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    App and Web Accessibility Lawsuits - What's New in 2020

    by Jason Taylor
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    Twice a year, UsableNet releases a lawsuit report to help companies plan and prioritize their digital accessibility initiatives. On July 2, we released our 2020 midyear report.  The highlights of this report include  the emergence of California Federal and State Court filings, the shift from 2.0 to 2.1, the most targeted industries, and the growing trend of lawsuits being filed against websites that use accessibility widgets and overlays.

    In this blog post, I'll review some of the report's main takeaways and share what factors may putting your organization at risk for a lawsuit.  

    For our 2020 Midyear report, the UsableNet research team monitors all Americans with Disabilities (ADA) lawsuits filed in federal court for cases related to website and app accessibility. This year for the first time we also included data for lawsuits filed in California State Court under the Unruh Civil Rights Act.

    Download the full report here >>

    More Legal Action

    State-filed lawsuits and demand letters are on the rise and more than make up for a slight drop off of cases in Federal Court during lock-down. When we combined the numbers from State Courts, Federal Court, and reports of claim letters, we found that plaintiffs are taking more legal action in 2020 than in years past. 

    In California, accessibility lawsuits surged due to lawsuits based on the Unruh Civil Rights Act. If you are doing business in California, you face double the risk for receiving a lawsuit. 

    Graph compares the number of lawsuits filed in state court versus the number of lawsuits filed in federal court from the second half of 2019 to the first half of 2020. California Unruh cases filed in state court are depicted with a straight line that starts at the data point of 112 and ends at 316 with no points between. Federal ADA cases are shown as a dotted line that start at the data point of 1117 in the second half of 2019 and end at 972 by the early half of 2020.

    The Coronavirus Pause is Over 

    Coronavirus forced people all over the globe to stay home. Accommodations requested for years by people with disabilities became accommodations that everyone needed. 

    While businesses and whole industries closed during lock-down, the same can’t be said for plaintiff law firms. New digital accessibility lawsuits continued, albeit at much lower levels, in March. By the end of April, the rate of ADA-based web and app lawsuits filed in federal court returned to its previous record-breaking pace. 

    Bar chart from March 2 - May 11 by week for federal ADA cases. In early March from the second to the 29th, cases average about 43 cases filed each week. The chart shows a significant dip in cases at week 5, March 30- April 5 from 43 cases in week 4 to just 14 cases in week 5. Week 6 has 17 cases; week 7 has 24 cases; week 8 has 12 cases; week 9 rises again to 43 cases a week and week 10, May 4-11 has 49 cases.

    More Mobile App Lawsuits

    Everyone relies on mobile devices and so lawsuits for mobile apps are increasing. In addition, as part of the Domino's pizza accessibility lawsuit last year, the court ruled that the ADA also applied to the Domino's app, not just the website. 

    In the past, the DOJ indicated that apps as well as websites are subject to the ADA. The majority of app cases are against companies that had received a website accessibility lawsuit in the past. 

    Design features squares with icons representing industries that use mobile apps, a pizza for restaurants, a shopping card for retail, an airplane for travel and text boxes for communication apps.  Text reads: Mobile Apps Take the Stage This is likely driven by the increased use of mobile devices and the inclusion of apps in the Domino's Pizza case. 20% of all Federal ADA digital cases are now claiming apps are inaccessible.

    A11y Widgets and Overlays Will not stop lawsuits

    Widgets and overlay vendors claim that their technology will protect clients from lawsuits. However, our research team found nearly 100 companies that were sued in the first six months of 2020 that also had an overlay or an accessibility widget enabled on their website. 

    For our midyear report, the UsableNet team reviews individual dockets for each case filed in federal court under the ADA. In some of these dockets reviewed, our research team found that features that widget and overlay solutions add to a client website were mentioned as adding to the inequality of the experience, not removing it. 

    A control for adjusting accessibility settings overlaps the universal digital accessibility symbol. Text reads: Around 100 Companies received lawsuits after investing in widget or overlays, some lawsuits even listed widget features as an extra burden. Number of lawsuits from January 1st 2020 until June 23rd 2020 for Federal ADA-based suits was 78 and for Unruh-based claims was 18 in California state court.

