By Minh N. Vu
Seyfarth Synopsis: ADA Title III lawsuits flooded federal courts in 2019 and will likely continue to do so in 2020 with new theories for the courts to consider.
We are still tallying up the end-of-year numbers, but the number of ADA Title III lawsuits filed in federal courts by the end of November 2019 (10,206) exceeded the number of such lawsuits filed in all of 2018 (10,163). California courts continue to be the busiest with roughly 43% of the lawsuits, with New York and Florida courts taking second and third place with 24% and 18% of the market share, respectively. With plaintiffs and their lawyers constantly conjuring up new claims, businesses are not likely to see any relief from these types of suits in 2020.
What types of lawsuits are trending now?
Braille Gift Card Lawsuits. Starting in October of 2019, more than a dozen blind plaintiffs represented by five attorneys have filed at least 243 lawsuits in the Southern and Eastern Districts of New York alleging that retailers and other businesses have violated the ADA and New York state and city laws by failing to offer for sale gift cards that have all the information printed on the cards shown in Braille. These cases are assigned to at least twenty-nine different judges. A firm in southern California has also jumped on the bandwagon, filing Braille gift card lawsuits in California state court and sending out a number of pre-suit demand letters. Most defendants are digging in for a fight so we expect to see many motions to dismiss filed in the first quarter of 2020.
Website and Mobile App Accessibility Lawsuits. Although we are still tallying the numbers, lawsuits alleging inaccessible websites and mobile apps accounted for at least a fifth of the total number of ADA Title III lawsuits filed in federal courts in 2019. Most plaintiffs in these cases are blind and claim that the websites in question do not work with their screen reader software which reads website content aloud. A much smaller number of plaintiffs are deaf and are suing about the lack of closed captioning for online videos.
Plaintiffs continue to file these website and mobile app accessibility lawsuits, though the rate at which they were being filed seemed to slow down in the fourth quarter of 2020. The change may be attributable to the fact that some of the lawyers who were filing many of these website accessibility suits in New York have turned their attention to Braille gift card lawsuits.
The big news from 2019 on the website accessibility front was the U.S. Supreme Court’s refusal to hear Domino’s appeal from a Ninth Circuit Court of Appeals decision allowing a blind plaintiff to pursue his lawsuit against the pizza chain for having an allegedly inaccessible website and mobile app. Businesses had hoped that the Supreme Court would hear the case and perhaps take some action to curtail the tsunami of website and mobile app lawsuits.
In 2019, Plaintiffs also made significant headway in persuading California state courts that inaccessible websites violate the state’s non-discrimination statute, including one appellate affirmation of a judgment in favor of blind plaintiff. In fact, one California Superior Court judge decided that the ADA applies to websites of businesses with no physical location where customers go. In reaching this conclusion, this California judge rejected federal Ninth Circuit precedent that the ADA only applies to websites of public accommodations with a nexus to a physical location.
Hotel Accessibility Information on Reservations Websites. A number of plaintiffs filed lawsuits against hotels for allegedly failing to provide sufficient information about the accessibility of their accessible guest rooms and common areas on their websites, as required by the ADA Title III regulations, to allow travelers with disabilities to make informed decisions about whether a hotel meets their needs. In response to this flurry of lawsuits, many hotels have updated their websites to provide the required information. Now some plaintiffs are filing lawsuits alleging that hotels are not making accessible rooms available for sale on websites operated by third party online travel agencies.
Accessible Hotel Room Dispersion. Title III of the ADA requires hotels to provide accessible rooms in a range of different room types (e.g. rooms with two beds, premium views, suites) so that people with disabilities have room choices that are comparable to those offered to people without disabilities. One plaintiff in particular has filed more than a hundred lawsuits under this theory, and we have no reason to think she will stop in 2020.
Inaccessible Facilities. Historically the most prolific category for accessibility lawsuits, we have continued to see in the lawsuit filing numbers and in our practice many lawsuits about allegedly inaccessible physical public accommodations facilities such as hotels, retail stores, restaurants, and shopping centers in 2019. We do not expect this to change in 2020.
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Edited by Kristina Launey