Summer is clearly winding down up here in Seattle. And it seems that attorneys are slowly getting back to work. This month, we've got quite a bit to discuss.
How Some States are Trying to Curb Excessive Web Accessibility Litigation
I usually don’t spend much time focusing on legislative developments in my monthly summaries but this month will be different. First up, I wanted to highlight two different state legislatures that have taken different approaches to curb serial litigants filing web accessibility claims.
One approach is to require notification before litigation. In California this month, AB 1404 has been making it way through the state legislature and Lexis reports that it has a good chance of making it into a law. California law already requires plaintiffs in construction- and website-related accessibility claims to send a copy of the complaint to a defendant before initiating litigation. AB 1404, which would only come into effect if AB 1757 also became law, would bolster this requirement in web accessibility litigation by requiring plaintiffs to also send an advisory notice pertaining to relevant disability access laws. The goal of notification laws like this are to reduce the burden and surprise for defendants and they are typically used where there is a high-volume of litigation that affects small- and medium-sized businesses. While these notification laws seem innocent enough, however, they are actually quite controversial in the accessibility community because they impose additional burdens on disability-related litigation that are not placed on other types of litigation.
A second approach is to make it easier to sue abusive litigants. In April, Kansas passed the “Act Against Abusive Website Access Litigation.” Kan. Stat. Ann. § 60-5005 (2023). This law authorizes the attorney general to sue an attorney who engages in abusive web accessibility litigation. The law also directs the finder of fact (i.e. the jury or, in the case of a bench trial, the judge) to consider a list of factors, such as the number of similar cases the attorney has filed and the resources available to the defendant, in determining whether the law has been violated. The law also takes a dig against my friends at the Department of Justice as it states, “The lack of standards issued by the federal Department of Justice concerning website accessibility under title III of the federal Americans with Disabilities Act has resulted in the need for this process.” Id., at § 60-5005(a)(2). First, I question the basis for this kind of law as I have never seen a web accessibility litigation from Kansas. I also doubt that businesses in Kansas have been targeted by lawsuits from other jurisdictions where web accessibility claims are common. Second, I also question the need for this kind of law. Doesn’t Kansas have other laws that the state attorney general can use for abuses in litigation generally? Creating a law like this seems like using a howitzer for a mousetrap—which is made even more ridiculous in the absence of any mice!
Intentional Discrimination and Web Accessibility Litigation in California
A little over a year ago, we talked about the California Court of Appeals decision in Martinez v. Cot’n Wash, Inc., 2022 Cal. App. LEXIS 673 (Cal. Ct. App. 2022). In that case, an eCommerce company was sued under California’s Unruh Act because its website was inaccessible. Courts in California follow a unique rule for accessibility claims using Unruh—either the plaintiff has to show a federal ADA violation or the discrimination needs to be intentional. And, as we explained earlier, simply being told that your website is inaccessible and continuing to use it doesn’t constitute intentional discrimination.
This month, another division of the California Court of Appeals had a chance to refine this analysis slightly. In Martin v. Thi E-Commerce LLC, 2023 Cal. App. LEXIS 704 (Cal. Ct. App. 2023), the court faced a similar set of facts as the Martinez court and applied the same legal reasoning, “with the caveat that there could be extreme situations where the impact is so significant, and the amelioration so trivial, that intentional discrimination is a legitimate inference from a failure to correct.”
According to the court, this was not one of those exceptional cases. In Thi E-Commerce, the court noted that the letter did not explain what barriers existed and “thus there is no reasonable inference of intentional discrimination from Thi E-Commerce's decision not to ameliorate unspecified access barriers.” This leaves open the question, “what WOULD constitute intentional discrimination?” One example may be where the plaintiff points out a barrier, explains its impact on people with disabilities, and also describes how it would be trivial for the defendant to correct. Another example may be a case where a plaintiff points out specific barriers on a defendant’s website but the defendant proceeds to redesign their website without addressing the barriers. Because proving intent normally requires showing “‘willful, affirmative misconduct” Id, at *30 (which is a ridiculous high bar to meet), this may be a case where the exception swallows the rule.
Indemnification, Contribution, and Breach of Contract
Back in July, I brought up a discussion about whether Indemnification clauses can be used to make web developers pay for web accessibility lawsuits. The bottom line was that indemnification clauses (which try to shift all the burden of litigation) to a web developer probably won’t work in ADA litigation but contribution clauses (which try to shift part of the burden) may work. If you’re interested in this kind of question, the opinion in County of Livingston v. PSA-Dewberry, Inc., 2023 U.S. Dist. LEXIS 162720 (C.D. Ill. 2023) should perk up your ears. In this case, a county government hired an architect to design a building and then was notified by the state attorney general that the building violated Title II of the ADA it was inaccessible. The county then sued the architect for breach of contract. The architect claimed that the lawsuit was an indemnification claim in disguise and that the county had a non-delegable duty to comply with the ADA. The county claimed that its lawsuit was really more like a contribution claim.
So how did the court settle this battle of semantics? While I think the reasoning is muddled here, the bottom line is that the court found that a breach of contract claim is more like a (permissible) contribution claim and not an (impermissible) indemnification claim unless that claim seeks to fully compensate an entity from all of the damages that it has suffered because of the breach of contract. I probably didn’t explain that well, but again the reasoning is a bit muddled.
So what’s the bottom line? If you want your web developer to be responsible for creating an inaccessible website that just got you sued, don’t rely on an indemnification clause! Instead, sue them under the contract or spell out their share of the responsibility in a contribution clause.
Federal Agency Accessibility Compliance Act of 2023
On September 21, Senator Bob Casey from Pennsylvania introduced the Federal Agency Accessibility Compliance Act of 2023, S. 2910, 118th Cong. (2023). This bill seeks to bolster Section 508 of the Rehabilitation Act by requiring that federal agencies designate Section 508 compliance officers to keep their Section 508 programs on track. Section 508 is a major driver of IT accessibility as it has long required that federal agencies ensure that their electronic and information technology is accessible when they procure, develop, maintain, or use that technology. While the bill makes sense, Lexis reports that it has little chance of passing.
Websites and Software Applications Accessibility Act
Maybe September should be renamed Digital Accessibility Month? Not to be outdone, Senator Duckworth from Illinois and Representative Sarbanes from Maryland reintroduced the Websites and Software Applications Accessibility Act, which addresses the accessibility of websites and software used by the private and public sector (not including federal agencies). The goal of the Act would be to ensure that this technology is accessible and that effective communication is provided in accessing the goods or services offered through those technologies. Given that the bill is a slightly-modified version of an earlier bill that went nowhere, I’m not holding my breath that it will succeed.
New York Courts and Intent to Return
Last month, I blogged about how New York courts are curtailing serial web accessibility litigation by imposing a difficult “intent to return” requirement. This pattern is continuing this month with decisions in Brown v. American Spoon Foods, Inc., 2023 U.S. Dist. LEXIS 154850 (S.D.N.Y. 2023), Loadholt v. Game Goblins, LLC, 2023 U.S. Dist. LEXIS 164876 (S.D.N.Y. 2023), and Dawkins v. Schott NYC Corp., 2023 U.S. Dist. LEXIS 171967 (E.D.N.Y. 2023). Each of these opinions follow the same basic template. First, there is a description of the facts and a brief description of the complaint. Next comes the fact that plaintiff has filed dozens of other web accessibility complaints—and how the complaints all look roughly the same. Then the court talks about how the plaintiff hasn’t demonstrated that they were really interested in the defendant’s products so they can’t show an intent to return. This means that they don’t have standing to sue and so the case should be dismissed. This is a trend that I don’t see ending anytime soon.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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