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Seyfarth Synopsis: Responding to the surge of website accessibility lawsuits filed under Title III of the ADA, 103 members of Congress from both parties sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits.

Just yesterday, a bi-partisan assembly of 103 members of the House of Representatives, led by Congressmen, Ted Budd (R-NC) and J. Luis Correa (D-CA), wrote a letter to Attorney General Jeff Sessions, urging the U.S. Department of Justice (“DOJ”) 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 urges the Department to “provide guidance and clarity with regard to website accessibility under the … ADA.”

The congressional support for this letter arises on the heels of a recent surge in website accessibility lawsuits against public accommodations in every sector alleging that websites that are not accessible by people with disabilities violate the ADA. In 2017, a number of courts rejected defendants’ attempts to obtain early dismissals of these cases and supermarket chain, Winn Dixie, lost the first trial in a website accessibility case. These decisions opened the proverbial floodgates and resulted in at least 814 federal lawsuits in 2017 about allegedly inaccessible websites, including a number of putative class actions. The federal lawsuit numbers for 2018 will likely be substantially higher as our tracking shows that there were 349 suits just in January and February of 2018. Despite the monumental increase in litigation and urgent need for clear guidance, the DOJ abandoned its rulemaking on website accessibility standards for public accommodations websites at the end of 2017, seven years after it said it would issue regulations on this issue.

With the number of website accessibility lawsuits on the rise and courts allowing most of these cases to move forward, members of Congress are feeling pressure from the business community to take action against this cottage industry of lawsuits. Indeed, as expressed in the letter:

[B]usinesses of every shape and size throughout the country are being threatened with legal action by private plaintiffs for unsubstantiated violations of the ADA. This problem is expanding at a rapid rate since the Internet allows such actions to be filed from anywhere, and there are no restrictions or limitations on making such complaints. The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.

We support the original spirit and intent of the ADA. However, unresolved questions about the applicability of the ADA to websites as well as the [DOJ’s] abandonment of the effort to write a rule defining website accessibility standards, has created a liability hazard that directly affects businesses in our states and the customers they serve.

Although the members of Congress who endorsed the letter acknowledged Congress’ own responsibility to provide legal clarity through the legislative process, they implored the DOJ to provide “even basic direction on compliance” and to “help resolve this situation as soon as possible.”

It is 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 unlike the Obama Administration which weighed in 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 will have to wait and see how Attorney General Sessions and the DOJ react to the congressional letter. In the meantime, we expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.

Seyfarth Synopsis: The World Wide Web Consortium just published an expanded version of the WCAG to add 17 more requirements to address new technologies and other digital barriers for individuals with disabilities.

On June 5, the private body of web accessibility experts called the World Wide Web Consortium (W3C) published its update to the Web Content Accessibility Guidelines 2.0, aptly named the Web Content Accessibility Guidelines (WCAG) Level 2.1.

The WCAG 2.1 is an extension of the WCAG 2.0 which the W3C issued in 2008. In recent years, WCAG 2.0 AA has become the generally-accepted set of technical requirements for making websites, mobile apps, and other digital content accessible to people with disabilities. WCAG 2.0 AA is the legal standard for the primary websites of airline carriers as well as the websites of federal agencies.

Four years in the making, WCAG 2.1 “fills gaps” in WCAG 2.0 by adding 17 additional success criteria to address additional accessibility barriers. The updates are mainly related to mobile devices (to keep up with significant technological changes since 2008), disabilities that affect vision (such as colorblindness, low vision; and criteria addressing text spacing and non-text color contrast), and disabilities that affect cognitive function (such as attention deficit disorder and age-related cognitive decline; and criteria addressing timeouts and animations from interactions for seizures and physical reactions). The W3C designed 2.1 to apply broadly to different web technologies now and in the future, and to be testable with a combination of automated testing and human evaluation. The W3C provides an informative introduction to WCAG here.

According to the W3C:

“Following these guidelines will make content more accessible to a wider range of people with disabilities, including accommodations for blindness and low vision, deafness and hearing loss, limited movement, speech disabilities, photosensitivity, and combinations of these, and some accommodation for learning disabilities and cognitive limitations; but will not address every user need for people with these disabilities. These guidelines address accessibility of web content on desktops, laptops, tablets, and mobile devices. Following these guidelines will also often make Web content more usable to users in general.”

