Samuel D. Levy and Martin S. Krezalek

Business usually prefers to avoid championing day-to-day government regulation. But a recent explosion of “surf by” lawsuits accusing consumer-facing websites of violating Title III of the Americans With Disabilities Act (ADA) has businesses demanding regulations setting the minimum requirements to render commercial websites accessible to disabled visitors.

The Department of Justice (DOJ) has concluded that websites are places of public accommodation, requiring accessibility to all visitors. But the DOJ has failed to regulate the standards of accessibility, opening every commerce category to accessibility lawsuits—with over 1.000 filed in New York federal courts alone. Seeking a definitive safe harbor, business interest groups are calling on Congress to mandate that the DOJ issue regulations firmly establishing accessibility standards. The White House is championing a reduced business regulatory scheme, leaving courts as the arbiter of minimum standards. This has led to commercial chaos, replete with over-burdened court dockets and companies facing shake-down lawsuits often settled for amounts less than defense costs.

The DOJ previously signaled that a minimum standard is found in the guidelines created by the World Wide Web Consortium (W3C), an organization devoted to the development of WWW protocols and guidelines. Meeting this criterion is expensive, especially for small- to mid-market companies. It is remarkable that the business community is advocating codification of such costly requirements. It is even more striking that scores of conservative legislators, who are typically hostile to regulation, joined to urge the promulgation of uniform accessibility standards.

The collective urgency exhibited by such unlikely regulation advocates reflects the universal understanding that regulatory guidance is needed. Until the DOJ acts, the threat of surf-by lawsuits will continue to surge.

Background. The ADA requires places of “public accommodation” to meet certain standards of accessibility for disabled visitors. The issue of whether websites conducting online business must also be accessible is not addressed in the legislative text. But the DOJ has pursued enforcement actions against businesses with allegedly “inaccessible” websites and mobile applications, claiming that the websites were inaccessible to the visually impaired because, among other things, the businesses neglected to include screen reader technology.

Coding a commercial website for screen reader technology is expensive and time-consuming, triggering extra costs every time a new photo or link is introduced. Owners typically retain digital accessibility consultants to audit website content and code, with continuing compliance required every time a new page is added. Ensuring screen reader availability is fraught with technical challenges and high costs, leaving many businesses unable to launch new pages due to fear of being sued for noncompliance.

DOJ’s Plays Ostrich as ADA Website Lawsuits Explode. In 2010, the DOJ announced its consideration of regulations to establish website accessibility requirements for disabled individuals, and released a proposed rulemaking notice that pronounced the W3C’s Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA) as the “well-established industry guidelines” to render web content accessible. The notice kicked off a seven year-long rulemaking process that was ultimately abandoned. In 2016, the DOJ withdrew that notice and issued a supplemental notice seeking further input.

In 2017, the White House committed to “deconstruct” the regulatory state, leading to a reverse in website accessibility discussions, including halting enforcement actions against businesses with relaxed website accessibility. In July, the DOJ placed its pending website rulemaking notices on its “inactive list,” and in December, officially announced their withdrawal—stating it was “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate,” and whether “specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”

The withdrawal effectively ended the government’s website accessibility regulatory scheme, unwelcome news to the business community. Plaintiff-oriented law firms pounced, suing thousands of website owners around the country for claimed ADA violations. By the mid-point of 2018, over 1,000 lawsuits had already been filed—more than all cases filed in 2017.

Most such lawsuits include boilerplate complaints with cut-and-paste claims, costing the plaintiff firm a minimum investment of time and resources, typically with a quick settlement because as of this writing, only one such case has been tried (with plaintiffs prevailing). Add-in that most of the lawsuits seek class action status, and the threat to U.S. commerce becomes substantial, with the defense costs being passed-on to consumers. The trend is reminiscent of the classic ADA “drive-by” lawsuits, whereby allegedly injured plaintiffs drive from business-to-business searching for minor ADA violations, and then sue.

ADA Website Cases Are Presently Difficult to Defend. Neither the U.S. Supreme Court nor any U.S. Court of Appeal has addressed what constitutes ADA minimum “accessibility,” nor has any court endorsed any standard other than acknowledging that WCAG 2.0 AA has emerged as a de facto standard. Businesses and defense firms have only a patchwork of divergent U.S. District Court decisions from which to glean any compliance standard, and even those decisions differ depending upon the jurisdiction. These decisions have been confusing—if not demonstrably confused—to say the least.

The reason for confusion is that, while the DOJ and several courts have said the ADA requires websites to be accessible to the visually impaired, and the DOJ has repeatedly endorsed WCAG 2.0 AA as the standard, the DOJ has failed to officially promulgate any regulations clearly defining what it takes for private sector websites to be accessible—be it WCAG 2.0 AA or some other minimum criteria. Nor has the DOJ explained how businesses can evidence their plan to remain compliant, so as to moot future lawsuits post-remediation. The DOJ’s approach has provided fodder to plaintiffs claiming that, as per the DOJ, websites are public accommodations needing to be ADA compliant, and websites failing to meet the WCAG 2.0 AA criteria fall short.

Consequently, defendants have had difficulty dismissing even the most boilerplate lawsuits. For example, a defense based on mootness may seem appropriate where the defendant has undertaken concrete steps to remediate. Since the ADA does not provide for monetary damages, plaintiffs seek injunctive relief requiring businesses to remediate websites to allow all persons access and prohibiting additional discriminatory activity.

