Congress still needs to step in to quash web accessibility suits. Pulling back rulemaking at the Department of Justice does not stop any of the private suits, nor does it curtail the wide-open scope of liability under the perceived precedent of the Winn-Dixie case [Minh Vu, Seyfarth Shaw]
- Virginia credit unions hit with wave of website accessibility claims [Tina Orem, Credit Union Times] McDonald’s, Kmart, others settle suits over website access for the blind [Samantha Bomkamp, Chicago Tribune] “Attorney exploits the blind to sue businesses: suit” [Julia Marsh, New York Post]
- Wheelchair-using donut shop owner/manager from California tells Congressional hearing she’s been sued over accessibility, too [John McMickle, The Hill] “California small businesses are vulnerable to mass-produced litigation” [Betty Jo Toccoli, Orange County Register]
- “Federal Courts, State Governments Push Back Against Corrosive Disabilities Act Suits” [Greg Herbers, WLF/Forbes]
- Arizona: “Serial litigant barred from filing frivolous ADA lawsuits” [Linda Bentley, Sonoran News on Advocates for Individuals with Disabilities group; earlier here, here, here, etc.]
- “Florida Lawmakers Take Action To Curb Access Suits, But Will It Work?” [Samuel Sverdlov and Minh N. Vu, Seyfarth Shaw]
- New Mexico: “99 ADA lawsuits dismissed as fraudulent and malicious” [Martin Orlick, JMBM Hotel Law, earlier]
From reader Matt S., on a phenomenon people have been musing about for years:
No, if you think about it, it’s fairly easy to understand that one..
They have to have the braille on walk up ATM and it’s just easier to have one set of buttons on a given ATM model that can be installed anywhere, than to manufacture two different sets of controls for any one model, one for walk up installations and one for drive through installations.
Once you have to have braille on some ATMs, basic economics says that it will be more cost efficient to have it on all ATMs.
It’s part of a lively reader discussion of accessibility rules.
At the New York Times, Vivian Wang covers one of our regular topics around here, the wave of ADA lawsuits over website accessibility. Among the latest targets of these suits: colleges and universities.
Since January 2015, at least 751 lawsuits have been filed over the issue. The vast majority have focused on retailers and restaurants, according to a legal blog that tracks such suits.
A single plaintiff, however, has now sued eight New York-area colleges and universities, including Fordham University and Long Island University.
Some disability rights advocates, acknowledging the charges that some lawyers are just looking to cash in, have distanced themselves from the suits.
“We do not condone just filing a blizzard of lawsuits in order to get settlements. That’s not solving the underlying problem,” said Chris Danielson, public relations director for the National Federation of the Blind. His organization has pushed instead for clearer federal guidelines on web accessibility.
Relatedly, John Stossel covers Berkeley’s liability-driven removal of free public online course materials (“A third threat to free speech at University of California, Berkeley has led to more censorship than political rioters or college administrators. It’s the Americans with Disabilities Act.”). And while the vending machine case of Magee v. Coca-Cola Refreshments had raised hopes or fears in some quarters that the U.S. Supreme Court might seize on it to bring some much-needed clarity to the state of online accessibility law, the high court decided against taking the case and let stand a ruling against the blind plaintiff. [Emily Jed, Vending Times; more, Minh Vu]
Recently the University of California, Berkeley, took down online lecture and course content that it had offered free to the public, rather than risk liability for not modifying them so as to be conveniently usable by members of the public with hearing, visual, or manual disabilities. Harvard and M.I.T. had already been sued on similar grounds.
Now imagine the Berkeley take-down times 10,000 — a world in which private commercial, educational, and non-profit entities alike have legal incentive to de-publish any web content they do not think bulletproof against claims of lack of ADA accessibility. That’s not just imagining. It’s the world we’re looking at as a number of federal courts, setting aside years-old precedent, have begun to accept plaintiffs’ arguments that the ADA applies broadly to the web. As freelance lawsuits against private defendants proliferate, the choice is plain: either act to stop this trend, or expect widening disruption and takedown of formerly free web content.
In a much noted June case against the Winn-Dixie supermarket chain, a federal court accepted the notion that the store could be sued under the ADA because its website was a “place” of public accommodation, like a brick and mortar store. As Frank Cruz-Alvarez and Rachel Canfield observe in a Washington Legal Foundation paper, “the court found that the website was ‘heavily integrated’ and a ‘gateway’ to the physical stores, notwithstanding that the website limits customer participation to acquiring in-store coupons, refilling existing prescriptions for in-store pick-up, and utilizing a store locator function.” Since then federal courts have ruled favorably on ADA-for-the-web claims in more than one other case, including a decision by Judge Jack Weinstein of the Eastern District of New York in a case against Blick Art Materials.
