Federal Web site Accessibility Lawsuits Elevated in 2020 Regardless of Mid-Yr Pandemic Lull | Seyfarth Shaw LLP

Seyfarth Synopsis: The ADA Title III lawsuits on website accessibility filed in federal courts in 2020 rose by a surprising 12% in 2019, although the number of pandemics filed fell mid-year.

Numbers refer to website accessibility lawsuits filed in federal courts in 2020, and to our surprise, they show a significant increase from 2019. The total number of lawsuits in federal courts alleging that plaintiffs with a disability did not use websites could because they were 2,523 in 2020 – nearly 300 more than in 2019. It is certainly not comparable with the explosive 177% surge in these suits from 2017 to 2018, a significant increase over the relatively high registrations for 2018 and 2019 .

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2020: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (12% increase from 2019). *The number of cases that could be identified through a diligent search.]

This is particularly noteworthy given the April 2020 filings decline to the lowest number we have seen in some time during the height of the pandemic shutdowns across the country, with court closings, law firms moving to remote working and attorneys with kids getting used to going to school and doing their daily jobs. As shown in the table below, even though filings started before 2019, filings have increased (likely due to some New York lawyers focusing on Braille gift card lawsuits rather than site accessibility lawsuits and less because of the emerging Pandemic), bottoming out at 62 in April (a third of the 183 filings from the same month in 2019). Registrations then slowly increased again, increasing to 300 in August (compared to 270 in 2019), 293 in October (compared to 140 in 2019) and 299 in December (compared to 119 in 2019). We haven’t determined the numbers for the first quarter of 2021 yet, but anecdotally believe that these high monthly logins will have continued through 2021.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2020 – Dec. 2020): Jan. 2020 (187), Feb. 2020 (174), Mar. 2020 (167), Apr. 2020 (62), May 2020 (119), Jun. 2020 (150), Jul. 2020 (269), Aug. 2020 (300), Sep. 2020 (274), Oct. 2020 (293), Nov. 2020 (228), Dec. 2020 (299), *The number of cases that could be identified through a diligent search.]

The federal courts in New York and Florida remained the busiest at 1,694 (up from 1,354 in 2019 and 1,564 in 2018) and 302 (continuing a downward trend from 526 in 2019 and 576 in 2018, respectively), as shown in the graph below shown. California and Pennsylvania retained their third and fourth positions, with lawsuits in each of these states nearly doubling in 2020 from 2019. Pennsylvania had 173 lawsuits in 2020. The number of lawsuits in California continued to rise from 10 in 2018 to 120 in 2019 to 223 in 2019 2020. Colorado rose from ninth place in 2019 to Illinois with 43 lawsuits over the 32 lawsuits in Illinois to fifth place (up from 91 lawsuits in 2019). That figure doesn’t account for the many letter of inquiry sent by California firms that never result in lawsuits and lawsuits in state courts that are much more difficult to pursue.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2019: NY 1,694, FL 302, CA 223, PA 173, CO 43, IL 32, MA 24, CT 11, GA 8, IN 7. *The number of cases that could be identified through a diligent search.]

This growth in website accessibility lawsuits in New York is noteworthy as the filing of lawsuits slowed significantly in mid-2020 pandemic and some of New York’s most prolific claim firms turned their attention to Braille gift card cases in late 2019 and early 2020. The New York boom began in 2017 after New York federal judges allowed website accessibility cases to be discovered in trials against Blick Art and Five Guys.

It will be interesting to see if the number of Florida website accessibility trials will decrease in 2021 in light of the Eleventh Court of Appeal ruling against Winn Dixie in Gil. This decision reduces the number of sites covered by the ADA by determining that only those whose inaccessibility creates an intangible barrier to access to goods, services and facilities of a public accommodation facility will be able to claim.

More notably, these numbers also do not include lawsuits filed for inaccessibility of mobile apps (unless the lawsuit also alleged an inaccessible website). In an unscientific search, we came across 203 ADA violations lawsuits for inaccessible mobile apps, all filed by three attorneys in Florida and New York.

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About Our Methodology: Our 2020 numbers are based on keyword searches of data from the Courthouse News Services. As a result, it is possible that there are some website accessibility cases that were not tracked in searches if their descriptions did not include keywords. We then manually review the thousands of entries to remove complaints that may be related to websites but not related to the accessibility of a website to a user with a disability. For example, during the 2018-2021 period, there were a number of lawsuits (a huge explosion of such lawsuits in California in 2021) filed by claimants with mobility disabilities because hotel reservation websites did not provide sufficient information about the accessibility of hotel facilities. We also removed a number of lawsuits from the 2020 census against state and local government agencies under Title II of the ADA for inaccessible websites.