ADA Lawsuit Abuse and Predatory Litigation
ADA lawsuits involve claims of discrimination or a lack of reasonable accommodation as required under the the Americans with Disabilities Act. While many of these cases are legitimate, there are also incidents where lawyers abuse the system. ADA lawsuit abuse occurs when litigators either file or threaten lawsuits under the ADA, often without having plaintiffs suffering real injuries. (Mikaloff 2019)
ADA lawsuits previously focused on physical access barriers to businesses. More recently these new lawsuits allege that: (1) private company websites and mobile apps qualify as places of public accommodation; and, (2) websites and apps with access barriers (eg: incompatibly with screen-reading software) deny the rights of the disabled of equal access. (Brown & Quackenboss 2019)
Since 2015, several thousand lawsuits have been filed against both large and small US businesses alleging that their websites and mobile apps violate the Americans with Disability Act (ADA) (Vu 2019, Brown & Quackenboss 2019, Sheppard Mullin 2019). An unknown number of businesses have been extorted for settlement under threat of lawsuit.
In January of 2020, ExRx.net received a letter from what turned out to be a well known predatory litigation firm. They informed us that they will be filing a lawsuit soon and invited our legal counsel to contact us. They claimed that our 20+ year old, 3000 page fitness website, ExRx.net is not fully accessible to visually impaired consumers. In response, we contacted a lawyer familiar with these matters.
Proof ExRx.net was Compliant
We provided our lawyer a screencast demonstrating the functionality of both our current site and a January 20, 2020 backup copy of ExRx.net, how it appeared one day before the letter was received falsely accusing us of violations against the blind consumers of the US.
My webmaster used ChromeVox Classic Extension screen reader and a keyboard demonstrating how a blind visitor would have been able to navigate from the home page to the store to purchase an exercise clip-art package. We know of no real inaccessible issues that would prevent a blind consumer from purchasing our products such as exercise clip art and the like, as strange as that may seem.
The volume on the video may need to be turned up to hear the computer voice reading the links as the site is navigated by keyboard.
WACG Standards Compromised User Experience
As you can see from the video, besides being able to place an order on our store, our most recent changes we had made to conform to WACG standards actually decreased user accessibility since we apparently now have to allow the sub-directories of the site menu to be accessible through keyboard control. This means that those accessing ExRx.net using a keyboard or equipment for blind will now need to toggle through every single submenu item to access every page instead of using our main page grid menu to access the various parts of our site which is accessible from every page on our site by clicking on ‘main menu’ within the breadcrumb menu. Unfortunately, these changes make it much more difficult to access even the breadcrumb menu in addition to the page content because blind users will also now need to tediously navigate through all submenus all in the name of accessibility. Ironically, ExRx.net was more accessible before we had been forced to more strictly follow these sort of these so called ‘accessibility’ guidelines.
Physical Nexus
The letter from the predatory litigator to ExRx.net claimed that they represent blind consumers across the United States and that our site under an LLC in Kansas was subject to both ADA and California Unruh Act. They cited an article on jdupra.com (Launy 2019) in attempt to convince me that “California Supreme Court recently confirmed that anti-discrimination laws apply to online businesses”. However the cases cited in this article only applied to websites with a physical store in California. ExRx.net has no physical store, not even in Kansas.
In fact, Robles v Domino’s Pizza (2019) and Thurston v Midvale Corp (2019), the rulings suggested that stand-alone Websites and Apps with no nexus to a physical location (ie: brick and mortar store) are exempt from the Title III of the ADA (Launey 2019) and the Unruh Act. Therefore based on these rulings, ExRx.net would be exempt since it has no physical store front. Karlin Law Firm calls this the "No Place - No Case" doctrine (Karlin 2019).
Is a Website a Place of Public Accommodation?
Title III of the ADA requires private sector businesses which serve as “places of public accommodation” to remove “access barriers” that inhibit a disabled person from accessing goods and services (Brown & Quackenboss 2019). Generally, any private business with more than 15 employees is subject to the ADA, including the requirements in Title III (Brown & Quackenboss 2019).
