ADA defense

Quick Hits – Who needs the Grinch when you’ve got Bowser?

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA Internet, ADA Internet Web, FHA, Internet Accessibility Tags: , , , , , , ,

Almost everyone who ever was, had or has a child probably knows  Bowser, the character from many Nintendo games. In Mario Party he often offers “gifts” that don’t always (or ever) turn out to be something you might want. Recent developments in accessibility law are, as usual, a mixed bag. Here’s what I found underneath the tree. Bwahahahaha!

A shiny new article about the ethics of communication.

My partner, Jeanne Huey and I collaborated on an article about ABA Formal Opinion 500 that was published by the American Bar Association Litigation Section Professionalism and Ethics Committee, but is easiest to find at her blog, Legal Ethics Today. Communication with those who are disabled is a statutory obligation under the ADA for all businesses open to the public as well as the Fair Housing Act for housing providers. For lawyers it is an ethical obligation as well. More


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Understanding ADA Website Accessibility Litigation

By in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Website Accessibility Tags: , ,

My new paper “Understanding Website Accessibility Litigation” is available now for download. This paper is for businesses who want to understand this highly publicized form of litigation without jargon and legalese.  Here’s a summary of what the paper will explain; a link to view the entire paper appears below.

It isn’t clear which business websites are covered by Title III of the ADA. It may cover all websites that are available to the public or it may be limited to websites that have some connection to a physical place of business. Just what that connection must be is also uncertain.

It isn’t clear what it takes for a website to meet the requirements of Title III of the ADA. WCAG in its current version at success level AA is the best available technical standard, but it does not have the force of law. Conformance to its requirements may not be sufficient, and non-conformance may not mean the website violates the ADA.

Not all lawsuits and demands are the same with respect to the threat they pose. Lawsuits and demand letters come from law firms that range from very sophisticated to incredibly ignorant. The only general advice that applies to all such lawsuits and demands is that before adopting any legal or business strategy you must know about the law firm and its history of website litigation.

Different judges can have very different views of what the ADA requires and how different defenses apply. Just as you can’t decide on legal strategy without knowing about the law firm that filed suit, you can’t decide on a legal strategy without knowing what your specific judge has done in the past with similar ADA lawsuits.

Software testing is not adequate to find all the accessibility problems a website may have. Only user testing by trained users can locate all the accessibility problems in a website.

No widget, plug-in or overlay can make a website fully accessible. These products can, at best, improve a small subset of common problems but often do so at the expense of making other parts of the website inaccessible.

Accessibility and good design go hand in hand. Making a website easy to use for non-disabled users will almost always solve common accessibility problems. Good design should b the primary consideration in website development.

To open the paper in your browser click this link: “Understanding Website Accessibility Litigation.”

 


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The Great Accessibility Overlays Battle – now available on YouTube

By in Accessibility Litigation Trends, ADA, ADA Internet, ADA Internet Web, ADA Web Access Tags: , , , , ,

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.

 


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ADA and FHA Quick Hits – Wild Turkey edition.

By in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Mootness, FHA, Uncategorized Tags: , , , , ,

picture of wild turkey

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.

Another critical case on injury and standing, this time in the context of limitations.

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


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Pursuit of Respect – an update

By in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, Uncategorized Tags: , , ,

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.


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