ADA Website Lawsuits
ADA Website Defense:
The Karlin Law Firm LLP is the Premier Law Firm defending ADA Website claims and lawsuits as well as the premier ADA Law Firm providing guidance to our clients and their tech team on how best to prevent future ADA website claims and lawsuits.
The Karlin Law Firm has Defended ADA Website Claims and Lawsuits brought by Manning Law, Pacific Trial Attorneys, Scott Ferrell, Custodio & Dubey, APEX Trial, Ryan Ferrell, Olga Nazimova, Gottlieb & Associates, Jeffery Gottlieb, Mizrahi Kroub, Stein Saks, Mark Rozenberg, Mars Khiamov, Noor A. Saab, Shaked Law, Dan Shaked, Lynch Carpenter Brown, Ian M. Brown, East End Trail Group, Kevin Tucker, Lawrence Fischer, and all other ADA website plaintiff attorneys and law firms. Some of the Plaintiffs frequently filing these ADA website lawsuits include Rusty Rendon, Drew Hunthausen, Luis Licea, Brittney Mejico, Perla Mageno, Kyle Wong, and Blair Douglass.
ADA WEBSITE NEWS:
July 2, 2023, as of this date, Karlin Law forces dismissals of 15 separate ADA website lawsuits filed by Andres Gomez ADA website Lawsuits that were filed by different ADA Plaintiff’s law firms. In Court filings the Karlin Law Firm presented information to the Court that Andres Gomez and frequent ADA Website Lawsuit filer presented false information about his need to use a screen reader and in effect perpetuated a hoax resulting in hundreds of businesses being sued by Gomez. As a result of the Karlin Law Firms investigation of Gomez, including taking his deposition and obtaining video of him in his daily activities, Gomez was forced to pay our Client it’s costs in defending the case. An example of a Andres Gomez ADA Website Lawsuit is shown on our website here:
March 18, 2022. Washington D.C. The Department of Justice (DOJ) announces “Guidance” but still no Guidelines, no rules, no regulation, no safe harbors, regarding how to make websites “compliant” under the ADA or even what websites are considered to be under the ADA, since the DOJ’s only reference is still to “places of public accommodation” which has been subject to different interpretations, particularly in the various New York 2d Circuit Courts, in Pennsylvania’s 3d Circuit Courts, and in California’s State Courts, compared to what is a growing majority view expressed most notably by California’s 9th Circuit. In the DOJ’s “Guidance”, again not “Guidelines”, the DOJ does not express an opinion on which of the Federal Courts it is following regarding the interpretation of a place of public accommodation. See the “Guidance” published on March 18, 2022 by the DOJ regarding ADA websites here.
May 19, 2022. San Francisco. SAN FRANCISCO (CBS SF) — Beverly Hills attorney Kousha Berokim has been indicted for an alleged scheme demanding monetary settlements from businesses to avoid Americans With Disabilities Act (ADA) website lawsuits. Of note is Karlin Law Firm’s success in Defended over 110 such separate claims without our clients ever paying Kousha Berokim, or the Canon Law Firm, or his client any money. It’s sad to see other businesses paying him or his client settlement money. The San Francisco District Attorney Chesa Boudin said among the grand jury charges Berokim faces were one for grand theft from an elder and 14 counts of grand theft by false pretense. The charges culminated from a nine-month investigation. See further discussion below.
Robles vs Domino’s Pizza
June 1, 2022 update, As of this posting there is still no decision in any California Sate Court of Appeal if they will follow the California’s 9th Circuit Case, Robles v Domino’s Pizza, decided on January 15, 2019 which appears to hold that ecommerce only websites without a physical location or nexus is not subject to the ADA .
Gil vs Winn-Dixie
On April 7, 2021, the 11th Circuit finally issued it’s decision in the Gil vs. Winn-Dixie case, holding that websites generally do not need to comply with the ADA even if they have a nexus to a physical store. However, for technical reasons, the holding is no longer authority because the underlying injunction issued by the trial court was limited in time and by the time of the formal decision the injunction had run out, so the issue was moot, and therefore no reason for the 11 Circuit to rule, so in effect, the decision was rendered moot. Be that as it may, the decision still illustrates the different viewpoints and what the 11th Circuit might do should they receive a new case for review. The text of the decision before it was rendered moot appears on our website here Gil v. Winn-Dixie Stores.
Gil v. Winn-Dixie Stores, Inc. 21 F.4th 775 (11th Cir. 2021)
On December 28, 2021, the 11th Circuit stated
BEFORE: Jill Pryor, Branch, Circuit Judges, and Reeves, District Judge.
Honorable Danny C. Reeves, United States District Chief Judge for the Eastern District of Kentucky, sitting by designation.
