By Minh N. Vu
Seyfarth Synopsis: We predict another busy year on all fronts as DOJ continues to push its regulatory and enforcement agenda.
Lawsuit Numbers. Last January, we predicted that roughly the same number of ADA Title III lawsuits would be filed in federal court in 2022 as in 2021, but halfway through 2022 it became apparent that the numbers would likely be substantially lower. That downward trend continued, and while our diligent research department is waiting for the dust to settle for December numbers before we announce the total for 2022, we are certain that the final number for the whole year will be substantially less than the number of ADA Title III lawsuits filed in 2021. We attribute that decrease in part to the fewer number of filings by one Southern California plaintiffs’ firm (the Center for Disability Access), after the Los Angeles and San Francisco District Attorneys filed a civil lawsuit against the firm alleging fraudulent conduct in connection with its lawsuit activities. The trial court dismissed this lawsuit in August 2022, but the newly-elected San Francisco District Attorney filed an appeal in November 2022, so the matter is far from over. Stay tuned for our final 2022 ADA Title III federal lawsuit count and more analysis in the coming weeks.
For 2023, we think the number of lawsuits filed in federal court will increase as certain plaintiffs’ firms regroup and new plaintiffs and firms continue to enter the scene.
Physical Barrier Lawsuits. If the past is any indication, lawsuits concerning physical access barriers at public accommodations facilities will continue to be the most common type of ADA Title III lawsuit. Hotels, shopping centers, restaurants, and retail stores continue to be the most popular targets, particularly for those serial plaintiffs. We continue to see lawsuits and demands from some serial plaintiffs whose disabilities are highly questionable. The most common barriers alleged in these lawsuits pertain to accessible parking, loading zones, public restrooms, sales counters, accessible tables, and aisle width.
Website-Related Lawsuits. In 2022, we continued to see large numbers of private lawsuits filed in federal and state courts, as well as demand letters, about website accessibility. We also saw the beginnings of renewed efforts by DOJ on the regulatory (discussed here and here) and enforcement front concerning accessible websites. A few notable court decisions issued in 2022, including an unceremonious end to the Winn-Dixie and Domino’s sagas, a few pro-defendant standing, class cert, physical nexus, and anti “serial plaintiff” decisions. What does 2023 have in store?
Website Accessibility Lawsuit Numbers. We are still finalizing our count of lawsuits filed last year in federal court concerning websites that are allegedly not accessible to the blind, but a preliminary peek suggests that over 3250 such lawsuits were filed — a significant jump from 2021. As in prior years, the vast majority of these lawsuits were filed by only a handful of law firms, overwhelmingly based in New York. We predict the number of these suits filed in 2023 will be comparable to 2022. We will be taking a closer look at this increase in another post later this month.
“Tester” Standing. “Does a self-appointed Americans with Disabilities Act ‘tester’ have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?” This is the question the defendant hotel has asked the U.S. Supreme Court to decide in Acheson Hotels, LLC v. Laufer. The First Circuit Court of Appeals in Acheson had answered this question in the affirmative, putting it at odds with other circuits which have reached the opposition conclusion. The Second and Tenth Circuits, for example, have held that a plaintiff’s encounter with an ADA violation found on a website of a public accommodation does not automatically confer that plaintiff with standing to sue unless there are downstream consequences resulting from the violation. These courts require a plaintiff to show that the plaintiff wanted to patronize the public accommodation but could not because of the ADA violation on the website.
While Acheson is a case about the alleged lack of accessibility information on a website (i.e., a deficient content issue), the question presented is also relevant to lawsuits in which plaintiffs with disabilities claim they could not use/navigate a website due to digital barriers. In the Second and Tenth Circuits, as noted above, these plaintiffs would have to show that they wanted to patronize the public accommodations but could not because of digital barriers on their websites.
The Supreme Court will decide whether it will hear the case in January 2023.
Online-Only Businesses. Online-only businesses will likely see fewer ADA lawsuits in California in 2023 because in 2022, the California Court of Appeals agreed with the federal Ninth Circuit Court of Appeals that a “public accommodation” under the ADA must be a physical place where goods and services are offered. (The California Supreme Court declined review of the decision.) Thus, only websites that have a nexus to a business with a physical location where goods and services are offered to the public are subject to Title III of the ADA. With both state and federal courts in California now aligned in their interpretation of the ADA on this issue, plaintiffs will face a significant barrier in suing online-only businesses in California for violations of the ADA or Unruh Act. (In lawsuits based on disability discrimination, plaintiffs can establish violations of the Unruh Act by proving either a violation of Title III of the ADA or intentional discrimination.)
