How to Manage & Defend Website Accessibility Claims Presenter: - - PowerPoint PPT Presentation

How to Manage & Defend Website Accessibility Claims

Presenter: Mark S. Sidoti, Esq., Gibbons PC March 26, 2019

Agenda

• The nature of ADA website accessibility claims, including their statutory and

regulatory basis

• How ADA website accessibility claims are being used by the plaintiffs’ bar
• How the courts are dealing with website accessibility claims
• Practical strategies for defending against website accessibility claims

The Nature of ADA Website Accessibility Claims

Statutory and Regulatory Framework

• Title III of the Americans with Disabilities Act (ADA) requires places
• f public accommodation, such as hotels, shopping centers,

retailers, health care providers, restaurants, and private educational institutions, to maintain facilities accessible to the disabled.

• To be covered by the ADA, an entity must simply fit the description

above without regard to the number of employees, annual revenue, type of goods or services sold, etc.

• Title III of the ADA states in pertinent part: "No individual shall be

discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,

• r accommodations of any place of public accommodation by any

person who owns, leases (or leases to) or operates a place of public accommodation." 42 U.S.C. §12182(a).

Statutory and Regulatory Framework (cont.)

• Under Title III, discrimination includes “a failure to take such steps

as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being

• ffered or would result in an undue burden.” 42 U.S.C.

§12182(b)(2)(A)(iii).

• Similarly, §508 of the Workforce Rehabilitation Act requires that all

federal agencies and federally funded programs reasonably accommodate people with disabilities in both internal and external

• communications. 29 U.S.C. § 794d.

Statutory and Regulatory Framework (cont.)

• Though the ADA's statutory language does not address websites,

the U.S. Department of Justice (DOJ), the agency responsible for regulating and enforcing the ADA, considers websites offering goods

• r services to consumers to be "places of public accommodation,”

which must be accessible to the disabled. See 75 Fed. Reg. 43, 463.

• The DOJ regulations implementing the ADA list examples of

auxiliary aids and services, including Braille materials and displays, screen reader software, and other means of making electronic information available to hearing and visually impaired individuals. See 28 C.F.R. 36.303(b)(2).

Statutory and Regulatory Framework (cont.)

• The ADA and its implementing regulations can be enforced through

private lawsuits and separately by the DOJ. 42 U.S.C. §12188; 28 C.F.R. § 36.501. The DOJ may also intervene in private lawsuits.

• Private litigants may seek injunctive relief only, but a successful

plaintiff can seek recovery of attorney’s fees and costs. 42 U.S.C. §12205.

• Remedies sought by the DOJ are broader and may include

injunctive relief, attorneys’ fees and costs, and civil money penalties. 42 U.S.C. § 12188(b)(2)(A), (B); 28 C.F.R. § 36.504(a)(1), (2). For violations that occur on or after April 28, 2014, civil money penalties may be as much as $75,000 for the first violation or $150,000 for any subsequent violation. See 28 C.F.R. § 36.504(a)(3).

Statutory and Regulatory Framework (cont.)

• In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking

(ANPRM) to consider whether to revise its ADA Title III regulations to establish requirements for website accessibility. 75 Fed. Reg. 43460. The notice sought input on, among other things, whether the DOJ should adopt the Web Content Accessibility Guidelines (WCAG) 2.0’s ‘Level AA Success Criteria’ for entities covered by Titles II and III of the ADA.

• The WCAG 2.0 are the most recent and updated version of a set of

international voluntary guidelines for web accessibility created by the Web Accessibility Initiative of the World Wide Web Consortium.

• The DOJ announced in the fall of 2015 that it planned to delay the issuance
• f final regulations for public accomodation websites until 2018, but on Dec

26, 2017 withdraw its ANPRM and stated that it will NOT be issuing final regulations, leaving courts (and companies) in limbo.

How ADA Website Accessibility Claims Are Being Used By The Plaintiffs’ Bar

How ADA Website Accessibility Claims Are Being Used By The Plaintiffs’ Bar

• Website accessibility lawsuits and threatened claims have become

big business for the plaintiffs’ bar.

• In 2018, well over 2000 ADA website accessibility lawsuits were filed

in the U.S.

• Mostly in NY, FL, PA and CA. 1500 cases filed in the New York in

2018.

• Many of the complaints are generated by a handful of plaintiffs and

law firms, sometimes labeled “ADA trolls.”

• In 2016, a single law firm filed almost 50 percent of the website

accessibility lawsuits. Recently many more firms have joined the fray.

• No industry is immune – schools, banks, retailers, etc.

