In a prior post, I noted concerns over lawsuits filed under the American Disabilities Act (ADA) relating to website accessibility. I noted at the time that a court holding that a website violated the ADA’s public accommodation accessibility requirement likely would lead to an increase in litigation involving website accessibility. As I suspected might happen, this increase has now materialized. Indeed, according to a September 29, 2016 post on the ADA Title III News and Insights blog (here), website accessibility lawsuits “have become big business” for a number of plaintiffs’ law firms.
According to the ADA Title III blog post, between January 1, 2015 and September 21, 2016, there have been 106 lawsuits filed alleging that individuals with disabilities are being denied access to a business’s goods and services due to its allegedly inaccessible website. More than half of these lawsuits have been filed against companies in the retail sector. The next most frequently hit lawsuit targets are companies in the restaurant business. The other lawsuits have been filed against companies in a wide range of other businesses.
The blog post also notes that five plaintiffs’ law firms have been bringing most of this litigation, with two particular law firms leading the way – the Carlson Lynch law has filed 43% of these lawsuits, and the Lee Litigation Group filing 28%. The states that have seen the most of these lawsuits are Pennsylvania (with 37% of the lawsuits), New York (30%), and California (19%).
The blog post further notes that several law firms supposedly representing unnamed clients with disabilities have sent out hundreds of demand letters to various businesses alleging that the companies websites were inaccessible in violation of the ADA. The post noted further that “the most recent batch of demand letters is focused on websites of community banks around the country.”
The particular threat to community banks is further detailed in a September 23, 2016 post on the Community Bankers of Iowa website (here). According to the Iowa Bankers’ blog post, a Pittsburgh-based plaintiffs firm that has previously targeted community banks on accessibility issues has sent letters to community banks threatening litigation and alleging that the banks’ websites “do not comply with the ADA because they allegedly are not accessible by disabled patrons.”
According to an August 19, 2016 post on the Duane Morris law firm’s Alerts and Updates Blog (here), the firm involved in sending these letters is the Pittsburgh-based law firm, Carlson Lynch Sweet Kilpela & Carpenter LLP. A September 26, 2016 memo from the California Bankers Association (here) details the specifics of these demand letters recently sent to community banks.
As the Iowa Bankers’ blog post notes, there are no existing accessibility website standards. The U.S. Department of Justice has announced that it will propose website-accessibility standards for public accommodations, but it has now delayed its release of those guidelines until 2018. However, the Iowa Bankers’ blog post further notes, “the fact that there are no ADA rules and regulations currently governing website accessibility, however, has not stopped aggressive plaintiffs’ lawyers from filing lawsuits or threatening litigation based on allegedly inaccessible websites.”
As I noted in my prior post discussing one of these cases in which a retailer was held liable based on alleged website inaccessibility, the plaintiffs’ claims in this area will have the greatest traction where there is a “nexus” between the defendant’s retail operations and its website, and that sites associated with any retail or brick-and-mortar operation will be in the crosshairs.
These kinds of cases could represent a substantial litigation exposure for companies involved, as well as for their EPL insurers. The possibility of this type of lawsuit includes not only the risk of damages awards but also includes the costs of defense, as well as the possibility of an award of the claimants’ attorneys’ fees.
As the ADA Title III blog post notes, there still are no proposed regulations for public accommodations from the Department of Justice, and with the change in administration ahead it is possible that the rulemaking process could be delayed even further. According, as the blog post notes, “the need is no less urgent for businesses to come up with a plan to mitigate their litigation exposure in this tumultuous environment.” The need for businesses to address website accessibility concerns and the possible steps that companies can take are further detailed in a post on the Hunton Employment & Labor Law Perspectives blog (here).