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.

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.