My name is Kris Rivenburgh. I’m an attorney and the author of The ADA Book. I’m also the founder of Accessible.org.
So that I can efficiently provide a transcript and closed captions, I will read from the transcript itself.
Several important updates to the legal landscape surrounding digital accessibility have occurred in 2022. In this video, I will focus on three updates that will cause litigation to slow.
First, the U.S. Court of Appeals for the Second Circuit (New York is in the 2nd circuit) held that a plaintiff has to show “concrete” and “particularized” harm has resulted from visiting an allegedly inaccessible website. The effect will be that plaintiffs will have to put in much more effort to establish standing.
Second, the California Court of Appeals ruled that websites by themselves are not public accommodations under the ADA which means that online-only businesses cannot be successfully sued in California state or federal court. Note that websites connected to a physical location are still susceptible.
Also of note: law enforcement officials have taken action against two serial plaintiffs’ law firms in California. One lawyer who was notorious for sending demand letters has been charged by the San Francisco District Attorney’s Office with 14 counts of grand theft by false pretense. Another law firm engaged in serial litigation has had a civil lawsuit brought against it by the Los Angeles and San Francisco District Attorneys.
The reason the adverse plaintiff rulings are so important is that they took place in the 9th and 2nd circuits which include California and New York, respectively. These two states are, by far, the most litigious when it comes to website accessibility.
This doesn’t mean that lawsuits and demand letters concerning website accessibility are a thing of the past, but it does mean that:
- It will be more difficult to file a complaint.
- Less businesses will be targeted and
- Plaintiffs’ lawyers need to weigh the risk of sanctions and other more severe penalties before initiating litigation.
On that note, I do believe each bullet will affect subsequent actions in other jurisdictions. For example, if the 2nd circuit is putting a stop to “tester” type claims, then it’s very conceivable that other jurisdictions will follow suit.
Also, when other lawyers find out that their peers in other states are being prosecuted criminally and civil lawsuits are being initiated against them, they might decide to ease out of website accessibility litigation.
It’s very disappointing that it took courts this long to put measures in place to stop the chicanery, but it looks like courts have finally figured out that the antics that include templated filings are making a mockery of the legal system and cannot continue.
According to Seyfarth Shaw’s data on ADATitleIII.com, the number of federal filings has already dropped 22% from mid-year in 2021. Most signs point to a continued decline.
To be clear, this news doesn’t mean website accessibility lawsuits are done, but we will see less of them and defense attorneys will have better leverage when defending or settling claims.
Credit to Seyfarth Shaw’s ADATitleIII.com blog for providing excellent information on recent filings and rulings that I carried forward in the legal updates.
If you would like help with an audit or remediation, you can find out more about accessibility services at Accessible.org.
Furthermore, I highly recommend you read The ADA Book. The ADA Book is quick and to the point and helps everyone understand the legal landscape and the different elements in play when making a website or other asset accessible.
Links to both resources and my contact information are provided below.