Hotel Reservations Websites. In late 2020 and early 2021, the aforementioned Center for Disability Access filed over 550 lawsuits in federal court alleging that hotels had failed to disclose sufficient information about the accessibility of their hotels as required by ADA regulations. After suffering over 90 defeats in district court and then in the Ninth Circuit Court of Appeals, the firm voluntarily dismissed nearly all of these suits in 2022. In its decision, the Ninth Circuit endorsed the interpretation of the regulation that had been implemented by lodging industry leaders back in 2012 when the regulation became effective. While we saw a very small handful of these cases filed in 2022, new lawsuits of this type are unlikely because most U.S. hotels comply with the Ninth Circuit’s direction.
U.S. Department of Justice Enforcement Actions. Last January we predicted the DOJ would be busy enforcing the ADA in 2022, and we were right. The DOJ filed two enforcement lawsuits under Title III: One concerning architectural barriers at Wrigley Field in Chicago and another against a number of eyecare facilities for refusing to provide transfer assistance to patients who use wheelchairs. The DOJ also entered into at least fifteen settlement agreements or consent decrees in 2022 resolving many different types of alleged ADA Title III violations. These resolutions included a multi-million dollar settlement with a rideshare app company to resolve claims that the company failed to waive wait time charges for passengers with disabilities, a settlement with a Rhode Island university regarding its student medical leave policies, a settlement with a New York university regarding accessible student housing, and settlements with three retailers concerning the accessibility of their vaccine appointment scheduling websites. The DOJ also filed one Statement of Interest in which it maintained that plasma donation centers are places of public accommodation covered by Title III of the ADA.
The DOJ was equally busy enforcing Title II of the ADA, which imposes obligations similar to Title III of the ADA on state and local governments. One of the most notable ADA Title II resolutions was the DOJ’s comprehensive agreement with UC Berkeley about its website and other online content. Other universities, both public and private, should take note.
All of these enforcement activities are set out on the DOJ’s website.
Regulatory Developments. We will see continued rulemaking activity by DOJ and the U.S Architectural and Transportation Barriers Compliance Board (Access Board) on website accessibility, medical diagnostic equipment, and kiosks in 2023.
Websites: As we previously reported, the DOJ announced in July 2022 that it would be issuing a Notice of Proposed Rulemaking (NPRM) (essentially, a draft regulation) in April 2023 setting forth the accessibility requirements for state and local government websites under Title II. This has just been pushed back to May 2023. Given its dismal track record of issuing any regulations on the subject of accessible website for the past decade (including many missed deadlines), it will be interesting to see if DOJ actually meets this revised target date. If DOJ does issue proposed regulations for state and local government websites under Title II of the ADA, it is likely the agency will later using those as a framework for regulations covering public accommodations under Title III of the ADA.
Medical Diagnostic Equipment: DOJ has also announced that it will be issuing a Notice of Proposed Rulemaking for Medical Diagnostic Equipment in April of this year. This rule, if finalized, would make the Standards for Medical Diagnostic Equipment (MDE) previously issued by the Access Board into binding legal standards for health care providers covered under Title III of the ADA. Health care providers should be on the lookout for this NPRM and be ready to comment on the proposed rule.
Self-Service Kiosks: Meanwhile, the Access Board will be busy this year reading public comments filed in response to its Advance Notice of Proposed Rulemaking (ANPRM) on the accessibility of self-service kiosks. It recently announced that a proposed rule will issue by November 2023. As we explained in a prior post, the Access Board is responsible for issuing technical standards which are not legally binding on public accommodations until the DOJ incorporates them into its regulations through a separate rulemaking process. Thus, the Access Board’s ANPRM, and subsequent proposed rule, for self-service kiosks is the first step of a lengthy regulatory process.
2023 will likely be another busy year in the ADA Title III space. We will be here to provide our insight into the latest developments. Happy 2023 from The Seyfarth ADA Title III Team! Edited by Kristina Launey