This afternoon the Ninth Circuit overruled the district court decision in Robles v. Domino’s Pizza LLC. Robles has always been an outlier. It is one of only a couple of cases holding that the absence of DOJ regulations made it unfair to prosecute claims against website operators under the ADA. The Ninth Circuit disagreed, adding additional weight to the lower court decisions finding that the lack of regulations does not raise due process concerns and confirming that in website accessibility litigation justice is simply not available to small businesses. More
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web Tags: ADA defense, ADA website accessibility, Beyonce, Beyonce.com, Conner v Parkwood, Rihanna
A lawsuit claiming that Beyoncé’s website is not accessible to the blind has gotten lots of coverage*, but the real news of importance to business is that the plaintiff – Mary Conner – has filed more than 20 similar suits in the last twelve months. She claims to be a passionate Beyoncé fan who wanted to buy a special hoodie, just as she has claimed to be a passionate Rihanna fan who wanted to buy a Rihanna hoodie, and as she claimed to want a Christmas tree from Christmascentral.com, and wanted some Honey Barbeque Jerky from Chefscutrealjerky.com, and wanted to book a workout at Barre3.com, and wanted to buy shoes from Marc Fisher footwear and so forth and so on. She’s such an enthusiast for Spanish food that she was anxious to get menu information about a restaurant in Washington D.C. even though she lives in New York. And the concern that has lead her to file so many lawsuits is so intense that she doesn’t use the same gender in the various complaints, sometimes referring to herself as a “he” and sometimes as a “her.” More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA defense, ADA internet litigation, ADA website accessibility, ADA Website Litigation, Griffin v Credit Union
Griffin v. Dept. of Lab. Fed. Credit Union, 18-1312, 2019 WL 80704 (4th Cir. Jan. 3, 2019), decided earlier today, the Fourth Circuit gave the defendant credit union a victory that on its face is meaningful only for credit unions and other membership organizations. However, although its conclusive denial of standing for the plaintiff was stated in the narrowest terms, the reasoning implies a view of standing with much broader implications. Standing requires that a plaintiff have have suffered a past injury that was concrete and particularized, and face the imminent threat of future harm. The Court concluded Griffen met none of these requirements because he was ineligible as a matter of law to use the services of the defendant credit union. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, FHA, FHA design/build litigation Tags: ADA defense, FHA Defense, Lyft, Ride Sharing ADA, uber
There is only one prediction that can be made with complete certainty about ADA and FHA litigation in 2019: Lawyers will continue to make money exploiting these laws for profit in the name of accessibility. The number of lawsuits continues to climb, and with Congress and regulators unwilling to do anything this exploitation will continue. However, before we face the new challenges of a new year it is time for a final look backward at the recent decisions concerning accessibility for the disabled.
Standing in website accessibility cases.
Price v. Orlando Health, Inc., 2018 WL 6434519, at *4 (M.D. Fla. Dec. 7, 2018) shows just how important theories about why the ADA covers websites can be to standing in such cases. Courts in the 11th Circuit have adopted the theory that a website is covered by the ADA only if it has a nexus to a physical public accommodation. Because this relationship is required, the ADA injury giving rise to standing must be some inability to use the physical accommodation. The plaintiff in this case had no plausible intent to use the defendant’s facilities so he could not establish an ADA injury and did not have standing to sue. This is one of many reasons there is a widening gap between the Circuits with respect to how website cases can be effectively defended. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Mootness, ADA Policies Tags: ADA defense, ADA Internet, ADA web access, ADA website, bull market, CUNA, drive-by lawsuits, unruh act, Usablenet, WCAG 2.0
The financial markets are bouncing around like ping pong balls, but there is one financial indicator that is only going up. For website accessibility litigation we have a bull market and no sign of a recession. Based on federal filings alone the number of website accessibility cases almost tripled in 2018, increasing by 181%*. For ordinary serial ADA litigation based on parking and restrooms the market is flat and the cases confirm the general lack of consistent standards across circuits and between judges – know your court is the rule with respect to every strategic decision. The fake service animal businesses online continue to outrage businesses but without much resulting litigation. A few notable serial filing lawyers have gotten trouble, but the 181% increase in federally filed** web access cases has created both the most serious threat to businesses and the most interesting legal developments in Title III litigation.
Website accessibility lawsuits pose a special threat to businesses facing them that goes beyond the sheer number filed. In an ordinary physical access case the cost of remediation is usually manageable – some concrete work, a new accessible parking sign, or perhaps re-hanging a restroom door. This makes a mootness defense possible and limits the damage that could result from refusing to defend at all. Ordinary cases are also local – venue will be where the business is located, making any defense easier.
For website accessibility cases these things are not true. Mootness is impossible because there are no binding standards for accessibility and it is therefore impossible without a trial to know what it takes to moot a claim. Mootness is also expensive, with full website remediation to even a non-binding standard like WCAG 2.0 AA costing in the tens to hundreds of thousands of dollars. Venue will be where the plaintiff lives – – either New York or Florida for the most part* – because any business on the web is doing business everywhere. The cases are cheap to file – it isn’t even necessary to pay for gas to drive by the defendant’s place of business. For the defense just evaluating the claim is expensive because the expertise required is less widely available and far more costly.†
The result is that early settlement of website accessibility cases typically costs at least three to four times as much as early settlement of an ordinary physical access case.†† This makes them much more profitable for plaintiffs’ attorneys. It costs them no more to file a web access case but they can coerce a settlement that pays a high multiple of any reasonably hourly rate for this kind of legal work. Just as the statutory damages available under the Unruh Act in California have driven a thriving litigation ADA litigation industry there, so the higher profit margins available for website accessibility cases are driving a nationwide expansion of the website access litigation business. This industry has almost nothing to do with accessibility for the disabled and everything to do with making money for lawyers.
There is, however, a silver lining to the cloud of website accessibility lawsuits. A few defendants, notably CUNA‡, have decided to fight back despite the expense and risk. As a result we have a handful of favorable district court decisions that correctly apply the law of standing based on Supreme Court authority along with the prospect of decisions from the courts of appeal that may limit the ability of plaintiffs to file these suits.. With any luck at all the 2019 review of significant ADA developments will include decisions from the Circuit Courts that limit standing to those who have suffered a real injury, which does not include any serial plaintiff. We may even see a common sense ruling that DOJ’s decision to ignore the Congressional directive in the ADA to create accessibility standards and coordinate them with the standards applicable to government agencies justifies a stay of all website accessibility litigation until DOJ fulfills its statutory duty and businesses know just what “accessible” means. In the meantime, the market in ADA website cases seems headed toward new record highs.
* This statistic comes from the Usablenet blog “2018 Web Access Recap.” Usablenet is a website accessibility and remediation consultant. In the interest of full disclosure I consult from time to time with Usablenet on the law concerning website accessibility.
** The number of cases filed in state courts, primarily California is difficult to determine, but would add significantly to the total.
† A physical accessibility survey for a small shopping center will usually cost less than $1000. A website review by any legitimate consultant will cost five to ten times as much.
†† This is based on my own experience with a number of different plaintiff law firms.
‡ See, for example, my blog at “Credit Union victories in ADA website litigation.”