ADA Website and App Lawsuits

ADA Website and APP Defense

The Karlin Law Firm is on the forefront in defending businesses, Website and App owners against a major wave of ADA Website and Apps Attacks by people claiming Websites and Apps are somehow not up to the viewer's personal standards. No standards have been set.  This has been confirmed in the recent 9th Circuit Case, Robles v Domino's Pizza, decided on January 15, 2019.  The case also seemed to hold that stand-alone Websites and Apps with no nexus to a physical location, brick and mortar store, is exempt from the ADA.  This is in line with the 11th Circuit, although it has been argued that other Circuits may have approached the question differently.

Of note is a new development where a few law firms at targeting developers and owners of mobile applications - Apps - for alleged ADA non-compliance. In our view, there is no legal basis for almost all of these ADA App claims and lawsuits. The law firm of Carlson Lynch of Pittsburg, PA, is one of the law firms making claims against owners of Apps, on behalf of Robert Jahoda and Eddie White though its lawyers and attorneys, R. Bruce Carlson, Kevin W. Tucker. Todd D. Carpenter is also a member of their law firm. If you have received one of their claim letters, give us a call.

The lack of standards for either Websites or certain Apps related to a store or restaurant like Domino's Pizza, but leaving it an "open question of fact" to be determined by a trial court, can open the door to anyone claiming a visual or other disability to file a lawsuit which has the effect of extorting a ransom in exchange for dropping the lawsuit.  This is the Weaponization of the ADA, and this ADA Website Weaponization is as alarming as a devastating computer virus.  ADA Website and App Attacks are largely fueled by the lack of meaningful and simple-to-implement-and-maintain safe harbor standards, and also by the "one-sided" attorney's fees provision in ADA cases which often puts an ADA Plaintiff in a "no lose" position.  In our view, any one-sided attorney's fees provision where only the Plaintiff (but not the Defendant) can get its attorney's fees paid by the losing side, always presents the opportunity for abuse, and often results in bad consequences because it sets up a "no lose" situation for the Plaintiff even when their case is weak.2

Perhaps more egregious is the fact that even if the business can show the Website and/or its related Mobile site or App was adequate to accommodate those with disabilities, this does not prevent another Plaintiff from filing a lawsuit claiming the very same thing. In effect, there is no "finality" and the business is continually exposed to ongoing rounds of moral extortion. While there may be strong argument that the lack of finality renders the application of the ADA to Websites and related Mobile sites and Apps, unconstitutional, no Court has yet addressed this particular issue.1

These ADA Website and App lawsuits and threats are as much an attack on the internet, on American business, and on the economy, as a virus that attacks thousands of business computers. There are over 100 million websites and an untold number of mobile sites and Apps in the United States alone. Few, if any, meet the vague "standards" these lawyers say should be adopted by the Courts.

Even the Department of Justice (DOJ) has struggled with the idea of imposing some type of standard for the display of information on a Website. After 10 years of investigations, the DOJ appears to have given up on the idea.  As for as we are aware, under Title III, for private businesses, the DOJ has not suggested any Apps in the nature of software have any ADA requirement.  Nonetheless, these ADA Plaintiff's law firms not only continue to file these ADA website lawsuits, but at least one law firm is threating to file ADA lawsuits over mobile sites and Apps.  These abusive ADA Website lawsuits and Apps lawsuits and/or threats, are increasing rapidly. With over a 100 million websites, if this tidal wave of ADA Website and App attacks is allowed to continue, it could bankrupt many of small and tiny businesses, causing devastating effect on the economy.

The Karlin Law Firm is here to help defend against this title wave of ADA Website and App attacks and lawsuits.

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

A few things you may want to know, a recent case decided by the Ninth Circuit on January 15, 2019.  In Robles v. Domino's Pizza, the Ninth Circuit Court addressed the question of due process, jurisdiction and lack of website standards. The Court held that there is not a specific standard that websites and/or a website's related mobile site or App, that a business needed to follow to provide some accommodation for the blind or visually impaired (often using the JAWS program to translate a website into the spoken word).  Nonetheless, a Plaintiff is still free to file a lawsuit to try to prove the website was inadequate.  The Plaintiff may or may not win the lawsuit, but the mere filing of the lawsuit often forces a business, however tiny, to spend money, time and resources, to explain and justify how its website is displayed, even if it is later determined that the website was fine, as is.

