ADA Website Lawsuits

Web ADA Defense

The Karlin Law Firm is on the forefront of helping businesses defend against  a Wicked Wave of Website attacks by people claiming websites are somehow not up to their personal standards. No website will please every viewer. Despite this simple fact, a few law firms are attacking American businesses by claiming their websites do not meet some barely known standard.  A standard that few, if any, are aware of.  Moreover, no standard has been adopted by any official organization. These lawsuits are as much a threat to the internet, to American business, and to the economy, as viruses that attack thousands of business computers. There are over 100 million websites in the United States alone.  Few, if any, meet the "standards" these lawyers say should be adopted by the Courts.  Even the Department of Justice (DOJ) has struggled with the idea imposing some type of standard for the display of information on a website. After 8 years of investigations and hearings, the DOJ appears to have given up on the idea. Nonetheless, these law firms not only continue to file these website ADA lawsuits claiming a violation of a non-existant standard, they have doubled down and are increasing these abusive website lawsuits expedientialy. With over a 100 million websites, if this Wicked Wave of Website attacks is allowed to continue it could bankrupt the economy.  The Karlin Law Firm is here to help defend against these ADA website attacks and lawsuits.

If you have been hit or threatened with an ADA website lawsuit, give a call. We are here to help.

A few things you may want to know, and a few recent cases are discussed below.

On October 12, the Ninth Circuit heard oral arguments in Robles v. Domino's Pizza, addressing the questions of due process, jurisdiction and lack of website standards.

Guillermo Robles v. Dominos Pizza LLC, No. 17-55504

9th Circut:

Video of hearing in October, 2018

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000014434

Congress, both on both sides of the asile have asked the DOJ to stop allowing these lawsuits.

The DOJ has responded by saying it is up to congress to clarify the issue.

Meanwile, the ADA website lawsuits continue ....

Frequent lawsuit filers:

We are aware of the attorneys who have been sending threating letters and filing lawsuits regarding ADA Website compliance. Some of these attorneys include: Scott Ferrell, Victoria Knowles, Rusty Payton, Marc Dann, Joesph Manning (hotel website ADA lawsuits and other claims), Micheal Manning (hotel website ADA lawsuits and other claims) , Craig Cote (hotel website ADA lawsuits and other claims), Caitlin Scott, Vineet Dubey, and plaintiffs Sean Gorecki, Dona Dugo(hotel website ADA lawsuits), Kayla Reed (hotel website ADA lawuits), Edward Davis, Perla Mageno, Paupak Barekat (hotel website ADA lawsuits), Abacuc, Abacus Heras (hotel website ADA lawsuits). In our view, many of these claims are bogus and frivolous. Give us a call, we can help.

Other than the hotel website claims, these claims often state or imply that the Department of Justice (D.O.J or DOJ) has established firm guidelines for ADA website compliance. We believe this is false and misleading. We generally take the position that these guidelines do not apply. The reference in these claims is often to:

The international website standards organization - the World Wide Web Consortium ("W3C").

This organization has published: Version 2.0 of the Web Contact Accessibility Guidelines ("WCAG").

WCAG 2.0 guidelines 3.1.1 and 2.4.4 and 3.1.2

At least one federal judge has held that until the DOJ establishes guidelines, businesses are not required to comply with any particular standard. In addition, there is reason to belive that the DOJ will never establish specific guidelines, in part, because the internet is ever changing and what may look good today will be outdated tomorrow.

Hotel website cases are a more recent target. These claims usually allege that the Hotel Website does not describe the accessible ADA guest room enough to allow a disabled person to decide what if any room to reserve.

After reviewing and/or resolving over 1000 ADA claims, with recently many website cases amount them, it is our view that the vast majority of all these ADA claims are bogus and abusive.

We are here to help.

Here's some resources for Web and website Accessibility checkers and testers and testing:

One commonly used free Website Accessibility checker - tester:

https://wave.webaim.org/

Shopify article:

https://www.shopify.com/partners/blog/website-accessibility-testing


W3C - Web Accessibility Initiative checker and testers list from W3C:

https://www.w3.org/WAI/ER/tools/


Personal assistance with Website Accessibility testing or checking

https://wcagcompliancecheck.com/

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Letter from Congress to the DOJ:

Congress of the United States

Washington, DC 20515

June 20, 2018

The Honorable Jeff Sessions

Attorney General of the United States

U.S. Department of Justice 950 Pennsylvania Ave NW Washington, DC 20530-0001

Dear Attorney General Sessions:

Thank you for your service to our country. We write today to express support for the Department of Justice providing guidance and clarity with regard to website accessibility under the Americans with Disabilities Act or ADA.

Although there have been several recent court decisions on the application of the ADA, the statutory authority for applying the ADA to websites is tinclear.111 However, businesses of every shape and size throughout the country are being threatened with legal action by private plaintiffs for unsubstantiated violations of the ADA. This problem is expanding at a rapid rate since the Internet allows such actions to be filed from anywhere, and there are no restrictions or limitations on making such complaints. The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these

complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and do little or nothing to improve website accessibility.

We support the original spirit and intent of the ADA. However, unresolved questions about the applicability of the ADA to websites as well as the Department's abandonment of the effort to write a rule defining website accessibility standards, has created a liability hazard that directly affects businesses in our states and the customers they serve.