PER CURIAM The Petition for Panel Rehearing filed by Appellee Juan Carlos Gil is GRANTED. Due to the expiration of the injunction while the appeal was pending and the absence of any formal award of declaratory relief, the appeal was rendered moot. “A moot case is nonjusticiable and Article III courts lack jurisdiction to entertain it.” Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla. , 382 F.3d 1276, 1281 (11th Cir. 2004).
Accordingly, we vacate our opinion and the underlying judgment, dismiss the appeal, and remand for the
district court to dismiss the case as moot.
A few law firms are 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, and also with an office in San Diego, California, is one of the law firms making filing ADA website lawsuits against owners of both websites and Apps. One of their ADA website Plaintiffs, or potential Plaintiffs, include Robert Jahoda, Eddie White, with lawyers of the firm including R. Bruce Carlson, Kevin W. Tucker. Todd D. Carpenter and Eric Zard who is also a member of their law firm. If you have received one of their ADA website lawsuits or 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
As mentioned above, on October 8, 2019, the U.S. Supreme Court refused to hear the case of Robles vs. Domino’s Pizza. Millions of business websites, both large and small (mostly small businesses) will be impacted and struggle as a result of a lack of ADA website standards and will be opened up to ADA website lawsuits by law firms such as the Manning Law Firm, headed by Joseph Manning, the Pacific Trial Lawyers, headed by Scott Ferrell, the Carlson Lynch Law Firm, as well as some to the others referred to above. We are the leaders in ADA website defense and we defend against ADA website claims and lawsuits and can assist with both the defense as well as work with you and your IT department or web developer on ways to help prevent ADA website lawsuits and claims. One source of information is WCAG, the World Wide Web Consortium (W3C) and the 2.0 guidelines (which may not be considered standards).
Perhaps more troubling than the lack of any standard 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 a 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
As mentioned above, there is now a clear split of authority among the Federal District Court of Appeals. The text of the decision appears on our website here Gil v. Winn-Dixie Stores.
June 1, 2022. No new activity on this bill. Last activity shown is the following date:
House – 02/19/2021 Referred to the Subcommittee on Consumer Protection and Commerce. Current efforts in congress to deal with the significant rise in ADA website lawsuits has given rise to the introduction of HR 1100. It is unclear if that proposed legislation will decrease or increase this type of litigation. See the text of HR 1100 and the Karlin Law Firm’s comments on that bill ===>>
Accessibility Statements. See our page on Website Accessibility Statements. Most Web Developers and Webmasters do not fully understand Website Accessibility Statements and how best to word these. If the above link does not work, you can also go to ===> www.AccessibilityStatements.com
AccessiBe, Userway and other ADA Plug-in Apps and Programs. Reliance on certain ADA Plug-in Programs, Applications or Widgets can also case problems and a false sense of compliance. Various ADA Plug-In Programs, Apps, and Widgets are reviewed and discussed by the Karlin Law Firm, including Accessible, Userway, and others. Click here to see more ==>> Accessible, Userway and other ADA website programs reviewed.
These ADA Website 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 threatening 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 100 million websites, if this tidal wave of ADA Website and App attacks is allowed to continue, it could bankrupt many small and tiny businesses, causing a devastating effect on the economy.
The Karlin Law Firm LLP 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 conclusion, 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 for dismissing the case, or not filing the lawsuit.
News item: October 8, 2019, the U.S. Supreme Court, without comment, did not take up the case of Robles vs. Domino’s Pizza, which had been appealed from the 9th Circuit. In the future, they may consider such cases. There was no explanation of why the U.S. Supreme Court did not think the case needed to be reviewed. Perhaps the Court is waiting for a different case where there is more of a split on authority, such as a case involving a website that does not have a physical store or “nexus” with a particular physical location. While most Federal Courts seem to follow what The Karlin Law Firm LLP calls the “No Place, No Case rule,” there are a few Federal Courts that seem to tend to treat a website as if it were a physical store. The Robles cases involved the pizza company that has many physical locations so it would not have been the best case to determine if the No Place, No Case rule would apply. There may be other reasons the Court chose not to review this case. One reason might be that the Court may be aware of efforts in Congress to bring some sanity to this area of the law. We are watching closely these developments.
California State Court Follows “No Place No Case” Doctrine. In Thurston v. Midvale Corp., 39 Cal. App. 5th 634, 640-41 (Sep 3, 2019), the Court closely followed 9th circuit Federal Case, Robles vs Domino’s Pizza. On the one hand, the Court allowed an ADA website case to go forward, but it also stated that the main reason for doing so, just as in the Robles case, was because there was a likely nexus between the website and the defendant’s physical store, strongly suggesting that without the nexus to a physical location where customers can obtain goods or services, there would be no ADA case. This is what The Karlin Law Firm LLP has called the “No Place, No Case” rule, or for short, the The Karlin Law Firm LLP Website Doctrine. Good news for websites that have customers in California.