As noted above, the Domino's Court appeared to hold that the requirement did not apply to stand-alone websites without a physical location or physical nexus.  There may be other views on this point, but we believe these views can be distinguished.  While the Domino's Pizza company is a large business enterprise that has the resources to defend such claims and or make major complex modifications to its website and related mobile site and App, the Court's holding would appear to apply to the smallest of businesses.  For example, to a retiree who sets up a three-page website selling his old fishing lures, or a handyman's website stating he has a small shop where he is available to fix your broken lamp or bike. In coming to its concluding, the Court relied on the language of the ADA and certain guidelines (but not Website Standards) that the Department of Justice has enacted over time (without any vote of Congress).  In our view, Congress and/or the DOJ will need to clarify this area of the law. Until then, we can expect an avalanche of ADA website and App attacks on businesses, large, small, and tiny, as well as against self-employed persons who run a small micro-business.  To be clear, these are Website and App attacks in the name of the ADA, no different in practice than a computer virus.  In our view, for the most part, these lawsuits are filed, and these threats are made simply to extort a ransom in exchange of dismissing the case, or not filing the lawsuit.

The Karlin Law Firm has defended, consulted on, and resolved over 1,000 ADA cases, including ADA Website, ADA App, as well as Physical ADA claims and lawsuits.  We know that the vast majority of these cases are filed against tiny struggling businesses whose owners barely make a living.  These lawsuits hit hardest minorities and recent immigrants who often are forced to set up tiny businesses due to limited employment opportunities. For the general public, hearing about such cases as Domino's Pizza, it may appear that the businesses being sued have the resources to defend against these website lawsuits.  But make no mistake, it is only the largest businesses that can afford to seek review by the Court.  The reported cases almost never mention the 1000s of tiny businesses that are mainly affected by the Court's decision. As such, the public is largely unaware of the major impact these cases have on the thousands of cases filed against tiny businesses.

As mentioned, we are particularly concerned with a new ADA threat targeting developers and owners of mobile applications - Apps - for alleged ADA non-compliance. In our view, there is no legal basis for almost all of these ADA App claims and lawsuits. The law firm of Carlson Lynch of Pittsburg, Pennsylvania, is one of the law firms making App claims.  They state they are doing this on behalf of certain persons, Robert Jahoda and Eddie White.  The letters are being sent by attorneys R. Bruce Carlson and Kevin W. Tucker, with a copy to Todd D. Carpenter, who is also a member of their law firm. If you have received one of these App claim letters, give us a call.

On the bright side, if there is a bright side, a large number of congressional democrats and republicans have asked the DOJ to stop allowing these lawsuits.3

The DOJ has responded by saying it is up to congress to clarify the issue.  We are watching to see if they will do their job and bring some sanity to this area of the law.

Meanwhile, 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, Joseph Manning (hotel website ADA lawsuits and other claims), Michael 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 (website ADA lawsuits), Edward Davis, Perla Mageno, Paupak Barekat (hotel website ADA lawsuits), Abacuc, Abacus Heras (hotel website ADA lawsuits), Bobby Saadian, Thiago Coelho (website ADA lawsuits). In our view, many of these claims are bogus and frivolous. Give us a call, we can help.

As mentioned above, there has been no adopted standard.  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

The DOJ has admitted there are other ways of making websites accessible, and the clear trend is to require a Nexus between a website and a physical location.

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.

Also new are shake down letters with ADA website Federal lawsuit drafts being sent by Legal Justice Advocates of Fort Lauderdale, Florida, with attorneys Avery Fenton, Shakhar Vyas, and Emerson Primental attempting to shake down businesses and small and large hotels. These ADA website claims are made on behalf of blind and visually impaired persons. Some ADA website now include Raymond Douglas Hennagir, Alberto Hernandez, and Jack Kang.

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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1. Footnote regarding Constitutionality.