How ADA Website Accessibility Claims Are Being Used By The Plaintiffs’ Bar

• Federal website accessibility lawsuits assert fairly standard allegations.

Hearing or visually impaired plaintiffs allege they use screen reading software or other assistive technologies to access website content, yet digital barriers on the defendants’ websites limit their access.

• The complaints usually itemize the specific barriers encountered on the

websites, oftentimes supported by analyses of deficiencies by purported website accessibility and compliance experts. Therefore, website accessibility claims often involve significant expert consultation and analysis.

• Sometimes, a website accessibility lawsuit is preceded by a detailed letter

to the target entity, which outlines the alleged website accessibility violations, summarizes the law, details the expert's assessment of the purported violations, and demands pre-suit settlement in the form of injunctive relief and attorney fees.

The Current Practice

• In recent years, plaintiffs have moved away from

the demand letter approach.

• In 2017 and 2018, most claims have been

initiated by the filing of a lawsuit seeking injunctive relief (i.e. remediation of the website) and counsel fees.

• Many recent claims, particularly in 2018, have

been styled as class actions, seeking relief on behalf of a putative class of vision impaired individuals.

The Current Practice

• While the claims generally have some degree of merit,

deficiencies are typically magnified towards the end of extracting pre-suit settlements from companies reluctant to incur the burden of litigation and legal fees over what is considered a "fixable" issue.

• In order to defend the claim, a website accessibility

expert often is required, the cost of which is an additional incentive to settle pre-litigation.

Why these claims work for the Plaintiffs Bar

• They assert boilerplate claims that are sympathetic,

inexpensive to pursue and difficult to defend.

• The claims are often “back burnered” by companies with

more pressing legal and business challenges.

• Claims not worth the investment of significant defense

costs.

• Plaintiffs’ counsel know that most websites are not

compliant with WCAG 2.0, something easily determined by remote website evaluation.

The Growing Trend of Follow-On Claims

• Companies are being sued multiple times for the

same website.

• Plaintiffs counsel claim to monitor dockets to

avoid this, but it is increasing because:

• More counsel are filing these claims and losing track of who has

been sued

• Companies cannot remediate fast enough to prevent follow on

claims during the initial remediation period

• Plaintiffs counsel are intentionally seeking to hit companies more

than once on related or linked sites

How The Courts Are Dealing With Website Accessibility Claims

How the Courts Are Dealing With Website Accessibility Claims

• In the absence of formal DOJ regulations, the courts have been left

to decide whether the ADA applies to website accessibility.

• The federal courts are split on the issue of whether only a physical

structure may be a place of public accommodation.

• Case law is continuing to develop in this area.

How the Courts Are Dealing With Website Accessibility Claims

• The Third, Sixth, Ninth and Eleventh Circuits have held that “places of public

accommodation” are physical structures, and an ADA claim can only be asserted if the alleged discrimination bears a “nexus” to the goods and services offered at a physical location.

• In practice, this means that an inaccessible website of a brick-and-mortar

retail store could violate the ADA if the website’s inaccessibility interferes with the “full and equal enjoyment” of the goods and services offered at the physical store, but a business that operates solely through the Internet is under no obligation to make their website accessible.

• See, e.g., Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998); Parker v. Metro.

Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Cullen v. Netflix, 600 Fed. Appx. 508 (9th Cir. 2015) ; Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Rendon

• v. Valley Crest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002).

How the Courts Are Dealing With Website Accessibility Claims (cont.)

• In contrast, the First and Seventh Circuits have held that “places of public

accommodation” need not be physical structures, and discrimination may

• ccur when the goods or services of a “place of public accommodation” are

enjoyed by customers who never visit a physical location.

• See, e.g., Carparts Distribution Center, Inc. v. Automotive Wholesaler’s

Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994); Morgan v. Joint Administrative Board, Retirement Plan of the Pillsbury Co. and American Federation of Grain Millers, AFL-CIO-CLC, 268, F.3d 456 (7th Cir. 2001); Doe

• v. Mutual Omaha Insurance Co., 179 F.3d 557 (7th Cir. 1999).

How the Courts Are Dealing With Website Accessibility Claims (cont.)

• Although the Second Circuit has not yet addressed the issue, the

district courts in the Second Circuit have held that websites are “places of public accommodation,” regardless of whether a “nexus” exists with a brick-and-mortar store.

How the Courts Are Dealing With Website Accessibility Claims (cont.)

