One of the most surprising legal developments in 2018 on the digital accessibility front was the dramatic rise in the number of cases filed as class actions. With large numbers of cases filed as class actions in Florida and New York, they now account for over half of all digital accessibility lawsuits.
But why are more cases being filed as class actions, and what does it mean for the organizations sued?
To find out, Level Access turned to leading legal practitioners in digital accessibility.
What Is A Class Action?
A class action is a lawsuit filed by a named plaintiff on behalf of other prospective plaintiffs that are in similar circumstances. They allow complex issues involving many people, with mostly identical claims, to be resolved simultaneously, theoretically reducing the burden on the court system that would be introduced by hundreds or thousands of identical lawsuits. In practice, class actions encourage litigation where the potential damages are small or minuscule on the individual basis, but significant on a class-wide basis.
“A class action lawsuit is a tool that allows many individuals to come together and pursue claims in one lawsuit for reasons of efficiency and to protect rights that might otherwise not be protected,” said Lainey Feingold, a disabilities rights lawyer focused on digital accessibility.
While class actions come with some upside to defendants—there is one case to deal with instead of dozens or hundreds, and, once certified, members of the class are not able to bring their claims separately—they can be notoriously expensive and time-consuming to litigate and can carry with them astronomical damages and attorney’s fees.
Class Actions Make Organizations Take Notice
The experts mostly agreed on why plaintiff’s firms were filing more cases as class actions: defendants pay more attention than they would from the same case filed as an individual action. This added attention—and the added cost of litigating class actions—is seen as another tool to leverage for a more favorable settlement.
“We see many cases filed as class actions because it tends to make the business entities sit up and take notice because the potential harm or risk is very large,” said Olabisi Ladeji Okubadejo, Of Counsel at Ballard Spahr LLP.
Donald Brown, Partner at Manatt, Phelps & Phillips, LLP, agreed. “Styling it as a class action exerts phenomenal pressure on the defendant,” Brown said.
“Of course, it depends on which direction the defendant takes it after that. If it goes directly to a settlement, then the fact that it was styled as a class action doesn’t necessarily move the needle. But if the litigation proceeds—either they’re not interested in the settlement, or they’re unable to settle early—then it takes on a bit of a different flavor if its nominally a class action,” Brown added.
Shanti Atkins, Founder of NAVEX Global, noted that organizations should be worried by the increase in class actions “because the exposure is just dramatically higher. It’s the economic calculus of the legal system in this country that if you can get class certification on something as a plaintiff’s lawyer, that’s what you’re going to do because you’re potentially going to make a lot more money.”
Atkins also compared digital accessibility class actions to the wage-and-hour class actions corporations saw beginning in the 2000s. According to Atkins, most organizations treated worker classification and wage-and-hour issues as a background regulatory issue that could be handled by a mid-level official. This changed with the string of wage-and-hour class actions filed in the 2000s.
“It was this niche area that was not particularly lucrative for lawyers and wasn’t something that general counsels viewed as a top concern. Fast forward to now and it’s totally elevated in importance.” Atkins said.
Do Class Actions Make Sense in the Digital Accessibility Sphere?
But while class actions are useful for getting a defendant’s attention, does filing as a class action actually add anything to a digital accessibility case?
Because most digital accessibility suits are brought under Title III of the Americans with Disabilities Act, the answer is no, for one simple reason: the ADA does not allow plaintiffs to recover damages. While there is a provision for victorious plaintiffs to be awarded attorney’s fees, the most a plaintiff can ask for in an ADA suit is an order against future discrimination. In a typical case, this would be an injunction ordering the defendant to make its website accessible. Whether a case was filed as a class action or an individual action would have little bearing on the content of the order.
Feingold noted that class actions are rarely necessary when it comes to digital accessibility. “In the web accessibility legal space, a class action is often not needed because one affected individual often has the same experience as other disabled site users, and a settlement with an individual case can remediate an entire site or mobile application,” Feingold said.
Will the Class Action Trend Continue?
Unfortunately for organizations looking to minimize their legal costs, the class action trend is unlikely to abate soon, though there may be some light on the horizon in the longer term, especially once cases start getting to the class certification stage.
“Plaintiff’s firms will continue to file these as class actions,” Okubadejo said. “Some of them are meeting some success using their current [class action] framework, so I imagine they’ll continue until there’s a successful court challenge that causes them to change their current methodology.”
But some experts we spoke to doubted whether a class could be certified in a typical digital accessibility case. Although a class was certified in 2007 in National Federation of the Blind v. Target Corp., the experts we spoke to were skeptical that it would happen in most cases.
“I do not think there is a strong likelihood of a class being certified because of the differing standards of technology, the lack of numerosity, fact–specific questions relating to the alleged lack of access and how visually impaired people use specific areas of the websites, and other factors,” said Mendy Halberstam, Partner at Jackson Lewis P.C.
If plaintiffs start losing on class certification (and if digital accessibility cases make it to that stage in the first place), class filings could drop precipitously.
Robert Duston, Partner at Saul Ewing Arnstein & Lehr LLP, also suggested that some plaintiff’s attorneys might ultimately find class actions too restrictive when it came time to settle. Duston compared the current class action trend in digital accessibility cases to one two decades ago with physical accessibility.
“The interesting thing about the class action trend is that the ADA Title III brick-and-mortar guys 25 years ago were doing that for a long period. It was a very popular tool in the mid- to late-90s when suing shopping centers and retail stores and everything else. And, eventually, they figured out that by suing on a class action basis, it became more complicated to settle on an individual plaintiff basis sometimes. And that when somebody decided to fight it, it was difficult and expensive, and they could get most of the same damages and attorney’s fees on single plaintiff cases as by trying to bring these punitive class actions,” Duston said.
Are You at Risk and What Can You Do?
With digital accessibility class action lawsuits filed in record numbers, organizations across the United States are at risk of being sued. While future cases or litigation trends might make plaintiffs less likely to present cases as class actions, for the time being organizations need to be ready for when it happens to them.
Although organizations probably cannot eliminate the risk of a digital accessibility class action, there are proactive things you can do. By making your website, mobile apps, and other digital assets accessible to people with disabilities, you can minimize the risk of a lawsuit, while also catching revenue previously lost from potential customers who were turned away by the lack of accessibility.
The first step, though, is to find out how accessible—or inaccessible—your websites, mobile apps, and other digital assets are to individuals with disabilities. While automated testing can help identify some of a site’s major problems, automated testing must be supplemented with robust user testing by individuals trained to know what issues are likely to make a website or digital application inaccessible to individuals with a wide range of disabilities. Without special expertise, combined with real life experience using the web as an individual with a disability, it may not be obvious just how much relatively simple problems like missing alternative text or unnamed form fields can make a site impossible to navigate.
Only an audit from a firm specialized in digital accessibility can give you the full picture. The risk of using someone inexperienced with digital accessibility is simply too high.
Check out Level Access’s free Digital Accessibility Crystal Ball 2019 whitepaper to find out what our panelists said on these and other topics!