Court Hammer

Over 470 Digital Accessibility Cases Filed in Q3 2018, Led By Lawsuits Against Retailers, Hotels, and Consumer Service Providers

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More than 470 digital accessibility lawsuits were filed between July and September 2018, equaling 58% of total suits filed in 2017. These strong Q3 numbers came despite a slowdown in lawsuit filings in September, likely attributable to the Labor Day holiday and the increase in cases previously seen in August 2018.

Three industries—Retail and Consumer Products, Hotels, and Consumer and Business Services—accounted for two-thirds of all lawsuits filed during the quarter.

ADA Lawsuits in Q3 from July to September - Breakdown By Industry: Retail/Consumer Products 133, Hotels 103, Consumer and Business Services 77, Restaurants/Food Manufacturing 57, State and Local Government 24, Hospitals/Healthcare 22, Real Estate 17, Automotive/Transport 16, Banking/Financial Services 15, Media/Telecommunications 4, Others 3 * In Q3, the Other category included lawsuits in includes Agriculture, Sports Associations, and Construction industries

With 133 cases, Retail and Consumer Products accounted for 28% of digital accessibility lawsuits filed during Q3. While the bulk of these suits have targeted national brands, especially clothing and shoe retailers and cosmetics companies, lawsuits have hit almost every consumer-focused segment of the industry. But, they have thus far largely ignored small businesses and local chains.

Hotels are close behind with 103 cases filed during Q3, representing 22% of the total. This percent, however, has been gradually increasing as the quarter progressed, with lawsuits against Hotels taking the lead in September (see below). Unlike Retail and Consumer Products, the vast majority of lawsuits have been against small businesses and franchisees of larger chains.

Meanwhile, Consumer and Business Services accounted for 77 lawsuits, or 16% of digital accessibility cases filed during Q3. These cases hit a broad cross-section of consumer-focused services, including gyms and fitness centers, event venues and catering halls, and amusement parks.

ADA Lawsuits in Q3 from July to September - Breakdown By State: Florida 235, New York 222, Pennsylvania 6, California 5, Minnesota 2, Georgia 1 *264 of the 471 lawsuits were class action lawsuits which is 56%

The overwhelming majority of cases continue to be filed in New York and Florida, with the two states representing 50% and 47% of the total, respectively. A smattering of cases filed in Pennsylvania, California, Minnesota, and Georgia account for the remaining 3%.

A slim majority of cases—264 out of 471, or 56%—were filed as class actions.

September 2018

The strong Q3 numbers come despite a slowdown in case filings in September, which saw a dip to 122 new cases from August’s high of 193, a decline of 37%. But, with preliminary data showing a high number of case filings in October, the September decline is unlikely to be a sign that digital accessibility suits have plateaued.

Instead, the decline—as well as the substantial increase seen in August case filings—was likely caused by the timing of the Labor Day holiday, with many cases that would have been filed in early September instead hurriedly filed in late August before the long weekend. The total number of cases filed in the two month period of August to September (315) was nearly identical to the total filed in the June to July period (310), further suggesting some of the cases that absent the holiday would have been filed in September were instead included in the August data.

But despite a slowdown from August highs, case filings remained strong in September, with about four new lawsuits filed each day, with lawsuits against Hotels taking the lead for the first time, with Retail/Consumer Products and Restaurants/Food Manufacturing rounding out the top three. Together, the three industries accounted for 72% of September lawsuits.

ADA Lawsuits in September 2018 Breakdown By Industry: Hotels – 38 Retail/Consumer – 37 Restaurants/Food Manufacturing – 13 State and Local Government – 12 Automotive/Transportation – 6 Real Estate – 6 Consumer/Business Services – 5 Banking/Financial Services – 3 Media/Telecommunications – 2

With 38 total case filings, Hotels represented 31% of September lawsuits. While this is a slight drop from August’s high of 42 cases filed against Hotels, the drop was mild in comparison to other industries. As in August, many of the lawsuits were filed against small hotels and franchises of larger chains, often because they did not allow individuals to reserve accessible rooms through their online reservation systems, but at least two larger hotel chains were also sued during September.

Retail and Consumer Products saw a much more substantial drop, from 61 cases in August to 37 in September, a 39% decline, roughly in line with the total September decline of 37%. Despite the decline, Retail and Consumer Products represented 30% of all digital accessibility cases filed in September, a slight decrease from 32% in August.

While the total number of lawsuits declined, however, many of the cases that were filed alleged digital accessibility violations by national retailers and consumer products manufacturers, including:

  • A national discount retail chain with over 1,000 locations
  • The manufacturer of high-end vacuums and related products
  • An internationally famous piano maker
  • Several national (and international) retail clothing chains

Rounding out the top three was Restaurants and Food Manufacturing, which saw 13 suits in September, a 28% drop from August’s 18 lawsuits and a 50% drop from July’s 26. As with Retail and Consumer Products, however, many of the lawsuits named national chains, including a pizza chain with over 7,000 locations in the United States, a fast food restaurant specializing in chicken sandwiches with over 2,000 locations, and a casual dining chain specializing in hamburgers.

Despite the overall decline in filings in September, the State and Local Government sector did see a significant increase in lawsuits, with 12 cases, a 140% increase from the 5 suits filed in August. Government entities sued in September included a major Florida public school system, as well as city and county governments in Florida and Minnesota.

ADA Lawsuits in September 2018 Breakdown By State: 85 Florida, 34 New York, 2 Minnesota, 1 California * 55 of the 122 lawsuits were class action lawsuits which is 45% * 193 were in August and 122 in September which is a 37% decrease from August 2018.

While the overwhelming majority of cases continue to come from Florida and New York, the vast majority of the decline in case filings came from New York, which dropped from 101 new lawsuits in August to 34 in September, rather than Florida, which saw a drop of only one, from 86 in August to 85 in September. Because of the steep drop in New York filings, Florida accounted for a whopping 70% of September lawsuits, with New York at 28%. Meanwhile, Minnesota and California, with two and one digital accessibility lawsuits, respectively, collectively represented about 2% of total filings.

Finally, the percent of cases filed as class actions dropped from 58.5% in August to 45% in September. This is largely attributable to the decline in filings coming out of New York, as lawsuits begun there had been disproportionately likely to be filed as class actions.

Key Takeaways

Despite a dip in digital accessibility case filings in September, strong preliminary numbers in October suggest litigation will likely rebound in upcoming months, though a holiday effect could be seen in November and December.

While lawsuits have named defendants in nearly every industry, consumer-focused businesses remain at the highest risk of being sued due to an inaccessible website. Indeed, while the distribution of industries sued has shifted from month to month, with, e.g., Hotels eclipsing Consumer Services by the end of September, the vast majority of lawsuits have centered on inaccessible consumer-facing websites. Regardless of industry, if your organization is consumer-facing, an inaccessible website puts you at risk of a lawsuit.

The Bottom Line

If you are concerned about your organization’s risk of an ADA lawsuit, contact us for a complimentary Risk Assessment of your website. If you have already been sued, we can partner with your attorney to help you through the process.

Our Methodology: Level Access uses commercially-available legal databases to search all federal court dockets for lawsuits alleging ADA claims. The results are then reviewed and cataloged by Level Access’s legal analysts, who then compile the data on a monthly basis. While all of the cases in the database have been verified to include a digital accessibility claim, the database may be missing other cases that did not come up in our search. The database also excludes cases filed in state courts, which may have the effect of undercounting litigation in states that have their own laws prohibiting discrimination against individuals with disabilities (e.g., California, New York).

This blog post is for informational purposes only and does not constitute legal advice.