The WCAG Level 2.0 AA has been widely considered the de facto standard for website accessibility in the United States, even though the Department of Justice has not adopted it into its Americans with Disabilities Act (ADA) regulations applicable to public accommodations.  The W3C’s publication of WCAG 2.1 does not change that equation; it merely adds additional elements for companies to address in making their websites accessible. 2.1 builds on 2.0, and will still follow the A, AA, and AAA conformance levels. The few court decisions that have issued an order requiring companies to conform their websites to a standard for accessibility have used WCAG 2.0 AA.  Given the rather incremental changes in 2.1, we expect WCAG 2.1 AA to eventually be the new “de facto” standard, but do not expect courts to require websites that already conform to 2.0 AA to meet all 2.1 AA standards overnight.

Further out on the horizon is the W3C’s Silver initiative, which we hear will reimagine the accessibility guidelines completely.  However, there’s no need to worry about that yet.

On May 21, a California state court in Los Angeles held on summary judgment that the Whisper Lounge restaurant violated California’s Unruh Act by having a website that could not be used by a blind person with a screen reader, and ordered the restaurant to make its website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA.  The court also ordered the restaurant to pay $4,000 statutory damages.  This is the second decision by a California state court on the merits of a website accessibility case.  The first decision concerned the Bags n’ Baggage website.  In 2017, a Florida federal judge conducted the first trial in a website accessibility case against Winn Dixie and held that the grocer’s website violated the ADA because it was not accessible to the blind plaintiff, and ordered Winn Dixie to make its website conform to WCAG 2.0 AA.

The court in the Whisper Lounge case rejected – as most courts on similar facts have – the restaurant’s argument that the website is not a place of public accommodation under the Americans with Disabilities Act (ADA).  The court found that the restaurant’s website “falls within the category of ‘services….privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

Next, the court noted that the restaurant presented no evidence in opposition to the plaintiff’s showing that the website was inaccessible on February 20, 2017 – the date the plaintiff said she attempted to use the website.  The restaurant only submitted a declaration stating that the declarant was generally able to use the screen reader NVDA on the website from 2014 through 2017, without addressing the specific barriers the plaintiff said prevented her from using the website.

The restaurant also argued that it provided access to the information on its website by having a telephone number and email.  The Court rejected this argument as well, finding that the provision of a phone number and email does not provide “equal enjoyment of the website”, as the ADA requires, but instead imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate access like sighted customers.  Thus, the court reasoned, the email and telephone number do not provide effective communication “in a timely manner” nor protect the independence of the visually impaired.  The court did not say whether a toll-free number that is staffed 24-hour a day would have yielded a different outcome.

Finally, the Court rejected the restaurant’s argument that the WCAG 2.0 AA is not yet a legal requirement, finding that the Complaint did not seek to hold the restaurant liable for violating the WCAG 2.0 AA.  Rather, the Complaint alleged that the website discriminated against the plaintiff by being inaccessible and sought an injunction to require the restaurant to make its website accessible to the blind.  The Court also rejected the restaurant’s arguments that requiring it to have an accessible website violated due process and the court should wait until the Department of Justice issues regulations addressing website accessibility.  The Court noted that the fact that the restaurant was redesigning its website did not render the case moot because the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

The decision does have a silver lining for the defense bar.  The Court noted that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination.  The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law – employment law – California’s Fair Employment and Housing Act.

Over the past few years, we have frequently written about the proliferation of demand letters and lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws. One firm that pursued many web accessibility actions under Title III and California’s Unruh Act (including a success in the Bags N’ Baggage case decided in plaintiff’s favor by a California state court) is now going after employers.  In recent demand letters and lawsuits, they are alleging that employment websites are not accessible to blind job seekers, in violation of California’s Fair Employment and Housing Act (FEHA), California’s corollary to Title I of the ADA.

