The major news outlets seem to have overlooked the most interesting aspect (to me) of Amazon’s acquisition of Whole Foods; that is, Amazon’s leap into the world of serial ADA filers and controversy over internet accessibility. Amazon has experimented with physical stores, but soon it will have hundreds of them in the U.S., and every one of them has some kind of ADA accessibility issue. That isn’t an accusation, but an assumption based on the highly technical requirements in the 2010 ADA Standards and the proven inability of even the most sophisticated organizations to control the hundreds or thousands of people whose jobs are not primarily related to accessibility to do what is required. Somebody’s going to stack boxes in a hallway, block a checkout counter, take too long to repair a vandalized accessible parking sign, or fail to notice a 10% slope where 8.3% is the maximum. Whole Foods has already been sued many times based on accessibility failures in its stores. More
Accessibility Litigation Trends
Yesterday, on June 13, Judge Robert Scola of the Southern District of Florida issued his opinion on website accessibility in Gil v. Winn Dixie Stores, Inc. Case No. 1:16-cv-20320 (SD Fla. June 13, 2017) He conducted a two day trial, but the outcome was inevitable after his earlier decision denying a motion to dismiss. In that decision Judge Scola adopted, in essence, the reasoning of Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006). Target held that if a website had a sufficient nexus with a physical place of business then it was covered by the ADA as a service of that public accommodation. This sidestepped the more theoretical question of whether a stand alone website is a public accommodation. It appears to have been undisputed that the Winn-Dixie website offered services related to its brick and mortar stores, so the trial in which evidence of that fact was put in the record was really just a formality. More
The following link is to a story on ABC 15, Arizona concerning the latest developments in the ongoing investigation of abusive ADA litigation in Arizona and New Mexico. Local Judge Orders Release. The article explains the situation in some detail, but the basic news is simple. A private company hired lawyers and plaintiffs to file ADA lawsuits, paying for their services and pocketing what looks like a substantial profit. None of this might have ever come to light except that the number of suits (in the thousands) was astonishing even by ADA serial litigation standards.
For both disabilities advocates and firms like ours that defend ADA lawsuits this kind of report poses a critical question: Is this the norm, or an aberration? When we see dozens or hundreds of ADA suits filed in a short time by a single firm and plaintiff are we seeing a legitimate effort to create an accessible world or exploitation of a law for purely private benefit? More
The Ninth Circuit’s April 24 decision in City of Los Angeles v. AECOM Services, Inc., 2017 WL 1431084 (9th Cir. Apr. 24, 2017), amended sub nom. City of Los Angeles by and through Dept. of Airports v. AECOM Services, Inc., 2017 WL 1844077 (9th Cir. May 9, 2017) represents a giant step in the direction of common sense with respect to indemnity and contribution under the ADA and, by extension, the FHA. The Court held that the party who is most responsible for an ADA violation should bear the cost of remediation. It doesn’t sound like a surprising result, but it runs counter to the prevailing law. More