It is critically important for the Department to take steps now to state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the Department of a final rule establishing website accessibility standards. We agree with the U.S. District Court for the CentralDistrict of California in Domino 's Pizza v. Robles which held that "impos[ing] on all regulated persons and entities a requirement that they 'compl[y] with the WCAG 2.0 Guidelines' without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic ... files in the face of due process."' Further, as it dismissed the ADA complaint, the court said:

The Court concludes by calling on Congress, the Attorney General, and the Department of Justice to take action to set minimum web accessibility standards for the benefit of the disabled community, those subject to Title III, and the judiciary.2

It is important for Congress to act to provide greater clarity through the legislative process. However, in the meantime, it is also unfair and disruptive to subject businesses to litigation risk caused by insufficiently specific statutory language or even basic direction on compliance from the Department. We respectfully urge you to help resolve this situation as soon as possible.

Signed by over 100 members of congress from both parties.

_________-

Footnote to the letter from Congress (above):

Ell See Carroll v. ABNB Fed. Credit Union, No. 2:17CV521, 2018 WL 1180317, at *1 (ED. Va. Mar. 5, 2018), and Robles v. Dominos Pizza LLC, No. CV1606599SJOSPX, 2017 WL 1330216, at *1 (CD. Cal. Mar. 20, 2017); but see Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017), and Markett v. Five Guys Enterprises LLC, No. 17-CV-788 (KBF), 2017 WL 5054568 (S.D.N.Y. July 21, 2017).

____________________

Of Recent Note, LA Times Article on ADA Website Lawsuits, Sunday, November 11, 2018:

LA Times, Sunday, November 11, 2018 - Business Section

Lawsuits target access to websites

Accused of violating the Americans with Disabilities Act, businesses say rule avoidance opens floodgates to litigation

By Hugo Martin

Summary of Article:

Avanti Hotel and others have been caught up in a recent wave of ADA lawsuits targeting websites across the country. The Trump administration's decision to stop drafting rules for website ADA compliance is widely seen as opening the floodgates to legal action.

Nearly 5,000 ADA lawsuits were filed in federal court for alleged website violations in the first six months of 2018, according to an analysis by Seyfarth Shaw, a law firm that specializes in defending such cases. The firm predicted that the number of lawsuits will climb to nearly 10,000 by the end of the year, a 30% increase from 2017.

With online sales, reservations and job postings now a huge part of modern commerce, advocates for the disabled say websites need to be as accessible to everyone, just as bricks-and-mortar stores, restaurants and schools are.

For a website to be accessible to disabled people, the content must be coded so that screen-reading software can convert the words to an audio translation. Video that appears on a website must include descriptions for the deaf. Also, all interactive functions must be operable through keyboard commands for people who can't use a mouse.

No formal government standards exist for private businesses to follow to ensure their websites comply with the ADA, although a consortium of web innovators has created guidelines, known as the Web Content Accessibility Guidelines, to make websites more accessible to disabled people. Government websites already follow those guidelines, but private business websites, which are typically loaded with images and video, tend to be more difficult to overhaul to meet the guidelines, experts say.

The cost of making sites accessible ranges from several thousand dollars to a few million dollars, depending on the complexity of the site, according to trade groups and business owners.

ADA lawsuits, filed in federal and state courts, have targeted the websites of retailers (including Winn-Dixie Stores Inc. supermarkets), restaurants (including Domino's Pizza Inc.) and universities (including Harvard and MIT).

The cost of defending such lawsuits can be burdensome for small businesses such as the Avanti Hotel.

Fixing the site would cost about $3,000, which hotel manager Jim Rutledge said he is willing to pay. But the lawsuit demands the hotel also pay damages to the plaintiff, an

Some trade groups say the lawyers and plaintiffs who file many of these lawsuits are only interested in using the law to pocket hefty court-imposed damages.

In 2010, the Justice Department began to draft formal regulations for websites to meet ADA goals. But in December, the agency announced it was withdrawing its "rulemaking process," at a time when the Trump administration was calling for a rollback of federal regulations.

The department said it was killing the regulations because it was "evaluating whether promulgating regulations about the accessibility of web information and services is necessary and appropriate."

In a June 20 letter, 103 members of Congress - Republicans and Democrats - urged then-Atty. Gen. Jeff Sessions to adopt website regulations, saying the absence of such regulations "only fuels the proliferations of these suits."

Lawyers who defend ADA lawsuits say the Justice Department's actions to pull the plug on adopting new regulations may have instigated the latest surge in lawsuits. Business owners who are sued under the ADA complain that the law allows plaintiffs to demand huge payouts in damages without first giving the business owner the opportunity to fix the websites.

California leads other states by far in ADA lawsuits filed over website accessibility, according to the Seyfarth Shaw analysis. That may be because a California law sets a minimum dollar amount for damages of $4,000 plus attorney's fees for each ADA violation, a minimum not imposed in most other states. The minimum, according to lawyers who defend such lawsuits, makes suing in California more lucrative.

The lawsuit against Rutledge's hotel was filed by Manning Law in Newport Beach. The plaintiff was Kayla Reed, who is described as a resident of Montana. Manning Law has filed 355 ADA cases, primarily in California, in the last 12 months, according to court records.

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