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    6 ADA Web Accessibility Trends Revealed in our Mid-Year 2022 Report

    by Jason Taylor
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    We just published our mid-year ADA web and App report created by the UsableNet research team reviewing all lawsuits filed in federal courts under the ADA and California state court under Unruh. We review the cases to identify where a digital property, including websites, mobile apps, and video, is the subject of the claim. Our bi-annual reports let UsableNet inform our clients and provide them with the most up-to-date advice for planning their digital accessibility initiatives.

    Here is my main take on some key numbers based on what we have seen in 2022 and what's driving those numbers. The full report can be downloaded for free here.

    1. Web accessibility lawsuit numbers are high and set to only get higher.

    Text Reads: Almost 100 lawsuits per week  The data predicts another year of growth for ADA-based digital lawsuits. Our numbers include cases filed in federal court and those filed in California under the Unruh Act with a direct reference to violations of the ADA.  Image shows the number of cases growing each year from 2018 to the middle of the year in 2022. The numbers are as follows: 2018: 2314; 2019: 2890; 2020: 3503; 2021: 4011; 2022: 4455 Estimated by the end of the year.

    The overall number of claims is increasing, but the number could be low concerning the potential number of businesses. The trend for 2022 is to end up with over 4500 cases, a 10% increase. With over 2.5 million companies in the US with a digital website and most of these cases settling fast in favor of the plaintiff, we only see this trend increasing. The main factor restricting growth is the relatively low number of plaintiff firms focused in this area.

    So, as new law firms recognize the opportunity due to a lack of legal and technical certainty, the number of cases will most likely keep rising.

    2. 'The DOJ Effect' in 2022 boosts ADA web lawsuits for E-commerce and Florida.

    The text reads: The DOJ restated a guidance in March 2022 but failed to give businesses clarity. The guidance seems to have encouraged plaintiffs rather than offered hope of relief for businesses.  Image Description: Jan had 75 cases filed in California, 170 in New York and 10 in Florida. Feb had 69 in California; 208 in New York and 13 cases filed in Florida. March had 119 cases in California, 327 in New York, and 22 in Florida.  April had 79 cases in California, 129 in New York, and 17 in Florida. May had 87 cases in California, 311 in New York and 48 in Florida. June had 80 cases in California, 266 in New York, and 36 cases in Florida.    The text reads: Lawsuits in Florida surged after the DOJ issues its March guidance, growing from only 45 cases in the first quarter to more than 100 in the second quarter of 2022.

    The DOJ's March statement confirmed that the DOJ believes equal access under the ADA covers websites. This guidance has most likely re-energized the plaintiff bar. In particular, we see this in Florida data. Florida cases decreased after the Winn-Dixie decision.

    However, in Q2 of this year, we've seen a new rise in cases in Florida. The new ADA web compliance cases in Florida are aimed primarily at e-commerce. The Winn-Dixie and the March DOJ guidance agreed that e-commerce sites are most likely subject to the ADA.

    3. New plaintiff law firms enter the report's top ten list. 

     Text reads: The top 10 plaintiff law firms account for 80% of all filed cases. In contrast, the top ten defense law firms represent less than 15% of cases.  Image shows a list in two columns. At the top of the column for defendant lawyers is reads, “Defendant Lawyers ‘We will defend you, but you should be accessible.’” At the top of the column for plaintiff lawyers, it reads, “ Plaintiff Lawyers ‘We will sue you if you do not provide an accessible website.’”  The top ten defense attorneys are 1 Dentons US LLP; 2 Stein & Nieporent LLP; 3 Jackson Lewis P.C.; 4 Lewis Brisbois Bisgaard & Smith LLP; 5 Seyfarth Shaw LLP; 6 O'Hagan Meyer LLC; 7 Morgan, Lewis, Bockius LLP; 8 Deyuan Lin; 9 Kaufman Dolowich & Voluck, LLP; 10 Fox Rothschild LLP.  An asterisk by Stein & Nieporent LLP, Deyuan Lin, and Fox Rothschild LLP shows they are new to the top 10.  Image shows the top ten plaintiff lawyers are: 1 Mizrahi Kroub LLP; 2 Stein Saks, PLLC ; 3 Jeffrey A. Gottlieb, Esq; 4 Shaked Law Group, P.C.; 5 Mars Khaimov Law, PLLC; 6 Wilshire Law Firm; 7 Lipsky Lowe LLP; 8 Center for Disability Access; 9 Carlson Brown, LLP; 10 Roderick Hannah, Esq., P.A.  An asterisk by Carlson Brown, LLP, and Roderick Hannah, Esq., P.A. shows they are new to the top 10 plaintiff lawyers.     Text under the image reads: There are more than 1,000 different defendant lawyers across hundreds of law firms working on active ADA-based lawsuits, while only 38 plaintiff law firms and 114 plaintiffs make up all the filed claims.

