The ADA and FHA decisions handed down in the last few weeks share a common theme: technicalities matter. Sometimes the lack of technical standards increases the time and money spent in litigation, as in the first entry below, but more often technical matters of procedure and expert testimony determine the outcome of a case. The ancient Greek dramatist Aeschylus famously said “wrong must not win by technicalities,” but it is easier to sort out right and wrong when you get to write the play and decide who says and does what. When people don’t agree they go to court, and a commitment to the rule of law is a commitment to deciding disputes based on technicalities instead of fluctuating political and individual notions of what is right and wrong. More
ADA Web Access
ADA website demands – same old wine in the same old bottle again. . .
By Richard Hunt in ADA - drive-by litigation, ADA - serial litigation, ADA Internet Web, ADA Web Access, Uncategorized Tags: ADA website defense, Donald Wilson, serial ADA filers
I’m re-cycling a picture from April because there’s another lawyer recycling a money-making strategy that’s been in use for quite a while. I’ve been hired in the last few weeks by four clients who received demand letters from a freshly minted one year lawyer in Alabama³ who claims to represent a vision impaired gentleman named Donald Wilson. He claims Mr. Wilson is prepared to file suit in the Eastern District of New York against businesses with websites that are not accessible. We’ve seen this before.¹ The demand letters seem to be cut and paste copies of demands from various serial filers, as is the draft complaint that accompany his letters. Although he was only admitted to the bar in 2020 and he does not appear to be a member of the New York bar the draft complaints are captioned to be filed in the Eastern District of New York. In addition to my own clients I have fielded calls from lawyers and businesses all over the country who received such demand letters, so he seems to regard the entire U.S. as his territory. I could find no record of him having filed a lawsuit in federal court anywhere in the United States. The letters do not suggest any in-depth knowledge of what website accessibility means or of the law concerning website accessibility.
There is no doubt that under one theory or another most websites associated with a physical place of business are required by the ADA to be accessible. At the same time, recent decisions in the Supreme Court, Fifth Circuit and other courts make it clear that serial plaintiffs are unlikely to have standing to sue or seek injunctive relief.² This is especially true of a plaintiff like Mr. Wilson who presumably lives in Alabama and cannot plausibly claim he wanted t0 buy furniture from stores that sell only locally. Serving customers with disabilities is a good practical reason to make your website accessible. Doing the right thing is a good moral reason to make your website accessible. Responding to a demand from someone like this lawyer is not.
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¹ See my blogs Same old wine in a brand new bottle, Legal Justice Advocates – a New Kids on the Block Update and others that these link to.
² See my blogs Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?, and the other blogs referred to in the footnotes.
³ I have removed the name from this blog because the attorney tells me that as of September 2022 he has gotten out of the ADA demand business and is pursuing other areas of practice.
Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation?
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA standing, concrete injury, Transunion v Ramirez
Almost every claim brought under Title III of the Americans with Disabilities Act raises standing issues because, in almost every case, the lawsuit is the result of a plaintiff, usually sponsored by a law firm, seeking out an ADA violation in order to make money off a quick settlement.¹ The Supreme Court’s June 25, 2021 decision in Transunion LLC v. Ramirez, 141 S.Ct. 2190 (June 24, 2021) will significantly limit, but probably not eliminate modern industrial scale ADA litigation. More
Hunt to Speak at the 3rd Annual Digital Accessibility Legal Summit
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: ADA defense, American University, digital accessibility, mobile app accessibility, website accessibility, website ADA defense
On October 7-8 I’ll be joining Jason Taylor of Usablenet and Jeremy Horlick of ADA Site Compliance at American University’s Digital Accessibility Legal Summit in a panel discussion of accessibility overlays, widgets and plug-ins titled “The Great Accessibility Overlays Battle.” You can find the complete program at www.accessibility.legal. As you know, the use of widgets and overlays has generated some controversy, with makers of this software claiming they can create an accessible website and every credible consultant claiming they cannot. You can read my blogs about his subject at Is there a silver bullet for ADA website accessibility? Sorry, but the answer is no. and Thanks for the shout-out Lainey – a website plug-in followup. Those looking for an interesting technical analysis of the differences between various products will find one by Jason Taylor at https://blog.usablenet.com/inclusive-accessibility-crushes-widgets-and-overlays. Any attorney with clients who own a website – and that should be most of us – will find the entire Summit usefuls. The need for digital accessibility and the risk when it is absent colors every kind of business and consumer transaction, so keeping up to date is critical.
Because of Winn-Dixie: the Eleventh Circuit takes a conservative stand on website accessibility.
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: ADA and the internet, ADA defense, website accessibility, Winn-Dixie
On April 7 the Eleventh Circuit issued what is likely to be among the most important ADA decisions in the last twenty years. (6) In Gil v. Winn-Dixie Stores, Inc., 2021 WL 1289906 (11th Cir. Apr. 7, 2021) the Eleventh Circuit not only rejected the idea that Title III of the ADA covers websites as public accommodations, it also adopted a very limited view of the circumstances in which websites would be required to be accessible even when associated with a physical place of business. The impact on regional businesses in the Eleventh Circuit will be immediate – almost all ADA website lawsuits brought in the Eleventh Circuit are probably subject to dismissal unless carefully repled. More important is the prospect of an application of writ of certiorari to the Supreme Court. Unlike the Robles v Dominos case¹ Gil v. Winn-Dixie deals directly with the question of the ADA’s scope, making it an appropriate vehicle for Supreme Court review. There is finally a chance that we will have a definitive answer about the extent to which websites are subject to ADA accessibility requirements.
