By Seyfarth Shaw LLP – We’ve sheltered in place and finished our tally. The numbers are in for total website accessibility lawsuit filings in federal courts in 2019, they show a small decrease from 2018. The total number of website accessibility lawsuits filed in federal court (i.e. lawsuits alleging that plaintiffs with a disability could not use websites because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them) in 2019 was 2,256 — two fewer than in 2018. In short, the number of suits appears to be leveling out after businesses saw an explosive 177% increase in these suits from 2017 to 2018.
[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2019: 2017: 814; 2018: 2,258; 2019: 2,256. *The number of cases that could be identified through a diligent search.]
In fact, the number of federal ADA Title III website accessibility lawsuit filings decreased in the fourth quarter of 2019, contrary to our prediction that the U.S. Supreme Court’s refusal to review the Ninth’s Circuit’s pro-plaintiff decision in Robles v. Domino’s would result in a surge of website accessibility lawsuits. Prior to the Supreme Court’s October 7, 2019 refusal to hear the Domino’s case, an average of 7 lawsuits were filed per day, as compared to 4 per day after that date for the remainder of 2019. And as shown in the chart below, while the greatest number of suits were filed in July and August (258 and 270, respectively) monthly filings then decreased by nearly half for each of the last four months of the year.
[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 1, 2019 – Mar. 30, 2020): Jan. 2019 (239), Feb. 2019 (211), Mar. 2019 (183), Apr. 2019 (183), May 2019 (203), Jun. 2019 (181), Jul. 2019 (258), Aug. 2019 (270), Sep. 2019 (131), Oct. 2019 (140), Nov. 2019 (138), Dec. 2019 (119), Jan. 2020 (187), Feb. 2020 (174), Mar. 2020 (167). *The number of cases that could be identified through a diligent search.]
The number of filings went back up for the first three months of 2020 but were still lower that the number of filings in the same months in 2019. The tally was 187, 174, and 167 for January, February, and March 2020, compared to 239, 211, and 183 for those same months in 2019.
New York and Florida federal courts continued to be the busiest with 1,354 (down from 1,564 in 2018) and 526 (down from 576 in 2018) lawsuits, respectively, as shown in the chart below. California and Pennsylvania bypassed Illinois and Massachusetts for the distant third and fourth positions, even though lawsuits for all those states more than doubled in 2019 over 2018. Pennsylvania had 92 lawsuits while Illinois had 91 lawsuits in 2019, more than double the 42 and 7 respectively in 2018. The number of California lawsuits jumped from 10 in 2018 to 120 in 2019. This number does not account for the many demand letters sent out by California firms that never result in lawsuits and lawsuits filed in state courts which are much more difficult to track.
[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2019: NY 1,354, FL 526, CA 120, PA 92, IL 91, MA 33, WI 8, IN 6, CO 6, DC 5. *The number of cases that could be identified through a diligent search.]
The number of New York federal website accessibility lawsuits continues to be staggering but it is going down, compared to last year. The New York surge began in 2017 after New York federal judges allowed website accessibility cases to proceed to discovery in lawsuits against Blick Art and Five Guys in 2017. The modest decrease in the New York numbers is likely due to some New York attorneys turning their attention to filing hundreds of lawsuits regarding the accessibility of gift cards in late 2019 and early 2020.
About our methodology: Our 2019 numbers are based on searches using keywords of data from the Courthouse News Services. Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords. We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability. For example, there were a number of lawsuits in 2018-2020 brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities. We also removed a number of lawsuits from the 2019 count brought against state and local government entities under Title II of the ADA for having inaccessible websites.