Looking to 2021: What Will Happen in Web Accessibility Litigation

The treatment of the legal principle of "standing to sue" by the courts has been all over the map in the last few years. In a nutshell, in order to bring a lawsuit, a plaintiff must have suffered an "injury" that can be remedied by the law. Early on, a bunch of credit unions were sued by plaintiffs who had no intention of becoming their customers-- and the National Association of Federally-Insured Credit Unions did a great job asserting that the plaintiffs did not have standing because they  could not have suffered an injury. In response, some clever plaintiffs argued that they were asserting claims as "testers" and, while they may not have suffered an injury, their claims are representative of other potential people with disabilities who would be harmed by the defendant's inaccessible website. I've blogged previously about how this has been treated differently by different courts. Part of the reason that these cases turn out differently has to do with the different ways that courts treat standing. But, I've also noticed that, in general, the courts find it easier to dismiss serial plaintiffs in hotel reservations cases than regular web accessibility cases.

I consider hotel reservation cases as a weird subset of web accessibility cases. In these cases, a plaintiff isn't alleging that the design of the website itself is inaccessible (like a regular web accessibility case). Instead, they are alleging that the hotel didn't provide an adequate description of its accessible guest rooms, as required in the Title III ADA regulations at 28 C.F.R. § 36.302(e)(1). And, while there are exceptions (e.g. Kennedy v. Nisha, Inc., 2020 U.S. Dist. LEXIS 170829 (M.D. Fla. Sept. 17, 2020)), the trend seems to be that a plaintiff needs to assert some concrete intention to be a guest at a hotel before they can sue them. This seems logical to me because it squares with the credit union cases described earlier-- in general, you're facing an uphill battle as a plaintiff unless you can honestly say that you have some concrete intention of becoming a customer.

Standing can also come up in another way-- specifically, how particular your allegations are in your complaint. Earlier this year, I blogged about Albert Rizzi's case against Hilton Hotels. Albert is blind and he sued Hilton because their website was inaccessible (so it's a traditional web accessibility case). The court (repeatedly) dismissed Albert's claim because he didn't assert the exact date and time he visited the website, the exact feature(s) that were inaccessible, and the specific consequences of that inaccessible feature. As a consultant who has helped his fair share of defendants in web accessibility cases, I can appreciate the exactitude required by the court because it's almost impossible to opine on the accessibility of a commercial website from three months ago when those features are constantly in flux. But I do think the court expected a bit too much from plaintiffs in Albert's position.

My gut tells me that the courts are tiring of web accessibility cases and that many will be interested in entertaining easy ways to kick them out (e.g. by finding that the plaintiff has no standing to sue) increasingly in 2021 and beyond.