SUMMER 2018 TODAY’S GENER AL COUNSEL
Compliance
Protecting Against Website Accessibility Suits By Joshua Briones and Nicole Ozeran
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he steady shift in our economy from traditional brick-and-mortar stores to online commerce has brought increased attention to website accessibility for blind or hearingimpaired individuals. Plaintiffs’ counsel have taken notice. In 2017, over 250 lawsuits (most of them class actions) were filed against companies for failing to maintain websites in compliance with the Americans with Disabilities Act (ADA). To state a private claim under the ADA, a plaintiff must allege that (1) he/ she is disabled within the meaning of the ADA; (2) the defendant owns, leases or operates a place of public accommodation; and (3) the defendant discriminated against him/her by denying a full and equal opportunity to enjoy the services provided. The legal issue is whether website operators are operating “a place of public accommodation.” The statute lists 12 different types of public accommodations along with somewhat of a catchall that includes “other sales or
rental establishment.” The list, created when the law was passed in 1990, conceivably covers most commercial establishments but does not expressly include websites. The courts are divided as to how to interpret the term “public accommodation.” Some courts take the position that the ADA applies to all commercial websites, while other courts hold that only websites with a “nexus” or connection to a physical location are subject to the ADA. A third approach simply holds that the ADA only applies to physical places. UPWARD TREND IN FILINGS
In 2017, 7,663 ADA Title III lawsuits were filed in federal court — 1,062 more than in 2016. This 14 percent increase is almost double the 2014-2015 increase, with California and Florida continuing to be hotbeds of litigation. But New York was the big story, having almost doubled its 543 lawsuits filed in 2016, to 1,023 in 2017. Although physical accessibility
lawsuits remain common in 2018, the numbers continue to be driven largely by ADA website accessibility class actions filed in California, Florida and New York. Note that these numbers do not include the many demand letters plaintiffs sent to businesses asserting website accessibility claims, or lawsuits filed only in state courts. WHY THE UPSWING?
Previously, plaintiffs’ attorneys’ legal theories for bringing website accessibility lawsuits hadn’t been tested. Every case was settled out of court. In 2017, however, the first case concerning website accessibility was finally tried. In Carlos Gil v. Winn-Dixie Stores, Inc., U.S. District Judge Robert Scola ruled that (1) Winn-Dixie’s website was a “place of a public accommodation” under the ADA; and (2) based on the testimony of the plaintiff and his expert, the website was not sufficiently accessible. Judge Scola found that since Winn-Dixie’s website is “heavily integrated” with