I’ve been warning for a long time that web accessibility has the potential to be one of the most damaging and onerous regulatory initiatives in memory. It’s true that with courts split on the issue there is a chance that at some point the U.S. Supreme Court will take a case allowing to resolve the uncertainty and — if we are lucky — uphold earlier precedents such as that in a 2002 case in which a court dismissed a lawsuit against Southwest Airlines. In the mean time, entrepreneurial lawyers have been filing hundreds of lawsuits against local and national businesses over their websites, many of which settle for money out of court, and on the current momentum will soon be suing thousands more. Millions of existing web presences are uncompliant and easy targets for litigation. The real answer is for Congress to step in.
[cross-posted from Cato at Liberty]
- Teens in Gardendale, Ala. need a business license to cut grass and it’ll cost a cool $110; it was grown-up lawn servicer who threatened to call town if he saw teen cutting a lawn again [WBMA, UPI]
- “It Isn’t Just Hamburger Stands That Will Be Shut Down By ADA Lawsuit Filers. My Website And Countless Others Could Be” [Amy Alkon, related Mark Pulliam, L.A. Times, more on web accessibility]
- Ten years later, recalling when Nebraska state senator Ernie Chambers filed a lawsuit against God [Atlas Obscura, our coverage]
- 15% of Mumbai’s housing stock lies vacant, and 12% of India’s. Blame state housing mistakes and regulation of tenancy [Alex Tabarrok]
- “The Progressives Took Away Our Right to Contract. It’s Time to Reclaim It” [Iain Murray, FEE]
- “In that version, she didn’t do anything wrong — it was the other sexy cop who demanded money.” [Lowering the Bar on Ninth Circuit decision in Santopietro v. Howell, which breaks new ground as the first reported decision to use the phrase “sexy cop.”]
- FDA’s costly menu labeling rules set to begin enforcement May 5. Any hope of blocking them? [Baylen Linnekin, earlier]
- “Justice Department Disability Demands Raise Serious Free Speech Issues” [Hans Bader, CEI, earlier on the Berkeley online course takedown]
- Government shouldn’t be entitled to shut down recording of its officers in public places when it doesn’t interfere with law enforcement [Ilya Shapiro and Devin Watkins on Cato Institute brief in 9th Circuit case of Jacobson v. Department of Homeland Security]
- I knew the late Leo Rosten a bit in 1990s NYC. Now Dan Klein has a fun paper on The Joys of Yiddish as an economics text [SSRN via David Henderson]
- Many libertarians diagnose “crony capitalism” as a leading source of American ills. How good are their examples? [Arnold Kling]
- Signs in India proclaiming who owns a given plot of land point to a vulnerability of legal system [Alex Tabarrok] “The Uttar Pradesh Association of Dead People” [Tabarrok on this 2009 Open Magazine piece]
“Arizona Governor Doug Ducey just signed into law an amendment to the Arizonans with Disabilities Act (AzDA) designed to make it more difficult to bring lawsuits against businesses based on claims that they are not accessible to individuals with disabilities. The amendment requires potential plaintiffs to give business owners notice of alleged access violations and allows businesses 30-90 days to correct the issues before a lawsuit can be filed. It also excludes websites from the AzDA’s requirements and authorizes courts to impose sanctions on plaintiffs and their attorneys if the court finds that a lawsuit was brought for the primary purpose of obtaining a payment from the defendant business.” [Caroline Larsen, Ogletree Deakins; Maria Polletta, Arizona Republic; ICSC]
A similar bill is needed at the national level.
In Magee v. Coca-Cola Refreshments USA, Inc., the Supreme Court is being asked to resolve what might be a relatively narrow question under the Americans with Disabilities Act: whether a soft drink vending machine (which happens to be web-enabled) counts as a “place of public accommodation.” Plaintiffs in the case argue that it is a “sales establishment,” but the Fifth Circuit found that term more appropriately to cover business establishments that a customer might enter. Lurking in the background, for possible guidance if not resolution by the Court, is the much bigger question of whether virtual-only elements of commerce, such as websites, are “establishments” of “public accommodation.” The high court has not resolved that question, which has allowed for the growth of the fantastically expensive and onerous theories of web accessibility under which lawyers are now rolling out a large volume of lawsuits, such as one challenging as inaccessible the order-taking website of the Five Guys hamburger chain. Perhaps aware of these major if not necessarily immediate implications, the Supreme Court has invited the U.S. Department of Justice to offer comments on whether it should grant certiorari in the case. [Daniel Fisher]
- Judge denies motion to dismiss in Kentucky Trump rally violence suit, now try explaining what that means to some headline writers [Ken White, Popehat]
- False liens, threats of “arrest” cited in indictment of eight Colorado sovereign citizens [Boulder Daily Camera]
- How virtual reality (VR) may give rise to tort claims [2-part Volokh Conspiracy: first, second]
- D.C. Circuit: no, the FCC can’t enable lawsuits over “unsolicited” faxes that recipients did in fact agree to [NFIB]
- Economist seems glad free online Berkeley courses got saved; ADA fans in comment section urge his firing, call him felon [Alex Tabarrok, MargRev]
- With one in four of all patent cases going to a single federal judge in east Texas, forum-shopping is a menace to judicial impartiality [Jonas Anderson, SSRN]