Accessibility Litigation Trends
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
In a March 27, 2017 ruling Judge Richard Leon of the D.C. Circuit found a safe harbor in the Fair Housing Act that I haven’t seen referred to in any earlier published opinion. See, U.S. v. Mid-America Apt. Communities, Inc., 2017 WL 1154944 (D.D.C. Mar. 27, 2017). In the defense of FHA design / build cases the emphasis is usually on the statutory safe harbor in 42 U.S.C. §3604(f)(4), the ANSI A117.1 standard, or in one of the similar safe harbors recognized by HUD in 24 CFR §100.205(e). However, there is also safe harbor language in 42 U.S.C. §3604(f)(5), which provides that:
(5)(A) If a State or unit of general local government has incorporated into its laws the requirements set forth in paragraph (3)(C), compliance with such laws shall be deemed to satisfy the requirements of that paragraph.
(B) A State or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of paragraph (3)(C) are met. More
On April 21, 2017 Judge Schwab of the Western District of Pennsylvania surprised no one by finding that the ADA applies to web sites. Gniewkowski v. Lettuce Entertain You Enterprises, Inc., Case No. 2:16-cv-01898 (W.D. Pa. April 21, 2017). Judge Schwab has presided over dozens of ADA cases, and his orders in those cases make it plain that he has an expansive view of the purposes and reach of the ADA.
What is surprising about the decision is Judge Schwab’s reasoning, which does not follow many earlier cases holding that websites may be covered by the ADA because they are a service of a brick and mortar store, act as a “gateway” to the brick and mortar store or otherwise have some relationship to a physical place of public accommodation. Instead Judge Schwab observes that the defendants’ physical locations are undoubtedly places of public accommodation and then finds that “the alleged discrimination has taken place on property that AmeriServ owns, operates and controls – the AmeriServ website.” Missing is the connection between the website and the physical premises present in other cases. It appears that Judge Schwab would hold that if any business owns a place of public accommodation then any website it also owns is subject to the ADA, regardless of the relationship of that website to a physical premises.
The case was decided on a Motion to Dismiss, and although district court decisions pro and con continue to drift in, there no definitive case. There is, however, a clear imperative to make websites accessible to avoid the expense of litigation.
Thanks to Michele Landis of Accessible 360, for sending me information about this decision.
*Please note that our work with different web accessibility consultants does not represent an endorsement of any of them. Decisions on how to best approach accessibility should be made by any business after consulting with both counsel and a variety of consulting firms.