Andrews v. Blick Art Materials, LLC, No. 17-CV-767, 2017 U.S. Dist. LEXIS 121007 (E.D.N.Y. Aug. 1, 2017)

• Blick Art Materials owns and operates nationwide brick-and-mortar retail stores that

sell art supplies. It also owns dickblick.com, a website through which it sells art supplies directly to consumers for home delivery. The plaintiff, a legally blind man, sued Blick for discriminating against him based on his disability because he is unable to use Blick’s website to purchase Blick’s art supplies.

• The court rejected the “nexus” requirement that a website is only subject to the ADA if

its use involves a connection to a physical store. Id. at *34.

• Instead, the court held that Blick Art’s website is a place of public accomodation that

“is prohibited from discriminating against the blind by failing to take steps necessary to ensure that the blind have ‘full and equal enjoyment’ of the goods, services, privileges, advantages, facilities, or accommodations of its website—provided that taking such steps would not impose an undue burden on Blick or fundamentally alter the website.” Id. at *23.

How the Courts Are Dealing With Website Accessibility Claims (cont.)

• While many courts have found that a website may be a “place of public

accommodation,” these decisions have only addressed the legal sufficiency of the claims, not whether the claims would ultimately prevail. Virtually all ADA decisions to date in the website accessibility context have been rendered at the motion to dismiss stage.

• However, in the course of deciding motions to dismiss, courts have recognized that

the ultimate success of an ADA website accessibility claim will depend heavily on the facts and circumstances of each case.

• Specifically, a determination of whether a particular modification is “reasonable”

involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the organization that would implement it. A place of public accommodation is not required to make a change that would “fundamentally alter the nature” of the good or service offered or undertake efforts that would place an undue burden on it.

Gil v. Winn-Dixie Stores, Inc.

• No. 16-23020 (S.D. Fla.)
• Only one case thus far has had a final decision on the merits after a trial: Gil v. Winn

Dixie Stores, Inc., No. 16-23020-Cv-Scola, 2017 U.S. Dist. LEXIS 91187 (S.D. Fla.

• Mar. 15, 2017).
• Winn-Dixie Stores is a grocery and pharmacy store chain that also operates a

website, www.winndixie.com. The website allows consumers to locate physical Winn- Dixie stores locations, fill and refill prescriptions for in-store pick-up or delivery, learn about Winn-Dixie brand items, access home-cooking recipes, and receive information about product recalls.

• The plaintiff is a legally blind man who brought a suit under Title III alleging that Winn

Dixie’s website is inaccessible to the visually impaired. After Winn-Dixie’s motion for judgment on the pleadings was denied, the case went to a bench trial.

Gil v. Winn-Dixie Stores, Inc.

• No. 16-23020 (S.D. Fla.) (cont.)
• The issues at trial were: (1) whether Winn-Dixie’s website is subject to the ADA as a

service of a public accommodation or, in the alternative, whether the website is a public accommodation in and of itself; (2) whether the plaintiff was denied the full and equal enjoyment of Winn-Dixie’s goods, services and accommodations because of his disability; and (3) whether the requested modifications to the website are reasonable and readily achievable.

• The plaintiff, who used a well-known screen reader software program called JAWS to

access many websites, sometimes filled his medication prescriptions at Winn-Dixie pharmacies because it is cheaper. In about 2015-2016, he learned of Winn-Dixie’s website to refill his prescriptions online. When he tried to access the website with his screen reader software, 90% of it did not work.

• Winn-Dixie spent $2 million in September 2015 to create its website and $7 million in

2016 to remake it. It has since set aside $250,000 for a project to make its website accessible to the disabled.

Gil v. Winn-Dixie Stores, Inc.

• No. 16-23020 (S.D. Fla.) (cont.)
• The plaintiff called an expert from a company that tests mobile and web

software for accessibility issues. The expert used JAWS and another market leading screen reader to test Winn-Dixie’s website accessibility. After a partial audit of the website, he concluded that the website’s accessibility issues could be corrected with simple modifications of one or two source codes, and that the WCAG address all of the issues that were found on the Winn-Dixie website. He concluded that it would cost approximately $37,000 or less to fix all of the website’s accessibility problems.

• The court found that whether the cost was $250,000 (as Winn-Dixie set aside)
• r $37,000, either amount pales in comparison to the $2M that Winn-Dixie spent

in 2015 to open the website and the $7M it spent in 2016 to remake the website.

Gil v. Winn-Dixie Stores, Inc.

• No. 16-23020 (S.D. Fla.) (cont.)
• Without deciding whether Winn-Dixie’s website is a public accommodation

in and of itself, the court concluded that the factual findings demonstrate that the website is heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations.

• The court also found that the factual findings demonstrate that Winn-Dixie’s

website is inaccessible to visually impaired individuals who must use screen reader software.