    The Plaintiff firms of Stein & Nieporent LLP, Deyuan Lin, and Fox Rothschild LLP have all entered the top ten list during the first half of 2022. Yet again, the top ten plaintiffs still represent over 80% of all cases. In contrast, the top ten defect firms only represent 15% of cases. There are more than 1,000 different defendant lawyers across hundreds of law firms working on active ADA-based lawsuits, while only 38 plaintiff law firms.

    4. Healthcare gets a renewed focus on digital compliance from plaintiffs

     

    Equal access to healthcare is undoubtedly essential and is increasingly managed online, from booking appointments to paying bills. Consider the healthcare industry's increasing digitalization with the DOJ's recent actions to enforce digital accessibility on websites with Covid vaccine information. Therefore, it should be no surprise that healthcare is back at number three on the list of industries most likely to receive a lawsuit. 

    5. No company is too small to avoid lawsuits. 

    Text reads: Many defendants have less than 25M in annual revenue; this reflects the need for plaintiff firms to identify new companies to sue to maintain their volume.  Image shows a pie-chart where the first 6 months of 2022 27% of all cases were companies with > 25M revenue companies; 73% of cases were with companies with < 25M revenue companies  Text under the image reads: This trend could be a natural progression or due to changing consumer trends. Many of the largest companies have already been sued and have accessibility programs, which would make for a natural progression for smaller companies. The increase in e-commerce sales due to the pandemic has also brought more attention to smaller, up–and–coming e-commerce brands.

    Ecommerce is still the most targeted type of industry. With most of the Internet 500 already sued, it's no surprise that the attention has come down the revenues stream, with over 75% of cases now affecting companies with less than 25 million in revenue.

    6. Accessibility widgets will not help you avoid lawsuits for ADA web compliance.

    Text reads: Businesses using accessibility widgets received more than 300 lawsuits, a big YOY increase. In 2021, we reviewed 400 cases for the entire year. These lawsuits list the widget features as a barrier to equal access in addition to WCAG violations and other user web barriers.  Image shows the number of lawsuits for widget each month in 2022: Jan - 31; Feb - 44 Mar - 67; Apr - 36; May - 73; Jun - 64. 

    Businesses using accessibility widgets received more than 300 lawsuits, a big YOY increase. In 2021, we reviewed 400 cases for the entire year. These lawsuits list the widget features as a barrier to equal access in addition to WCAG violations and other user web barriers. Some defense lawyers tell us that they feel some plaintiffs are now tagging sites with widgets.

    With this and the numbers, it's hard to see how accessibility widgets can still argue that they enable accessibility and decrease your chances of litigation. 

    UsableNet will keep you informed on the latest ADA Digital lawsuit trends. You can download the full 2022 midyear report now.

    Our next report is due out in December! To collect data for our bi-annual reports we monitor and document all digital accessibility-related lawsuits where a website, mobile app, or video content is the subject of a claim in federal court under the ADA or in California state court under the Unruh Civil Rights Act. The data from this report includes only filed lawsuits in court records and does not account for claim letters sent directly to companies.

    Looking for more regular, monthly updates on filed ADA cases for digital accessibility? Click to view our new ADA Accessibility Lawsuit Tracker.

    Feel free to share this blog and its images with all outlets to increase awareness of the importance of digital accessibility. Please cite UsableNet as a source and link to www.usablenet.com.Download the Report

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