firms representing unnamed clients with disabilities had sent out hundreds of demand letters to various types of businesses concerning their allegedly inaccessible websites.  From what we can tell, very few of those demand letters went to financial services institutions.  We have learned that the most recent batch of demand letters is focused on the websites of community banks around the country.

Meanwhile, we still have no proposed regulations for public accommodations websites from the DOJ and a change in administration could derail or delay the rulemaking process further.  Thus, the need is no less urgent for businesses to come up with a plan to mitigate their litigation exposure in this tumultuous environment.

Edited by Kristina M. Launey.

*We updated this post to correct the data, as we found the number of lawsuits filed to be even higher than we previously reported. There is no easy way to track these website cases as they are filed so the numbers could be even higher.

Website accessibility is an evolving and complicated topic, about which we’ve written many times.  Thanks to delayed regulations and the Department of Justice’s changing positions on the issue, businesses have been caught off guard and plaintiffs’ attorneys are capitalizing on the uncertainty.  We have seen a surge of demand letters and lawsuits against public accommodations alleging inaccessible websites.  Like we do with Title III lawsuits generally, we are tracking web accessibility lawsuits to keep you up to date on the trends.

Since January 1, 2015, 61 lawsuits alleging that a defendant’s inaccessible website violates Title III of the ADA have been filed or removed to federal court. These cases have been filed in five states – Pennsylvania, California, New York, Massachusetts, and Washington – with a small handful of plaintiffs filing virtually all of the lawsuits. The most litigious plaintiffs include Dominick Martin (9 suits, CA), Christian Diaz (8 suits, NY, mostly class actions), Robert Jahoda (6 suits, PA), Edward Davis (5 suits, CA), Jose Del-Orden (3 suits, NY, mostly class actions) and Cheryl Thurston (3 suits, CA). In Pennsylvania, Michelle Sipe and Jill Gross, often filing jointly with Access Now, Inc., Scott Lacey, Jessica Hodges, and Debra Rozear, currently have a combined total of 19 cases.

We are often asked which industry is most targeted by web accessibility suits.  Retailers are the clear winner, as can be seen in the chart below.Chart graphic

 

Also of note are the lawsuits about which we’ve previously written filed against universities and online-only businesses.

Only three of these businesses sued have actively fought the lawsuits thus far. Both the universities and a bank filed motions to dismiss the lawsuits, but the judges rejected those motions and allowed the cases to proceed to discovery.

Most of these lawsuits have settled, though new cases continue to be filed.

Finally, it is interesting to note that one plaintiff filed six cases in California against various retailers alleging that he was unable to apply for a job through the defendants’ allegedly inaccessible online job application processes and that the defendants offered no acceptable alternative accommodations for his vision disability.  This employment-related website accessibility issue falls outside this blog’s ADA Title III focus (and thus is not included in our data), but is still an important cautionary tale for all businesses who use online application processes. In addition, while we do not include Title II lawsuits in our data, we note that one such Title II web accessibility suit was recently filed against the Ohio Secretary of State.

Our methodology: As with our national lawsuit data, the effort to come up with these numbers is a labor-intensive, manual process. Because Pacer does not keep track of the type of ADA Title III lawsuits filed, there is no way to capture this information short of reading every complaint filed. Our analysis revealed that there have been at least 61 Title III website cases filed in or removed to federal court since January 2015. 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.