While this blog, and Seyfarth’s Disability Access Team, are focused on disability access issues affecting places of public accommodation that provide goods and services to the general public (not employees, though many of our team members are employment specialists as well), this emerging litigation trend is worthy of our discussion here because it is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs’ attorneys.  But there is one big difference – the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations. Title III is unique from other anti-discrimination statutes in that it requires (with exceptions) businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. FEHA prohibits discrimination against individuals in employment.  It requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation.  The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

In the cases filed thus far, such as those by Dominic Martin, Roy Rios, and Abelardo Martinez in Orange County and San Diego Superior Courts in California last week, the plaintiffs argue that they are blind residents of California who want to enter the workforce, attempted to apply using the defendant’s online application, but could not because it was inaccessible to individuals with disabilities. They claim the WAVE tool confirmed the website’s inaccessibility (an automated tool like WAVE, while useful, cannot be relied upon to determine whether a website is accessible or not, let alone useable by an individual with a disability).  In these lawsuits, the plaintiffs claim that they twice asked the defendant to remove the barriers and were ignored.  Plaintiffs also claim that removing the barriers would take only a few hours (which anyone who has worked in the website accessibility space knows is rarely if ever possible).  Plaintiffs allege these requests that defendant remove the barriers were requests for reasonable accommodation, though they were sent by the plaintiff’s attorney and not the actual individual seeking employment; thus possibly perceived as litigation demand letters rather than legitimate requests for reasonable accommodation.  The plaintiffs allege that the companies did not respond and that they have a policy to deny disabled individuals equal employment by refusing to remove the barriers on the website.  Each plaintiff alleges only a single legal claim for violation of FEHA, even expressly noting he is not asserting claims for violation of any federal law or regulation.

Will these claims find any success in the courts under the applicable law?  We will be watching.  In the meantime, businesses that have been focusing efforts on consumer-facing websites to mitigate risk under Title III should be aware of this new trend (if you have not already received such a letter).

Edited by: Minh N. Vu.

By Kristina M. Launey, Minh N. Vu, & Susan Ryan

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge in 2017, fueled largely by website accessibility claims; while legislative reform efforts continue to mitigate the physical accessibility portion of those lawsuit numbers.

The results of our 2017 ADA Title III lawsuit count are in, putting a fifth consecutive year (since we began tracking in 2013) of growth in the number of ADA Title III lawsuits filed in federal court.  In 2017, 7,663 ADA Title III lawsuits were filed in federal court — 1,062 more than in 2016. While a bit slower growth than in 2016 (which saw an 1,812, or 37% year over year increase) over 2015, this 16% increase is almost double the 2014-2015 8% increase, demonstrating a continued upward trend in the number of filings.

ADA Title III Lawsuits in Federal Court: 2013-2017: 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)

California and Florida continue to be hotbeds of litigation, with 2,751 and 1,488 lawsuits (up from 2,468 in CA in 2016 and down from 1,663 in FL) respectively. New York is the big story, having almost doubled its 543 lawsuits filed in 2016 to 1023 in 2017.  Utah moved up in the ranks, with a more than doubling of federal lawsuit filings, from 124 to 360. Nevada, not in the top 10 states for filings in 2016, is relatively close behind with 276 lawsuits, while the 2016 holder of the fifth spot, Texas, dropped to number nine, cutting its 267 2016 number down by more than half, to 129.  Arizona, with 335 lawsuit filings in 2016, dropped out of the top 10 in 2017.  Colorado’s numbers also more than doubled, from 92 in 2016 to 215 in 2017; and New Jersey newly entered the top 10 this year with 108 lawsuits.  Georgia, held its sixth spot on the chart, also holding fairly steady at 187 lawsuits, a slight decrease from the 193 filed in 2016.  Finally, Pennsylvania showed relatively modest growth, increasing by 80 lawsuits over its 102 2016 count.  Here are the numbers for the top ten states:

  1. CA: 2751
  2. FL: 1488
  3. NY: 1023
  4. UT: 360
  5. NV: 276
  6. CO: 215
  7. GA: 187
  8. PA: 182
  9. TX: 129
  10. NJ: 108
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2751); FL (1488); NY (1023); UT (360); NV (276); CO (215); GA (187); PA (182); TX (129); NJ (108)

Similar to last year, while physical accessibility lawsuits remain common, these numbers continue to be driven largely by the vast numbers of website accessibility lawsuit filings, many by new attorneys in familiar (CA, FL, NY) jurisdictions.  The extreme increase in New York is likely due at least in part to 2017 federal court decisions that have likely embolded plaintiffs’ attorneys in that jurisdiction.  Note that these numbers of course do not include the many demand letters plaintiffs sent to businesses asserting website accessibility claims, do not include lawsuits filed only in state courts, and are conservative estimates, as our research methods are sound in finding at least the numbers we report here, and it is entirely likely we have not captured every ADA Title III filed in federal court.

