Americans With Disabilities Act (ADA)-based discrimination claims alleging inaccessibility of business websites have exploded onto the scene over the last several years as one of the latest entrants into the so-called “drive by” (or, in this case, “surf by”) ADA litigation trend. Thousands of these claims, usually involving visually impaired persons, were filed nationwide in 2018, primarily in New York, Florida and Pennsylvania, with more than 1,500 cases clogging the dockets of the Southern and Eastern Districts of New York. Every business with a consumer-facing website is at risk. The claims reach far beyond retail businesses, hitting the food services, real estate, financial services, higher education and entertainment industries. Since 2016, a series of plaintiff-friendly federal district and circuit court decisions has presented even further challenges to the defense of these claims. Defense of ADA website claims calls for a very practical approach, undergirded by an in-depth knowledge of defenses that are likely to prevail and those that are no longer viable. This article will discuss the current state of the law and focus on practical strategies for resolving ADA website claims.

The Current State of the Law

The genesis of ADA website claims and how they have proliferated have been discussed in many prior articles and will not be repeated here. See, e.g., Mark S. Sidoti, et al., Navigating Website Accessibility Claim, NYLJ (March 20, 2017). In sum, Title III of the ADA states in pertinent part: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.” 42 U.S.C. §12182(a). While the ADA's statutory language does not address websites, the U.S. Department of Justice (DOJ), the agency responsible for regulating and enforcing the ADA, has long considered websites offering goods or services to consumers to be “places of public accommodation,” which must be accessible to the disabled. See 75 Fed. Reg. 43, 463. The DOJ, and now many courts, have accepted the Web Content Accessibility Guidelines (WCAG) 2.0, which were developed by the World Wide Web Consortium, as the applicable standard for website accessibility compliance, although many have rightly complained that guidelines provide insufficient clarity for remediation and ongoing compliance purposes. Regardless, over the past several years, an entire industry of website accessibility compliance professionals has developed to assist companies with meeting the WCAG guidelines.

The fairly prolific body of case law that has developed around ADA website compliance since 2015 has been almost universally pro-claimant. For example, regarding the threshold issue of whether websites can be construed as providing “services of a place of public accommodation” in accordance with the ADA, almost every District Court to address the issue, and now the Ninth Circuit, has held that they that can and should be where the sites' inaccessibility impedes access to goods and services of physical locations. See, e.g., Robles v. Dominos, 2019 U.S. App. LEXIS 1292; Andrews v. Blick Art Materials, 268 F. Supp. 3d 381, 2017 U.S. Dist. LEXIS 121007, 2017 WL 3278898, (E.D.N.Y. 2017); Markett v. Five Guys Enters., No. 17-cv-788 (KBF), 2017 U.S. Dist. LEXIS 115212 (S.D.N.Y. July 21, 2017); Del-Orden v. Bonobos, 2017 U.S. Dist. LEXIS 209251 (S.D.N.Y. Dec. 20, 2017) Robles v. Yum! Brands, 2018 U.S. Dist. LEXIS 13247, 2018 WL 566781 (C.D. Cal. Jan. 24, 2018); Gil v. Winn-Dixie Stores, 257 F. Supp. 3d 1340, 1348-49 (S.D. Fla. 2017), appeal docketed, No. 17-13467 (11th Cir. Aug. 1, 2017). While a split has developed among the courts regarding whether all websites must comply with the ADA (First, Second, and Seventh Circuits) or only those with a “nexus” to brick-and-mortar operations (Third, Sixth, Ninth, and Eleventh Circuits), this distinction is becoming increasingly blurred in light of the recent trend of certain influential courts, such as those in the Second Circuit, to generally apply the statute to web-based business operations even in the absence of clear connections to related physical facilities. The most recent pronouncement on ADA website claims comes from the Ninth Circuit Court of Appeals in Robles v. Domino's Pizza, No. 17-55504, 2019 U.S. App. LEXIS 1292 (9th Cir. Jan. 15, 2019), where the court reversed a rare summary judgment decision in favor of Domino's and rejected a number of commonly asserted defenses. To date, this is the highest court to speak directly to the applicability of the ADA to websites, making the opinion highly influential.

In New York, the district courts have clearly spoken on these issues, holding that the ADA applies to commercial websites even in the absence of connections to physical locations. One of the most exhaustive analyses appears in Bonobos, 2017 U.S. Dist. LEXIS 209251, *27, where Judge Engelmayer noted that “the term 'public accommodation' in Title III extends to private commercial websites that affect interstate commerce” and concluded that a connection to a physical location is unnecessary.

For practical purposes, however, the “nexus” analysis is often moot, because most entities that have been sued use websites to facilitate access to the goods and services they offer at the company's physical locations. Courts have also repeatedly addressed, and in most cases rejected, defense arguments centering on violation of defendants' due process rights pertaining to the compelled compliance with the private WCAG; the primary jurisdiction of the DOJ to address website accessibility and formally adopt the WCAG; and mootness or standing based, for example, on a company's ongoing remediation efforts before the claim was filed (sometimes undertaken in response to an earlier asserted claim).

