BOCA RATON - A small Vermont firm selling snow shoes and other winter equipment has found itself in the cross hairs of a Florida law firm demanding settlement over claims of discrimination against disabled people.
The demand that arrived at Dion Snowshoes surprised the owner, but it is part of a growing trend as companies are targeted by attorneys claiming websites are not accessible under the Americans with Disabilities Act (ADA).
It was purportedly sent by the Berman Law Group of Boca Raton, Fla., and included a draft settlement demanding the North Bennington, Vt, company upgrade its site to comply with ADA requirements, and pay attorney fees and costs.
The letter states: “In lieu of formal litigation, we propose that the parties engage in settlement negotiations on an expedited basis, with the goal of achieving an enforceable settlement agreement providing for injunctive relief, and reasonable attorney's fee and costs.”
The Berman Law Group did not respond to phone calls and emails asking for confirmation that the demand did indeed come from its office, and any further comment.
Under the ADA, businesses, higher education and other institutions must be accessible to those with disabilities. In recent years, there has been increasing debate over online accessibility, and how businesses and institutions can comply with the ADA provisions.
The Department of Justice has sided with disability groups in arguing that websites are public spaces, or accommodations, and must be generally accessible per the ADA, according to Walter Olson, a senior fellow with the libertarian Cato Institute.
But, Olson said, the courts have not been unanimous in their judgments as to what measures, if any, businesses and institutions must take to comply with the ADA when it comes to website accessibility.
“This may be decided by the Supreme Court,” Olson told the Florida Record.
Lawsuits linked to the ADA Title 111, filed by national disability groups and attorneys on behalf of individual clients, are increasing.
As of the end June, the number of lawsuits filed in federal court was 3,435, up 63 percent from last year’s mid-year number of 2,114, according to the website, adatitle111lawsuit.com, which tracks cases.
“To put the numbers into perspective, more lawsuits were filed in the past six months than were filed in all of 2013 when there were a mere 2,722 lawsuits,” the website opined, adding that three states with the most lawsuits are California, Florida and New York.
While small, the number of lawsuits over websites, is growing. In the first two months of this year, there were 61 filed, compared to 40 for the whole of 2015. An unknown number of demands for settlement have been sent to businesses.
In the letter purportedly sent by the Berman Law Group, a named attorney told Dion Snowshoes: “We represent disabled individuals throughout the United States who use the Internet to facilitate their access to goods and service.”
It continued, “Before you incur significant cost by engaging outside experts of your own, we invite you to first contact us directly to explore a far more cost-effective and pragmatic approach to resolving these issue.”
Further, the law firm stated it has conducted a “preliminary investigation working with prominent national experts and determined that your website has significant failures which limit accessibility for individuals with various disabilities.”
Bob Dion, owner of the winter equipment store, said he contacted the Vermont attorney general’s office and other groups, but is still not sure what is going on.
“We are a very small company, and nobody can figure out why they were going after us,” Dion told the Florida Record. “We have been pretty much advised it should go away. But nobody can figure it out. There are too many red flags. One big tip off is there is no person (who) filed these claims.”
Dion said that nobody in Florida tried to access the Dion Snowshoes website over the summer, prior to the company receiving the letter, dated Aug. 26.
The businessman sounded annoyed in a telephone interview as his company has deaf customers that use other devices to get in touch. And, he said, Dion Snowshoes supports handicapped associations and wounded warriors.
“It makes no sense,” said Dion. “We are not going to do anything unless we get backed into a corner. If they put us out of business, I will make their life a misery. Otherwise it’s not worth wasting time over.”
Olson, of the Cato Institute, said he knows of similar situations, including one attorney in Pittsburgh who went after real estate companies, dozens of them, for failing to caption videos of homes on the market.
He added, “In general, the ADA does not require a person to actually want the service, and a business can be sued by absolutely anyone, someone who does not have a sincere desire to use your product.”
The uptick in lawsuits and demands over accessibility to websites is a continuation of what has been happening in connection with brick and mortar businesses.
“I know of lawyers who walk up and down a main street, looking for every violation,” said Olson, citing one case where a teenager in a wheel chair went to a swimming pool maintenance store and a liquor store. And the plaintiff did not have a swimming pool, and was not able to drink, said Olson.
“Part of the problem with the ADA is that in some cases the lawyers are the real actors,” Olson argued. “They make the demands and if businesses do not quickly correct them, the lawyers can then bring around the complainant.”