Although Attorney L Scott Karlin disagrees with the 15 employee threshold as it applies to ADA requirements, for the record, ExRx.net, LLC has no employees. ExRx.net only utilizes service providers and a few contractors who work with us remotely from the US and overseas.
The federal courts are split regarding whether Title III’s definition of “public accommodations” is limited to physical spaces. The Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals have ruled that places of public accommodation must be physical places whereas goods and services provided by a public accommodation through a website may fall within the ADA if they have a sufficient nexus to a physical location. In contrast, courts within the First, Second, and Seventh Circuit Courts of Appeals rulings suggest websites can be a place of public accommodation independent of any connection to a physical space. (Brown & Quackenboss 2019)
Title III of ADA defines “public accommodations” and provides a comprehensive list of 12 categories of business and commerce (ADA 2011, Snider 2019). At best ExRx.net is place of exercise information but not (#12) other places of exercise as it pertains to other physical recreational places also listed 42 U.S.C. §12181(7).
The problem is that Title III does not directly address whether places of public accommodation include websites, mobile applications, or other web-based technologies (Brown & Quackenboss 2019). Interestingly, a ADA website (ADA 2011) search reveals only website best practices pertaining to State and local government websites, relevant to Title II of the ADA.
No Established Standards
The predatory litigator who sent us the threatening letter was apparently basing their assessment of ExRx.net on specific WACG web guidelines, not law. Law has not established specific guidelines, only reasonable access. ADA does not reference a technical standard. Furthermore, the DOJ has concluded that WCAG compliance is not required for ADA compliance (US General Services Administration 2017).
On September 25, 2018, Assistant Attorney General Stephen E. Boyd, sent a letter in response to a June 20, 2018 letter from a bi-partisan group of 103 members of the U.S. House of Representatives, requesting clarity on “unresolved questions about the applicability of the ADA to websites” (Boyd, 2018).
Assistant Attorney General said,
"Absent the adoption of specific technical requirements for websites through rulemaking public accommodations have flexibility in how to comply with the ADA's general requirements of nondiscrimination and communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate non-compliance with the ADA."
The conclusion of the DOJ is that WCAG compliance is not required for ADA compliance. Karl Groves (2019) of Tension.io, a veteran consultant for website ADA compliance, states,
“WCAG is not the destination, it is merely a road map.”
Groves (2019) goes on to explain that Section 0.2 of WCAG (WC3 2018) entitled ‘Layers of Guidance’ alludes to this when it says,
“Note that content that conforms to the highest level (AAA) will not be accessible to individuals with all types, degrees. or combinations of disabilities, particularly in the cognitive language and learning areas.”
Groves (2019) concludes.
“The single most important component for web compliance is accessibility. In other words, accessibility is compliance”.
The DOJ’s guidance has provided a basis to dismiss website accessibility lawsuits against companies who have made an earnest effort toward being accessible for disabled persons, even if their efforts have not been perfect. The DoJ’s letter offers businesses some flexibility in crafting ways to be accessible. (Brown & Quackenboss, 2019)
Attorney Barbara Snider (2019) explains:
“It’s not all rigid. The courts have recognized that a website won’t become compliant easily or quickly. Demonstrating that a defendant is trying to convert its website is an important factor in defending a case or mitigating a penalty.”
The Pot Calling the Kettle Black
In my search for legal representation, I had contacted a high-end defense attorney who successfully defended a client against the mentioned predatory litigator. This defense attorney essentially called the predatory litigator’s actions criminal. He also pointed out that Law Firms are specifically identified in the ADA (2011) as businesses who are required to comply with the ADA, but the mentioned predatory litigator’s website fails the very tests that they presumably used on ExRx.net.
Days before this defense attorney pointed out the irony, I had already had my web master preparing a WAVE WACG compliance analysis of the predatory litigator’s website to provide to our attorney. Despite accusing ExRx.net of not being fully compliant, they themselves failed the test miserably with 20 errors on their home page, 38 errors on their attorney's page, and another 20 errors on their Contact Us page.
