ADA-Compliant Websites and Trolling Lawsuits

Recently, The New York Times looked at an issue plaguing New York City art galleries that have websites; a small number of attorneys have sued dozens of galleries, claiming that the ADA requires their websites be compliant with certain privately created “WCAG 2.0” standards and demanding tens of thousands of dollars in settlement to avoid litigation.

While it’s a good idea for companies to make sure that images on their websites have alternate text, and that textual content can be re-sized, many of these lawsuits demand compliance under the standards that are more specific than those initially created by the Obama administration, which never actually became regulations as the Trump administration withdrew them all.

This lack of federal regulation has provided feeding grounds for attorneys who want to force courts to adopt the WCAG 2.0 standards, and who demand significant damages in complaints that often don’t rise to the standard of pleading required by the Supreme Court in the decade-old Twombly and Iqbal cases. Plaintiffs are taking advantage of the lack of regulation in this area to file (sometimes bogus) complaints alleging non-compliance. The LA Times reports that over 5000 cases were filed in 2018, and some commentators believe that number will be larger this year, as more plaintiffs’ attorneys take cookie-cutter complaints and file them even where courts have set out requirements that the plaintiffs cannot meet.

Therefore, sometimes a website/ADA case can come to a sudden close. If a complaint doesn’t set forth a cause of action under the 11th Circuit’s requirements, filing a Motion to Dismiss sometimes results in the plaintiff withdrawing a complaint. Recently, Price Benowitz’s Intellectual Property Department chair Heidi Tandy was involved on the defense side when a complaint bereft of specific claims and facts was filed against a company with stores in Florida and a website that’s accessible worldwide; she and her co-counsel pointed out the flaws in their complaint and about a week later, the plaintiff’s attorney withdrew it — with prejudice! — ending the case in a way that strongly protected her client’s position.

Because these website/ADA cases are generic and include no “notice” pleading that gives the defendant any indication of what pages might be noncompliant or contain inadvertent glitches, some plaintiff/attorney teams have filed dozens of such cases that don’t even include links to the pages that they claim are noncompliant, or specific problems with the site. But no federal regulations say what makes a website ADA compliant, and some states (like Florida) say a website that only provides informational content might not need to be ADA compliant, especially if it doesn’t include an interactive shopping experience. Neither the court nor the defendant should have to guess how the plaintiff was allegedly injured.

An attorney familiar with defending companies and nonprofits that are facing these sorts of ADA suits can work with an ADA-compliance auditor to provide specifics about making websites WCAG 2.0-compliant, adding Accessibility Statements to websites to inform users about any known accessibility issues and workarounds, and defending against lawsuits, especially those that are nonspecific or claim that the WCAG 2.0 standards are clear, specific and/or mandatory.

Heidi Tandy chairs Price Benowitz LLP’s Intellectual Property practice; she is a Board Certified Intellectual Property attorney, and focuses her practice on trademarks, copyrights, privacy policies and tech law issues including licenses, assignments and ADA compliance. She is teaching a Privacy Law class at Nova Southeastern University’s LLM program this Spring.