By J. Colin Knisely
On February 15, 2018, the U.S. House of Representatives passed the Americans with Disabilities (ADA) Education and Reform Act . The bill passed by a vote of 225 to 192, with 12 Democrats voting in favor of the bill. Most of the Democrats who joined with Republicans to support the bill were from California, where state law allows plaintiffs to recover actual damages and a statutory minimum of $4,000 for each time the plaintiff visited a business and encountered an access barrier, in addition to the attorney’s fees available under the ADA.
Proponents of the bill argue that the amendment to Title III of the ADA will curb the number of frivolous, “drive-by” lawsuits against businesses, which have increased dramatically in the past few years. H.R. 620 would create a “notice and cure” requirement before any legal action could be taken against a business for an alleged failure to comply with the standards set by Title III. Under H.R. 620, a claimant must first send a business owner or operator a written notice “specific enough to allow such owner or operator to identify the specific barrier.” The written notice must further specify “in detail the circumstances under which an individual was actually denied access to a public accommodation” and “whether a request for assistance in removing an architectural barrier was made.”
A claimant can only file a lawsuit if the business does not respond to the written notice within 60 days with “a written description outlining improvements that will be made to remove the barrier.” If the business responds, but “fails to make substantial progress” in implementing the improvements, a lawsuit can be filed.
Critics of the H.R. 620 have argued that it would effectively exempt businesses from compliance with Title III until the business receives notice of an alleged compliance issue, and that it would shift the burden of protecting access onto the person with the disability, whom critics have argued would have to become experts on the legal code in order to properly comply with the notice requirements of H.R. 620.
H.R. 620 has now moved to the Senate, where the fate of the bill is uncertain. However, there is currently no companion bill in the Senate, and Republicans in the Senate would still need to gain the support of several Democrats to meet the Senate’s 60 vote threshold.
Since late last year, many banks in California, New York and Pennsylvania have received demand letters from two law firms that claim the websites of those banks violate Title III of the Americans with Disabilities Act (ADA). The demand letters assert that individuals with disabilities (typically the visually impaired) attempted to use the website of the banks, and faced unreasonable barriers to access, which made it impossible for the claimants to access the websites. The websites, according to the law firms, fail to comply with website standards developed by the World Wide Web Consortium called Web Content Accessibility Guidelines (WCAG 2.0). The law firms seek attorneys’ fees, costs and injunctive relief in connection with the demand letters.
Litigation has been commenced in several states, including California, over this issue of website accessibility by visually impaired individuals.
The ADA’s Title III became law in 2000 and protects disabled persons in public accommodation and commercial businesses. While Title III itself does not contemplate websites as a place of public accommodation, the Department of Justice (“DOJ”) along with several courts have reached that conclusion. The DOJ, which is charged with responsibility for promulgation of regulations, has promised to implement regulations by 2018. The DOJ has said in the interim WCAG 2.0 provides a minimum standard. A number of courts have agreed and allowed pending cases to continue despite motions to dismiss or stay the action until the DOJ issues its regulations. These decisions have meant that banks have been forced to defend these actions without really knowing what the DOJ regulations will provide. Several have settled with the law firms rather than litigate. Now there may be some relief for banks in California.
On March 20, 2017, a federal judge in Los Angeles granted Domino’s Pizza’s motion to dismiss a website accessibility lawsuit filed by a visually impaired person. In Robles v. Domino’s Pizza LLC the District Judge ratified the argument that in absence of a clear DOJ regulation of what “accessibility” means for a website, the defendant’s due process rights had been violated. The Court chastised the DOJ for failing to follow through on its July 2010 pronouncement to regulate website accommodation for public accommodation and ruled it was unfair to hold the defendant to an ambiguous legal obligation or the WCAG 2.0. The Court dismissed the action “pending the resolution of an issue with the special competence of an administrative agency.” This federal court parted ways with several other courts which had applied WCAG 2.0 as standards despite the DOJ’s failure to issue regulations.
While this ruling provides ammunition for clients seeking to fight these claims, it also leaves banks with uncertainty as to just how to improve websites to meet future ADA regulations by the DOJ. An unintended consequence of this ruling also strengthens the hands of bank vendors which have routinely denied any obligation to comply with WCAG 2.0.
Since, Robles was dismissed without prejudice, it can be refiled when the DOJ regulations are announced.
In the meantime, hopefully, the DOJ will act and provide the regulatory help which may actually assist the industry in this instance.
While plaintiff’s lawyers have been busy the past two years filing lawsuits around the United States alleging violations of the Americans with Disabilities Act (ADA) related to physical barriers—including a wave of class action lawsuits against banks for inaccessible ATMs and against retailers for inaccessible point of sale devices (“POS devices”)—these lawyers are now turning their attention to company websites. Since May 2014, there has been a dramatic increase in the number of lawsuits and demand letters alleging that businesses have denied access to visually impaired customers by having websites that are inaccessible to them in some manner. Although the focus thus far has been primarily on website access for the visually impaired, website access issues may also arise for persons with mobility and hearing disabilities.
Click here to read the full Alert, written by Duane Morris partners Colin Knisely and Jonathan Petrakis.
A Pittsburgh-based law firm, that has filed well over 100 class action lawsuits under Title III of the Americans with Disability Act (“ADA”) in federal District Courts throughout the country against banks on behalf of a plaintiff who alleged that the banks’ ATMs were inaccessible, is back at it and is filing more ADA Title III class actions against banks. The new ADA Title III class actions claim that the defendant banks’ branch locations are physically inaccessible to individuals in wheelchairs. In the past few weeks, the Carlson Lynch law firm has filed seven such class action lawsuits in the Federal District Court in Pittsburgh, all against banks the law firm had previously sued for alleged ATM accessibility violations. All of the new lawsuits involve the same plaintiff, Damian M. Zipf, who, according to the Complaints, is dependent upon a motorized wheelchair for mobility. Zipf alleges that he has been deterred from patronizing the bank branches because of certain accessibility barriers. In these newly filed wheelchair accessibility class actions, the plaintiff is alleging a variety of general ADA accessibility violations, including, but not limited to, inaccessible parking lots, handicap signs that are too low, inaccessible door hardware and entrances, and obstructed accessible routes. In each lawsuit, the Plaintiff claims to have visited a number of bank branches and has alleged specific ADA violations at each location.
Continue reading Banks Previously Sued in Title III ADA Class Action Lawsuits Now Getting Sued Again in Second Wave of Accessibility Lawsuits
Pittsburgh-based law firm, Carlson Lynch, responsible for the filing of over 100 nearly identical Americans with Disabilities Act (ADA) ATM class action lawsuits in federal district courts in Pennsylvania and Texas since March 2012, filed in federal district court in Atlanta last week the first of what are likely to be many ADA ATM accessibility class action lawsuits against Atlanta-area banks. If the plaintiff and plaintiff’s law firm follow the same strategy that was used in Pennsylvania and Texas, it is anticipated that a number of virtually identical class action lawsuits will be filed by against Atlanta-area banks, and banks throughout Georgia, over the course of the next several days and weeks.
Click here to read more about the more salient ADA ATM requirements.
Pittsburgh-based law firm Carlson Lynch has now filed sixty-eight Americans with Disability Act (“ADA”) ATM class action lawsuits in Pennsylvania Federal District Courts against banks operating in Pennsylvania and surrounding states, and it does not appear that the filings are going to stop anytime soon.
Continue reading ATM Accessibility Class Action Lawsuits In Pennsylvania Show No Signs of Slowing Down