Testing Methods are Flawed
Interestingly, it appears that most, if not all, of the automated accessibility testing tools have particular flaws which cause them to identify web-related accessibility problems that don’t actually exist. Many of these testing tools are geared toward HTML 2 or 3, whereas modern websites are based on HTML 5. These “false positives” lead to frivolous claims. (California Hotel and Lodging Association, 2017)
Here is another video showing how a form on ExRx.net generated by Mailwizz software can be filled out and submitted using screen reader and keyboard despite the WAVE WACG compliance test showing errors. We have since reported this issue to Mailwizz so they now provide ARIA tags to satisfy the test results even though you can see in the video below, the form fields were already being read by screen readers and could be used by blind visitors without this fix.
Error Image
Code Image
Ironically, even if sites were tested manually for ADA accessibility using software solutions used by blind visitors, websites could still be found not to be fully accessible. This is because the standards are not even fully compatible with all web browsers and screen readers. For example the Embedded ARIA label causes problems in 29 screen reader / browser combinations. (Power Mapper 2020)
Why We Requested Our Attorney to Negotiate a Settlement
Unfortunately with the current laws, the deck is stacked in the predatory litigator’s favor with a one-sided attorney’s provision. This means that if the plaintiff wins the case, the defendant may have to pay the attorney’s fees but if the defendant wins the case, the plaintiff will not pay the defendant’s attorney fees. The law was presumably intended to protect the disabled by providing them a way to sue noncompliant businesses with less risk of retribution. Only if the Defendant shows the Plaintiff has no case, the Plaintiff does not have to pay the Defendant's attorney's fees. However, they would still need to pay their own attorney’s fees in any event. (Karlin 2019)
Although I believe I have not broken any laws based on the research I have done and my understanding of the laws, I was still faced with a difficult choice. I could decide to:
-
Fight and expect to pay $30K to $40K and two years of our time
-
Fight and hope our case gets thrown out while expecting to pay $15K in our attorney’s fees
-
Negotiate a settlement at an average estimated cost of $15K (Snider 2019)
Even if a company with a website is compliant with standards, they will end up either paying a settlement, Legal fees, or both when faced with a lawsuit or threat of litigation (Userway 2018?).
In the end, our attorney, who was very experienced with these matters was able to get the predatory litigator to drop the claim against ExRx.net due in part to unique circumstances in our case. For most cases where a monetary settlement is reached, our attorney reports averages significantly less than reported by Snider (2019).
How the Laws Hurt Both Sides & Our Additional New Mission
Frivolous lawsuits are known to have several negative consequences, including an unfair disadvantage to small businesses (USCILR 2019) and a negative impact of the economy (USCILR 2019, Babcock Law Firm 20??).
These one-sided ADA laws not only unfaierly hurt business owners, but they may also negatively impacting the disabled consumer sinnce practiconers and other businesses may be understandably relunctant to take on new clients or targeting ads to those with disabilities if provided the choice. With the one-sided attorney’s provision and with little recourse to correct any issues in question, practicioners and businesses will likely think twice about taking on a clients with disabilities, possibly contributing to a paradox where these laws in effect encourage discrimanation. Why would a practitioner put themselves in the crosshairs when they know the law is stacked against them? If you are one of the many consumers with a disability having difficuly in finding help, this could be a reason that you may be having difficulty finding someone to return your calls or find the time in thier schedules to take you on as a client.
Since ExRx.net is a high traffic / high authority website, ranking high in Google searches, we’ve decided to share our story and research findings regarding ADA compliance and predatory litigation protection in hopes it might help other businesses and website owners who find themselves in a similar situation.
This material is intended for general information purposes only and does not constitute legal advice. Consult with your legal counsel for advice about any legal matters.
Referrals
ADA Website Lawsuit Defense
Protecting Assets from Predatory Litigators and Frivolous Lawsuits
References
ADA (2011). Title III of the ADA, 42 U.S.C. §12181(7). https://www.ada.gov/ada_title_III.htm, Accessed Feb 24, 2020.