A claim for injunctive relief is rendered moot where there is no reasonable expectation that the alleged violation will recur, or events have eradicated the effects of the alleged violation. In the brick-and-mortar context, a claim becomes moot where the defendant remedies the access barrier during the pendency of the litigation. In the website context, however, successful mootness claims have been difficult to achieve. Take Haynes v. Hooters of Am., 893 F.3d 781 (11th Cir. 2018), for example, where the Eleventh Circuit held that plaintiff’s claims were not mooted by the fact that Hooters agreed to a remediation plan as part of settling an identical suit months-earlier. In rejecting Hooters’ mootness argument, the court found that, even though Hooters claimed it was in the process of remediating, nothing in the record demonstrated that Hooters had “successfully done so.” Further, a live controversy remained because the court could direct Hooters to continually update and maintain its website to ensure it remained fully accessible, and if Hooters failed to remediate under the previous settlement, the current plaintiff would have no way of enforcing the remediation plan. Id. at 784. In Del-Orden v. Bonobos, No. 17 CIV. 2744 (PAE), 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017), the court similarly rejected Bonobos’s mootness argument for dismissal based on its having fixed the deficiencies, because the plaintiff alleged that the website was “still not reasonably accessible” post-remediation. Id. at *12.

Proper Regulation Will Reduce Frivolous ADA Website Lawsuits. A DOJ website accessibility regulatory scheme will reduce the rising volume of ADA lawsuits targeting websites and provide a clear path for compliance, assisting visually impaired website visitors. For instance, regulations could implicate the primary jurisdiction doctrine, which applies whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. Under this prudential doctrine, the court may determine that the claim before it implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry. At least two courts, including Bonobos, have signaled that DOJ guidelines (based on technical expertise rendered by qualified professionals) would be influential when considering ADA website claims. The Bonobos court also recognized “that the [DOJ] may one day render, by regulation, as to the standards by which a commercial website may comply with the ADA. If and when such standards issue, they likely will be consequential as to the standard for judging liability.” Id. at *15. The court in Robles v. Domino’s Pizza, No. CV1606599SJOSPX, 2017 WL 1330216, (C.D. Cal. March 20, 2017) went even further, stating that “regulations and technical assistance [were] necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with [the ADA].” Recognizing that the issue of web accessibility obligations “require[d] both expertise and uniformity in administration, as demonstrated by the DOJ’s multi-year campaign to issue a final rule on this subject,” the court held that, until the DOJ or Congress sets formal accessibility standards, defendants’ due process precluded ADA claims. Id.

Regulations could also implicate Chevron deference. The Bonobos court signaled that a DOJ regulatory interpretation that websites were not places of public accommodation for ADA purposes would be entitled to Chevron deference, stating that “[h]ad the [DOJ] issued regulations addressing the [issue of whether the ADA applies to commercial websites], courts addressing such claims, including this court, would surely have considered those views, including any argument that deference was due to an agency’s statutory construction …[t]he Justice Department, however, has not rendered any such interpretation and there is no charter for this Court to defer doing its duty while waiting for one.” 2017 WL 6547902 at *14.

The DOJ Should Resume the Rulemaking Process. If the onslaught of ADA website cases has proven anything, it is that DOJ regulation is needed. Even the most strident anti-regulatory legislators have acknowledged as much.

In May 2018, the House of Representatives’ House Appropriations Committee approved an appropriations bill, which included a provision directing the DOJ to adopt accessibility guidelines: “The Committee expects the Department to clarify standards for website accessibility requirements pursuant to the Americans with Disabilities Act in fiscal year 2019. The Committee recognizes the confusion caused by a lack of uniform website accessibility standards. The lack of clear requirements disadvantages small businesses that provide essential services for our communities.”

On June 20, 2018, a bipartisan collection of House 103 members—including at least 24 openly identifying as part of the House Freedom Caucus (the most reliable supporter of the White House’s anti-regulatory agenda)—delivered a letter to Attorney General Jeff Sessions expressing support for the DOJ “providing guidance and clarity with regard to website accessibility under the … ADA.

On Sept. 4, 2018, six Senators, including Sens. Charles Grassley and John Cornyn, also sent a letter urging the DOJ to clarify the obligations of businesses, if any, to make their websites accessible. In direct response to the surge of ADA website lawsuits, the Senators argued that “the [current] lack of regulatory clarity benefits only the plaintiffs’ lawyers,” and that “[c]larity in the law will encourage private investment in technology and other measures that will improve conditions for the disabled.”

On Sept. 25, 2018, the DOJ responded that it was still evaluating whether issuing specific web accessibility standards was necessary and appropriate. However, the DOJ signaled that it may forgo specific technical requirements and promulgate a standard based on “flexibility,” stating that “[a]bsent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication … noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” This would be a mistake—unless the DOJ provides clear and measurable guidance as to when a website is compliant.

One particular line in the Senate letter best illustrates why legislators like Sens. Grassley and Cornyn (who each tout their career-long efforts to “lessen excessive regulatory burdens”) are pushing for regulations that would most-certainly compel businesses to spend on technology— “[b]usinesses would rather invest in making sure they can serve their disabled customers, instead of pay[ing] money to avoid a shakedown by trial lawyers who do not have the interests of the disabled at heart.”

Well put. The DOJ should resume the rulemaking process that it imprudently abandoned. The unprecedented surge of ADA website accessibility lawsuits has demonstrated that it is appropriate and necessary for the DOJ to promulgate regulations—including, in no uncertain terms, identifying specific technical standards for websites to be ADA compliant. Appropriate regulations will curb frivolous, ‘sue-and-settle’ lawsuits while providing much needed guidance to courts presently struggling to determine what obligations businesses must abide by to comply with the ADA.

Samuel D. Levy is a partner and Martin S. Krezalek is an associate in the corporate litigation group of Blank Rome. Both practice ADA website accessibility defense and have written on the subject.