Meanwhile, Congress has continued legislative efforts to provide business some relief from “drive-by” physical accessibility lawsuits.  The ADA Education and Reform Act of 2017, introduced January 24, 2017 as H.R. 620 by Texas Representative Ted Poe, would, among other things, codify a “notice and cure period” that would prohibit a plaintiff from filing a lawsuit based on failure to remove an architectural barrier unless the plaintiff has first given the businesses notice of the alleged violations and an opportunity to provide a plan to address them.  On October 30, 2017, the House Committee on the Judiciary reported the bill, and it is scheduled for referral to the House Judiciary Subcommittee on Constitution and Civil Justice on February 8, 2017.  Some states also continued their own legislative reform efforts, such as Florida HB 727, effective July 1, 2017; and in Nevada the State Attorney General intervened in a federal ADA Title III lawsuit by a serial plaintiff who had filed at least 275 lawsuits seven months.

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 2018.

Seyfarth Synopsis:  2017 saw an unprecedented number of website accessibility lawsuits filed in federal and state courts, and few courts willing to grant early motions to dismiss.

Plaintiffs were very busy in 2017 filing ADA Title III lawsuits alleging that public accommodations’ websites are not accessible to individuals with disabilities. Here is our brief recap of the 2017 website accessibility lawsuit numbers, major developments, and our thoughts for 2018.

  • In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. We arrived at this number by searching for lawsuits with certain key terms and then manually reviewing the results to remove any cases that did not concern an allegedly inaccessible website.  Our numbers are conservative, as it is very likely that not every website accessibility lawsuit’s description – upon which we based our search – contained our search terms. This caveat applies to all of the data set forth below.
  • Of the 814 federal cases, New York and Florida led the way with more than 335 and 325 cases, respectively. Surprisingly, California only had nine new website accessibility lawsuits in 2017, most likely because plaintiffs filed in state court.  Federal courts in Arizona (6), Georgia (9), Illinois (10), Massachusetts (15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania (58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of website accessibility lawsuits.
  • In California state courts, plaintiffs filed at least 115 website accessibility lawsuits in 2017 under the state’s non-discrimination laws. We compiled this data based on searches we performed for lawsuits by four blind plaintiffs represented by two California law firms.
  • In New York state courts, plaintiffs filed at least six website accessibility lawsuits in 2017. All were putative class actions.
  • Defendants in at least 13 federal website accessibility cases filed motions to dismiss or for summary judgment where there were no unusual circumstances like a prior court order or settlement agreement that obligated the defendant to make its website accessible. The courts denied all but two of those motions and let the cases proceed to discovery.
    • In one case where the defendant, Bang & Olfusen, won its motion to dismiss, the court noted that the plaintiff had failed to plead a nexus between the physical place of public accommodation and the website in question. In the other case, the court dismissed the claims made against Domino’s because requiring the defendant to comply with a set of web accessibility guidelines that are not yet law would violate due process principles.  The Domino’s decision is on appeal and will be reviewed by the Ninth Circuit in 2018.  Our post about these cases is here.
    • In the 11 cases where the federal judges refused to dismiss website accessibility claims and allowed the cases proceed to discovery, the defendants had unsuccessfully argued that the principles or due process and the doctrine of primary jurisdiction should be the basis for dismissal. One of our posts discussing some of these decisions is here.
    • In three decisions, the courts were open to the concept that providing telephonic access to the goods and services offered at the public accommodation may satisfy the ADA, but they refused to dismiss the cases at the outset on this basis.
  • The first trial in a website accessibility lawsuit took place in 2017. Florida U.S. District Judge Scola presided over this bench trial and concluded that grocer Winn Dixie had violated Title III of the ADA by having an inaccessible website.  Judge Scola also found that the $250,000 cost to remediate Winn Dixie’s website was not an “undue burden” and ordered Winn Dixie to make its website conform with the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).
  • Three defendants were able to dismiss website access lawsuits early because they had already entered into consent decree or settlement agreements with previous plaintiffs which required them to make their websites conform to the WCAG 2.0 within a specified amount of time. That said, not all courts agree that a prior settlement — as opposed to a binding judgment or court order — can be the basis for a dismissal.
  • The Department of Justice’s (DOJ) rulemaking to create new website accessibility regulations is now officially dead, as we recently blogged. The lack of clear rules will lead to more litigation and inconsistent judicially-made law.  In fact, it appears that the DOJ will not be issuing any new regulations under Title III of the ADA about any subject, according to the agency’s December 26 announcement in the Federal Register repealing all pending ADA Title III rulemakings.

