Plaintiff’s Bar Opens New Front in ADA Website Litigation

Date: January 28, 2019

We’ve talked in the past about how the Americans with Disabilities Act has led to rampant Title III public accommodation lawsuit abuse. Because it’s easy to inadvertently violate the ADA, we’ve developed guidance for businesses facing threat of an ADA lawsuit and encouraged owners to be proactive in addressing ADA issues before hit with a suit. Unfortunately, ADA litigation will continue unchecked, thanks to a recent Ninth Circuit Court of Appeals decision in Robles v. Dominos, which held that the ADA requires businesses to make websites assessible to the disabled.

But when the ADA was enacted in 1992 the internet was not what it is today. NFIB believes that the text of the statute, as well as the legislative history, make clear that Congress did not intend to regulate digital spaces. Without guidance from Congress or the Department of Justice, which enforces Title III of the ADA, it’s unclear how a business can ensure that its digital presence is compliant. And the plaintiffs bar has every incentive to bring these sort of claims—especially in California where ADA plaintiffs are guaranteed automatic monetary awards.

Indeed, its now easier than ever to set up an ADA lawsuit without even leaving one’s home. And while there may be defenses for businesses who can say that they’ve attempted to make their websites as user friendly as possible, the problem remains that there is no federal guidance here. Moreover, the exorbitant costs of litigation will generally force businesses to settle, even where they may have a meritorious defense.

The United States Supreme Court needs to take up this issue to clarify, once and for all, whether or not the ADA covers digital spaces. We anticipate a petition for certiorari given that the federal appellate courts are divided on this very important question.

For more thoughts, check-out our prior post: “Fighting in the Next Frontier of ADA Litigation.”   

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