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Five years of ADA web and app lawsuits - key observations and trends

By Jason Taylor on Dec 21, 2022
Topics: ADA Lawsuits


UsableNet has now been tracking digital accessibility lawsuits for five years. When we first reported filings in 2018- cases had risen 181% from the previous year. We knew ADA claims had exploded but couldn't predict what might happen next.

Critical cases for ADA websites were battling in courts, Gil v. Winn-Dixie and Robles v. Domino's Pizza. To advise our customers, hundreds of businesses with digital assets like websites and apps, we started to mine the data*. We looked not just at numbers but for trends that offered practical advice.

After five years, I will reflect on and use our 2022 end-of-year report to help tell a story about the booming legal landscape for ADA-based app and web accessibility lawsuits and how we got here.

The lawsuit numbers tell only a piece of the story

An orange bar graph showing the trend of cases between 2018 and 2022. 2018 had 2314 cases; 2019 had 2890 cases; 2020 had 3503 cases, and 2021 has 4011. There are estimated to be 4061 lawsuits for the year 2022. A courthouse in the background in light gray.

In the last five years, we counted more than 16,000 digital accessibility claims. That's a significant number. This area of private litigation has been one of the fastest growing. These numbers are only ADA claims filed at the federal or state level and do not include pre-lawsuit legal actions, like demand letters. 

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In many cases, plaintiff law firms send demand letters on their client's behalf before filing an ADA lawsuit. The business defense attorneys I've spoken with are as busy counseling clients who have received demand letters as they are with clients who have received lawsuits.  

I estimate that the total number of both ADA lawsuits and demand letters could be around over 50,000, three times more than filed cases that are trackable. 

This year we will see over 4000 lawsuits, and from our knowledge, demand letters are filed in the same volume as they were in 2021. 

Download Now: 2023 Midyear report on ADA digital accessibility lawsuits

The US Department of Justice (DOJ) helped get us here. Then they helped to make it worse.   

For over 20 years, the DOJ has stated that websites are subject to the ADA. Yet, they have never specified what makes a website accessible. Because of this lack of clarity, digital accessibility lawsuits are a booming business for plaintiff law firms. 

A typical claim is that a company's website is inaccessible to a person with a disability in violation of the ADA and equivalent state laws. (We've found that a person with a visual disability who uses a screen reader is the most common plaintiff). The ADA does not require that the plaintiff notify the defending company before filing a lawsuit. So, these lawsuits can feel out of the blue to businesses unaware that their websites are inaccessible. 

After a business receives a lawsuit, they have a choice. They can settle and remedy the website, or if they believe their website is compliant with the ADA, they may ask counsel about fighting the case. Fighting an ADA lawsuit case can be an uphill battle. Domino's famously fought an ADA lawsuit for its mobile app and website, spending six years to finally settle after losing its case and thousands upon thousands of dollars. 

Our data estimates that 95% of companies sued will settle instead of fighting this case. Such a high settlement rate is likely because it can cost companies significant legal fees to get to a trial. In most cases, website remediation is indeed necessary. Plaintiff attorneys know it is an uphill battle for companies to defend against lawsuits so they will push the defendants for settlements for tens of thousands of dollars. 

On the DOJ side, they re-stated their position this year with their new guidance. The DOJ reaffirms that they believe the ADA covers websites but does not define what is accessible under the ADA. Therefore, the DOJ seems to have emboldened the plaintiff bar to increase its filing volume.  

Lawsuits are many, but plaintiffs are few

These 16,000 lawsuits over the last five years are not 16,000 individuals who have struggled with a website and found a lawyer to help remedy the website. We often see "serial plaintiffs." Serial plaintiffs regularly sue companies in one industry or part of the country for web accessibility in a wave. For example, this year, the plaintiff Gomez sparked an outcry when he sued about four dozen Napa country wineries for web accessibility. 

Yet, we often see these patterns in our analysis of ADA digital lawsuits. Serial plaintiffs like Gomez and the firms that represent them have a process to find companies and file suits in such high volumes. And, according to defense law firms, it's not uncommon to see templated demand letters.

A list of the top 10 defendant and plaintiff law firms. The Number one Defendant Law firm for digital accessibility is Stein & Nieporent LLP; Number two is Dentons US, LLP; Third is Jackson Lewis P.C.; Fourth is Seyfarth Shaw LLP; Fifth is Brisbois Bisgaard & Smith LLP; Sixth is O’hagan Meyer LLC; Seventh is Morgan Lewis & Bockius LLP; Eighth is Ogletree Deakins, Nash, Smoak & Stewart P.C.; Ninth is Law Offices of Nolan Klein, P.A.; Tenth is a tie between Blank Rome LLP. The number one plaintiff law firm is Mizrahi Kroub LLP; Number 2 is Stein Saks PLLC; Third is Mars Khaimov Law PLLC; Fourth is  Gottlieb & Associates ; Fifth is Shaked Law Group, P.C.; In sixth is Marcus & Zelman LLC; In 7th is Courtney Cunningham, PLLC; 8th is Wilshire Law firm; 9th is Law Office of Pelayo Duran, PA; Rounding out the top 10 is Roderick Hannah ESQ., P.A.