    WCAG 2.1 AA is the New Standard

    The Accessibility Guidelines Working Group recommends that sites adopt WCAG 2.1 as their new conformance target. This year, legal claims more frequently cited WCAG 2.1 AA as the measure of accessibility and the requested standard for remediation. WCAG 2.1 builds on WCAG 2.0, meaning that web pages that are 2.0 compliant may need more testing and work to meet the 12 success criteria that were added in WCAG 2.1 AA.

    An award ribbon with the text WCAG 2.1 AA at the center of it overlaps and is slightly higher in gold than an award ribbon in blue with the text WCAG 2.0 AA at the center.  Text reads: OVER 75% of all Federal claims now reference WCAG 2.1 AA, which adds 12 additional success criteria above 2.0 AA.

    Retail faces the most litigation

    The general spread of industries affected by ADA-based Web lawsuits has not changed much over the last two years. Retail tops the list. Retailer websites are easy to visit quickly, public-facing, and technically complex. Often retailers have apps or their websites require frequent updates and code changes. All of these factors add to the risk of ADA noncompliance for any company, regardless of industry. Retailers received more ADA website lawsuits than any other industry so far in 2020. 

    New Players on the Plaintiff Side

    Historically, we've found a high concentration of cases brought by relatively few plaintiff firms. This year, with more lawsuits in California under the Unruh Act and more awsuits for mobile apps, we added a few new plaintiff firms to our top ten. 
    The list of the top ten defendant law firm and the top ten plaintiff law firms are listed in order. It indicated that there was one new firm that made it into the top ten defendant firm (name of firm), and shows four plaintiff firms made the top ten list for the first time (name of firms). The list of defendant firms in order are: 1) Dentons US LLP, 2) Morgan Lewis Bockius; 3) Jackson Lewis P.C.; 4) Ogletree Deakins, Nash, Smoak and Stewart P.C.; 5) Littler Mendelson P.C.; 6) Seyfarth Shaw LLP; 7) Lewis Brisbois Bisgaard and Smith LLP; 8) Sheppard, Mullin, Richter, and Hampton LLP; 9) O'Hagan Meyer LLC; 10) Epstein Becker and Green P.C., (new to top 10). The names of the plaintiff law firms in order are: 1) Pacific Trial Attorneys, (new to top 10); 2) Stein Sacks, PLLC; 3) Chunningham Law PLLC, (new to top 10); 4) Beverly Hills Trial Attorneys, (new to top 10); 5) Shaked Law Group, P.C.; 6) Cohen and Mizrahi LLP; LLP; 7) Law Office of Justin A Zellar, P.C.; 8) Nye, Stirling, Hale and Miller, LLP, (new to top 10); 9) Wilshire law firm; 10) Lipsky Lowe LLP.  Text reads: Top plaintiff and defense firms based on number of lawsuits. Defendant lawyers: “We will defend you, but you should be accessible.” Plaintiff lawyers: “We will sue you if you do not provide an accessible website.”

    What puts you at risk for an ADA Website lawsuit?

    After 20 years in the accessibility industry, this is one of the questions I get asked the most. Based on our data, certain factors do put you at greater risk. 

    If you are in in the retail business you are a top target. If you are in California or selling to customers in California, you have double the exposure. Do you have multiple websites or an app? In 2020, we're seeing that both your website and apps are subject to in-accessible legal claims. Have you invested in low cost accessibility widgets or overlays? You're not alone but you also aren't protected from lawsuits. Companies that invested in widgets and overlays are being sued for non compliance with the ADA. 

    But what really puts you at risk? Doing nothing. You're at risk for a lawsuit if you have a website or app that can't be used by everyone. Don't be afraid to get started. 

    Create your Accessibility Plan

    The first half of the year brought many changes including a renewed sense of urgency and importance for digital inclusion. In 2020, new plaintiffs, different digital experiences and expanded standards will mean more legal action.

    The best and most important action a company can take is to establish an accessibility plan, commit to it with resources and start on the path to digital inclusion for all. If you are overwhelmed, the right accessibility partner can guide you. 

    Our midyear report is here to help as you plan and prioritize your digital accessibility initiative. Go to the Report

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