The Court dealt with the first issue before it; that is, are websites places of public accommodation, in the expected way. Because Title III gives only physical places of business as examples of public accommodations the Court found that a public accommodation is necessarily a physical place.² Websites are not physical places and are therefore not directly subject to the ADA’s accessibility requirements.
The next step in Court’s decision takes on the thornier issue of just what constitutes the “goods, services, privileges or advantages” of a public accommodation. The Court’s discussion is tangled because it tries to fit the problem into its earlier cases discussing “intangible barriers” and the question of what auxiliary aids and service might be required. When you look past this chaff the approach is clear: for the 11th Circuit the “goods, services, privileges and advantages” of a public accommodation are those offered at its physical place of business. Just because a website is created by or associated with a public accommodation does not make it a service of that public accommodation. It may be, as in the case of Winn-Dixie’s website, simply an alternative means of offering services already offered in the store. Because the website is not a service in and of itself there is no requirement that it be accessible.
This leads to the consideration of auxiliary aids and services, a particularly confused area of analysis when it comes to websites. It is clear from the language of the ADA that auxiliary aids and services are something that must be provided when necessary to avoid exclusion of the disabled. Screen readers and other assistive technologies are typical auxiliary aids and services, but in the context of a website they are not something provided by the public accommodation; they are something brought to the public accommodation or to its website by the disabled user. Thus, the auxiliary aids and services requirement in the ADA really cannot apply to website accessibility issues unless the website itself is treated as an auxiliary aid or service that must be provided in order to give those with disabilities equal access. The Court does not address this possibility, but would certainly reject it because, as it points it out, all the goods and services at Winn-Dixie were already available to those with disabilities at the physical stores.
This doesn’t mean websites associated with a physical place of business will never have to be accessible in the 11th Circuit. The Court’s discussion of the 9th Circuit’s decision in Robles v. Domino’s Pizza (4) suggests that an e-commerce website through which customers could purchase the same goods available in the physical store might be subject to an accessibility requirement. The logic of the distinction drawn by the Court isn’t clear though. The Court rejects the idea that a somewhat more convenient online re-fill process created a privilege that had to be equally accessible to those with disabilities, so taking the additional step of allowing on-line payment doesn’t seem to change the fact that a buyer is just doing on-line what they could do in the store. The very early decision in Access Now, Inc. v Southwest Airlines, Inc. rejected the idea that just because it was harder to do something in a physical store did not mean that an easier alternative had to be accessible.³
The decision also leaves open the possibility that an inaccessible website might be an intangible barrier to use of the goods and services of a store. If prescriptions could only be refilled online it seems clear the Court would find the inaccessibility of the website made it an intangible barrier to access to the goods and services of the store itself.
The long dissent makes it clear that what is really at stake in Winn-Dixie is the majority’s limited definition of the “goods, services privileges and advantages” of a public accommodation. For the majority the Winn-Dixie pharmacy is just in the business of selling drugs and refilling prescriptions. If a disabled customer can buy drugs and get their prescription refilled at the store there has been no denial of the full and equal enjoyment of the public accommodation even if other customers can do the same thing in a more convenient way online. After all, the majority points out, it is never possible to give those with disabilities a truly equal experience. Gil’s ability to do business at Winn-Dixie did not change just because the website became available as a convenience to other customers. For the dissent, on the other hand, any convenience offered to non-disabled customers must be offered to disabled customers as well even if the convenience is not fundamental to the acquisition of goods and services offered by the business. The majority is focused on meaningful access to goods and services; the dissent is focused on achieving equality in the entire range of interactions between customers and public accommodations.
The difference in views is not, I think, one that can be resolved by simply appealing to the text of the ADA or its regulations. The ADA’s requirements are premised on compromise; if true equality is impossible, how much money has to be spent getting close to true equality. The 11th Circuit would draw the line at enough money so those with disabilities can buy what is being sold. The dissent would require more equality at some additional cost, though it isn’t clear how much. This line drawing is implicit in the ADA, but that doesn’t make it easy to do. When the Winn-Dixie case was filed in 2016 online prescription refills may have looked like nothing but a slightly more convenient way to do what customers were already doing. During 2020, when shopping in person was far more difficult and dangerous, online prescription refills began to look like something close to a fundamental need. The more the general public uses on-line services of any kind the less likely it is that even physical places of public accommodation will devote the same resources to serving their customers any other way. That in turn makes it harder to claim services offered through the internet are merely an alternative to a traditional trip to the store. The difficulty in drawing the line between convenience and necessity can be seen in the Court’s discussion of Robles v. Dominos. Why is the ability to pay online more like a necessity than the ability to order online and pay in the store, or more like a service that should be provided equally to all? The Eleventh Circuit doesn’t answer that question or many similar questions that could arise in defining the line between a website as an intangible barrier and a website as merely an alternative means of doing something.
The best argument for the 11th Circuit’s conservative approach is that major technological and social shifts should be addressed explicitly by amendments to the ADA rather than being decided by hundreds of different federal judges in thousands of different specific fact situations. This could happen as the effort to amend the ADA to explicitly cover websites has started anew. (5) In the meantime, businesses in the 11th Circuit can breathe a sigh of relief and businesses everywhere can hope the Supreme Court will have an opportunity to better define just what the ADA requires for business websites.
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¹ See my blogs Supremes refuse to hear Domino’s v Robles, ADA Website litigation may get Supreme Court review – Domino’s fights on and ADA and the Internet – 9th Circuit overrules Robles v Dominos.