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Sunday, July 21, 2019

Website accessibility suits surge in Florida, New York, following favorable plaintiff rulings


By John Breslin | Feb 11, 2019

The number of website accessibility lawsuits filed in federal court has exploded, with the greatest numbers being filed in New York and Florida, according to a new study.

Conducted by attorneys at Seyfarth Shaw, the report found that the number of suits claiming violation of Title III of the American with Disabilities Act has increased by 177 percent, from 814 in 2017 to 2,258 last year.

In 2018, a total of 1,564 were filed in New York and 814 in Florida, according to the authors of the report, Kristina Launey and Minh Vu.

Launey and Vu

The authors note that statistics for New York's website accessibility lawsuits are "a close second" to California which holds claim to the total number of ADA Title III lawsuits - not just website accessibility cases - filed in federal court.

According to Launey and Vu, plaintiff lawyers re-directed new website accessibility cases to California state court after a federal judge at the Central District of California dismissed a suit against Domino's in 2017.  

But in the wake of a pro-plaintiff ruling out of the Ninth Circuit last month, things could change and federal courts in California could once again be a haven for website accessibility suits, according to Launey and Vu.

On Jan,15, the Ninth Circuit found in Robles v. Domino's Pizza that the company's website was a service of a "place of public accommodation" and must be accessible under the ADA. 

Domino's had argued that the failure of the Department of Justice to offer any guidance on the ADA status as related to website accessibility violated its right to due process, but the appeals court was not persuaded.

"The fact that the California federal courts only had ten website accessibility lawsuits filings in 2018 may be a surprise to some since California continues to lead the pack in the number of all ADA Title III lawsuit filings in federal court," the authors wrote. 

"We predict that the Ninth Circuit’s ruling will cause the number of website accessibility lawsuits in California federal courts to increase dramatically in 2019."

Accessibility suits largely allege that plaintiffs with a disability cannot use websites because they do not have screen readers or other technology that allowed access.

Under Title III of the federal ADA law, brick and mortar businesses that are open to the public must provide people with disabilities the same access to “goods, services, facilities and accommodations.”

But the law relating to website accessibility is still to be decided, in spite of recent rulings in Florida and New York that have been favorable to plaintiffs.

In the small number of cases where rulings have been handed down, courts have split.

New York has witnessed an explosion in suits because of two findings favorable to plaintiffs, Launey told the Florida Record.

The report indicates that suits filed in New York are brought primarily by 15 law firms and lawyers. The lawyers appearing most frequently on filings are Joseph Mizrahi, Jonathan Shalom, Doug Lipsky, C.K. Lee, Bradley Marks, and Jeffrey Gottlieb, the report says.

Mizrahi has filed 411 suits in a federal court in Manhattan on behalf of 13 visually impaired people, according to the New York Daily News. Two plaintiffs have sued close to 90 separate companies, the newspaper reported in September.

Launey said that any business that provides a service or goods is at risk in facing a website access lawsuit. Most of those filing suit are legally blind.

Two rulings out of the Eastern District of New York - Five Guys and Blick Art - held that websites are public accommodations under the ADA. This went further than previous rulings that held there must be a connection, or "nexus" between the physical and web sites.

In the Five Guys case, the court stated that even if a company is moving to improve website accessibility, or even has completed the work, that does not guard a business against a lawsuit. In Blick Art, it was found that online-only operators must abide by ADA accessibility provisions.

The Eleventh Circuit, which includes Florida jurisdiction, is considering a key case against Winn-Dixie, Launey said. It was the first suit to go to trial, with a federal district court ruling in favor of the plaintiff.

After a two-day bench trial, District Judge Robert Scolar at the Southern District of Florida ruled that the company was in violation as its website did not allow Juan Carlos Gil was to use his text to speech software to access the company's wares. Winn-Dixie is appealing.

The ruling held that Gil did not have the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations." It required Winn-Dixie to make its website access and ordered the defendant to pay attorney fees.

However, the judge did not rule on whether the website itself is a "public accommodation," rather finding that the online presence and the brick and mortar were "heavily integrated" and therefore the suit was covered by the "nexus" requirement.

Launey said rulings in New York and Florida have emboldened attorneys and plaintiffs, with a wide variety of businesses being targeted.

Casinos, racetracks, retirement homes and wineries have all been sued by lawyers in New York and Florida.

Last summer, a group of senators and representatives wrote to the DOJ asking for clarification. 

Launey said is not clear whether any defendant will want to ask the U.S. Supreme Court to review the decisions by the circuit appeal courts.

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