Janus, the Roman god who gave his name to January, famously had two faces, one looking to the future and the other looking back. I’m a little late for the New Years predictions and 2021 wasn’t all that much fun, but as long as we are still in Janus’ month I thought I would briefly provide some observations about what the old man in the beard has seen and what his younger counterpart is likely to see.
There were important decisions about standing from the Fifth Circuit¹ and the Supreme Court² but neither seems to have slowed the pace of ADA filings. A brand new ruling from the 10th Circuit that agrees with the Fifth Circuit that testers do not have standing as such(7) probably won’t have any effect either. This is because ADA lawsuits are filed to be settled, and the cost of settlement is ordinarily lower than the cost of even the cheapest effective defense. I believe the settlement value of ADA website cases has declined because they have always cost more to settle than run-of-the mill drive-by cases, but they are likely to still have a good ROI for plaintiffs’ firms and as long as the business is profitable it will continue.
As late as December 31 demand letters continued to be sent by an Alabama lawyer(8) but to date there is no evidence of any federally filed lawsuits by him or his purported client Denaryle Williams. The letters have gotten longer ashe tries to make the claims sound more legitimate and frightening but the substance is the same; he got a free website scan from AccessiBe and suggests that giving him money will somehow be good for those with disabilities. The old “Pursuit of Justice / Pursuit of Respect” group also continued making demands in 2021(5) again with no evidence I can find of ever having filed a lawsuit. Businesses who are interested in website accessibility don’t need the help of lawyers or groups like Pursuit of Justice/Respect to take the right steps. Money spent on settlement with any of these lawyers or groups is almost certainly money wasted.
The Department of Justice has clearly ramped up its enforcement of the ADA and FHA under the Biden administration. In 2020 DOJ issued 26 press releases concerning ADA enforcement actions. In 2021 it issued 39, a 50% increase. On FHA matters DOJ got off to a slow start, with no announcements until August 2021, but there is a very clear focus on landlord sexual harassment claims and failures to meet FHA design/build standards. DOJ actually had more press releases on FHA matters in the last year of the Trump presidency, but only 4 design/build cases involved private defendants and none involved discrimination against individuals. Most were mortgage fraud cases that involving government backed loans. The message is clear – private defendants, especially landlords and developers – can expect increased enforcement action as the Biden Civil Rights Division turns its attention to discrimination complaints.
The use of overlays, plugins and widgets to make otherwise inaccessible websites accessible garnered a lot of attention in 2021 after the National Federation for the Blind issued a press release explaining why it would not accept a sponsorship from overlay seller AccessiBe.³ Those who missed it might be interested in the panel discussion of this issue I was part of a few months later.(4) The question now is whether AccessiBe and others can spend enough on marketing to overcome the problems inherent in their products. I suspect they can since a Google search for the NFB’s statement had an AccessiBe ad as the top response and a significant majority of small business owners who contact me are using one or the other of these products because they believe it will make their website ADA compliant. I suppose it’s not what you sell, but how you sell it that really matters.
Finally, the year ended in confusion as the 11th Circuit dismissed as moot the Winn-Dixie case and vacated its opinion and the trial court’s injunction. Gil v. Winn-Dixie Stores, Inc., 21 F.4th 775 (11th Cir., December 28, 2021) (6). This doesn’t necessarily mean the 11th Circuit has changed its mind about how the ADA applies to websites, but it certainly deprives defendants of an important tool for the defense of these cases. Appeals of Title III ADA cases are as rare as hens teeth, and it may be some time before any Circuit issues a similarly definitive opinion.
What do I think young Janus will see as the year progresses? More of the same use of the ADA as a profit making tool for lawyers, more of the same waste, with money spent on legal fees instead of accessibility, and an ever-growing number of inconsistent lower court decisions as individual judges try to figure out for themselves how to deal constructively deal with these lawsuits. And finally, unfortunately, a continued perception by businesses that Title III of the ADA is just a money making scheme for lawyers that isn’t really important for their disabled customers.
¹ See, Tester standing under the ADA – Getting it wrong, getting it right, and an interesting but irrelevant analysis.
² See, Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation? On January 10, 2022 the Supreme Court relied on its ruling in Transunion to remand Rocket Mortgage, LLC, fka Quicken Loans Inc., et al., Petitioners v. Phillip Alig, et al. to the 4th Circuit for reconsideration. This suggests very strongly that the Court is going to expect the Circuit Courts to take the same hard look at standing it has taken. See, Rocket Mortgage LLC for the Supreme Court docket and links to the briefing.
³ See, National Convention Sponsorship Statement Regarding accessiBe
(4) See, The Great Accessibility Overlays Battle – now available on YouTube
(5) See, Same old wine in a brand new bottle – Pursuit of Justice, Inc. and the FHA
(6) See, Because of Winn-Dixie: the Eleventh Circuit takes a conservative stand on website accessibility. for a discussion of the now vacated opinion.
(7) Laufer v. Looper, 21-1031, 2022 WL 39072 (10th Cir. Jan. 5, 2022). For more read Bill Goren’s discussion at Is Tester Standing a Thing When it Comes to Title III of the ADA
(8) I have removed the lawyer’s name because he assures me (as of September 2022) he is no longer sending these letters and has turned to other areas of practice. Since I support that kind of change I can also do a little bit to help erase his past.