The Americans with Disabilities Act (“ADA”) prohibits discrimination against individuals with disabilities, including discrimination in places of “public accommodation.” Federal and state laws also permit private plaintiffs to enforce the ADA by bringing suit against business. Those laws gave rise to website “accessibility” lawsuits, where plaintiffs allege that online forums are places of accommodation under the ADA. Plaintiffs argue that the ADA requires commercial websites to be “accessible” to the sight-impaired. In recent years, these “website accessibility” lawsuits have proliferated, with significant increases in the volume of litigation year over year. These claims were traditionally advanced as ADA Title III lawsuits. But plaintiffs have also gravitated toward state law theories. California became a haven for private litigation, particularly claims filed under the Unruh Act (which overlaps the ADA). See Cal Civ. Code § 51 et seq. Like the ADA, the Unruh Act confers standing on individual plaintiffs who have been the victim of discrimination in California.
The proliferation of “website accessibility” cases quickly became a burden on unsuspecting business. Until recently, courts were slow to limit predatory lawsuits. Moreover, the federal courts produced conflicting decisions and seemed to disagree over the extent to which the ADA applied to websites (if at all). Perhaps the most significant obstacle for defendant businesses was the use of “tester” plaintiffs by private attorneys. A “tester” is an individual with disabilities who visits places of public accommodation for the purpose of determining compliance under Title III. See, e.g., Lucibello v. McGinley, No. 207CV-217-FTM-34SPC, 2008 WL 398981, at *1 (M.D. Fa. Feb. 12, 2008) (describing use of tester). Attorneys have pursued ADA accessibility claims through serial tester plaintiffs, often filing dozens or hundreds of lawsuits on behalf of a single plaintiff. The repeated use of professional “testers” allows private attorneys to pursue many cases in sequence. An attorney need not be retained or hired by different clients but, instead, can search out violations and file suit in the name of a single client.
Some of the more robust ADA docket activity is found in California. While the focus of this blog is on California jurisprudence (below), courts in other states have entered recent orders substantially limiting website accessibility claims. The Eastern District of New York ruled in a series of decisions in 2021 that website content does not fall within the ADA unless connected to a physical place of accommodation. See Suris v. Gannett Co., Inc. et al., No. 20-cv-1793 (E.D. N.Y. July 14, 2021), Dkt. 11; Winegard v. Newsday LLC, No. 19-CV-04420, 2021 WL 3617522 (E.D.N.Y. Aug. 16, 2021). Those decisions portend increased limitation on private ADA cases in this context.
In 2015, the Ninth Circuit Court of Appeal imposed a significant limitation on digital accessibility lawsuits. The Court held that website-based businesses are not places of public accommodation under the ADA unless there is “some connection between the good or service complained of and an actual physical place.” See Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir.), cert. denied, 140 S. Ct. 122, 205 L. Ed. 2d 41 (2019); Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015); see also Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir.), cert. denied, 140 S. Ct. 122, 205 L. Ed. 2d 41 (2019). Following that line of precedent, in the Ninth Circuit, plaintiffs can no longer pursue ADA Title III digital accessibility claims unless they can establish a nexus between the website and a brick-and-mortar location within California. That substantially narrowed the field of potential litigation targets.
Plaintiffs therefore turned to state law. The California Unruh Act permits plaintiffs to sue for underlying violations of the ADA. Remedies under the Act include actual damages, a minimum statutory award of $4,000, and injunctive relief. However, plaintiffs are also permitted to seek their attorney fees. Those “bounty hunter” fees incentivize litigation. Unlike the Ninth Circuit, the California state courts have not uniformly subscribed to the “nexus” theory in private Unruh Act lawsuits. Thus, individuals could sue businesses under the Unruh Act after accessing websites within California even where those websites were not directly connected to brick-and-mortar locations within California. Plaintiff attorneys began limiting their allegations under the Unruh Act to remain in state court. Those tactics could now change following the California Court of Appeal’s decision in Thurston v. Omni Hotels Mgmt. Corp., 69 Cal. App. 5th 299, 307, 284 Cal. Rptr. 3d 341, 347 (2021), review filed (Nov. 10, 2021).
The Omni Hotels decision held that the Unruh Act requires plaintiffs in digital accessibility cases to prove they had a “bona fide intent” to use a business’s services: “[I]f a plaintiff wants to prevail on an Unruh Act claim, he or she must present sufficient evidence to overcome the online defendant’s argument that he or she did not actually possess a bona fide intent to sign up for or use its services.” Omni Hotels, 284 Cal. Rptr. 3d at 347. “For online businesses, the plaintiff must allege that he or she visited the business’s website, encountered discriminatory terms, and intended to make use of the business’s services.” Id. at 347 (emphasis added).
Serial tester plaintiffs are unlikely to have the bona fide intent to use online services required under the law. The Omni Hotels decision therefore opens a significant defense for businesses threatened by such litigation. While it remains unclear whether plaintiff attorneys will resort to creative pleading strategies in response to Omni Hotels, the decision should nonetheless widen avenues for discovery on the use of tester plaintiffs in Unruh Act digital accessibility cases. These lawsuits place the plaintiff’s intent directly at issue, which justifies expansive inquiries into the purpose underlying litigation, and may result in waiver of certain privileges (particularly if the plaintiff had contact with counsel before suffering the alleged discrimination). At a minimum, these considerations should factor strongly in settlement discussions.