Understanding ADA Website Accessibility Law: Presentation by Evan Wooten, Mayer Brown LLP

1. ADA Website Accessibility Law Presentation title Evan Wooten, Mayer Brown LLP

2. Americans With Disabilities Act • The ADA prohibits discriminating against a person with a disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” • Under the ADA, “discrimination” includes: • a “failure to make reasonable modifications in policies, practices, or procedures” • a failure to ensure that “no individual with a disability is . . . treated differently” because of the “absence of auxiliary aids and services”

3. What is “web accessibility”? • As the name implies, “web accessibility” means access to a website by a person with a disability • Differs from “architectural” accessibility (in some states called “construction related” accessibility—not to be confused with “design and construction” liability under the FHA) • Web also includes mobile applications

4. Common Examples • Common web accessibility issues: • Websites not coded to allow screen readers to translate content into speech • Websites navigable by mouse, not keyboard • Images lack “alternative text” • Orphaned hyperlinks

5. Basic ADA Economics ADA is divided into two Titles: Title II Title III Covers certain private entities (places of public accommodations) Compensatory damages are not recoverable • Covers “public entities” • Compensatory damages only where govt acts with “deliberate indifference” Punitive damages aren’t available under either Title

6. Title III Remedies Injunctive Relief Attorneys Fees Prevailing plaintiffs are entitled to reasonable attorneys’ fees • Awarded unless: • Defendant moots by fixing the violation; or • Plaintiff would not be personally affected • ADA claims typically valued as the cost in attorneys fees to bring and maintain action to injunctive relief

7. Who’s suing and where? • Dramatic increase in ADA lit the past 5-10 years • In July 2018, Judiciary Data and Analysis Office (branch of Administrative Office of US Courts) published a summary of federal ADA filings from 2005 to 2017: • ADA cases increased 395% (12% decrease for all other civil rights cases) • Non-employment ADA claims rose 521% • Employment discrimination claims rose 196% • ADA cases were 4% of the total civil docket and 27% of civil rights cases in 2017

8. Dramatic Increase in ADA Litigation Admin Office of US Courts, 2018 Civil Judicial Business Report

9. Why the sudden increase? • The ADA was passed in 1990 • New Hampshire University’s Institute on Disability reports that 12.8% of the U.S. population is disabled  • That figure has been relatively static since 2010 So why the sudden increase in cases?

10. Fact Intensive Nature of ADA Claims • Disability, and how someone experiences accessibility barriers, are personal and unique considerations • Similarly, defenses—whether fixes are readily achievable, require fundamental alteration, or pose undue financial hardship—are unique to defendants • As a result, accessibility claims are very difficult to defeat on dispositive motions

11. Difficult to Win Dispositive Motions • Motions to dismiss are rarely granted • Courts typically find conclusory allegations of inaccessibility sufficient to state a claim, even if the complaint includes few supporting facts • Equally difficult to win on summary judgment • Extraordinarily fact-intensive • Even a partial win at trial entitles the plaintiff to attorneys fees

12. ADA Classes Rarely Certified • For the same reasons, difficult to certify ADA class • Individualized issues predominate over common: • Different disabilities require different mods • Even people with a similar disabilities experience harm differently (emotional distress, humiliation) • Lack of money damages reduces incentive for plaintiffs’ lawyers to seek class certification • Same plaintiff, attorneys can keep suing

13. “Cottage Industry” • Easy to allege standing: plaintiff need only visit a store and sign off on allegations by attorneys • Speculation that many plaintiffs never actually visit, e.g., “drive-by” plaintiffs Limited exposure in single-plaintiff suits High cost/inability to defeat ADA claims Ease of recruiting plaintiffs Cottage industry

