Decoding Digital Accessibility Lawsuits 2023: Key Trends & Insights

By Jason Taylor on Dec 27, 2023
Topics: ADA Lawsuits

0 Comments

Our team has tracked the numbers in the US digital accessibility lawsuit space throughout 2023.

Download the report for free here.

I’ve delved into the details with the help of our team. We have downloaded and read all the key lawsuits tracked the players, and the trends. In this blog, I aim to add some context to the numbers in the report.

We release our biannual accessibility lawsuit reports to help you understand the risk of digital accessibility lawsuits, advocate for app and web accessibility with your internal stakeholders, and plan your company’s digital accessibility initiatives. 

Plaintiffs and advocates are winning key battles.

Plaintiffs filed over 4,500 federal and state-filed ADA-related digital lawsuits, around 500 more than in 2022.

After two decades of advocacy, those pushing for websites to fall under the ADA are achieving success. The DOJ recently declared that by 2024, all state and local websites must adhere to WCAG 2.1 AA standards. This action confirms that websites and mobile apps are as important a place for public accommodation as any physical location in the modern digital world.

This victory, alongside other state-updated legislation, may embolden advocates and plaintiffs to push for digital inclusion in all aspects of digital life.

Companies need to act more quickly.

Pie chart: 25% of 2023 lawsuits targeted companies with prior ADA Digital Lawsuits, highlighting repeat litigation trends in business legal actions.

This year, plaintiffs filed over 1,000 lawsuits against companies that had previously faced at least one lawsuit in the last three years.

The first lawsuit a company receives should evoke immediate action, an action to improve the accessibility of the listed digital property, and, just as significantly, action on all their digital properties.

The ADA does not protect a company with an inaccessible website, no matter how often, how recently they got sued, or even if they settled to remediate. Any new user who feels they have encountered a barrier to using a website can bring an action against the same website or any other websites or apps the company has. The numbers we track speak for themselves.

New York is way out in front.

Bar graph comparing the number of cases in New York, California, and Florida in 2023. Jan had 39 cases filed in California, 203 in New York, and 38 in Florida. Feb had 20 in California; 262 in New York and 33 cases filed in Florida. March had 62 cases in California, 273 in New York, and 52 in Florida.  April had 68 cases in California, 224 in New York, and 41 in Florida. May had 44 cases in California, 226 in New York, and 36 in Florida. June had 73 cases in California, 320 in New York, and 36 cases in Florida. July had 32 cases in California, 276 cases in New York, and 36 cases in Florida. August saw 47 cases in California, 306 in New York, and 58 in Florida. September had 29 cases in California, 342 in New York, and 35 in Florida. October saw 61 cases in California, 312 in New York, and 33 in Florida. November had 57 lawsuits in California, 249 in New York, and 39 in California. December's projected lawsuits are 82 in California, 209 in New York, and 34 in Florida.

Plaintiff firms file almost 75% of all lawsuits in New York federal or state courts. Although we have seen increased lawsuits outside the prominent three regions of New York, California, and Florida, New York is king.

The combination of federal and state laws, the concentration of plaintiffs and plaintiffs’ firms, and the fact that New York judges have tended to be very plaintiff-friendly regarding the type of websites has created a powerful combination. (California mainly needs a connection to a physical space or nexus, but New York does not have this requirement.)

Don’t get excited if you are outside of New York. Any company doing business in New York via a website can have a claim brought there. That goes for California, Florida, and any other state. The internet has no boundaries. 

E-commerce, big and small, beware.

Pie chart: 82% accessibility lawsuits target eCommerce, 18% other industries, depicting digital accessibility claims in various sectors.

Many factors drive 80% of all lawsuits to claim that a retail or eCommerce experience causes harm due to accessibility barriers to a given user (worth noting that 99% of cases are brought by a visually impaired or blind individual using a screen reader). Here are my top three reasons.

  • Establishing standing is straightforward: a plaintiff must demonstrate intent to use and harm due to lack of use. A judge may find it plausible that a user attempted to buy shoes or event tickets on 10 or 20 websites, encountered issues, and sued them all.
  • Complicated sites: ECommerce websites are complex, change often, and are more likely to have issues not caught during fast and rapid digital updates.
  • Many to target - plaintiffs suing hundreds of websites yearly need volume. E-commerce is the largest business area online, with nearly every type of business now selling products or services digitally. 

Focused Plaintiff activity adapting to legal cases.

The above eCommerce focus allows me to finish talking about the business of ADA lawsuits. 

The top ten plaintiffs’ firms represent around 25 plaintiffs but account for over 84% of all claims. So, the average leading plaintiff firm generates about 360 cases a year every day. There are not 4,500 individuals who have struggled with a website and have hired a lawyer to represent them. 

Most of these cases settle, with the plaintiff typically gaining the right to have the website fixed and their legal fees covered. This trend has increased the number of plaintiff firms, as emphasized in the report. 

Plaintiffs and plaintiff firms get favorable settlements for two combined reasons: the WCAG 2.1 AA standards are tough to achieve and maintain, and the vast majority of companies have yet to proactively try to follow these guidelines, leaving defense lawyers little ammunition to fight such claims. The best most companies can do is hire a well-informed industry defense firm that can help negotiate the best settlement and write the most achievable remediation agreement.

Adding a widget doesn't mean you won't get sued. 

Widget lawsuits: Jan 59; Feb 60; Mar 82; Apr 78; May 57; Jun 113; Jul 80; Aug 101; Sep 72; Oct 92; Nov 60. Dec (proj.): 79.

So, how should a company with a website protect itself against ADA web and app-related claims?

Most accessibility widget companies claim to solve all barriers and offer legal protection from ADA cases. Just search Google for web accessibility solutions, and you’ll find a dozen or so companies vying for your ad click.

We monitor whether a website had a widget installed on the day it faced ADA web violation lawsuits. Over 900 companies had already invested in widgets when they were sued this year. 

So, what should you do?

Firstly, please notify all your suppliers and vendors of your digital experiences that they are responsible for ensuring accessibility. They are professionals; you are paying them. You can use that power to shift the burden to the correct place.

Secondly, do what plaintiffs and their firms do. Test your top pages with a quality free WCAG testing solution - we provide a free version to get started, get the resulting report of all the easy-to-find issues, and send it to your web team to remediate them.

Then, engage a user who relies on a screen reader and ask them to do the top things you expect all users to do. Share the results with your web team or vendor and resolve any issues. These two actions form the basis of all ADA claims, and by performing them and issuing action based on them, you will reduce your risk and increase the accessibility of your website.

A trusted partner can help you improve accessibility and reduce legal risk. Contact UsableNet for a free consultation with an accessibility expert.

 

Need to improve digital usability, accessibility or performance? We can help.
Partner with us. Get in touch.