2020 accessibility lawsuits are on track to be close to 50 % higher than either 2018 or 2019. This article reviews a single week’s worth of those lawsuits.
PACER is the go-to tool for lawyers wanting information about the status of and filings for particular lawsuits. But PACER is wicked expensive, especially if you are interested in it for trends/research and aren’t specifically looking at the data for litigation purposes.
I’ve been very fortunate that Jason Taylor from UsableNet, a provider of accessibility technology and services, collects data from PACER to help inform UsableNet’s future services and clients on ensuring digital inclusiveness and avoid legal actions. You can read UsableNet’s mid-2020 accessibility litigation update here.
I discussed the number of accessibility lawsuits being even higher than the last two years, despite court closures due to COVID with Jason on LinkedIn. Then, I asked him to provide me with access to one week’s worth of cases (it happens to be the week of Sept 21, 2020) to see if I could analyze them in a way that informs people and lead them to positive accessibility action. Of course, this approach presumes that the organizations that are not yet accessible are long past the “it’s the right thing to do” argument, or they would have become accessible already.
Total number of lawsuits filed in one week: at least 82
Annualized, this works out to about 4000 per year. Some weeks are over 100 at this point. Why so high? Right now, litigators are playing catch-up from when the courts were shut down last spring and only hearing emergency cases.
The count of 82 is probably on the low side. This represents all of the digital accessibility lawsuits filed in:
- Federal district courts, where ADA cases are filed, and;
- California state cases, where Unruh Act cases, California’s bigger, badder ADA cousin, are filed.
It is possible that some cases were filed in the 49 other states outside of the federal court system. However, that becomes a more difficult search, and this was more than enough data to analyze. The 82 cases were largely filed in New York and California, with a few in Florida and a couple in smaller states. This really isn’t a surprise given where the plaintiffs’ firms are largely located.
Also, the count of 82 lawsuits does not include the countless demand letters that were probably sent out, which have no cross-country tracking mechanism. Demand letters are usually the first step before an accessibility lawsuit is filed.
Finally, 90 %+ of accessibility cases are resolved in favor of the plaintiffs. Many more settle confidentially, likely also involving plaintiff payments and payment of legal fees. It’s big business for several plaintiffs’ firms. The longer organizations remain inaccessible, the longer those firms will be feeding at the accessibility trough while nothing happens to improve users with disabilities.
The total value of one year’s annual revenue for these organizations sued in ONE WEEK was $33 BILLION dollars
Hanesbrands Inc. 2019 revenue, almost $7 billion.
Litigation History: 5 lawsuits so far, 3 lawsuits in 2020 alone.
Cole Haan 2019 Revenue: $686.6 million.
Litigation History: Has been sued 4 times previously over ADA issues, including twice in 2020.
Wolverine World Wide, Inc. (shoewear, parent company to Harley-Davidson Footwear, Hush Puppies, Keds, Merrell, Saucony, Sperry, and Strideright) 2019 Revenue: $2.27 billion
Eileen Fisher, women’s clothing. 2019 revenue, $500 million
History: 6 lawsuits so far, 3 of which have been filed in 2020. Two of these lawsuits were filed within 2 days — with different plaintiffs but the same lawyer. Thanks to the Hooters case, several lawsuits filed against the same defendant at the same time.
Jill Acquisition, LLC d.b.a. J.Jill. 2019 revenue $641 million
History: Multiple lawsuits — 3 so far
SPARC Group LLC (Forever 21, Aeropostale, and Lucky Brand) 2019 revenue $843 million
Bill Miller Bar-B-Q Enterprises, LTD. Annual Revenue: $250 million
Murray’s Cheese LLC 2019 annual revenue $250 million (7 % of the US cheese sales)
BA SPORTS NUTRITION, LLC, d.b.a. DRINKBODYARMOR.COM Annual Revenue $125 million
Bogopa Service Corp. (owns Food Bazar) Annual Revenue: $27 million
History: Multiple previous lawsuits
Barnes & Noble Booksellers, Inc. Revenue: 3.48 billion
Litigation History: Multiple previous lawsuits
Hims, Inc., male health care services Revenue: Guidance for 2020 is $250 million
History: three lawsuits so far. Either Alexis Ohanian is too busy recording commercials to air on MLB baseball playoff games to be interested in accessibility, or he isn’t worried about selling products to male customers with disabilities?
Careington International Corporation (dental plans) Revenue: $118 million
Zarbees, Inc. — a division of McNeil (vitamins) Revenue: Between $10 and $50 million
There are two themes for retail lawsuits for the week of September 21, 2020.
- Someone clearly went on a lawsuit spree of reviewing companies that sell photographic equipment.
- Someone clearly went on a lawsuit spree of reviewing companies that sell housewares.
Targeted companies include:
- Olympus America Inc. Annual revenue over $7 Billion
- Nikon Inc. Annual revenue almost $5.5 Billion
- Sigma Corporation of America Annual revenue over $350 million
- Bradshaw International, Inc. Annual Revenue $327 million
- Croscill Home LLC Annual Revenue $142 million
- Chairish, Inc. Annual Revenue $4 million
The outlier that also falls into this category is
Harry’s.com, Inc. Annual Revenue $200 million, multiple lawsuits
Cruise America, Inc. Annual revenue: 30 million
Though left them out of the total since the cruise industry has been devastated by COVID.