14. Who’s suing and where, part 2? • Small number of plaintiffs’ lawyers account for most ADA lawsuits • Texas attorney sanctioned for filing 400 cases in Austin • San Jose firm that filed 1,400 ADA suits sued for RICO violations • Handful of plaintiffs account for many ADA lawsuits • Plaintiff “A.G.” – 514 lawsuits in Florida district courts since 2014

15. Who’s suing and where, part 3? • ADA is a federal statute and many state laws incorporate or mirror the ADA • Majority of ADA cases are filed in 3 states: New York 12% California 27% Florida 15% % of ADA Filings, 2005-17

16. Florida • Eleventh Circuit is favorable to “testers” • Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013): A tester could sue a grocery store 31 miles from his house even though he admitted no interest in regularly shopping at the store and could have shopped at dozens of stores closer to home

17. California & New York

18. ADA & the Web • How does this apply to the web? • Even easier to drum up plaintiffs and cases; No longer have to “drive by,” can “surf by” • Less need for consultant experts (WebAIM) • Can visit websites repeatedly • Legislative reform limited to architectural cases • Visual impairment and access barriers arguably less individual • Plaintiffs’ attorneys have been filing more class actions and testing class cert

19. Does the ADA Even Apply to Websites? • ADA lists numerous public accommodations, such as: • Restaurants, theaters, convention centers • Grocers, laundromats, shopping centers • Hotels, libraries, museums • Parks, zoos, stadiums • Gyms, day care centers, homeless shelters • ADA and implementing regs say nothing explicit about websites

20. Website as a “place of public accommodation”? • Split as to whether the ADA applies to websites • First, Second, and Seventh Circuits: ADA covers a website unrelated to a physical location • Third, Sixth, and Ninth Circuits: Plaintiff must connect website to goods/services at a physical location • Eleventh Circuit: No clear standard, but a recent non-precedential decision favors the approach of the First, Second, and Seventh Circuits

21. Insurer as a place of public accommodation? • Title V safe harbor makes clear that the ADA does not prohibit “an insurer … from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law” • Courts have rejected the argument that the ADA does not cover insurance underwriting • Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999) • Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir.1999)

22. Insurer as a place of public accommodation? • ADA specifies that a place of public accommodation includes an “insurance office” (42 U.S. Code § 12181(7)(F)) • Some courts agree that an insurer is not a “public accommodation” if the claim is not related to the insurer’s physical office • E.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000): “Certainly an insurance office is a place where the public generally has access. But this case is not about such matters as ramps and elevators so that disabled people can get to that office.” • This is a risky argument in the 1st, 2d, and 7th Circuits

23. Risk Mitigation • There are no federal standards • World Wide Web Consortium (W3C) has stepped into the void • Courts increasingly view “WCAG 2.0 AA” as the benchmark for compliance • DOJ has used WCAG in settlements • US Access Board, which sets accessibility guidelines for websites of federal agencies, recently adopted WCAG 2.0 AA

24. WCAG 2.1 • W3C recently issued WCAG 2.1 • Meant to address gaps in 2.0 • Primary focus is mobile apps • Too early for courts or DOJ to have approved • But 2.1 is “backward compatible” to 2.0, meaning compliance with 2.1 is also compliance with 2.0

25. Compliance • Work with website vendor / in-house design team to bring website into compliance with WCAG 2.0 or 2.1 AA • Make sure Scope of Work requires vendor to design website to meet accessibility standard • Request that vendor provide a certificate of compliance • Ensure that vendor regularly tests website for accessibility, especially after upgrades or changes to website

26. Settlement • Most web ADA claims settle early because money damages aren’t available and attorneys fees are • Parties often agree to settlement that gives the defendant one or two years to fix website • Settlement should resolve the amount of fees: • Risky to settle injunctive claims and let court decide amount of attorney’s fee • If a court finds a requested fee unreasonable, typically cuts by no more than 10-15% (and often less)

27. Questions?

28. Speaker Evan Wooten Counsel Mayer Brown, Los Angeles ewooten@mayerbrown.com (213) 621-9450