What’s in store for 2018? If the Ninth Circuit upholds the Domino’s district court’s dismissal on due process grounds, the number of California website accessibility lawsuits in federal court may go down dramatically.  Even if that occurs, we see no end to the website accessibility lawsuit surge elsewhere and expect that new plaintiffs’ firms will continue to enter the scene.  While the current administration’s DOJ is not likely to push the website accessibility agenda, its inaction will not stop the lawsuits.  Only an amendment to the ADA can do that, which we believe is highly unlikely.  Thus, the best risk mitigation effort for covered entities is still to make their websites accessible as soon as possible, with the assistance of ADA Title III legal counsel experienced in website accessibility issues and reputable digital accessibility consultants.

Edited by Kristina Launey

Seyfarth Synopsis: California will soon have a new law requiring WCAG 2.0 AA compliance for state agencies’ websites by 2019.

On October 14, 2017 California Governor Jerry Brown signed into law AB 434, which will create a new Government Code section 11546.7 and require, beginning July 1, 2019, state agencies and state entities to post on their website home pages a certification that the website complies with the Web Content Accessibility Guidelines 2.0 Level AA, or a subsequent version, and Section 508 of the Rehabilitation Act.

State agencies have been required, since January 1, 2017 by virtue of 2016 legislation, to comply with Section 508 in developing, procuring, maintaining, or using electronic or information technology “to improve accessibility of existing technology, and therefore increase the successful employment of individuals with disabilities, particularly blind and visually impaired and deaf and hard-of-hearing persons.” That statute, Government Code 7405, also requires entities that contract with state or local entities for the provision of electronic or information technology or related services to respond to and resolve any complaints regarding accessibility that are brought to the entity’s attention.

The new Government Code section 11546.7 will also require the State’s Director of Technology to create a standard form for each state agency or entity’s chief information officer to use in determining whether its respective website complies with the accessibility standards.

With this legislation, California joins state and municipal entities in other parts of the country that have similar web accessibility requirements for governmental entities and contractors.  This legislation fills a small part of a void the federal Department of Justice has decided for the time being not to fill, when it put its pending regulations that would set an accessibility standard for state and local (as well as private entity) websites on the inactive list.

Edited by: Minh N. Vu.

Seyfarth Synopsis:  In denying Dave & Buster’s motion to dismiss and for summary judgment, a federal judge said that telephonic access might be an alternative to having an accessible website, but cannot decide until the record is much more developed.

No court has yet decided whether a public accommodation can comply with Title III of the ADA’s equal access mandate by providing telephonic access to the information and services on a website blind people cannot use with a screenreader.  However, last week federal Judge Philip Gutierrez of the Central District of California recognized it as a possibility, while allowing a website accessibility lawsuit against Dave & Buster’s to move forward to discovery.

In Gorecki v. Dave & Buster’s, Dave & Buster’s filed a motion to dismiss and for summary judgment at the outset of the case, arguing that it had complied with the law by providing telephonic access to the information and services on its website.  Specifically, it had placed an “accessibility banner” on its website stating: “If You Are Using A Screen Reader And Are Having Problems Using This Website, please call 1 (888) 300-1515 For Assistance.”  Dave & Buster’s had staffed the line with a “receptionist.”  In response, the court acknowledged that the Department of Justice had stated in 2010 that telephonic access could be a means of complying with law in lieu of having an accessible website.  However, the court found that the plaintiff had raised a genuine dispute as to whether having the phone line and receptionist satisfies the ADA because—among other things—Dave & Buster’s failed to submit evidence that the accessibility banner itself was accessible (i.e., could be read) to screen reader users.  The court concluded that “the record as it stands is insufficient to address compliance, so the court disagrees with D&B that the mere appearance of the phone number on the Website renders Gorecki’s claim moot.”

Our takeaway from this holding is that a defendant seeking to show that it is providing access to the information and services on its website through a telephone line must submit more robust evidence about how that telephonic provides equal access.

