The Digital Accessibility Legal Summit 2021 is over, but those interested in the panel discussion and following commentary from The Great Accessibility Overlays Battle can watch it YouTube below. Spoiler alert: widgets, plug-ins and overlays all have one thing in common – they cannot guarantee website accessibility and if you read the fine print, the companies that sell them don’t even claim they can.
It turns out that the story about Benjamin Franklin wanting the wild turkey to be the U.S. National Bird is a myth, I’m not willing to get into the politics of the annual pardoning of turkeys by the President, and I don’t have Wild Turkey in my liquor cabinet so here instead are the latest ADA and FHA decisions.
In Karantsalis v. City of Miami Springs, Fla.,2021 WL 5279406 (11th Cir. Nov. 12, 2021) the Eleventh Circuit made a critical distinction between having a disability and being injured because of that disability that has implications beyond the immediate limitations issue. The question was when the plaintiff’s ADA claim against the City accrued. If it accrued when he first learned that he had multiple sclerosis in 2008 then his claims were barred by limitations. If it accrued when his symptoms progressed to the point that he could no longer use City facilities in 2019 then his lawsuit was timely. The Court found that despite having a disability the plaintiff had not been injured until his disability interfered with use of City services:
Karantsalis argues on the other hand that the district court incorrectly determined that his claims accrued in 2008. Instead, he contends that his claims did not accrue until he had suffered both (1) a disability, and (2) an injury (his inability to readily access and use the City’s services by reason of his disability). Under the ADA, Karantsalis was not injured (and therefore did not have standing) until after he was denied the benefits of the City’s public services.
As a statute of limitations case this decision is important for any municipality faced with ADA litigation over services like sidewalks that are in place for decades. It is equally important as part of the trend of recognizing that standing to sue requires a real, rather than a hypothetical injury. More
I received a call earlier today from one of the lawyers who sent demand letters on behalf of Pursuit of Respect.¹ It was a follow up to an email from August 2021, which was in turn a follow up to my response to a demand letter sent in June 2021. You can see they are not operating on a very tight schedule. In any case it prompted me to see how things were going with Pursuit of Respect since I have heard nothing of them since September¹. A quick look at Pacer.gov indicated that Pursuit of Respect has still never filed an ADA lawsuit. Jerome Ramsaran, the attorney who incorporated PoR has not filed an ADA lawsuit since 2019. The website of Pursuit of Respect, which claims to advocate for accessible websites, is not WCAG 2.1 AA compliant.
I did find it interesting that the same individuals who created Pursuit of Respect incorporated another non-profit, Advocacy for Equality, Inc., in December of 2020. I have not heard that demand letters are being sent in its name, but it would not surprise me if it is being used for that purpose. Please let me know if you have received a demand from either Pursuit of Respect or Advocacy of Equality in the last few months so I can share information.
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¹ See “ADA Odds and Ends”
See my blog “Same old wine” for more information on this group.
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
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.
