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Digital Accessibility Litigation Up 24% in August 2018

C.P. Hoffman 10/04/18

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.

At least 193 digital accessibility lawsuits were filed in federal court in August 2018, a 24% increase from July, with the Retail, Hotels, and Consumer Services sectors hit particularly hard.

Digital Accessibility Litigation by State

As in June and July, the vast majority of complaints were filed in two states: New York and Florida.

ADA Lawsuits in August 2018 Breakdown By State: 101 New York, 86 Florida, 5 Pennsylvania, 1 California * 113 of the 193 lawsuits were class action lawsuits which is 58.5% * 156 were in July and 193 in August which is a 24% increase from July 2018.

In New York alone, there were 101 lawsuits filed, accounting for 52% of all digital accessibility complaints filed in August. This was a 16% increase from July, when 87 cases were filed in New York.

While Florida remains behind New York in the total number of cases filed—86, or 45% of the total—the state experienced greater growth in litigation, both in absolute (22 more cases than in July, as opposed to New York’s 14) and percentage terms (34% vs. New York’s 16%). If litigation continues to grow in Florida, it may soon eclipse New York as the favored venue for digital accessibility plaintiffs.

In addition to juggernauts New York and Florida, a small number of additional cases were seen in Pennsylvania (5, or about 2.5%) and California (1, or about 0.5%).

But while the total number of cases has grown, the percent of cases filed as class actions has dipped slightly to 113, or 58.5%, a slight decline from 61.5% last month. This decline is attributable to the increase in lawsuits brought against hotels by individuals with mobility-related disabilities who were unable to reserve an accessible room through online reservation systems, a trend we noted in July’s report.

Digital Accessibility Litigation by Industry

Much of the growth in litigation can be attributed to three sectors—Retail and Consumer Products, Hotels, and Consumer and Business Services—which saw significant increases since July. Together, these three sectors accounted for 74% of cases filed in August. (By comparison, the three largest sectors represented only 61% of all cases filed in July.)

ADA Lawsuits in August 2018 Breakdown By Industry: Retail/Consumer Products – 61 Hotels – 42 Consumer/Business Services – 39 Restaurants/Food Manufacturing – 18 Hospitals/Healthcare – 10 Automotive/Transportation – 6 Banking/Financial Services – 6 State and Local Government – 5 Real Estate – 4 Other* – 2 *In August, the Other category included lawsuits in Agriculture and Construction industries.

Retail and Consumer Products was once again the largest sector, with 61 complaints filed, representing 32% of the total. This reverses the dip in complaints against retail and consumer products firms seen last month, marking a 74% increase over July (35 lawsuits) and a 42% increase over June (43 lawsuits).

Retailers and consumer products manufacturers sued in August included, among others:

  • A major consumer electronics company with market valuation over $1 trillion
  • Major cosmetics retail chains and manufacturers
  • Clothing manufacturers and national clothing chains
  • Shoe manufacturers

Once again, the sector with the largest month-to-month increase in litigation was Hotels, nearly doubling from 23 in July to 42 in August, now making up 22% of the total. The bulk of 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 a number of complaints were also filed against hotels that operate casinos or against hotels in their capacity as wedding and event venues.

Rounding out the top three sectors is Consumer and Business Services, with 39 new cases filed in August, representing 20% of the total, as well as a 15% increase from July. As in June and July, fitness chains and catering halls/wedding venues continued to be hit hard, but they were joined in August by a significant number of lawsuits against casinos/gaming venues, as well as businesses offering harbor cruises and yachts as event spaces.

Meanwhile, the Restaurants and Food sector saw the number lawsuits decrease from 26 in July (18%) to 18 in August (9%). Both national chains and restaurants with a single location continue to be targeted, though August also brought a number of lawsuits against breweries and vineyards.

Key Takeaways

Digital accessibility litigation continues to increase, with consumer-facing industries particularly hard hit. With lawsuits expanding into new lines of business each month—including shoe manufacturers, casinos, and harbor cruise lines in August—the risk of being sued if your website is inaccessible to individuals with disabilities remains high, even if organizations like yours have not been sued yet.

In addition, recent developments are likely to make it easier for individuals with disabilities to bring lawsuits. A series of recent decisions by the Eleventh Circuit Court of Appeals reversing lower court dismissals of digital accessibility cases, for instance, has made it harder for defendants in Florida, Georgia, and Alabama to get digital accessibility suits dismissed (and may encourage litigation in the latter two states, which have thus far largely avoided the upswing in lawsuits). Likewise, the Department of Justice’s recent letter to Congress reaffirming its belief that the ADA applies to websites, but declining to issue specific regulations on website accessibility, will likely encourage further litigation in the absence of clear guidelines.

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.

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