How the Claims Are Being Asserted

When ADA website claims first surfaced, the handful of plaintiffs' law firms pursuing them would often begin the process with detailed demand letters to the target entities, describing the ADA requirements and why they allegedly applied to the targets' websites, and demanding remediation of the websites and payment of lump sums for counsel fees and costs incurred. In recent years, plaintiffs have moved away from the demand letter approach. In 2017 and 2018, most claims have been initiated by the filing of lawsuits seeking injunctive relief (i.e., remediation of the websites) and counsel fees; the ADA does not permit plaintiffs to recover monetary damages, though some analogous state and local discrimination statutes do allow plaintiffs nominal monetary recovery. Many of these claims, particularly in 2018, have been styled as class actions, seeking relief on behalf of a putative class of vision impaired individuals.

For many reasons, these claims now dominate the “shake down” litigation market. Plaintiffs' counsel take advantage of the fact that these boilerplate claims are sympathetic, inexpensive to pursue, and difficult to defend. They are often “back burnered” by companies with more pressing legal and business challenges and deemed not worth the investment of significant defense costs. Plaintiffs' counsel are also aware that the vast majority of corporate websites are not compliant with WCAG 2.0, something easily determined by remote website evaluation tools which provide a baseline of non-compliance. While these attorneys often claim to monitor the court dockets in an effort to avoid suing companies that have been previously targeted, it is becoming increasing common to encounter companies that are sued more than once by different plaintiffs even after they have settled initial claims and agreed to remediate their websites. These follow-on claims are a result of several factors, including the fact that most website remediation projects take months and often years to complete, so a non-compliant website remains at least partially inaccessible to other potential claimants during the post-settlement remediation period, and that, for a larger company, its corporate websites other than the one originally targeted are not being remediated after the initial settlement. While plaintiffs intend that these claims be settled quickly, which also is often the preferable approach for the target companies, the costs involved include not only the counsel fee demand paid to the plaintiffs, but defense costs and, most significantly, the costs of website auditing and remediation, which can outstrip legal fees by many multiples.

Considerations When Defending Against Claims

In light of this bleak landscape, companies are increasingly recognizing that ADA website lawsuits are more than a nuisance “can” that they can kick down the road, or leave to their IT personnel to address. That said, targeted companies can take some solace that these claims can be efficiently and economically resolved by counsel experienced in this area. Some practical steps for handling these cases include:

• Assume your company will be sued. Scores of these lawsuits are being filed every day. If you have a consumer facing website, you are a target.

• Proactively check your website. Take steps to evaluate your website for compliance with WCAG 2.0 and general accessibility to the vision and hearing impaired before you face a claim. There are many consultants specializing in website compliance that can assist with such an audit. Establish a baseline and understand your site's deficiencies. If you are rebuilding your website, or plan to, incorporate accessibility coding into the new platform.

• Once on notice, do not ignore the complaint. Consult counsel experienced in this area who understand the current state of the law and the practicalities in defending these cases. Once a complaint is filed, time is of the essence – you will lose some degree of control over the timing of remediation and the consequences for inaction. Most cases in which the target entity has a clearly non-compliant website settle within two to six months, and most settlements are negotiated in the pre-answer period. Allowing a matter that should, and ultimately will, settle to proceed to a default, or even to a responsive pleading and mandatory initial court conferences, only serves to increase the plaintiff's counsel fee and expenditures that will be demanded when the case ultimately settles.

• Consult knowledgeable counsel regarding available defenses in the jurisdiction. As noted, numerous prior defendants (as well as amici in high profile appeals) have invested their time and money to test the boundaries of ADA website claims, and many of the obvious defenses to these claims have been thoroughly addressed in precedential district and even circuit court opinions. Understanding these prior decisions, and those issues currently on appeal, is critical when evaluating whether and on what basis claims might be challenged. There is nothing worse than embarking on a challenge that will cost thousands in legal fees yet is doomed to failure, particularly in these cases where accrued legal fees of the claimant are potentially recoverable as part of any settlement.

• Understand the nuances of the settlement process, including terms relating to elimination of class exposure, res judicata, follow on claims, private vs. public (e.g., filed consent decree) settlement agreements, time frame for remediation, embedded website links and confidentiality. While the basic injunctive elements of settlement agreements in these cases are similar (e.g., remediation to bring the target site within WCAG 2.0 AA standards), there are many negotiable terms that can provide a defendant with added layers of protection from ongoing compliance obligations, future claims of breach of the settlement agreement or follow on claims by other plaintiffs. Some of these negotiation points are counter-intuitive from a defense perspective, most obviously the benefits of a non-confidential settlement that can be freely disclosed to fend off future claims. Also, experienced counsel will know the usual players on the plaintiffs' side, understand the issues they are willing to negotiate, and have insight into how the assigned judge has handled the resolution (or continued litigation) of these cases.

Given the current state of the law, it appears that the onslaught of ADA website accessibility claims will continue. Taking steps now to recognize the challenges these claims present, and how to mitigate them, will pay dividends down the road.

Mark S. Sidoti is a commercial and products liability litigator at Gibbons and chair of its e-discovery task force.