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.”
That’s right, it’s Cyber Monday. Interestingly enough there have been no ADA web access decisions since my last Quick Hits blog, but there are still a few developments of interest.
The Supreme Court has said that before a plaintiff can file suit in federal court he or she must have suffered a “concrete and particularized” injury. The requirement is constitutional and comes from the case and controversy clause in Article III. For statutory claims like those under the ADA this means an injury of the kind the statute was intended to prevent. The rise of ADA website lawsuits has caused some courts to take a look at just what injury the ADA was intended to prevent. Was the ADA intended to prevent those with disabilities from suffering some dignitary harm based on the mere knowledge that discriminatory conditions exist, or does it require real discrimination in access to goods and services? 