Federal lawsuits over website accessibility spiked in 2021 despite pandemic lull mid-year | Seyfarth Shaw LLP

Synopsis of Seyfarth: ADA Title III website accessibility lawsuits filed in federal court in 2021 jumped 14% from 2020, outpacing the 12% increase in 2020, helped by a huge spike in filings in November 2021.

The numbers are there for the total number of website accessibility lawsuits filed in federal courts in 2021, and they show a whopping 14% increase. from 2020. The total number of lawsuits filed in federal court alleging plaintiffs with disabilities couldn’t use websites because they weren’t designed to be accessible and/or work with assistive technologies in 2021 was 2,895 to 372 more than in 2020. This 14% increase in the number of trials in 2021 exceeds the 12% increase we saw in 2020. While these numbers pale in comparison to the explosion of cases that we experienced from 2017 to 2018 (a 177% increase), recent increases are still very significant.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2020: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (12% increase from 2019); 2021: 2,895 (14% increase from 2020). *The number of cases that could be identified through a diligent search.]

In the first 10 months of 2021, there were between 170 and 260 deposits per month except for March and August with 329 and 139, respectively. Filings jumped in November 2021 to 499 largely thanks to a New York law firm that filed 357 such lawsuits.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2021 – Dec. 2021): Jan. 2021 (234), Feb. 2021 (256), Mar. 2021 (329), Apr. 2021 (220), May 2021 (196), Jun. 2021 (242), Jul. 2021 (172), Aug. 2021 (139), Sep. 2021 (179), Oct. 2021 (183), Nov. 2021 (499), Dec. 2021 (246), *The number of cases that could be identified through a diligent search.]

Federal courts in New York, Florida and California continued to be the busiest by far, with California stealing second place from Florida in 2021 and 1,564 in 2018). California recorded 359 lawsuits (compared to 223 in 2020, 120 in 2019 and 10 in 2018) and Florida recorded 185 (continuing a downward trend of 302 in 2020, 526 in 2019 and 576 in 2018), as the shows the table below. In fourth place at 167, Pennsylvania was only down slightly from its 173 lawsuits filed in 2020. Colorado dropped out of the top 10 and Illinois moved back into fifth place with 34 lawsuits, or 2 more than its total of 32 in 2020 but (down from 91 trials in 2019). Connecticut and Indiana remained in the top 10 with relatively meager numbers at 14 and 7, respectively, and newcomers Oregon and Wisconsin rounded out the top 10 with 5 and 4 deposits, respectively.

These figures do not take into account the numerous demand letters sent by law firms which never result in lawsuits, as well as lawsuits filed in state courts (mainly in California) which are more difficult to to follow. These figures also do not include lawsuits filed alleging that a mobile application is inaccessible, unless the lawsuit also alleges an inaccessible website. In an unscientific search in 2019, we encountered 203 lawsuits alleging ADA violation due to inaccessible mobile apps, all filed by three attorneys in Florida and New York; this year, that number was closer to 50.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2021: NY 2,074, CA 359, FL 185, PA 167, MA 41, IL 34, CT 14, IN 7, OR 5, WI 4. *The number of cases that could be identified through a diligent search.]

If you’re wondering why California has so few website accessibility cases compared to New York, it’s because many plaintiffs prefer to file in state court where the law is generally more favorable to plaintiffs, especially where the defendant is an online-only business. We’ll be keeping an eye on Florida in 2022 to gauge the impact of the Eleventh Circuit decision to wipe the Gil v. Winn Dixie cases entirely outside the law reports for reasons of relevance. Before doing so, however, the Eleventh Circuit had issued a ruling that set a fairly high hurdle for plaintiffs seeking to demonstrate an ADA violation in a website accessibility case, suggesting that the Eleventh Circuit may well be coming. again to the same conclusion. This decision could have a chilling effect on Florida plaintiffs in this type of case.

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About our methodology: Our 2021 figures are based on research using data keywords from Courthouse News Services. Thus, it is possible that some cases of website accessibility were not captured in searches if their descriptions did not include the keywords. We then manually review the thousands of entries to remove lawsuits that may relate to websites, but do not relate to the accessibility of a website to a user with a disability. For example, there were a number of lawsuits in 2018-2021 (a very large explosion of such lawsuits in 2021 in California) brought by mobility impaired plaintiffs alleging that the booking websites of hotels did not provide adequate information on the accessibility of hotel facilities.

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