Scales of Justice

Digital Accessibility Case Filings Rebound in October/November after September Dip

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While the decline in case filings in September may lead some to think the current wave of web accessibility litigation might be petering out, an analysis of cases filed in October and November shows the lull was temporary at best.  

October and November each brought a record-breaking number of new web accessibility cases, with 223 and 241 filings respectively, nearly equal to the 470 cases filed during the entirety of Q3. 

October 2018

At least 223 digital accessibility lawsuits were filed in federal court in October 2018, an 83% increase from September’s low. As in prior months, the vast majority of cases were filed in New York and Florida, although a small number of cases were also filed in Pennsylvania and California. 

ADA Lawsuits in October 2018 Breakdown By State: 129 New York, 85 Florida, 5 Pennsylvania, 4 California * 132 of the 223 lawsuits were class action lawsuits which is 59% * 122 were in September and 223 in October which is a 83% increase from September 2018.

New York represented a slim majority, with 129 new cases filed in October (57.8%), eclipsing Florida after a particularly weak September. Florida, on the other hand, stayed constant with 85 cases (38.1%). Pulling up the rear, Pennsylvania had 5 and 4 filings, respectively, each representing about 2% of October cases. 

October also saw an uptick in class actions. With 59% of cases filed as class actions, this was a significant increase from September (45%), roughly on par with August. The decline—and subsequent rise—in class actions corresponds with the decline during September in cases filed in New York, where most web accessibility class actions are filed. 

ADA Lawsuits in October 2018 Breakdown By Industry: Retail/Consumer Products 80, Hotels 48, Restaurants/Food Manufacturing 26, Consumer/Business Services 17, State and Local Government 13, Automotive/Transportation 10, Banking/Financial Services 8, Education 5, Hospitals/Healthcare 5, Media/Telecommunications 4, Real Estate 4, Other 3. In October, the Other category included lawsuits in Oil and Gas, Auction Houses, and Telecommunication Services industries.

Consumer-focused industries once again dominated those hit hardest by web accessibility complaints. The top three sectors—Retail and Consumer Products, Hotels, and Restaurants and Food/Beverage Manufacturing—accounted for over just over two-thirds of cases filed (69%). 

After dipping into second place in September, Retail and Consumer Products once again leads the list, with 80 lawsuits (36%). This represents a 116% increase from the 37 cases filed in September. As in prior months, defendants include a broad cross-section of retailers and consumer products manufacturers, including high end fashion labels, cosmetics companies, pet products, and jewelers.  

Despite seeing a 26% increase in the number of cases filed from 38 to 48, lawsuits against Hotels dropped to second place in October, representing 21.5% of all new cases. As in recent months, many of the lawsuits were filed against small hotels and franchises of larger chains, often because they did not allow individuals to reserve accessible rooms through their online reservation systems, but several larger national and international hotel chains were also sued during October. 

Rounding out the top three was Restaurants and Food/Beverage Manufacturing, which accounted for 26 cases in October (12%), doubling September’s 13 cases. Coffee shops, vineyards, and casual dining restaurants were all hit by lawsuits in October. Defendants included a New York City bakery famous for cupcakes, as well as an American Chinese casual dining chain with over 200 locations. 

November 2018

November saw even more digital accessibility litigation, with a record 241 cases filed in federal court, an 8% increase over October. 

ADA Lawsuits in November 2018 Breakdown By State: 160 New York, 66 Florida, 13 Pennsylvania, 1 California, 1 New Hampshire * 157 of the 241 lawsuits were class action lawsuits which is 65% * 223 were in October and 241 in November which is a 8% increase from October 2018.

Once again, the bulk of cases came from New York and Florida, with 160 (66%) and 66 (28%) respectively. Pennsylvania saw a total of 13 complaints filed, a 160% increase from October, though it remains in a distant third with 5% of cases opened during the month. California and New Hampshire each saw a single case filed during November. 

With New York representing a greater percent of the total cases, the volume of class actions also increased, up to 157 (65%). None of November’s class actions came from California, New Hampshire, or Pennsylvania. 

ADA Lawsuits in November 2018 Breakdown By Industry: Retail/Consumer 109, Education 35, Hotels 29, Consumer and Business Services 23, Restaurants/Food Manufacturing 21, State and Local Government 9, Banking/Financial Services 7, Media/Telecommunications 3, Automotive/Transport 2, Hospitals/Healthcare 2, Real Estate 1.

While Retail/Consumer Products remained the largest industry hit by web accessibility suits, the Education sector rocketed into second place in November. Lawsuits targeting these two sectors, as well as Hotels, accounted for approximately 72% of case filings during the month. 

With 109 new complaints—a 36% increase from October—Retail and Consumer Products accounted for nearly half (45%) of all lawsuits during November. Business hit by lawsuits during the month included: 

  • A plus-size clothing retailer with over 400 stores in the United States and Canada 
  • An international publisher of art books that operates a chain of bookstores 
  • A department store with more than 800 locations 
  • The largest bookstore chain in the United States 
  • A warehouse club chain operating over 200 stores in the eastern United States 

The biggest surprise of November, though, was an explosion in web accessibility lawsuits naming colleges and universities. With 35 new complaints, the Education sector easily moved into second place in November, accounting for 15% of all cases filed. The lawsuits named universities across the United States, including at least one Ivy League institution, two art schools, and a number of regional colleges. While we have seen ADA lawsuits against universities before, most complaints have instead traditionally gone through the Department of Education Office for Civil Rights 

Hotels round out the top three sectors in November, with 29 cases (12%), a 40% drop from October’s 48 complaints.  

Key Takeaways

While some may have hoped the decline in new cases in September was a sign the wave of web accessibility litigation was finally fading, the high volume of filings in October and November prove otherwise. Instead, litigation has rebounded, with both months setting new records for number of cases filed. 

As in prior months, consumer-focused organizations remain at the highest risk of being named in a digital accessibility suit. Sectors, such as higher education that were once seen as relatively safe from web accessibility lawsuits, are now being named in dozens of complaints. While the distribution of industries sued continues to shift from month-to-month, the vast majority of lawsuits continue to center on inaccessible consumer-facing websites. Regardless of industry, if your organization is consumer-facing, an inaccessible website puts you at risk of a lawsuit. 

The Bottom Line

If you are concerned about your organization’s risk of an ADA lawsuit, contact us for a complimentary Risk Assessment of your website. If you have already been sued, we can partner with your attorney to help you through the process. 

Our Methodology: Level Access uses commercially-available legal databases to search all federal court dockets for lawsuits alleging ADA claims. The results are then reviewed and cataloged by Level Access’s legal analysts, who then compile the data on a monthly basis. While all of the cases in the database have been verified to include a digital accessibility claim, the database may be missing other cases that did not come up in our search. The database also excludes cases filed in state courts, which may have the effect of undercounting litigation in states that have their own laws prohibiting discrimination against individuals with disabilities (e.g., California, New York). 

This blog post is for informational purposes only and does not constitute legal advice.