ADA and FHA Defense

Seyfarth Shaw’s Title III ADA blog has published mid-year statistics for ADA website filings, which you can find at Seyfarth Shaw Blog. The headline is that filings are up, but there is more to it than that when you look at the rate of filings from 2017 to present. First, the chart doesn’t show filings before 2017. If it did the numbers would be very small. The private serial filer litigation model was not carried over from physical accessibility lawsuits to web accessibility lawsuits until 2015 and it took a few years for plaintiffs’ lawyers to see how lucrative the lawsuits could be. 2017 was when the rate of filing hit the levels that have continued since.

Seyfarth Shaw’s statistics also show that since 2017 the number of federal filings has gone up, then down, and now up again. This is worth noting because the theory behind private enforcement of Title III standards is that private litigation can be used as a way to promote public policy without burdening taxpayers directly (since taxpayer dollars fund enforcement by the Department of Justice). Has it worked? After ten years it appears the private enforcement model has failed. If litigation were a good way to implement public policy you would expect that over time there would be fewer and fewer lawsuits because there would be fewer and fewer inaccessible lawsuits. That hasn’t happened.

Does that means that websites today are just as likely to inaccessible as they were ten years ago? That isn’t the correct conclusion from these statistics. Whether private business websites are gradually becoming more accessible in general is an open question because it doesn’t look like the plaintiffs and lawyers who file these suits care about practical accessibility; that is, whether a disabled person can effectively use a website for its purpose. Instead they are looking for any non-conformance with WCAG 2.x AA, no matter how trivial, that will allow them to make litigation more expensive than settlement. That drives settlement and lets them move on to another website lawsuit. Lawyers on both sides make money and those with disabilities are unlikely to get any meaningful improvement in website accessibility.

This is an unavoidable consequence of two features of Title III of the ADA as it has been enforced in the courts. One is that winning defendants are only awarded attorneys’ fees if the suit was brought in bad faith. This gives plaintiffs and their lawyers a free pass to bring lawsuits with little risk of adverse consequences if they lose. The second is that physical accessibility has been defined as meeting a set of technical standards and website accessibility, it is assumed, must be defined the same way. Instead of asking “can a disabled person use this website” the question presented to the court is something like “does this website perfectly conform to WCAG 2.2 at success level AA.” Note the word “perfectly.” It is assumed by many courts and the Department of Justice that only perfection allows equality of access. Even the most trivial failure to conform to WCAG 2.2 AA is considered violation of Title III. Since nobody is perfect, everybody can be sued.

There is also a purely practical consideration. The most lucrative way to practice law as a plaintiff’s lawyer is to invest a minimum amount of time to get an early settlement. If you can invest a couple of hours of time plus a $400 filing fee to get $9,000 settlement (which is typical) you make $4500 an hour, which is a rate that can generate millions of dollars a year for just one lawyer, even with the cost of paralegals and other overhead. On the other hand, a lawyer who takes a case to trial and wins a judgment forcing the defendant to create an accessible website will only be awarded attorneys fees at the local market rate, which is likely to be only hundreds of dollars an hour. A quick settlement with an illusory promise of remediation is clearly the way to go and that is, indeed, how it does go with website litigation.

Congress has tried (but failed) to pass various bills that would try to cut down on website litigation by requiring notice, but notice is not a solution because perfection isn’t possible no matter how much notice is given and, to be honest, many businesses ignore notices of a problem they’d rather not think about. There is, however, a solution that would help accomplish the goals of the ADA rather than merely making lawyers rich. Simply provide that in any Title III lawsuit alleging that a website is not accessible, the defendant has the option of admitting liability and accepting a judgment requiring that the website be made equally accessible to those with disabilities, with the plaintiff’s attorney to be paid fees set by the court. This would not be a Rule 58 offer of judgment that the plaintiff could refuse. The form of judgment would be fixed in the statute and the defendant’s only choice would be to accept that judgment or fight while the plaintiff’s only choice would be to accept that judgment. Plaintiff’s lawyers could make a reasonable amount in fees based on their time spent and the public would get a real enforceable judgment instead of a fake promise to remediate.

Implementing this solution would require considerable thought, but creating an accessible society for those with disabilities was never likely to be as easy as telling private lawyers they were in charge of implementing public policy when lawyers are driven (like most people) by the desire to make as much money as possible with as little work as possible. The existing system is badly broken and fantastically wasteful when the dollars to lawyers are compared to the dollars spent to benefit the disabled. It is time for Congress to make a change.