As the ADA Turns 27, Recent Developments Suggest No End to Website Accessibility Lawsuits

Today marks the 27^th Anniversary of the Americans with Disabilities Act (ADA).  Unfortunately for businesses, two recent developments in the context of website accessibility suggest that there is no reason to celebrate and every reason to believe the ever-increasing wave of demand letters and lawsuits in this area will continue unabated.

First, in Lucia Marett v. Five Guys Enterprises LLC (Case No. 1:17-cv-00788-KBF), the U.S. District Court for the Southern District of New York has finally issued a decision directly speaking to the applicability of Title III of the ADA (Title III) to websites, denying Five Guys’ motion to dismiss, and holding that Title III does indeed apply to websites.  Facing a class action lawsuit brought by serial plaintiff, Lucia Marett, Five Guys sought to dismiss the claim that its website (which, among other things, allows customers to order food online for delivery or pick up at its brick and mortar stores) violated Title III and related state/local statutes because it is inaccessible to the blind, on the grounds that Title III does not apply to websites and, even if it did, the case was moot because Five Guys was in the process of updating its website to provide accessibility.  The Court rejected Five Guys’ arguments.  Citing both the text and the broad and sweeping purpose of the ADA, the Court held that Title III applies to websites – either as its own place of public accommodation or as a result of its close relationship as a service of Five Guys’ restaurants (which the court noted are indisputably public accommodations under Title III).  Further, the court was unmoved by Five Guys’ ongoing efforts to make its website accessible because they had yet to successfully do so and there was no absolutely clear assurance that further accessibility issues would be avoided.  The fact that the Court leaves open the possibility that a website conducting business only in cyber-space might have to comply with Title III is troubling as, to date, that position had remained an outlier, being only adopted by a couple of district courts.

Second, the Trump Administration has finally released its first Unified Regulatory Agenda and – in accordance with its goal of reducing the number of federal regulations – the private sector website accessibility regulations, most recently earmarked for 2018, have been marked as “Inactive.”  The potential for website accessibility regulations has long been one of the factors mitigating against website accessibility lawsuits.  With no reasonable expectation for such regulations in the near future, the courts will continue to serve as the primary forum for the development of this body of law.

These developments, taken in tandem with the recent post-trial verdict for Plaintiff’s in the Winn-Dixie litigation and the recent Hobby Lobby decision further devaluing various jurisdictional and due process defenses may create a perfect storm further emboldening an already aggressive plaintiff’s bar to continue to push website accessibility demands and lawsuits.  Indeed, in recent weeks we have not only seen another surge in the number of such actions being filed, but regular players in this space are using these decisions to push for greater settlement values, and new “copycat” players are starting to enter the fray.

Given the current climate, the best way for companies to try and avoid these litigations remains promptly taking legitimate and comprehensive steps to make their websites accessible.  This is particularly true for companies whose websites are tied to brick and mortar places of public accommodation but, now, may in some contexts and jurisdictions apply equally to cyber-only businesses.  Companies interested in taking such steps should conduct website accessibility audits (both user-based and code-based; and not simply running an automated scanning tool); add website accessibility obligations into vendor agreements; adopt and implement a website accessibility policy; and conduct training for necessary parties.  To the extent such efforts do not prompt plaintiffs to target other websites, they will certainly improve companies’ leverage for settlement negotiations and/or strategies for defending against litigations.