The Karlin Law Firm LLP has defended, consulted on, and resolved over 1,200 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 the 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 1000’s 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 noncompliance. 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 and Eric Zard, who are also members of their law firm with Sean Licea as a plaintiff. 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 threatening letters and filing lawsuits regarding ADA Website compliance. Some of these attorneys include Scott Ferrell, Victoria Knowles, Rusty Payton, Marc Dann, Joseph Manning aka Joe 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, Perla Mageno, Jennifer Carbine, Rebecca Castillo, Cesar Cotto (website ADA lawsuits), Edward Davis, Perla Mageno, Poupak Barekat (hotel website ADA lawsuits), Abacus Heras (hotel website ADA lawsuits), Louis Do, Rusty Rendon, Sheila Biglang-Awa aka Sheila Biglang Awa (website ADA lawsuits), Anthony Bouyer, James Shayler, James Rutherford, George Avalos, Joshua Hartley, Valinda Rothman, Carmen John Perri and Suzanne Na Pier. Berokim Law (Website letters), Xandra Kahre, Beverly Hills Trial Attorneys, Azar Mouzari, plaintiff Andrew Baracco (website ADA lawsuits). Amanda F. Benedict, Law Offices of Amanda Benedict, plaintiff Richard Cooks (website ADA lawsuits). Jacob A. Shahbaz represents plaintiffs: Garnik Blkhoyan, Nazik Blkhoyan, Kevin Rosales, John Paul Hutchins, Viridiana Quevedo, Juliana Garcia anf Estela Ramos (Website Lawsuits). Reuben D. Nathan, Nathan & Associates, APC, plaintiff William White (State website ADA lawsuits). Dan Shaked represents Linda Slade and files in the Southern District of New York (Website lawsuits). Olga Nazimova representing Edward Davis and Ronald Chism. David Malakauskas representing Mr. Garcia (Website Letters), Center for Disability Access, Amanda Seabock representing plaintiffs: Orlando Garcia (Hotel Website Lawsuits), Chris Langer, Megan Erasmus and Allan J. Williams II (Closed Captioning Website lawsuits). R. Stephen Hall in Colorado representing: Pursuit of Respect Inc. Fidelity Law, APC making FHA and ADA website claims with Attorney Brian R. Linnekens representing client Santiago Hernandez. Additionally, attorney office Gottlieb & Associates, Jeffrey Michael Gottlieb & Michael A. LaBollita are filing Website lawsuits in the Southern District of New York representing visually-impaired plaintiffs: Yony Sosa, Milton Williams, Donna Hedges, Henry Tucker, Marcos Calcano, Lawrence Young, Steven Matzura, Braulio Thorne, and Emanuel Delacruz.
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 shakedown letters with ADA website Federal lawsuit drafts being sent by Legal Justice Advocates of Fort Lauderdale, Florida, with attorneys 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 websites plaintiffs that have filed in the past or are currently filing include Raymond Douglas Hennagir, Alberto Hernandez, and Jack Kang.
After reviewing and/or resolving over 1,200 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 are some resources for Web and website Accessibility checkers and testers and testing:
One commonly used free Website Accessibility checker – tester:
W3C – Web Accessibility Initiative checker and testers list from W3C:
Personal assistance with Website Accessibility testing or checking
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:
Opportunity to be Heard, and
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 called “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, in 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 in 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 discriminatory. 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 goods or services to Mr. Jones and situations 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.
2. Footnote regarding one-sided attorney’s provision.
With a one-sided attorney’s fees provision, if the Plaintiff wins the case, Defendant may have to pay the Plaintiff’s attorneys fees, but not the other way around. If 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, moral extortion.
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, Dominick Marin, Brittney Mejico and Rusty Rendon.
ADA website lawsuits: The Manning Law Firm, and ADA website Plaintiffs: Guy Farion, Perla Mageno, Rebecca Castillo, Cesar Cotto, Louis Do, Po Tang and Sheila Biglang-Awa aka Sheila Biglang Awa; the Carlson Lynch law firm, the Pacific Trail Lawyers headed by Scott Ferrell.
ADA website lawsuit Plaintiffs: Pamela Hill, Danuta Tuszynska, Carmen Nieves, Esuom M. Yekim, Andres Gomez and Sheila Biglang-Awa aka Sheila Biglang Awa
ADA website lawsuit claim letters Attorney Kousha Berokim, Esq.
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 unclear.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 another 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 have 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 Central District 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 brick-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. The 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.
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 20th 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 proliferation 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.
Note new ADA websites Plaintiffs: Abelardo Martinez Jr, and Cesar Cotto