amazon frown_edited-1The 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.

As for its web site, Whole Foods has already been sued twice in the Southern District of Florida based on a claim of website inaccessibility. It settled the first case, Gomez v. Whole Foods Market, Inc., Case No. 1:16-cv-25017 in February of this year only to be sued in April by a different plaintiff.* Amazon, with no physical stores, has never had to worry about so-called “drive-by” litigation because it has had the Netflix case on its side. Whole Foods can’t make that argument. Moreover, it’s hard to imagine Amazon doesn’t intend to eventually create a unified shopping environment with Whole Foods, and that will bring with it the threat of lawsuits against Amazon itself. As of today, the WAVE tool shows 29 errors and 33 alerts on Amazon’s home page alone. That and a blind plaintiff are all a plaintiffs’ firm needs.

Amazon has plenty of money and lawyers, and the ADA/internet connection is still very much up in the air, but web accessibility is no joke for complex websites because making a complex website accessible can be very expensive and the better financed plaintiffs’ firms are capable of taking on the biggest opponents. It didn’t make the papers or cable news, but I hope somebody at Amazon is thinking about website accessibility, because I’m pretty sure there is a plaintiff’s lawyer somewhere who read the news and is busy figuring out how to welcome Amazon to the world of ADA accessibility litigation.

*Haynes v Whole Foods Market Group, Inc., Case No. 0:2017-cv-60749.

 


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