Entertainment / Sports
- World Wrestling Entertainment, Inc. Annual Revenue $960 million
- Golf Warehouse, LLC Annual Revenue $743 million
- BSN Sports, LLC Annual Revenue $500 million
- Two Men And A Truck/ International, Inc. Annual Revenue $400 million
You can’t really measure universities by annual revenue, so I used endowment figures instead. Educational institutions typically get hit with a double whammy in accessibility lawsuits. Not only are there ADA violations alleged, typically 508/504 violations are alleged as well if the educational institution received money from the federal, state, or local governments for their operation.
Abilene Christian University ($452 million in endowments)
Claflin University ($203 million in endowments)
The week of September 21 was a slow accessibility litigation week in California. Only twenty suits were filed at the state level. A few of the defendants include:
- San Fernando Valley Automotive, LLC
- Relief CCR — CBD company
- Surf City Hospitality, Inc.
- Terranova Real Estate Group, Inc.
- Neil’s Motor Homes, Inc.;
- Dealer Spike;
- Boys Hamburgers #6;
- Window Covering Experts, Inc.
- Krua Thai Group.
Keep in mind, if a site overall is not WCAG 2.0 Level AA compliant, chances are the website is also in violation of the CCPA requirements that privacy statements be WCAG 2.1 Level AA compliant. Expect more causes of actions/suits to come when the lawyers in these cases figure that out.
But wait, isn’t there some plugin / tool / overlay / widget that I can install that will solve the problem for cheap?
Yes, there are such things.
Special mention goes to the following companies who use accessibility plugins, widgets, or overlays who got sued the week of September 21, 2020. That means someone at those organizations knew enough to recognize that accessibility is important and actively didn’t care enough actually to solve the problem.
Those organizations drank that “accessibility kool-aid” that the tools’ sellers hand out on their websites.
- AccessiBe advertises they are an “Accessibility Solution for ADA & WCAG Compliance”;
- Equalweb advertises that you can “Make your website accessible in 1 easy step.”
- AudioEye claims to “Provide the highest level of legal protection, backed by the industry’s only always-on, sustainable solution certifying ADA/Section 508 compliance against WCAG 2.1 AA standards.”
- Userway says they are the “strongest legal mitigation for ADA accessibility & compliance.”
All of them claim to be the leader in the accessibility automation space. If any of these claims were true, their customers wouldn’t repeatedly be defendants. But they are. This list below brings to over 20 companies who use one of these tools which have been sued in the past 3 months. The granddaddy of plugin lawsuits, SF Lighthouse for the Blind v. ADP, isn’t even on the list below because it was filed at the beginning of September. I completely dissected the ADP case here. Cases that involved plugins the week of September 21 include:
- Fort Taco, LLC d.b.a. Rocco’s Tacos & Tequila Bar and COT’N WASH, Inc. Both use AudioEye, and each has been sued multiple times.
- Indiana Botanic Gardens, Blue Moon Fish Company, and The Beard Club, which all use accessiBe.
- Greenvale Liquors, which uses Userway.
- Pinto Ranch, which uses EqualWeb.
Two rhetorical questions for those of you who have not yet found your accessibility compass and started heading in the right direction with your digital properties:
- What makes you think that your organization is any better than, any different than, or will end up any better off than any of the 82 companies with total annual revenue/endowments over $33 billion?
- What is your signing authority? Most mid-level managers have a signing authority of between $2,500 and $25,000. However, continuing to for ignore accessibility may easily incur accessibility litigation expenses exceeding $1 million. That’s probably something most people would prefer not to be remembered for.
The only way to stop the accessibility lawsuits “cash cow” is to:
- fix your accessibility problems for real, and;
- change your processes to keep accessibility problems from returning.
Number 2 is where more companies are starting to fail:
- The number of repeat cases against companies who failed to do this is growing.
- Almost 10 % of the cases from the week of September 21 were against companies who had been sued previously.
- Why would you go through the pain and expense of one lawsuit, make the software accessible, fail to integrate it with ongoing work, which results in backsliding and repeat lawsuit opportunities?
The lawyers aren’t going away as long as there is money to be made. Neither are the people with disabilities, especially during COVID, when public transportation and in-person shopping is not particularly safe for people with disabilities. The industries represented by just this week’s lawsuits include clothing, food, healthcare, retail, and education—all of the basic needs that any individual needs to thrive in society.
There are tons of articles out there besides mine concerning the accessibility evil that is plugins by accessibility leaders much more well-known than me. Timothy Springer and Karl Groveswrote superb articles. Anyone doing even a minimal amount of research after getting past the slew of plugin company-sponsored Google ads should be able to find plenty of data saying “this is a really bad idea, don’t do it.” Organizations that proceed clearly believe the hype of plugins over the reality.
If executives only want to invest in the pretense of an accessibility magic bullet, they get exactly what they deserved if they get sued.
If they think their litigation risk will be lessened, then they are the latest in a series of humans who fail to appropriately calculate the risk of a low-probability/high impact event. It’s no different than going to Sturgis without a mask in the middle of a pandemic.
NB: My business coach keeps telling me I need to balance my inner “accessibility advocate” with my inner “accessibility educator.” I am hopeful that I managed to accomplish this in this article. Part of me wants to scream at the top of my lungs, “WHAT MAKES YOU THINK YOU CAN IGNORE ACCESSIBILITY,” sometimes followed by “WHAT MAKES YOU THINK PLUG-INS SOLVE THE PROBLEM.” 6600 companies have found out the hard and expensive way since January 2018 that neither of these statements is true.
I think breaking down the poor decision making of companies representing $33 billion in revenue /endowments satisfies both my need to advocate AND educate. Learn from their mistakes. Definitely don’t repeat them.