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Fending off digital accessibility lawsuits is not only a totally different game from any other kind of risk your business might have faced: it is also a game where a replay, or rematch, can occur whether you win or lose. To win this game, it’s important to understand the legal game board and players’ incentives.

You don’t want to be playing Candy Land when plaintiffs and their lawyers are playing chess. It will only cost your company in legal fees (your own and plaintiff’s), not to mention settlement payouts, and costly damages under some state accessibility statutes, like in California and New York.

Also, your current lawsuit may only be the first round, and you may even know that already because your company has been named in one of these suits before.

The Americans with Disabilities Act of 1990 (ADA) provides a host of civil rights protections for individuals with disabilities. However, as the act was passed before the prevalence of the internet, the ADA does not contain any language requiring websites, mobile apps, or video content to be accessible.

So, what are all these accessibility lawsuits about? Well, Title III of the ADA requires places of Public Accommodation, which is a laundry list of brick-and-mortar establishments and similar places, to be accessible “if the operations of such entities affect commerce”, with commerce being defined as:

Travel, trade, traffic, commerce, transportation, or communications

  • (A) among the several States;
  • (B) between any foreign country or any territory or possession and any State; or
  • (C) between points in the same State but through another State or foreign country.

Sounds like this may include websites and apps, but does it? Does it include e-commerce sites? Art galleries? Catalog sites that have no ability to purchase online?

Over fifteen years ago, lawyers representing disabled persons began to test the waters by filing digital accessibility lawsuits. Since then, courts across the country are divided as to whether inaccessible websites, mobile content, or video content can be considered either a Public Accommodation on their own or when connected to a brick-and-mortar establishment affecting commerce as defined by Title III of the ADA.

As for legislation or regulations, there is no Congressional act, U.S. Supreme Court decision, and/or clear and specific U.S. Department of Justice guidelines on web accessibility under the ADA.

All of these legal gray areas, coupled with the ADA’s attorney’s fees provision favorable to plaintiffs, has fueled a small, but productive group of drive-by lawyers who churn out “copy-and-paste” or “fill-in-the blank” Mad Libs lawsuits, creating an explosion of web accessibility lawsuits in courts that have been favorable to plaintiffs in these suits.

Further, the ADA does not require a notice to be issued to a defendant before filing a complaint and it is not necessary to file a complaint with a federal agency or to receive a “right-to-sue” letter before going to court with an ADA lawsuit, requirements that would stem quick-to-file plaintiffs’ attorneys.

Record Number of ADA Digital Accessibility Lawsuits Being Filed

ADA Title III claims hit a record number in 2021 with 11,452 federal lawsuits filed. Over 4,000 of those Title III lawsuits involve inaccessible digital content on company websites and mobile apps. What is most shocking is that in 15% of these lawsuits the defendant was previously sued in a digital accessibility lawsuit.

That means last year almost 500 companies were repeat defendants. The pace of digital accessibility lawsuits is only increasing. In May 2022, 466 digital accessibility lawsuits were filed, with the repeat defendant rate holding constant at around 15%.

Why are companies being hit with multiple lawsuits? Being sued once is enough and should be the limit. However, there is no legal prohibition on being sued by a different plaintiff in another digital accessibility lawsuit, especially if your company has multiple websites.

Moreover, your Company doesn’t have to be situated in the state where a suit is filed.

While settling lawsuits may mitigate costs on a singular basis, there are no assurances of escaping future liability if web content is not ultimately brought into compliance with the Web Content Accessibility Guidelines (WCAG), the accessibility standard cited by courts in ADA digital accessibility cases.

UserWay’s technology and services are the best-in-class solutions to meet the latest WCAG standards. And nobody knows these standards like UserWay. Our COO, Dr. Lionel Wolberger, is an active member of the W3C Accessibility Platform Architectures Working Group where he also co-chairs a Task Force on behalf of the international standards body at the W3C that leads the codification of disability standards.

What’s in it for plaintiffs? The ADA prohibits plaintiffs from collecting monetary damages, and we’ve heard stories of plaintiffs receiving a small amount, like $500, from settlement funds. However, state laws like California’s Unruh Civil Rights Act mandates $4,000 per violation.

Either way, under the ADA or state statutes, filing volumes of digital accessibility lawsuits can be lucrative with minimal work. Serial plaintiffs will enter a company’s website URL into an online accessibility checker which generates an error report of WCAG violations.

Attorneys can quickly file an already drafted complaint, making minimal changes to the text.

Defendants who lose an ADA Title III lawsuit are most likely to be on the hook to cover exorbitant legal fees, which provide attorneys and law firms clear incentives to readily represent these clients. Just 27 law firms are responsible for the thousands of digital accessibility violation lawsuits filed nationally.

Possible Relief from Predatory ADA Lawsuits on the Horizon?

There is some hope that a change in pace for repeat ADA lawsuits is on its way. Many federal courts appear to be ratcheting up standards for what ADA-based claims they’re allowing to move forward.

In March 2022, the U.S. Court of Appeals for the Second Circuit in New York upheld a district court’s ruling that a man could not sue a franchise for not providing adequate descriptions of accessibility accommodations on its hotel websites.

The Second Circuit ruled that because the man had no intent of using the webpage’s information to visit the establishment in question, he had no standing to file his claim.

However, other federal districts have been more amenable to these lawsuits. These discrepancies are no assurance or absolute deterrents of future lawsuits, but they do indicate the Supreme Court may be forced to review the issue and hand down a concise ruling.

Real Compliance is the Greatest Hedge

Now that you understand the game and players, you’re ready to learn how to win. Plaintiffs’ lawyers are well versed in accessibility tech, and your actions can quickly signal “amateur hour” to them, even if you have experienced counsel.

With your existing lawsuit, UserWay can provide you with timely legal intelligence and strategic talking points. Accessibility assessment is highly complex, with the serial-filing firm having the advantage of having played this game many times before. They follow a playbook of wielding WCAG success criteria as bludgeon to coerce you into settling.

UserWay levels the playing field. Once you share with UserWay the complaint and any other communication you have had from the Plaintiff and their counsel, UserWay brings its expertise and extensive experience to bear. You receive a free advisory report with the information you and your counsel need to respond.

If your company ends up entering into a settlement agreement or a court order is issued, they will both most likely require your company to get its website in compliance with WCAG 2.0 or 2.1 standards, and they could soon upgrade expectations when newer versions are released. These standards are rigorous and technical, and most companies will require some sort of third-party assistance in achieving compliance.

Thanks to innovation, there are now extremely cost-efficient and fast pathways to ADA and WCAG compliance. UserWay’s AI-Powered Accessibility Solution allows companies to get on track in just a matter of clicks and is trusted by many of the most prominent brands online.

All AI technology does require a human-in-the-loop, or as we call it, an “accessibility lead” to ensure that your website is as compliant it can be. UserWay’s Managed Accessibility takes this chore off your hands with our best-in-class accessibility tech professionals constantly monitoring and protecting your website. UserWay’s customers also receive a monetary guarantee.