Website Accessibility Litigation Slowing Down Headed into 2023

Plaintiffs’ lawyers have abused the legal system for a long time, but after 5 years of ever increasing “ADA website” lawsuit filings (including templated claims filed in court), litigation has notably slowed.

Per ADATitleIII.com, the number of ADA Title III lawsuits filed in federal court by the end of June 2022 has dropped by 22%.

And this trend will continue into 2023.

The primary reason: courts in New York and California, the two most litigious states for website accessibility litigation have come down hard against plaintiffs in 2022.

I covered this in a recent video.

[Video Transcript]

So what happened?

New York Ruling

One, the U.S. Court of Appeals for the Second Circuit (New York is in the 2nd circuit) held that a plaintiff has to show “concrete” and “particularized” harm has resulted from visiting an allegedly inaccessible website.

In other words, you can’t just visit a website, find a few accessibility issues, and have standing to file in New York federal court. Rather, plaintiffs must show that a harm has actually occurred which means plaintiffs’ law firms will have to put in more work before filing a complaint in the 2nd circuit.

California Ruling

Two, on August 1, the California Court of Appeals ruled that websites by themselves are not public accommodations under the ADA which means that online-only businesses cannot be successfully sued in California state or federal court.

So websites connected to a physical location (e.g., like a pizza restaurant) are still susceptible, but not businesses that solely exist as a website.

Other Activity

And even though federal trial court decisions do not bind other courts, it’s notable that there is momentum in favor of defendants. Kristina Launey and Minh Vu of Seyfarth Shaw’s ADATitleIII.com blog wrote that federal courts are increasingly finding plaintiffs don’t have standing to sue:

We are seeing a trend in recent federal decisions in ADA Title III cases involving websites: Courts are finding that not being able to access information on a website, with no other adverse consequences, is not sufficient to establish the “concrete” harm required to have standing to sue.

Also, law enforcement officials have taken action against two serial plaintiffs’ law firms in California.

One lawyer who was notorious for sending demand letters has been charged by the San Francisco District Attorney’s Office with 14 counts of grand theft by false pretense. Another law firm engaged in serial litigation has had a civil lawsuit brought against it by the Los Angeles and San Francisco District Attorneys.

What This All Means

This means that “ADA website” litigation en masse will slow down. It won’t stop, but there will be less demand letters sent and there will be less complaints filed.

Also, settlement amounts for serial litigants will decrease.

Before plaintiffs’ law firms were printing money; there was nothing standing in their way. But now, finally, courts are reigning in the reigning in the free-for-all.

However, website accessibility litigation is a long way from over. There are a few things to keep in mind:

• State and federal courts are separate court systems. State courts are independent of federal courts other than they have to follow U.S. Supreme Court decisions on federal law. (One effect of this is plaintiffs’ lawyers have two options on where to file for each state and can choose the most favorable one.)
• Other courts are not bound by trial court rulings.
• Digital offerings such as websites and mobile apps can be accessed from other states (like Florida, Pennsylvania, and Texas in the 11th, 3rd, and 5th circuits, respectively) without precedent that is adverse to plaintiffs’ law firms.
• Demand letters can still be sent.
• DOJ regulation is forthcoming. (Title II regulation is in the works, Title III regulation is highly likely to follow.)
• More legitimate claims may come forward now that redress has been established. (Believe it or not, website accessibility is actually very important and truly impacts quality of life of millions of people.)

All in all, a semblance of sanity has been restored to the legal system and the result will be less litigation.

But even if demand letters and complaints filed decline by 60% from 2022 to 2023, that’s still a fair amount of litigation.

Whereas before, we saw a chaotic, turbulent legal landscape with more “tester” type claims, now I think we’ll see a smoother, more predictable one with more thought-out claims.