All but two of today’s cases are from serial filers, and 7 of 17 are from a single serial filer, Scott Johnson. The fact that serial filers dominate the world of ADA litigation is hardly news; in fact, it would news if an ordinary disabled individual who suffered a real ADA injury filed suit. It is also news that federal judges in the mid-west are showing an increased reluctance to keep cases alive based on dubious standing claims. As Bradley Cooper sings in the latest version of A Star if Born, “Maybe it’s time to let the old ways die.” More
ADA Internet Web
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: Accessible websites, ADA defense, ADA Supreme Court, ADA website defense, Dominos v Robles
Domino’s Pizza has filed a Petition for a Writ of Certiorari with the United States Supreme Court challenging the Ninth Circuit’s recent ruling in favor of Guillermo Robles.* The Court’s decision on whether to grant certiorari will have a profound impact on the possible “tsunami”** of website accessibility lawsuits, but we don’t have to wait for that decision to find the Petition itself interesting.
What I find most intriguing is Domino’s argument that the Ninth Circuit has adopted a new, third standard for application of the ADA to the internet. Along with other commentators I have always seen a two way split in the Circuits. Some (the First, Second and Seventh) simply hold that all websites are public accommodations subject to the ADA. It is a simple approach that leaves no room for doubt about a website’s accessibility obligation. Others (the Third, Sixth, Eleventh and Ninth Circuits) find that a website is covered by the ADA only if it has some nexus to a physical place of business. The exact nature of that nexus is a question being slowly answered as different situations are presented to the courts, but details aside, the nexus requirement seemed a common thread in decisions from these Circuits. More
Accessibility moots a website accessibility claim – a surprising decision that shouldn’t surprise anyone.
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA website accessibility, ADA website defense, Diaz v Kroger, Katherine Failla
On Tuesday, June 4 Judge Katherine Failla of the Southern District of New York issued a critical decision finding that a website accessibility case could be mooted by simply fixing the website. Diaz v. Kroger Co., Case No. 1:18-cv-7953 (June 4, 2019). She also found that Kroger was not subject to personal jurisdiction in New York on more conventional grounds, but the mootness holding is critical. More
My colleague William Goren recently shared with me some correspondence with an internet service for attorneys that was offering a free webinar. Bill is deaf and was inquiring about captioning for the webinar. The response was that the service through which the webinar was offered didn’t offer captioning. I had looked at the same issue myself a few years ago in an effort to make my own webinars more accessible. What I found was that to add captions to a prerecorded webinar is relatively easy and inexpensive, but that live captioning was both technically difficult and expensive. Bill’s inquiry made me spend some additional time looking at whether captioning is something the ADA should require (assuming, of course, that the ADA even applies to websites and services provided on the internet).
The first place to look for web accessibility standards is, of course, the Web Content Accessibility Guidelines. They have no legal standing, but they have been used as the de facto standard by the Department of Justice and at least one district court. They are also incorporated into the regulations for Section 508 of the Rehabilitation Act, which requires accessibility for federal government electronic communications, including websites.
WCAG 2.0 success criterion 1.2.4 requires captioning for live audio content in synchronized media – meaning live video presentations in which someone talks. This is a success level AA criterion, so it falls within the requirements imposed by Section 508 and the many settlements negotiated by DOJ and others. However, WCAG success criteria seem to be based more on the availability of technology than the cost of the service. The underlying principle seems to be if you can do it you should do it even though the cost may be prohibitive.
This is where reasonableness and undue burden come into play. Remember that unlike other anti-discrimination statutes the ADA requires affirmative action to make public accommodations and their services accessible.* For the disabled, equal treatment isn’t enough because their disabilities make it difficult or impossible to take advantage of facilities and services as they exist. Without the requirement of affirmative action any public accommodation could claim it was not discriminating as long as it provided the same physical space and services to everyone. Sections 12182(b)(2) and 12183 contain the affirmative action requirements at the heart of Title III of the ADA. Section 12183 concerning new construction doesn’t apply to websites at all, so disabled website accessibility advocates must find relief in something under Section 12182(b)(2)(A). Of these only (ii) and (iii) plausibly apply to an inaccessible website, and these are both qualified. Section 12182(b)(2)(A)(ii) requires “reasonable” modifications in policies, procedures etc while Section 12182(b)(2)(A)(iii) requires the provision of auxiliary aids and services only if they do not impose an “undue burden.”
Thus, under any theory of website accessibility the changes needed to make a website accessible must either be reasonable or not impose an undue burden. WCAG 2.0 suggests that captioning is not so technically difficult providing it would be unreasonable or burdensome, but WCAG 2.0 doesn’t look at cost, and for captioning cost is as much an issue as technical ability. So, where can we find information about what cost is reasonable for captioning?
Fortunately there is a law and set of regulations that looked very specifically at the cost of captioning technology. The Telecommunications Act of 1996 was passed in part as a reaction to the holding in Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580 (6th Cir. 1995), a case that refused to apply the ADA to football broadcasts. It did not directly address captioning, but the effect was to exempt broadcasters from any ADA accessibility requirement. The Telecommunications Act remedied this by providing for a phased in requirement that TV broadcasts be captioned. It gave the FCC authority to implement the captioning requirement and in particular to determine by rule when it would be too costly.
The FCC regulations took cost into account when creating a series of “self-executing” exemptions to the captioning requirement. Two of those exemptions are relevant to the reasonableness and undue burden problem under the ADA. The FCC exempts from captioning any broadcaster with less than three million dollars in annual revenue or for whom captioning would cost in excess of 2% of gross revenues. This is pretty clearly a regulatory finding that these costs are excessive in relation to the benefit of captioning live video.
Television broadcasts and webcasts are not perfectly comparable, of course, but it seems unlikely the cost of captioning a live webcast is any less than the cost of captioning a live television broadcast despite possible differences in technology. The biggest difference is likely to be that the capital and licensing costs associated with television broadcasting mean most broadcasters will not meet this economic exemption. The ease and low cost of internet webcasting, on the other hand, make it very likely that a large majority of webcasters would be exempt under these standards. In any case, for this slice of the accessibility pie we do have a reasonably authoritative determination as to when the cost of accessibility imposes an undue burden on the owner or operator of a webcast. If the webcaster has revenues of less than three million dollars or the cost of captioning would exceed 2% of its revenues then notwithstanding the WCAG success criteria captioning of live webcasts should be regarded as an undue burden.
* See the discussion in Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 951 (N.D. Cal. 2006).
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, Internet Accessibility Tags: ADA attorney ethics, ADA defense, ADA website defense, Oscar Rosales
An April 3, 2019 decision from Texas’ Third District Court of Appeals should give pause to many lawyers filing website accessibility lawsuits under the ADA. In Commission for Lawyer Discipline v. Rosales, Case No. 03-18-00147-CV (April 3, 2019)* the Court of Appeals wrote this about an ADA website demand letter:
“And regardless of whether Rosales “believes” that the ADA applies and that the WCAG guidelines establish ADA standards, the question of whether the ADA applies to websites is, as Rosales admits in his briefing to this Court, an unsettled issue that courts across the country disagree on. To that extent, his statement that “the Americans with Disabilities Act applies to websites” is, at best, a misrepresentation and, at worst, dishonest and deceitful.” More