Good news Liz, thanks!
From: tabi-bounce@xxxxxxxxxxxxx [mailto:tabi-bounce@xxxxxxxxxxxxx] On Behalf Of ;
Elizabeth S Bowden
Sent: Friday, January 12, 2018 5:25 PM
To: tabi@xxxxxxxxxxxxx
Subject: [tabi] FW: [fcb-l] FW: [leadership] Article: 2017 Website
Accessibility Lawsuit Recap: A Tough Year for Businesses
From: Florida Council via fcb-l [mailto:fcb-l@xxxxxxxxxxxx] ;
Sent: Tuesday, January 9, 2018 11:53 AM
To: Florida Council
Subject: [fcb-l] FW: [leadership] Article: 2017 Website Accessibility Lawsuit
Recap: A Tough Year for Businesses
Posting for Jim.
---
Kati Lear
800-267-4448
floridacouncil@xxxxxxxxxxx
----- Forwarded Message -----
From: Kelly Gasque via leadership
To: leadership@xxxxxxxxxxxx ,announce@xxxxxxxxxxxx
Date: 01/09/2018 10:53 AM
Subject: [leadership] Article: 2017 Website Accessibility Lawsuit Recap: A
Tough Year for Businesses
2017 Website Accessibility Lawsuit Recap: A Tough Year for Businesses
Article Link:
https://www.adatitleiii.com/2018/01/2017-website-accessibility-lawsuit-recap-a-tough-year-for-businesses/
<https://mandrillapp.com/track/click/30489975/www.adatitleiii.com?p=eyJzIjoiNnEwNm42dF85dDZBbVhzeU9fakpXOXhxMlo4IiwidiI6MSwicCI6IntcInVcIjozMDQ4OTk3NSxcInZcIjoxLFwidXJsXCI6XCJodHRwczpcXFwvXFxcL3d3dy5hZGF0aXRsZWlpaS5jb21cXFwvMjAxOFxcXC8wMVxcXC8yMDE3LXdlYnNpdGUtYWNjZXNzaWJpbGl0eS1sYXdzdWl0LXJlY2FwLWEtdG91Z2gteWVhci1mb3ItYnVzaW5lc3Nlc1xcXC9cIixcImlkXCI6XCI2MWVlMTQ0NmFhYWU0ZjNlOGQ2MDI5ZjhhMDgxM2RlM1wiLFwidXJsX2lkc1wiOltcIjEwODQ4MWE4MzY5ZjU4ZDc2NGU5OTZkNzdhZDUyNmFlNDAxMmYyOGJcIl19In0>
2017 saw an unprecedented number of website accessibility lawsuits filed in
federal and state courts, and few courts willing to grant early motions to
dismiss.
Plaintiffs were very busy in 2017 filing ADA Title III lawsuits alleging that
public accommodations' websites are not accessible to individuals with
disabilities. Here is our brief recap of the 2017 website accessibility lawsuit
numbers, major developments, and our thoughts for 2018.
* In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly
inaccessible websites, including a number of putative class actions. We arrived
at this number by searching for lawsuits with certain key terms and then
manually reviewing the results to remove any cases that did not concern an
allegedly inaccessible website. Our numbers are conservative, as it is very
likely that not every website accessibility lawsuit's description – upon which
we based our search – contained our search terms. This caveat applies to all of
the data set forth below.
* Of the 814 federal cases, New York and Florida led the way with more than 335
and 325 cases, respectively. Surprisingly, California only had nine new website
accessibility lawsuits in 2017, most likely because plaintiffs filed in state
court. Federal courts in Arizona (6), Georgia (9), Illinois (10), Massachusetts
(15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania
(58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of
website accessibility lawsuits.
* In California state courts, plaintiffs filed at least 115 website
accessibility lawsuits in 2017 under the state's non-discrimination laws. We
compiled this data based on searches we performed for lawsuits by four blind
plaintiffs represented by two California law firms.
* In New York state courts, plaintiffs filed at least six website accessibility
lawsuits in 2017. All were putative class actions.
* Defendants in at least 13 federal website accessibility cases filed motions
to dismiss or for summary judgment where there were no unusual circumstances
like a prior court order or settlement agreement that obligated the defendant
to make its website accessible. The courts denied all but two of those motions
and let the cases proceed to discovery.
* In one case where the defendant, Bang & Olfusen, won its motion to dismiss,
the court noted that the plaintiff had failed to plead a nexus between the
physical place of public accommodation and the website in question. In the
other case, the court dismissed the claims made against Domino's because
requiring the defendant to comply with a set of web accessibility guidelines
that are not yet law would violate due process principles. The Domino's
decision is on appeal and will be reviewed by the Ninth Circuit in 2018. Our
post about these cases is here.
* In the 11 cases where the federal judges refused to dismiss website
accessibility claims and allowed the cases proceed to discovery, the defendants
had unsuccessfully argued that the principles or due process and the doctrine
of primary jurisdiction should be the basis for dismissal. One of our posts
discussing some of these decisions is here.
* In three decisions, the courts were open to the concept that providing
telephonic access to the goods and services offered at the public accommodation
may satisfy the ADA, but they refused to dismiss the cases at the outset on
this basis.
* The first trial in a website accessibility lawsuit took place in 2017.
Florida U.S. District Judge Scola presided over this bench trial and concluded
that grocer Winn Dixie had violated Title III of the ADA by having an
inaccessible website. Judge Scola also found that the $250,000 cost to
remediate Winn Dixie's website was not an "undue burden" and ordered Winn Dixie
to make its website conform with the Web Content Accessibility Guidelines 2.0
AA (WCAG 2.0 AA).
* Three defendants were able to dismiss website access lawsuits early because
they had already entered into consent decree or settlement agreements with
previous plaintiffs which required them to make their websites conform to the
WCAG 2.0 within a specified amount of time. That said, not all courts agree
that a prior settlement — as opposed to a binding judgment or court order — can
be the basis for a dismissal.
* The Department of Justice's (DOJ) rulemaking to create new website
accessibility regulations is now officially dead, as we recently blogged. The
lack of clear rules will lead to more litigation and inconsistent
judicially-made law. In fact, it appears that the DOJ will not be issuing any
new regulations under Title III of the ADA about any subject, according to the
agency's December 26 announcement in the Federal Register repealing all pending
ADA Title III rulemakings.
What's in store for 2018? If the Ninth Circuit upholds the Domino's district
court's dismissal on due process grounds, the number of California website
accessibility lawsuits in federal court may go down dramatically. Even if that
occurs, we see no end to the website accessibility lawsuit surge elsewhere and
expect that new plaintiffs' firms will continue to enter the scene. While the
current administration's DOJ is not likely to push the website accessibility
agenda, its inaction will not stop the lawsuits. Only an amendment to the ADA
can do that, which we believe is highly unlikely. Thus, the best risk
mitigation effort for covered entities is still to make their websites
accessible as soon as possible, with the assistance of ADA Title III legal
counsel experienced in website accessibility issues and reputable digital
accessibility consultants.
<https://mandrillapp.com/track/open.php?u=30489975&id=61ee1446aaae4f3e8d6029f8a0813de3>
