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: Florida’s recently-enacted House Bill 727 gives businesses a way to deter serial plaintiffs from suing them in Florida courts.

Watching businesses deal with the at least 1,663 ADA Title III access suits filed in federal court in Florida in 2016 motivated Florida legislators to take action with House Bill 727 (“HB 727”) which went into effect on July 1, 2017. One of bill’s sponsors, Rep. Tom Leek, claims that “[t]his law give the ADA back to the people for whom it was written, Americans with disabilities.” We are not quite so optimistic.

Under HB 727, a business that hires a “qualified expert” to inspect its premises to either verify conformity with ADA facilities access requirements, or to develop a compliance plan, can have that information considered in a lawsuit filed in a court within the state of Florida, provided that the certificate of conformity or remediation plan has been filed with the Department of Business and Professional Regulation (the “DBPR”). The court “must consider” any such remediation plan or certificate of conformity “and determine[s] if the plaintiff’s complaint was filed in good faith and if the plaintiff is entitled to attorney fees and costs.”

Here’s how it would work: An owner of a place of public accommodation pays a “qualified expert” to inspect its premises. If the expert concludes that the facility complies with the ADA, the business can submit a “certificate of conformity” to the DBPR stating that the premises conforms to Title III.  Certificates of conformity are valid for three years and must include: the date that the premises was inspected, the name of the “qualified expert,” proof of the expert’s qualifications, and a statement from the qualified expert attesting that the information contained in the certificate is complete and accurate.

Businesses whose facilities do not fully comply with the ADA can submit a remediation plan to the DBPR indicating that the facility intends to conform with ADA requirements within a reasonable amount of time that does not exceed 10 years. In addition to the requirements applicable to the certificate of conformity, the remediation plan must include the specific remedial measures that the place of public accommodation will undertake, and the anticipated date of completion.

To be a “qualified expert,” one must be a building code inspector, architect, engineer, contractor, or “person who has prepared a remediation plan related to a claim under Title III … that has been accepted by a federal court in a settlement agreement or court proceeding, or who has been qualified as an expert in Title III … by a federal court.” This means that an experienced defense attorney who has prepared a remediation plan for a court approved settlement could be considered a “qualified expert.”

HB 727 is not likely to have much impact on the number of ADA Title III lawsuits filed in Florida for several reasons. First, the law will likely only apply to ADA lawsuits filed in state court, and most ADA Title III lawsuits are filed in federal court. This is because under the Supremacy Clause of the United States constitution, Florida state’s requirement that a court must consider remediation plans and certifications of conformity are likely preempted by the ADA and will not be applied to a plaintiff’s federal lawsuit. Second, given that HB 727 does not explicitly render an access lawsuit moot just because there is a remediation plan or certificate of conformity on file, businesses will be reluctant to publicize access barriers in their facilities in a publicly-filed document, which plaintiffs can still use to sue them. Third, having a court consider the existence of a remediation plan or certificate of conformity in deciding whether to award a plaintiff attorneys’ fees is not likely to deter plaintiffs who know that defendant businesses will need to spend a lot of money litigating before a court ever considers either of these documents.  Fourth, HB 727 does nothing to address the explosion of website access litigation under the ADA in Florida which has been a key driver in the increased number of lawsuits in the past 12 months. Indeed, as we have previously reported (here and here), California has similar legislation to HB 727, yet California still had approximately 2,468 ADA Title III filings in federal court in 2016 and continues, along with Florida, to be a hotbed for ADA Title III litigation.

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.

Webinar_Flat_Icon_Set_REZERVAPlease join Seyfarth Shaw’s ADA Title III team members Minh Vu and Kristina Launey, along with SSB Bart CEO Tim Springer, for a preview of the Defending Digital Accessibility Lawsuits presentation they’ll give at this year’s California State University Northridge Annual International Technology and Persons with Disabilities Conference.  This 45-minute webinar will provide a brief overview of applicable laws and recent settlements, and practical tips for proactive preparation and avoidance, or remedial defense, against digital accessibility complaints and litigation.

Click here to register for the webinar.

On January 22, Seyfarth Shaw’s class action experts are presenting a webinar to discuss highlights from Seyfarth’s 11th Annual Workplace Class Action Litigation Report.  While the Report primarily covers class actions in the employment context, many of the rules, strategies, and tactics are equally applicable and employed in ADA Title III class litigation, as demonstrated by the Report’s inclusion of some ADA Title III cases. 

The Report and webinar should prove educational to anyone faced with class or complex litigation. To find out more about the webinar and to register, click here.