We have not seen the issue of Finality addressed by any Court as it may apply to certain applications of the ADA. In our view, the three basic principles of substantive due process, and for that matter, for any civilized jurisprudence anywhere in the world, are:

Notice,

Opportunity to be Heard, and

Finality.

As to Finality, once the matter has been decided, a person should not be subject to the same claim over and over again. Most ADA regulations concern aspects of physical property. Historically, these were treated as what was call "in Rem" actions - ("Rem" being Latin for "Physical Thing") meaning a court could decide if the attribute of the physical thing met this or that requirement. For example, a claim over a piece of land there exists a public easement to the beach. If a case is filed, anyone who has an interest is such an easement could state their claim, and the matter is decided for everyone, not just the folks who take the time to appear before the court.

Almost all lawsuits that are filed are what are called "In Personam" actions, meaning cases these are cases about how people treat other people one-on-one. (Personam, being Latin for Person).   When enacted in 1991, the ADA  was modeled largely on the civil rights legislation of the 1960s and 1970s. That early legislation dealt almost exclusively with intentional discrimination by a person against another person. For example, Mr. Smith refused to sell Mr. Jones goods or services based on Mr. Jones race.

By contrast, a claim by a disabled person that a doorway is not large enough to enter because the doorway is out of measurement with a certain building code is a claim more in the nature of an in Rem action. Doors and door jams do not discriminate.   Rather, like an easement, the narrow door may create a barrier for persons with disabilities.  The door's measurement may possibly be out of compliance with certain building codes, and this measurement and its impact, if any, on a potential customer, may or may not be known to the business or building owner.  Nonetheless, a person affected by the narrow doorway may wish to establish the need for it to be made wider, not just for him or herself, but for disabled persons in general. Like a public easement, this should be viewed as an "in rem" action, and once decided one way or the other, the question should not be the subject of continuous litigation.

The failure to distinguish the difference between a person intentionally refusing to sell a goods or services to Mr. Jones, and situation were unknown to a building owner a doorway is a few inches too narrow under the building codes, is what has led to odd and unfair treatment of defendants in ADA cases, including the lack of finality outlined above. Is the doorway wide enough or not, given the allowable exceptions and interpretations? Once decided, a thousand other Plaintiffs should not be allowed to file lawsuits asking a court to rule that the doorway needs to be made wider. While there may be an easy legislative amendment to resolve the problem of lack of finality, in our view in many cases there is currently a significant Constitutional question resulting from the ADA's lack of finality.

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2. Footnote regarding one-sided attorney's provision.

With a one-sided attorney's fees provision, if the Plaintiff wins the case, the Defendant may have to pay the Plaintiff's attorneys fees, but not the other way around. If the Defendant shows the Plaintiff has no case, the Plaintiff does not have to pay the Defendant's attorney's fees. The result is that if a Plaintiff has a highly questionable case, the Plaintiff puts the business in the position of having to spend 20 times more money to defend the case than to resolve it by paying the ransom. Thus, the moral extortion.

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Some new attorneys and plaintiffs sending ADA website claim letters and filing ADA website lawsuits include:

ADA website claim letters and ADA lawsuits: Scott Ferrell, Pacific Trail Attorneys, and ADA website Plaintiffs Cheryl Thurston, Roy Rios, Luis Licea, Abelardo Martinez, Jr., Dominick Marin, and Brittney Mejico.


ADA website lawsuits: The Manning Law Firm, and ADA webiste Plaintiffs: Guy Farion, Pearla Mageno,Rebecca Castillo, and Ceasar Cotto. The Wilshire Law Firm, Bobby Saadian and Thiago Coelho and ADA website Plaintiffs: Elia Haggar, Kyo Hak Chu, Valerie Brooks.
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ADA website lawsuit Plaintiffs: Pamela Hill, Danuta Tuszynska, Carmen Nieves, and Esuom M. Yekim
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ADA website lawsuit claim letters Attorney Kousha Berokim, Esq.

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3.  Footnote - 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.

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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).

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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.

[email protected]

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Note new ADA websites Plaintiffs: Abelardo Martinez Jr, and Cesar Cotto