I hate scare mongering lawyers, but it looks like the risk that a business will be sued under the ADA based on web accessibility has dramatically increased over the last few months. Web access lawsuits may be one of the most important kinds of ADA litigation in 2016. This is not because of any change in the law, which remains largely unchanged and undeveloped. It is instead because of a change in plaintiff’s lawyers. Since this summer Carlson Lynch Sweet & Kipela, a Pennsylvania law firm with a very active ADA litigation practice, has filed at least eleven new lawsuits alleging ADA violations based on web accessibility. The defendants are primarily national retailers or restauranteurs: Footlocker, Sears, Toys-R-Us, Brooks Brothers, Pep Boys, and Hard Rock Cafe among others. Following these lawsuits Carlson Lynch has apparently sent dozens, if not hundreds of demand letters to retailers all over the country offering to settle supposed ADA web access claims. My clients in different states have received such letters, and I’m sure they are only a small sampling of the total sent. It remains to be seen how aggressively Carlson Lynch will follow up these demand letters, but they will certainly serve as an example to other law firms who represent ADA plaintiffs, so a wave of such demands and possibly lawsuits can be expected.
Until these most recent lawsuits and demand letters the focus of web access litigation under the ADA was on a few retailers and other organizations being pursued by disability rights organizations and the Department of Justice. Their strategy, as I have noted in the past, seemed to be to create an incremental change in web access through lawsuits followed by settlements. This strategy posed little threat to smaller businesses, who could afford to themselves work incrementally on web accessibility knowing that the Department of Justice was only going after the biggest fish. With ADA web access litigation being driven by private law firms this is no longer true. Every business with a web presence is a potential target.
There is no single strategy that will protect all businesses from an ADA lawsuit based on web accessibility; indeed, with the DOJ’s most recent postponement of its regulations on web access it is not even clear what the ADA requires, if it requires anything at all. There are, however, some general strategies that a business can follow to reduce its risk immediately and over time. I will be offering a webinar on these strategies at noon, Central Standard Time on Tuesday, January 19, 2016 and Thursday, January 21, 2016. Anyone interested can email me for details by clicking HERE. Naturally, I am also available to provide more specific advice on this and other ADA issues based on the circumstances of a particular business.