Looking to 2022: What Will Happen in Web Accessibility Litigation

Why Another 2021 Prediction?

It's late Friday afternoon and the sun is setting here on the west coast. So why would I possibly publish a blog post now? Because it's also New Year's Eve and it's a good time to look back on the year while also looking forward. Plus, while preparing an entirely different blog post, I came across  a set of predictions I made at the beginning of the year.

One Heck of a 2021

Our Business

At Converge Accessibility, it's been one absolutely crazy year. Honestly, I never wanted to start a business because I was terrified about the huge amount of work involved. I still don't recommend it to anyone who doesn't (1) have the ability to get a ton of work done in a short amount of time, (2) enjoys juggling a hundred balls at one time, and (3) absorb information and learn new concepts and confusing technologies instantly. Somehow, we survived-- and actually thrived-- over the last year but I sure hope 2022 will be more subdued.

My 2021 Predictions

It looks like my 2021 Predictions were pretty spot-on.

  • California as the New Florida. We did see a lot more cases being brought in California. Honestly, it wasn't as many as I expected but there were still a lot. I certainly didn't see Winn-Dixie decision coming. I'm sure that one decision completely skewed web accessibility cases for 2021.
  • Standing to Sue. I predicted that standing to sue in web accessibility cases would be a big issue-- and it was! While there isn't any greater clarity, I think the battle lines are starting to be drawn between the Eastern and Southern Districts of New York in their approach to standing.
  • No New DOJ Regulations. I was right in predicting that new regulations from the Department of Justice on web accessibility was a long shot. The Civil Rights Division was just too much of a mess after the last Administration-- and change takes time.
  • No New Accessibility Bills. And, with a change of administration, there were no efforts to create new laws or changing the ADA to limit web accessibility lawsuits.

My Brief Predictions for 2022

Last year, I explained my 2021 predictions in excruciating detail. This year, I'm older and more tired. Plus it's New Year's Eve and there is a cold bottle of champagne calling to me. So I'm keeping it brief.

Exciting Converge Events

This is an easy prediction because I have inside information. In the closing hours of 2021, we made some exciting changes in Converge Accessibility. I can't give away our Master Plan for World Conquest, but I can tell you that it should be a fantastic year for us in promoting web and digital accessibility.

ADA Web Regulations for Title II

Okay, I'm going out on a limb here. I think that Justice will get its Title II web accessibility draft regulation out in 2022. A draft regulation takes time to pass through the government's digestive tract--  and I haven't heard any rumors yet. Nevertheless, web accessibility regulations are desperately needed. At the same time, I don't think we'll see final regulations in 2022-- unless those regulations are pretty bare-bones and fail to give clear and exact direction.

Winn-Dixie is Going Away... Sort Of

The biggest bombshell of 2021, of course, was the Winn-Dixie decision. This was an opinion written by a three-judge panel of the Eleventh Circuit Court of Appeals, which is now to be decided by an en banc opinion by the full 11th Circuit. The three-judge panel comprised Judges Jill Pryor (appointed 2014), Elizabeth Branch (appointed 2018), and Danny Reeves (appointed 2001). The opinion was penned by Judge Branch. Danny Reeves, a district court judge, was sitting by designation. Judge Pryor dissented.

I hate using politics as a lens for predicting how judges will go but it's not an unreasonable predictor over the last few years. Simply put, judges appointed during the Trump Administration tend to be more reactionary when it comes to limiting web accessibility lawsuits. Easy examples are Judge Branch's opinion in Winn-Dixie or Judge Komittee's opinion in Winegard v. Newsday LLC. Of the twenty judges on the 11th Circuit, only six were appointed during the Trump Administration. Up until then, however, the 11th Circuit had managed a fairly evenly split balance in its opinions in web accessibility.

The bottom line is that I don't think that the 11th Circuit is ready to become the circuit where web accessibility and civil rights goes to die. Web accessibility litigation is out of hand-- and unscrupulous lawyers in the Southern District of Florida are largely to blame. But Judge Branch's opinion was not the right way to address the problem. That said, I can't imagine the court falling back to a more liberal position than the standard nexus formulation used by the Ninth Circuit (only seven judges of 20 were appointed by Democrat presidents).

Happy New Year!!

The bottle of champagne isn't going to drink itself so I'm ending this blog post. Thanks for following us in 2021 and I hope you all have a safe and wonderful 2022!

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