• The court, therefore, concluded that Winn-Dixie violated the ADA because

the inaccessibility of its website denied the plaintiff the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn-Dixie offers to its sighted customers.

Gil v. Winn-Dixie Stores, Inc.

• No. 16-23020 (S.D. Fla.) (cont.)
• With respect to the remedy, the court granted the plaintiff injunctive relief and required

Winn-Dixie to do the following:

• Undertake remedial measures to conform its website to the WCAG 2.0

Guidelines.

• Require any third-party vendor website that interfaces with its website to be fully

accessible to the disabled by also conforming to the WCAG Guidelines.

• Provide mandatory web accessibility training to all employees who write or

develop programs, code, or who publish final content to Winn-Dixie’s website.

• Conduct automated accessibility tests of its website at least once every three

months to identify any instances where its website was no longer in conformance with WCAG 2.0.

Gil v. Winn-Dixie Stores, Inc.

• No. 16-23020 (S.D. Fla.)
• Attorneys’ fees -- the court required the parties to confer and
• rdered that the plaintiff may make a motion for fees if an agreement

is not reached. The court noted that it “will not hesitate to impose sanctions against Winn-Dixie and its attorneys, including, but not limited to, attorneys’ fees and costs” for unreasonable objections to the plaintiff’s attorneys’ fees request.

• The Winn-Dixie verdict is currently on appeal to the 11th Circuit Court
• f Appeals. Defendants are challenging the pretrial ruling that its

website is a “place of public accomodation,” either independently or as a nexus to a physical location, and that the named plaintiff had standing to bring his claim.

Robles v. Domino’s 2019 U.S. App. LEXIS 1292 (Jan 15, 2019)

• First Federal Appellate Court to thoroughly and

directly address the viability of ADA website claims

• Reversed the grant of summary judgement in

favor of Dominos by the District Court on due process and primary jurisdiction grounds

• Signaled that many common defenses to these

claims would no longer be viable in the 9th Circuit; will influence courts in other circuits

Robles v. Domino’s holding

• The key rulings of the Domino’s Court
• The ADA applies to Domino’s website and app because the ADA

mandates that “places of public accomodation” like Domino’s provide auxiliary aides to the vision impaired

• The ADA applies to services “of a place of public accomodation”

not “in” one - thus a website’s mere nexus to physical location suffices

• Domino’s had received fair notice that its website and app must

comply with the ADA from a due process standpoint

• the lack of specific regulations, not yet promulgated by the Department of

Justice, did not eliminate Domino's statutory duty

• The doctrine of primary jurisdiction does not apply because the

DOJ no longer intends to act on this and deferring to it will cause undue delay

Significance of Robles v. Domino’s

• Highest Court in the country to address ADA

website claims

• Soundly rejects a number of the key defenses

cited to date in challenges to these claims

• Was decided despite the input of numerous

amici – “friends of the court” –interested third party trade and regulatory organizations

• Will likely be followed by a similar decision from

the 11th Circuit in the appeal pending in Gil v. Winn-Dixie

Practical Strategies for Defending ADA Website Complaints

Responding To A Website Accessibility Letter or Complaint

• While there are many ways to respond to website accessibility demands, not

responding at all could further complicate a defense.

• Absence of any response will be used against the target in future lawsuit and

negotiations; will be spun as lack of concern or disregard of complaints.

• Careful consideration should be given to the response, the manner in which it is

made, and whether it emanates from legal counsel.

• Counsel involvement - ensures privilege and can help ensure inadmissibility of

settlement discussions; internal remedial discussions can be protected from disclosure in a future lawsuit.

• Not responding through counsel - sometimes more effective; Plaintiff’s counsel
• ften anticipate defense counsel involvement and interpret it to signal heightened

concern by the target.

Responding To A Website Accessibility Letter or Complaint (cont.)

• Advise that you fully understand your legal obligations.
• Object to the demands and the plaintiffs interpretation of law (based
• n the advice of counsel) - demands are almost always overbroad

and law is often misstated, particularly given the split in the circuits and the absence of final DOJ action.

• If you have begun updates to your website, indicate that the

changes are ongoing or have occurred.

• However, this does not necessarily “moot” the claims.
• Check with your insurance carrier, some policies cover these claims

Responding To A Website Accessibility Letter or Complaint (cont.)

• Litigation hold - demand letters often contain overbroad document

preservation directives (so-called "litigation hold" notices) - if left unaddressed, might invite spoliation of evidence claims and increased defense costs if a lawsuit is filed. May be tricky regarding ever- changing website content.

• If the individual plaintiffs are not identified demand that they be, and that

details regarding their complaint (precisely what they were prevented from doing and how).