Babcock Law Firm (20??). Frivolous Lawsuits: What Are They and How Do They Affect You? https://www.injurylawcolorado.com/legal-library/frivolous-lawsuits.html. Accessed Mar 4, 2020.
Boyd SE (2018). Letter to The Honorable Ted Budd from Office of the Assistant Attorney General. https://www.adatitleiii.com/wp-content/uploads/sites/121/2018/10/DOJ-letter-to-congress.pdf, Accessed Feb 25, 2020.
Brown JP & Quackenboss RT (2019), The Muddy Waters of ADA Website Compliance May Become Less Murky in 2019. https://www.huntonlaborblog.com/2019/01/articles/public-accommodations/muddy-waters-ada-website-compliance-may-become-less-murky-2019/, Accessed, Feb 24, 2020.
California Hotel and Lodging Association (2017). https://calodging.com/sites/default/files/enewsletter/september2017/threat.html, Accessed Feb 24, 2020.
Groves K (2019). Bad Standards and Worse Practices. https://youtu.be/76WT_LpcX9g?t=650 (10:50), Accessed Feb 24, 2020.
US Chamber Institute for Legal Reform (2019). Lawsuit Abuse Impact, https://www.instituteforlegalreform.com/issues/lawsuit-abuse-impact, Accessed March 4 2020.
Karlin S (2019). ADA Website and App Lawsuits. https://www.karlinlaw.com/ADA-Website-Lawsuits.shtml, Accessed Feb 25, 2020.
Launey K, Sarnaff J, Vu M (2019). California Court Of Appeal’s Midvale Decision Opens The Floodgates For More Website Accessibility Lawsuits. http://www.jdupra.com/legelnews/california-court-of-appeal-s-midvale-73853/, Accessed Feb 25, 2020.
Mikaloff J (2019). ADA Lawsuit Abuse. https://www.legalmatch.com/law-library/article/ada-lawsuit-abuse.html, Accessed Feb 26, 2020.
Power Mapper (2020). https://www.powermapper.com/tests/screen-readers/media/embed-aria-label/ Accessed Feb 24, 2020.
Robles v. Domino’s Pizza, LLC (2019). 913 F.3d 898, 908 (9th Cir. 2019), cert. denied, No. 18-1539, 2019 WL 4921438 (U.S. Oct.7, 2019) http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/15/17-55504.pdf
Snider B (2019) How ADA Website Compliance Works – The Steps You Can Take to Protect Yourself, Your Website and Your Social Media from Liability. https://www.beveragelaw.com/booze-rules/thenextfrontieradablog-lb6l4#_edn4=, Accessed Feb 25, 2020.
Thurston v Midvale Corp (2019)., 39 Cal. App. 5th 634, 640-41 No. B291631 (Cal. Ct. App. Sept. 3, 2019) https://law.justia.com/cases/california/court-of-appeal/2019/b291631.html
US General Services Administration (2017). Do Section 508 Accessibility Standards Apply to My Website? https://www.section508.gov/blog/do-section-508-accessibility-standards-apply-to-mywebsite, Accessed Feb 25, 2020.
UserWay (2018?) The Anatomy of a Web Accessibility Lawsuit. https://userway.org/blog/the-anatomy-of-a-web-accessibility-lawsuit, Accessed Feb 26, 2020.
Vu MN, Launey KM, Ryan S (2019). Number Of Federal Website Accessibility Lawsuits Nearly Triple, Exceeding 2250 In 2018. https://www.adatitleiii.com/2019/01/number-of-federal-website-accessibility-lawsuits-nearly-triple-exceeding-2250-in-2018/, accessed Feb 29, 2020.
World Wide Web Consortium / W3C (2018). Layers of Guidance, Web Content Accessibility Guidelines 2.1 (WCAG). https://www.w3.org/TR/WCAG21/#wcag-2-layers-of-guidance, Accessed Feb 25, 2020.
