WASHINGTON (Legal Newsline) – The U.S. Department of Justice has yet to release long-promised clarifications on the Americans with Disabilities Act that would help judges handle lawsuits that claim businesses’ websites are not handicap-accessible - and the blame isn't on just one of the country's last two, very different presidents.
“The DOJ, under both the Obama and Trump administrations, is responsible for the onslaught of these lawsuits,” says Minh Vu, a Seyfarth Shaw attorney who specializes in such lawsuits.
First announced in 2010, the DOJ was eventually expected to release much-anticipated clarifications in 2016 to the Americans with Disabilities Act Title III, but pushed the release date to 2018. The law originated in the 1990s before the internet was so widely available and used and only mentions businesses' brick-and-mortar locations.
Regulations that would have helped businesses determine whether their websites are ADA-compliant aren't coming from the DOJ, though. Late last year, it chose to withdraw proposed rules, likely creating a patchwork of decisions from judges that will confuse businesses facing these lawsuits.
In just a few months, 2018 has continued to see the onslaught of ADA Title III lawsuits that 2017 saw. The lawsuits brought by plaintiffs against retailers claim the businesses violate the ADA by not having handicap-accessible websites. Cases are brought by both deaf and blind plaintiffs.
Without any rules set, Vu stated “the number of website accessibility lawsuits is not likely to go down for at least a few years."
Seyfarth Shaw's research found that more than 800 lawsuits were filed in 2017 over allegedly inaccessible websites.
To make websites accessible, businesses would need to design their websites to make them compatible with screen-reading software used by the blind, and include many other accessibility features needed by people with other types of disabilities. Courts have been in unfamiliar territory, and waiting for the DOJ to provide guidance in the form of some clear rules.
"Had DOJ issued clear and reasonable rules and provided a clear deadline for compliance, businesses would not be in this situation,” Vu says.
One reason these lawsuits are exploding could be that although the parameters of the ADA prevent plaintiffs from recovering anything but fees and costs until state law claims are factored, attorneys can recover substantial fees, making these lawsuits very lucrative for some. In the only verdict, a victory for the plaintiff, attorneys are seeking $100,000.
New York and Florida have seen the most filings, according to Seyfarth Shaw’s research.
Vu noted that she knew of at least five law firms in New York that are churning out these lawsuits and that “New York seems to have quite a few plaintiffs lawyers who have decided to focus on these lawsuits, which drives the numbers.”
Florida came in right behind New York with the second-highest number of Title III suits for 2017. One of the more publicized cases involves Winn-Dixie, which has found itself on the losing end of the only jury verdict in these claims.
Vu cautioned that, “Winn-Dixie is just one district court’s judgment and it is not binding on any other court,” but noted that “If it is upheld on appeal, it will set precedent for courts in the 11th Circuit.”
In Winn-Dixie, the judge ruled that the retailer had to make its website as accessible as its brick-and-mortar store.
Courts trying to find actual harm instead of just a violation of the ADA could be inclined to apply the Spokeo ruling in future rulings, requiring plaintiffs to show a concrete and particularized harm they suffered from not being able to access a retailers’ website.
“We have not seen any court decisions addressing Spokeo’s application to a Web access case filed under Title III of the ADA, but I don’t rule it out as a possible argument,” Vu said.
Vu commented that although businesses “certainly have more information about website accessibility now than before... it is going to take time for them to make their websites accessible.”
The future of Title III lawsuits is unclear without any guidelines from the DOJ.
Vu noted, “It’s hard to predict a number, but I think it’s a safe bet that there will be more in 2018 than 2017.”