• Prepare for litigation - In most instances, plaintiffs who are unsatisfied

with the demand letter response will file a lawsuit - the complaints, like the demand letters, are generally pro forma documents that require little customization; filing is inexpensive and provides significant additional leverage to extract a settlement.

Complaint Response Strategy

• Most complaints are preceded by a letter demand, so you will have

already taken remedial and protective steps

• Two possible complaint response options:
• “Fix then fight” - time dependent; how soon can your remediation be

complete

• “Fight for the time to fix” - Some courts have been open to staying

the case pending remediation, especially if good faith efforts are shown

• Always seek to specifically stop the accrual of legal fees in

connection with stay

Complaint Response Strategy

• Motion Practice – unlikely to succeed based on

present case law in the majority of cases, however:

• Open issues may arise regarding the DOJ regulations – need

to monitor any government pronouncements.

• Foreign nature of company may present unique litigation

issues, such as jurisdictional issues (Daimler) and extraterritorial application (Morrison) of ADA law to foreign based websites.

Polling Question

Do you know if your website is accessible?

• Yes. It is accessible.
• Yes, we’ve tested it and are working to make

improvements.

• No. We’ve never tested it.
• I’m not sure.

Practical Steps In Resolving ADA Website claims

• Assume your company will be sued.
• Scores of these lawsuits are being filed every day. If you have a consumer facing website,

you are a target.

• Proactively check your website.
• Take steps to evaluate your website for compliance with WCAG 2.0.
• Consultants like UsableNet that specialize in website compliance can assist with such an

audit.

• Establish a baseline and understand your site’s deficiencies.
• If you are rebuilding your website, or plan to, incorporate accessibility coding into the new

platform.

• Once on notice, do not ignore the complaint.
• Consult counsel experienced in this area.
• Time is of the essence -- you will lose some degree of control over the timing of remediation

and the consequences for inaction.

• Most cases settle within 2 to 6 months in the pre-answer period.
• Allowing a matter that should settle to proceed to a default, only increases the plaintiff’s

counsel fees and expenditures that will be demanded when the case ultimately settles.

Practical Steps In Resolving ADA Website claims

• Consult knowledgeable counsel regarding available defenses

in the jurisdiction.

• Numerous prior defendants (as well as amici in high profile appeals)

have invested their time and money to test the boundaries of ADA website claims.

• Many of the obvious defenses to these claims have been thoroughly

addressed in precedential district and even circuit court opinions.

• Avoid challenges that will cost thousands in legal fees, yet are doomed

to failure, particularly in these cases where accrued legal fees of the claimant are potentially recoverable as part of any settlement.

• Experienced defense counsel also know the usual players on the

plaintiffs’ side, and understand what they are willing to negotiate.

• Know the assigned judges and how they handle these cases.

Practical Steps In Resolving ADA Website Claims

• Understand the nuances of the settlement process including
• elimination of class exposure,
• res judicata,
• follow on claims,
• private vs. public (e.g., filed consent decree) settlement,

agreements,

• time frame for remediation,
• embedded website links, and
• confidentiality.
• Basic elements of settlement agreements are similar but there

are many negotiable terms that can add protection

• e.g., ensuring a non-confidential settlement that can be

freely disclosed to fend off future claims.

Factors to Consider in Settling Claims

• Class Action vs. Individual Claims
• Specific rules governing class action notice and settlement procedures
• Expense of settling a “class” claim can be significant
• State court may require certification of class before dismissal
• Avoiding future claims by potential class members can be mitigated but not

completely avoided – res judicata rules may not apply

• Form of dismissal may be important – “so ordered”’ under Rule 41
• Retention of jurisdiction by court – try to build into agreement

Factors to Consider in Settling Claims

• Confidentiality and payment
• Confidentiality is usually very important to Plaintiff’s counsel, especially if

you get concessions that are favorable to a Defendant

• Differentiate between terms of agreement vs. settlement amount
• Need to disclose to potential future litigants to dissuade suits
• Potential for filing in court along with notice of dismissal
• Timing needed for remediation
• Requires expert advice early in case and collaboration with client
• Expense of remediation can be extensive – many multiples of settlement

amount

• Monitoring procedures
• Need to consider how plaintiff (and client) will monitor ADA compliance
• Consider addressing future regulation changes in the agreement

Questions?

Mark S. Sidoti, Esq. Chris Werely Gibbons P.C. UsableNet One Pennsylvania Plaza 500 7th Avenue, 8th Floor New York, NY New York, NY msidoti@gibbonslaw.com chris.werely@usablenet.com (212) 613-2007 (716) 713-3176