Why and How Are There So Many Digital Accessibility Demand Letters?

There were thousands of web accessibility lawsuits filed in 2020 in Federal Court and California State Court under the Unruh Act, according to the Complete Report: 2020 Website Accessibility Lawsuit Recap. New York and California were the most "popular" states for claims. While California requires the same form of non-discrimination as the Americans with Disabilities Act (ADA), the state also permits claimants to recover damages beyond attorney’s fees, a remedy not afforded by the ADA.

Somewhat surprisingly, we tracked slightly fewer website accessibility lawsuits in 2020 than the 2,260 filed in 2019. The decrease is likely due in part to the many pandemic related court closures throughout the country in the first half of 2020. Lawsuit filings picked up in the later half of the year with filings in December 2020 the highest on record.

The vast majority of accessibility lawsuits have been brought by people with vision disabilities, many of whom access websites with screen reader technology. Consumer Goods and Apparel industries have been the most frequent targets of digital accessibility lawsuits.

All of the information is interesting, but what was most notable was the estimation that 265,000 website accessibility related demand letters were sent in 2020. This would mean that the 2,058 formal website accessibility lawsuits filed represent less than 1% of demand letters sent. We spoke with attorneys and others to explore how and why this might be.

The increase of demand letters

The estimation that 265,000 web accessibility demand letters were sent to businesses is not definitive; however, it is known that web accessibility lawsuits account for a fraction of demand letters sent. The data seems to represent an increase from 2019 based on discussions with industry experts and interesting statistic-tracking, such as Google searches for "ADA demand letter" rising 64% from 2019 to 2020.

Typical web accessibility demand letters, with varying degrees of specificity, claim that the recipient company violates Title III of the ADA or Section 508 of the Rehabilitation Act of 1973 because the website is not accessible to individuals with disabilities. The letter in one form or other further states that unless the company modifies its website to meet relevant standards such as the Web Content Accessibility Guidelines (WCAG), the company will continue to be in violation of one or more of these statutes and risk a lawsuit. The most frequent outcome of this process is a financial settlement (PDF).

What is behind the increase in demand letters?

There is no single reason for the flood of web accessibility demand letters sent to businesses in 2020. A combination of factors has likely contributed to the increase, including:

1. Plaintiffs have become increasingly efficient in identifying and pursuing target defendants. A relatively small number of plaintiff’s firms are responsible for the bulk of website accessibility cases. Nearly 50% (49.08%) of lawsuits filed in 2020 were filed by five law firms. Because access to websites and apps are not limited by judicial district boundaries, firms can concentrate or be selective in regards to jurisdictions.
2. Plaintiffs are becoming more sophisticated at understanding settlement sweet spots, "that amount which makes business sense and is difficult for a target company to refuse," says Michael Kohler, an attorney with Miller & Martin in Atlanta, who has represented businesses receiving web accessibility demand letters. Often, with the knowledge that potential ADA recoveries include attorney’s fees, defendants accept these demand amounts early, before both the claimant’s and its legal fees accumulate. As a result of increasing "economies of scale, claimants can account for substantial attorney’s fees while accruing a far lesser amount in sending form demand letters or filing form complaints," says Kohler.

3. With the vast majority of web accessibility cases settling out of court, few court cases have progressed to the appellate level where the potential for guiding precedent can be established. In one leading case, Robles v. Domino's Pizza, LLC, 913 F.3d 898, 910-11 (9th Cir. 2019), which reached the U.S. Supreme Court where it was denied Certiorari in October 2019, the U.S. Chamber of Commerce, in its Amicus Brief (PDF), highlighted this factor stating that plaintiffs "have employed an aggressive sue-and-settle strategy, using the threat of fee-shifting under the ADA to force companies to forego fact-heavy, protracted and expensive trials in favor of fast monetary payouts."

   Jack McElaney of Microassist.com, points out that "over the past twelve years, as digital accessibility capabilities escalated, neither of the past two administrations made any strides in enacting clear statutory or regulatory digital accessibility guidelines." To date, the DOJ has not issued any affirmative regulations only asserting that, in its opinion, the ADA applies to the "websites of public accommodations." The DOJ has declined, however, to endorse WCAG as a legal standard. Some believe this uncertainty leaves companies with the challenge of predicting how a jury will determine, as a question of fact, its compliance with the ADA.

4. The Court with its decision in Robles also encouraged the increase in digital accessibility lawsuits and demand letters in other ways. As pointed out by Michelle McGeogh, a defense attorney with Ballard Spahr LLP in Baltimore, "the Ninth Circuit’s ruling held that Domino’s website and mobile app must comply with the ADA to make online services fully accessible to the visually impaired." McGeogh adds that "since the Supreme Court’s denial of Certiorari, many federal ADA digital accessible cases now claim businesses’ mobile apps are also inaccessible."
5. According to McGeogh, "website accessibility demands are also becoming more varied as plaintiffs begin to rely on authority outside of the ADA to support their claims." State court actions are proliferating in states such as California with statutes that allow for damages beyond attorney’s fees. Claims against real estate companies and mortgage lenders are now common, based upon allegations under the Fair Housing Act, for example.

Conclusion

The pandemic and the resulting near-universal stay at home orders and lockdowns in 2020 and continuing in 2021 may have dramatically influenced the continued growth of digital accessibility lawsuits and demands. Certainly, there is no doubt that our global pandemic has amplified consumers’ reliance on online services. However, even a return to "normalcy" will probably not cause a significant reduction in digital accessibility lawsuits and demand letters. Remote access is now here to stay and most of those who were forced to learn to remotely access life’s necessities and pleasures during the pandemic will likely not return completely to a brick and mortar preference.

In fact, until Congress or the U.S. Department of Justice in its rule-making role establish clear standards and safe harbors for making websites and apps accessible to people with disabilities, the above factors will probably only generate more digital accessibility claims and litigation. As McElaney points out, "the number of people with disabilities in the world will double from 1.1 billion to 2.2 billion by 2030, due primarily to a rapidly aging baby boomer populace."