The court also rejected Dave & Buster’s three other arguments for dismissal.  First, the court said that holding Dave & Buster’s liable for a Title III violation in the absence of regulations about websites would not violate due process because the DOJ made clear “as early as 1996” that websites are covered under the law, and plaintiff was not advocating for adherence to any particular set of accessibility standards such as the Web Content Accessibility Guidelines 2.0.  Second, the court said dismissal was not appropriate under the doctrine of primary jurisdiction because “a finding of liability regarding the Website’s compliance with the ADA does not require sophisticated technical expertise beyond the ability of the Court.”  These two holdings echo the same or similar holdings by virtually every other court that has considered these issues.  Finally, the court stated that plaintiff did not necessarily have to request an accommodation from Dave & Buster’s before filing suit.

Judge Gutierrez’s decision is the third in which the Manning law firm in Newport Beach, CA has successfully rebuffed motions to dismiss website claims by defendants in federal court.  The firm has appealed to the Ninth Circuit the one unfavorable decision it received in Robles v. Dominos Pizza. The opening brief will is due to be filed this week.

Seyfarth Synopsis:  The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.  Businesses remain well-advised to seek advice from counsel experienced in website accessibility to manage risk.

Different year, same news: Website accessibility lawsuits show no signs of slowing down. In fact, with the DOJ’s recent placement of website regulations on the “inactive list”, litigation will likely only continue. As we have written about extensively, most recently here, court orders are issuing more and more from courts across the country, slowly creating a body of jurisprudence around this issue; though the rulings differ vastly by court and even judge.

The number of website accessibility lawsuits filed in federal court since the beginning of 2015 has surged to at least 751 as of August 15, 2017, with at least 432 of those filed in just the first eight and a half months of 2017—well over the 262 lawsuits that were filed in all of 2015 and 2016. We say “at least” because there is no easy way to capture every website accessibility lawsuit filed in federal court. Thus, the actual numbers are likely higher than we can report with certainty. Our numbers also do not include the many cases filed in state courts nor demand letters that resolve without ever turning into lawsuits.

Number of federal website accessibility lawsuits by year from January 2015 to August 15, 2017: 2015 (57), 2016 (262), 2017 (432). There are at least this many lawsuits.

Retailers remain the most popular targets, followed by restaurant and hospitality companies.

Number of federal website lawsuits by industry from January 2015 to August 15, 2017: Academic (7), Entertainment (27), Financial (17), Hospitality (57), Medical (42), Personal Services (18), Restaurant (186), Retail (353), Vehicle Manufacturer (13), Other (22). There are at least this many lawsuits.

Although California continues to have the highest number of federal ADA title III lawsuits generally, Florida (385), New York (170) and Pennsylvania (85) have overtaken California with respect to the number of federal website accessibility lawsuits.

Number of states with the most website lawsuits in federal court as of August 15, 2017: Arizona (7), California (65), Florida (385), Illinois (5), Massachusetts (17), New York (170), Ohio (4), Pennsylvania (85), Texas (4), Washington (5). There are at least this many lawsuits.

These lawsuits are a significant portion of the increase in total ADA Title III lawsuits filed in federal courts this year, which, as of April 2017, was already over 2600 filings in 2017—an 18% increase over the number of federal cases filed in the same time period in 2016.

Edited by Minh N. Vu.

Seyfarth Synopsis: Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff.  Two days later, a California federal judge held that a blind plaintiff’s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery.  Now two federal judges in New York have weighed in, denying restaurant Five Guys’ and retailer Blick’s motions to dismiss lawsuits alleging that the defendants’ inaccessible websites violate the ADA and New York State and City civil rights laws. Both judges found that: (1) websites are subject to the ADA, regardless of whether the goods and services are offered online and in physical locations; and (2) courts don’t need agency regulations setting a standard for website accessibility to decide whether a website violates the ADA. The court in Five Guys additionally held that being in the process of improving a website’s accessibility is very different from having successfully completed that process to meet the mootness standard of being “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” It summarily rejected the restaurant’s mootness argument on that basis.

In the Blick putative class action, Eastern District Court Judge Weinstein issued a lengthy 38-page order on August 1 that addressed the issue of whether a nexus to a physical place of business is required to subject a website to the ADA. The opinion expressed sympathy for blind individuals who are unable to use some websites with their screen reader software and marshalled every possible argument in favor of finding that all websites that fall within the twelve types of businesses classified as “places of public accommodation” are covered by the ADA.  Judge Weinstein first surveyed relevant decisions from federal courts in other circuits.  Although the Ninth Circuit is the only appellate court that has actually addressed the coverage of a website under Title III of the ADA (all other Court of Appeals decisions have concerned other matters, mostly insurance products), he found that the Third, Sixth, and Eleventh Circuits have held that only businesses with a “nexus” to a physical location are subject to the ADA.  He characterized this interpretation of the law as “narrow” because it would mean that “a business that operates solely through the Internet and has no customer-facing physical location is under no obligation to make [its] website accessible.” The court then considered First and Seventh Circuit decisions which have held that a business does not need a physical place of business where customers go to be considered public accommodations under the ADA.

