I was first exposed to what lawyer’s call ‘the Plaintiff’s Bar’ after my first year of law school. I don’t remember how I hooked up as a paid intern with an attorney proud to call himself an ambulance chaser, but he was every inch of it – a solo practitioner grinding slip-and-fall and fender bender settlements all day long; screaming invective-laced advocacy at insurance company lawyers from a boulder strip mall decades before Better Call Saul did it with so much more style. Let’s call him “Sol” for fun.
I started filing and indexing documents for Sol on the second anniversary of George Bush signing the Americans with Disabilities Act into law. With the Title 1 regulations going into effect a few months earlier, Sol was in the process of engineering a shift in his practice. His new target? Retail businesses in violation of the A.D.A. “The statute awards attorney’s fees!!!” he explained to clients over and over, his mantra. He paid me fourteen dollars an hour to go to every restaurant, laundromat, and grocery store in town, armed with a tape measure and a Polaroid camera. I’d write up a summary including the widths of the aisles, accessibility to wheelchairs and other physically challenged persons, and a few other items already regulated by the new law. Each business got a page on a yellow pad and three or four photos stapled to the corner.
It was not my proudest moment. Sol’s shameless ability to shift to the newest cash cow confirmed every bad lawyer stereotype I knew. Ever Solomonic Sol, was quick to point out to anyone within earshot, “no one is helping the handicapped in this town more than me!” As distasteful as it felt, he was right, and through my distaste, I felt a sense of respect for him – if only for his ability to rationalize. I left after my summer internship was over, never to practice personal injury law again. Sol traded in his ’86 4Runner in September for a 911 Turbo and a Land Rover, a decade later he had a thriving practice in an actual office building almost entirely on revenue from ADA claims and federal labor disputes. Sol is recognized today for helping to change the urban landscape for Americans with disabilities. Today it is just the normal course of business to add a handrail in a public bathroom and I doubt he has people trolling pizza joints for violations. But the “Sol” of today has a new cash cow.
Many of our business owner/manager clients have a hard time getting past the shamefulness of the way plaintiff firms prey on businesses on behalf of often woefully disadvantaged and pitiful clients, usually for settlement value. It’s important to get past this feeling: Those attorneys see themselves as the instruments of the people, working against all odds, to change society in a way that helps their clients and the community at large. As Sol taught me, some consider themselves heroes, making money a few thousand at a time while doing ’the lord’s work’.
Unfortunately for business owners and managers of any size, in part thanks to the barely-functioning federal government over the past decade, these heroes have now targeted your digital presence. While this isn’t a new problem, companies who have failed to stay up to date on the latest developments in web accessibility are now being directly targeted en masse by a handful of plaintiff’s firms for failing to make their websites useable for blind and deaf customers and others unable to easily access the company’s sites. Even if your web developer added a ‘web accessibility widget’ to your digital platforms, your websites, digital channels, and even your SMS notification schemes may still violate ADA accessibility guidelines. They no longer need a tape measure either – just an army of cheap hourly researchers using data crawlers and other analytics to find any possible accessibility problem inside your digital presence.
This is not a new problem: The National Federation for the Blind sued Target for website accessibility violations under the Unruh Civil Rights Act (California’s version of the ADA) all the way back in 2005, forcing the retailer to spend millions on litigation through a $6 million settlement in 2018, plus many millions more rebuilding its websites and funding monitoring and training systems to prevent future violations. ADA web cases were still rare until the Trump administration’s inconsistent enforcement and guidance combined with a mishmash of circuit court decisions created an opening for large plaintiff’s firms to make big business of it.
Since 2017, plenty of high profile cases have made the news. Netflix, Amazon, Nike, Domino’s have all been sued on the issue, while even Beyonce Knowles caught a class action suit by a blind fan unable to buy tickets on her site. According to the American Bar Association, federal courts across the country have been flooded with well over 8,000 digital accessibility lawsuits filed or removed between 2017 and 2020. In 2020, over 85 percent of these federal filings occurred in three states— New York, Florida and California. Since 2018, website and mobile app accessibility lawsuits have made up roughly a fifth of all ADA Title III filings in federal courts, which now consistently exceed 10,000 lawsuits annually – that’s roughly 2000 cases per year solely on ADA website accessibility, which does not include thousands more website and mobile app cases filed in state courts, demand letters that are resolved prior to the filing of any lawsuit, and DOJ enforcement actions that resolve before suit is filed. If that’s what happened while the legal economy was booming, imagine what happens during a recession.
Given the numbers above and modern research techniques, if you aren’t compliant, you are virtually assured of a lawsuit or legal demand within the next few years – even if your company is not be subject to ADA or Unruh requirements. And if you’re not prepared, it can be scary: Because of attorney fee awards inherent in many of these claims, litigation risk for a defendant can be substantially higher than in a typical civil case. As the ABA analysis prove, it’s become increasingly likely that you’ll have to pay a lot later if you don’t spend a little now. And even if you can’t get around to rebuilding your website today, there’s little doubt that your company has a new material risk that requires disclosure in your filings.
While you’re at it, consider revising your Privacy Policy for the New CPRA regulations coming into effect in 2023.
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