Daily Archives: January 3, 2018

2017 Website Accessibility Lawsuit Recap: A Tough Year for Businesses

Seyfarth Synopsis:  2017 saw an unprecedented number of website accessibility lawsuits filed in federal and state courts, and few courts willing to grant early motions to dismiss.

Plaintiffs were very busy in 2017 filing ADA Title III lawsuits alleging that public accommodations’ websites are not accessible to individuals with disabilities. Here is our brief recap of the 2017 website accessibility lawsuit numbers, major developments, and our thoughts for 2018.

  • In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. We arrived at this number by searching for lawsuits with certain key terms and then manually reviewing the results to remove any cases that did not concern an allegedly inaccessible website.  Our numbers are conservative, as it is very likely that not every website accessibility lawsuit’s description – upon which we based our search – contained our search terms. This caveat applies to all of the data set forth below.
  • Of the 814 federal cases, New York and Florida led the way with more than 335 and 325 cases, respectively. Surprisingly, California only had nine new website accessibility lawsuits in 2017, most likely because plaintiffs filed in state court.  Federal courts in Arizona (6), Georgia (9), Illinois (10), Massachusetts (15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania (58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of website accessibility lawsuits.
  • In California state courts, plaintiffs filed at least 115 website accessibility lawsuits in 2017 under the state’s non-discrimination laws. We compiled this data based on searches we performed for lawsuits by four blind plaintiffs represented by two California law firms.
  • In New York state courts, plaintiffs filed at least six website accessibility lawsuits in 2017. All were putative class actions.
  • Defendants in at least 13 federal website accessibility cases filed motions to dismiss or for summary judgment where there were no unusual circumstances like a prior court order or settlement agreement that obligated the defendant to make its website accessible. The courts denied all but two of those motions and let the cases proceed to discovery.
    • In one case where the defendant, Bang & Olfusen, won its motion to dismiss, the court noted that the plaintiff had failed to plead a nexus between the physical place of public accommodation and the website in question. In the other case, the court dismissed the claims made against Domino’s because requiring the defendant to comply with a set of web accessibility guidelines that are not yet law would violate due process principles.  The Domino’s decision is on appeal and will be reviewed by the Ninth Circuit in 2018.  Our post about these cases is here.
    • In the 11 cases where the federal judges refused to dismiss website accessibility claims and allowed the cases proceed to discovery, the defendants had unsuccessfully argued that the principles or due process and the doctrine of primary jurisdiction should be the basis for dismissal. One of our posts discussing some of these decisions is here.
    • In three decisions, the courts were open to the concept that providing telephonic access to the goods and services offered at the public accommodation may satisfy the ADA, but they refused to dismiss the cases at the outset on this basis.
  • The first trial in a website accessibility lawsuit took place in 2017. Florida U.S. District Judge Scola presided over this bench trial and concluded that grocer Winn Dixie had violated Title III of the ADA by having an inaccessible website.  Judge Scola also found that the $250,000 cost to remediate Winn Dixie’s website was not an “undue burden” and ordered Winn Dixie to make its website conform with the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).
  • Three defendants were able to dismiss website access lawsuits early because they had already entered into consent decree or settlement agreements with previous plaintiffs which required them to make their websites conform to the WCAG 2.0 within a specified amount of time. That said, not all courts agree that a prior settlement — as opposed to a binding judgment or court order — can be the basis for a dismissal.
  • The Department of Justice’s (DOJ) rulemaking to create new website accessibility regulations is now officially dead, as we recently blogged. The lack of clear rules will lead to more litigation and inconsistent judicially-made law.  In fact, it appears that the DOJ will not be issuing any new regulations under Title III of the ADA about any subject, according to the agency’s December 26 announcement in the Federal Register repealing all pending ADA Title III rulemakings.

What’s in store for 2018? If the Ninth Circuit upholds the Domino’s district court’s dismissal on due process grounds, the number of California website accessibility lawsuits in federal court may go down dramatically.  Even if that occurs, we see no end to the website accessibility lawsuit surge elsewhere and expect that new plaintiffs’ firms will continue to enter the scene.  While the current administration’s DOJ is not likely to push the website accessibility agenda, its inaction will not stop the lawsuits.  Only an amendment to the ADA can do that, which we believe is highly unlikely.  Thus, the best risk mitigation effort for covered entities is still to make their websites accessible as soon as possible, with the assistance of ADA Title III legal counsel experienced in website accessibility issues and reputable digital accessibility consultants.