Finally, looking to its own Court of Appeals (which has not squarely addressed the question of whether a business with no physical location can be covered by Title III of the ADA or considered a website accessibility case), the Blick court relied upon an extended interpretation of the Second Circuit’s holding in Pallozzi – an insurance policy case – to hold that a business that has no physical place of business can be a covered public accommodation under the ADA.  Notably, the defendant in Pallozzi had a physical place of business where the plaintiff had purchased the allegedly discriminatory insurance product.  The Second Circuit held in Pallozzi that Title III of the ADA reaches beyond access barriers at a physical location and extends to the terms of the products sold from that physical location. It did not hold, nor even state in dicta, that a business with no physical location is covered by the ADA in the first place, or that a business’ website is covered by the ADA.

In holding that a website does not need a nexus to a physical location to be covered by the ADA, Judge Weinstein aligned himself with two other District Court judges in the Second Circuit (District of Vermont Judge William K. Sessions III and New York Southern District Judge Katherine Forrest) who reached the same conclusion in cases brought against Scribd and Five Guys, respectively.   

The Blick decision also rejects the recent Bang & Olufsen decision out of the Southern District of Florida, which followed the Target case in holding an ADA website access claim can only survive a motion to dismiss if the website’s inaccessibility has an actual nexus to the business’ physical location. The Bang & Olufsen court held that the plaintiff had not stated an ADA Title III claim because his complaint did not allege that the alleged website barriers in any way impeded his ability to shop at the physical store. The Blick court found this interpretation of the ADA “absurd,” as it would require that only select aspects of Blick’s website and online presence be accessible to the blind, such as allowing disabled individuals “a right to ‘pre-shop’ in their home, but no right to actually make a purchase in their home,” and provide disabled individuals “no right whatsoever to purchase goods or services from companies whose business models (e.g. television shopping channels, catalogs, online-only) are premised on having customers shop only from home.”

The court concluded its 22-page discussion of the issue by stating the plaintiff “has a substantive right to obtain effective access to Blick’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges the defendant’s website provides to the general public.” It also found that the plaintiff might be able to enforce his rights through a class action, but that issue would wait until after the parties’ motion(s) for summary judgment. The court also stated that it would convene a “Science Day” where experts would demonstrate web access technology to the court “to explore how burdensome it would be for the defendant to make its website compatible with available technology.”

Both the Blick and Five Guys decisions rejected the argument that Justice Department regulations setting website accessibility requirements are necessary for a finding that a defendant has violated the ADA by having an inaccessible website. Like the District of Massachusetts in denying MIT and Harvard’s motions to dismiss, and the Central District of California in denying Hobby Lobby’s motion (contrary to a different decision out of that same district) the Blick court rejected the primary jurisdiction argument on the basis that it is the court’s job to interpret and apply statutes and regulations and the risk of inconsistent rulings is outweighed by plaintiff’s right to prompt adjudication of his claim. The court discussed the long history of the Justice Department’s website accessibility rulemaking efforts before concluding that “t[]he court will not delay in adjudicating [plaintiff’s] claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Both courts rejected the defendants’ due process arguments, stating no standard set by statute or regulation for is needed for the ADA’s requirements of “reasonable modifications,” “auxiliary aids and services,” and “full and equal enjoyment” to apply to website accessibility. In rejecting Five Guys’ argument that there are no regulations setting forth accessibility standards for websites, the Five Guys court noted that there are steps defendant could take, such as using the Web Content Accessibility Guidelines.

Finally, the Blick decision addressed the coverage of website accessibility claims under the New York State Human Rights Law, New York State Civil Rights Law, and New York City Human Rights Law, and found that such claims were covered to the same extent as they are under Title III of the ADA.

While there is no way of knowing whether other federal judges in New York will agree with the holdings of District Judges Weinstein and Forrest, more lawsuits will likely be filed in New York after these decisions.