The top individual plaintiffs and plaintiff firms have filed over 10,000 lawsuits in the last five years. In addition, other plaintiff law firms have taken notice. This year we have some new additions to our leaderboard for firms with the most lawsuits. 

Key states and critical industries  

Over the last five years, we've monitored the states with the most filings and when court decisions caused spikes in litigation. We reported when industries most impacted by court decisions fluctuated, such as when healthcare websites received more web accessibility lawsuits after covid. 

So, let's look at the newest data and talk about the states with the most lawsuits and the industries most likely to receive cases.

Bar graph showing the number of cases in California, New York, and Florida from January 2022 to December 2022. January saw 75 cases filed in California, 170 in New York, and 10 in Florida. February had 69 cases filed in California, 208 in New York, and 13 in Florida. March had 119 cases filed in California, 327 in New York, and 22 in Florida.  April had 79 cases filed in California, 129 in New York, and 17 in Florida. May had 87 cases filed in California, 311 in New York, and 48 in Florida. June had 87 cases in California, 353 in New York, and 50 in Florida. July had 16 cases filed in California, 192 in New York, and 49 in Florida. August had 10 cases filed in California, 197 in New York, and 41 in Florida. September had 73 cases filed in California, 203 in New York, and 42 in Florida. October had 56 cases filed in California, 182 in New York, and 28 in Florida. November had 54 cases filed in California, 140 in New York, and 26 in Florida. December is projected to have 58 cases filed in California, 194 in New York, and 28 in Florida.

New York, Florida, and California have gotten the lion's share of lawsuits this year and every year since 2018. And, while they aren't there yet, Pennsylvania and Massachusetts get honorable mentions for some emerging lawsuit activity. The most active plaintiff firms are in these states, and the courts empathize with the plaintiffs. 

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If your physical locations are not in one of the key three states, you should still check that your website is accessible, not just because it's good business sense. In five years, we've seen businesses of all sizes across the country receive digital accessibility lawsuits. People nationwide, including New York, California, and Florida customers, can generally do business with you if you have a website. If this is true, they can file claims against you in Florida, New York, or California courts.

The leading digital accessibility industries in order of highest percentage to lowest percentage. The percentage of lawsuits by industry follows: e-Commerce 77%; Food Service Industry 8%; Cross Industry Companies 3%; Entertainment & Leisure 2%; Banking/Financial 2%; Travel/Hospitality 2%; Healthcare 2%;  Education 1%; Fitness & Wellness 1%; Digital Media & Agencies 1%; Automotive less than 1%; Real Estate Agencies & Properties less than 1%; Insurance less than 1%; Telecommunications less than 1%; Grand Total 100.00%.

On the industry side, eCommerce is the number one target, with 77% of digital accessibility cases against the industry. Just this year, just over 3,000 of all lawsuits targeted eCommerce.  

Almost all top 500 eCommerce companies have received at least one, if not multiple, lawsuits over the past five years. For the plaintiffs, the sheer volume of retail websites makes it easy to scale finding, testing, and filing lawsuits. Additionally, ECommerce websites are also complicated and change often, so the likelihood that a website has accessibility issues or blockers that the Development and QA teams overlooked is high. 

Over the last couple of years, we looked to see if factors like annual revenue could offer hope of relief. Unfortunately, legally there isn't a minimum threshold for ADA lawsuits. We've noticed that plaintiff firms are starting to bring more cases against medium size businesses.

What's next for ADA Digital Accessibility Lawsuits in 2023  

An active plaintiff bar has driven significant legal action in the past five years. These law firms leverage the DOJ's activity over the previous 15 years that joined ADA-related web Accessibility claims and forced settlements to pay fines and remedy websites. 

Unfortunately, plaintiffs still catch many businesses unaware when filing these legal claims. Even after the frenzy of filings in the last five years, much of the business community lacks awareness of the need for digital accessibility. 

Is your website at risk for an ADA lawsuit? Run a free test now.

The DOJ seems unwilling to clarify technical requirements for websites and apps to comply with ADA. The best hope is a new proposed bill by Senator Tammy Duckworth (D-Ill.), and Representative John P. Sarbanes (D-Md.) introduced The Websites and Software Applications Accessibility Act (S. 4998) and (H.R. 9021) in both the United States Senate and the House of Representatives. The act offers a future of better-established standards that companies could follow. However, we know the US Congress doesn't often move swiftly. We have no reason to believe this law will be different, so it's unlikely that businesses will get lawsuit relief from this law any time soon. 

Because of the lack of clarity, the booming business it has become for plaintiff firms, and the massive number of companies that may fit the profile and are operating websites that are not fully accessible; we expect ADA lawsuit filings to keep up with their current pace. 

We'll continue to monitor and advise on trends and data that can help our clients and businesses. Subscribe to our blog to stay informed about ADA digital accessibility lawsuits and best practices to comply with ADA and WCAG. Or, if you are looking for a trusted partner to help mitigate your chances of receiving a lawsuit, get in touch to speak with an accessibility expert. 

Get the 2022 Year End Report

*A quick note on our methodology for those new to these reports: Our team tracks all federal and state-filed ADA-related claims. Many of the claims we review are not digitally related. Hence, we filter out non-digital lawsuits such as physical rebate items like poor access to a building for wheelchair users. We only collect and track cases where the claim is against a website, mobile app, or video content.  

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