Edited by Kristina Launey

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‘I’ve never seen a fire like it’: Liverpool display stunt rider injured in evacuation

Pictures and video by Merseyside Fire & Rescue Service

The leader of the stunt display team who was injured as the Echo Arena car park burned has praised the response of organisers and emergency services to the incident.

Sunday evening’s (31 December) Liverpool International Horse Show performance had to be called off as a result of the blaze, in which more than 1,000 cars were destroyed.

Zana Cousins, of the Stampede Stunt Company which put on the Luminoso act every day of the show, said she and her team were still in costume from the afternoon performance when news of the fire, which is thought to have started in one vehicle, reached them.

“It escalated so quickly,” she told H&H. “It came through on the radio that there was a fire, and it was one car at first; I couldn’t believe how quickly it got out of control.”

Zana, who runs the Centre of Horseback Combat in Hemel Hempstead with her husband Karl, said the six horses who took part in the act – which involved pyrotechnics – were stabled on the dockside rather than on lower floors of the car park, unlike the showjumpers.

“We thought that would be ok,” she said.

“Some of the showjumping horses started going in those stables. We had international horses mixing with the ponies from the Shetland Pony Grand National, who were doubling up to make room, as it was raining outside too.

“But very quickly, the smoke started billowing in. We opened the back windows to let it out, then they said: ‘Get the horses out’. All the horses could hear was explosion after explosion. I’ve never seen a fire like it.”

Watch video

The members of Zana’s team had been put up in a hotel very close to the arena, which was cordoned off.

“We got the horses on the lorry and were told to go,” she said.

“But I didn’t have anything; we were still in costume, I didn’t have my phone or wallet; I didn’t have hay or water for the horses; I didn’t even have my wallet, for money to buy diesel.”

Zana and one of the other riders went back to the hotel to collect their belongings, but by the time they got there and tried to return, the area was cordoned off.

Watch video

“It was dark and raining and people were panicking and screaming, ‘Get back, get back!’” she said.

“It had all been closed off behind us and we couldn’t get out. We saw the big fence and climbed it but there were spikes on the top and my hand got impaled as I jumped down.”

Zana suffered damage to tendons and nerves and is due to be operated on tomorrow (3 January) but will be out of action for months.

“I had my New Year’s Eve in hospital,” she said, adding that members of the stunt team had to make numerous return journeys to Liverpool to try to recover equipment worth thousands of pounds.

Watch video

Videos by Zana Cousins

“But everyone dealt with it so well,” she added. “The police and fire service were great and [show president] Nina Barbour has been brilliant. I thoroughly feel for her because it was a fantastic event and it’s not her fault, this was the car park.

“And everyone was helping everyone; people offering stables, Aintree EC taking horses in, everyone asking what was needed, it was wonderful to see.”

‘Nothing short of remarkable’

In a statement on the show’s Facebook page, Ms Barbour said yesterday: “I would like to express my immense thanks and gratitude to the emergency services, the Echo Arena staff, riders, grooms and support staff, the general public and the city of Liverpool.

“The understanding of everybody who was preparing to celebrate New Year’s Eve and was left in Liverpool with no transport was nothing short of remarkable, and the offers of help and support from people – they ran into the hundreds – for anyone who needed assistance will never be forgotten.

“All people and horses are safe and secure, and I thank spectators, riders and support teams for their understanding and co-operation.

“I am very proud of our own teams who pulled together in the most demanding of circumstances, and managed to quickly and calmly evacuate all horses from the venue in a safe and controlled manner.

“We are not going to let go of what we achieved in the first five sessions of the show, and we will be back to do it again next December.”

Article continues below…

For details on ticket refunds and insurance claims, and to read Ms Barbour’s statement in full, visit the show’s Facebook page.

How the equestrian community pulled together: see next week’s H&H magazine, out 11 January.

Original Source File