Note: this post does not constitute legal advice. In responding to any legal actions taken against you, we believe that you should consult your attorney.
Over the past 3 years, the number of private lawsuits filed alleging noncompliance to the ADA has skyrocketed. Whereas the Department of Justice had previously joined many lawsuits on the side of plaintiffs, it has stopped participating under the Trump administration as of 2017. Interestingly, since that point individual plaintiffs have responded by increasing the number of lawsuits filed nearly tenfold annually.
As a direct consequence of this tsunami of “surf-by” lawsuits, the defendants in ADA digital accessibility cases are no longer limited to large chains with a national footprint. Trade publications and local news are full of stories of small businesses caught by surprise when they receive a demand letter or lawsuit. In fact, it is common for plaintiffs to target a group of companies in the same industry or geographic area at roughly the same time.
Why was my company targeted?
We can’t say for sure, but if you receive a demand letter or legal complaint related to your website’s accessibility, it is unlikely (although still possible) that a disabled user happened upon your site, was unable to use it and decided to sue you. More likely, you ended up on a list of targets compiled by the plaintiffs. Since this is a numbers game, it is unlikely that your site has been seriously evaluated; in all likelihood, your site was run through an automated tester and the complaint references those findings.
What will it cost if I lose?
The good news is that plaintiffs are not entitled to any punitive damages under the ADA. If you lose an ADA lawsuit, you will be forced to remediate your accessibility issues and reimburse the plaintiff for their attorney costs. That’s it. (However, lawsuits under state law may provide for other damages.)
This means that you have every incentive to make this go away as soon as possible. The vast majority of cases settle very quickly and many settlements occur before a lawsuit is ever filed. If you do decide to fight the lawsuit, the longer the case goes on, the higher your costs (both to pay your own lawyer and the plaintiff’s legal fees) will be if you do not prevail. Furthermore, unless you can demonstrate that your site is already accessible, you are unlikely to win. Most prominently, Domino’s Pizza recently tried to appeal a loss all the way to the Supreme Court but was unsuccessful.
What if I want to fight this?
Particularly if you had already performed remediation on your website (or built it accessibly in the first place), you may want to contest the suit. Your attorney can advise you on the best steps to take and how you might negotiate this with the plaintiff.
Otherwise, you can attempt to move for the case to be dismissed pre-trial. There have been a small handful of cases where the defendant has been successful in winning early dismissal.
No Concrete Injury
In Mendez v. Apple, the Eastern District of New York federal court dismissed the complaint because it did not contain any specificity as to how the Apple’s alleged lack of accessibility affected the plaintiff. In particular, the judge wrote in her opinion, “There is nothing inherently wrong with filing duplicative lawsuits against multiple defendants if the harms to be remedied do exist and are indeed identical. But those who live by the photocopier shall die by the photocopier.” Serial filers may have learned their lesson in adding more specificity to future complaints.
Those who live by the photocopier shall die by the photocopier.Judge Loretta Preska, Eastern District Court of New York
One of the major benefits of the web is how much easier it has become to do business all over the world without leaving your home; however, the same technology exposes you to ADA claims in courts around the country as well (enabling plaintiffs to file suit in the jurisdictions considered most friendly to ADA lawsuits). You may be able to file to dismissal like Ringling College of Art And Design (in Sullivan, Jr v. Ringling College) if you truly do not transact business in that state.
Your results may vary; on that exact same day, another judge in the same US Federal District Court ruled against Vanderbilt University (in Camacho v. Vanderbilt University) on a very similar motion.
In Diaz v. Kroger, the defendant argued that they had successfully remediated all inaccessible elements on their site. As a result, any barriers previously found by Diaz no longer existed and the plaintiff acknowledged these facts. This could be your best option if you do choose to litigate; after all, you will have to fix your accessibility issues anyways if you lose.
As always, please consult your attorneys.
No matter what, your first step is becoming accessible
Well, maybe you should contact a lawyer first. But either way you’ll have to become accessible. Might as well do it on your own timeline. Settling with one plaintiff doesn’t prevent other people from suing you for the exact same thing.
How can I protect myself?
The best defense is to make your site accessible before you are targeted by a lawsuit. You can start by remediating issues that can appear on automated checkers in order to pass the initial screens that plaintiffs use to identify potential cases. From there, you should proceed to audit your site to catch any remaining ADA violations; if you are nonetheless targeted, youll have a strong basis for defense.