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
ADA Attorney’s Fees
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees Tags: ADA defense, ADA Website Litigation, FHA Defense, Oscar Rosales, Pacific Trial Group, Peter Strojnik, Scott Ferrell, Scott Johnson, unruh act
This Memorial Day we are once again firing up the grill with hundred dollar bills to celebrate how the ADA its current form encourages litigation that makes lawyers rich without any correspondening improvement in meaningful access for the disabled. The first case presents the unappetizing picture of a single claimed lack of access generating parallel state and federal proceedings as defendants and plaintiffs maneuver for a procedural advantage. The last explores the exploitation of California law by plaintiffs who can use internet accessibility claims to bring the whole world into their favorable local courts. In between we will see some courts pushing back, though only in the most egregious cases. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Litigation Procedure, ADA Mootness, FHA, FHA Reasonable Accommodation, Uncategorized Tags: ADA Counters, ADA defense, ADA Mootness, FHA Defense
I’m a day late with the St. Patrick’s Day Edition of Quick Hits but that’s no reason not to raise a toast to the saint who, as my great-grandfather William Mullin said, drove all the snakes out of Ireland except the politicians.
Counter widths and the ADA
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Policies Tags: ADA defense, ADA Internet, ADA website, CSUN Assistive, Lainey Feingold, WCAG
I’m just departing from the 2019 Assistive Technology Conference with a few prejudices confirmed but with some new ideas as well.
I spoke with a number of companies that sell consulting services for web accessibility based on a wide range of business models. Since the website litigation storm broke in 2015 the field has developed, but there is still no good accessibility solution for a small retail store or restaurant. Simple websites are less likely to have accessibility issues, but their owners are heavily dependent on small, independent web designers and developers who often live in blissful ignorance of accessibility issues. Twenty-five years after passage of the ADA strip shopping centers that don’t meet ADA standards are still being built because smaller contractors and one person architecture firms don’t know about or understand the construction standards. The same thing will be true for web accessibility twenty-five years from now if we don’t find a way to educate the web design community about it. For those who don’t want to wait the following link has a list of resources from Lainey Feingold’s website. Resources.
It seems likely that accessibility litigation concerning mobile applications is going to increase. Easy to use tools for testing the accessibility of mobile apps are now becoming more available. That will make it easy for those members of the plaintiffs’ bar who are on the prowl for targets to find mobile apps to sue. In this case however businesses and developers have the lead time needed to make their apps accessible if they will only pay attention to the need.
Speaking of the plaintiffs’ bar, I was reminded by Ms. Feingold that buried in the avalanche of lawsuits whose only purpose seems to be lawyer enrichment are a few brought by organizations and individuals whose first concern is accessibility for those who are disabled. It is a reminder that the real problem with web accessibility cases is not that they exist, but that they are wasteful because they divert resources away from accessibility and to lawyers, whether on the plaintiff or defense side. The most needed ADA reform is one that delivers robust enforcement without waste.
A number of defense lawyers, including myself, spoke about one aspect or another website accessibility litigation. No one is defending the idea that websites should remain inaccessible, but cases are being defended nonetheless for various reasons, including unreasonable settlement demands by plaintiff’s lawyers and defendants who are simply fed up with being sued over and over again based on supposed WCAG non-comformance that does not affect the usability of the site. DOJ’s refusal to regulate is part of the problem, but it is becoming clear that reliance on WCAG 2.0 AA as an ADA standard imposes an unreasonable requirement of perfection on any website. Our existing model for measuring accessibility comes from the world of physical access. Strict technical requirements make sense when you’re building a permanent physical structure because if it is built to comply with the requirements it generally continues to remain compliant. Modern websites are complex and dynamic. Compliance with any rigid standard is bound to fail as the website changes over time. We need a regulatory definition of ADA compliance focused on usability rather than technical perfection.
The main takeaway for me was that a lot of people are working very hard to make the world more accessible for the disabled, but the emphasis in the news is on those who abuse the system for some kind of personal gain. The reporting is not the problem. It simply reflects the fact that the existing statute and regulations lend themselves to abuse. Unfortunately the solutions are all political, and political solutions don’t seem possible right now. The best advice remains the same as in 2014. If you have a website, You need a nerd, not a lawyer.
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