This afternoon the Ninth Circuit overruled the district court decision in Robles v. Domino’s Pizza LLC. Robles has always been an outlier. It is one of only a couple of cases holding that the absence of DOJ regulations made it unfair to prosecute claims against website operators under the ADA. The Ninth Circuit disagreed, adding additional weight to the lower court decisions finding that the lack of regulations does not raise due process concerns and confirming that in website accessibility litigation justice is simply not available to small businesses. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Mootness, ADA Policies Tags: ADA defense, ADA Internet, ADA web access, ADA website, bull market, CUNA, drive-by lawsuits, unruh act, Usablenet, WCAG 2.0
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.”
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 Litigation Procedure, ADA Mootness, ADA Point of Sale, ADA Vending Machines, ADA Web Access, FHA, FHA Reasonable Accommodation, Internet, Internet Accessibility Tags: ADA defense, ADA Mootness, ADA standing, FHA Defense, Readily Achievable, WCAG 2.0, website accessibility
We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Web Access, Internet, Internet Accessibility Tags: ADA consent decree, ADA internet litigation, ADA litigation defense, ADA Website Litigation, Haynes v Hooters, WCAG 2.0
This is not the owl of Athens, a symbol of wisdom associated with the goddess Athena. Nonetheless, there is some wisdom to be gained by taking a look at Haynes v. Hooters of Am., LLC, 17-13170, 2018 WL 3030840 (11th Cir. June 19, 2018). The case has already been the subject of many articles in the pay-to-play legal press and an excellent blog by William Goren.* The main lesson to be learned from Haynes v. Hooters is one that we’ve known a long time – a private settlement agreement will not moot a new claim by a new plaintiff. Only remediation will do that. There is, however, a deeper and more disturbing message. In website accessibility claims meaningful claims of mootness may well be impossible to achieve.
To understand why we start with the point of the mootness defense. Mootness as an abstract legal concept simply means that there is no case or controversy for the judge to decide because there is no meaningful relief that the plaintiff can be granted. The mootness defense failed in Haynes because the earlier settlement on which the defense was based had an expiration date and because even before it expired a new plaintiff could not enforce it. Thus the new plaintiff could be awarded meaningful relief in the form of an injunction requiring Hooters to do what it promised in the earlier settlement. Because that relief was meaningful the case was not moot. QED as the logicians say. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA, ada litigation, Credit Union, CUNA, WCAG 2.0, Website litigation
It seems that CUNA, the Credit Union National Association has been slaying the dragon of serial website accessibility litigation.* In fact, the filing of a CUNA brief recently caused the plaintiff to just give up, dismissing the case voluntarily rather than face another unfavorable decision.** Looking at why CUNA has succeeded when the history of website litigation is mostly a story of defense failures points to an important rejection of standing based on dignitary harm, a rejection that may give defendants in non-credit union cases a useful argument of their own. More