Letting someone else do your work for you is a very efficient way to write a blog, but I won’t use any form of AI because it seems to be a lot more A than I. Instead this time I’m pointing you to the work of others, with a few conclusions of my own.
Let’s start with an important issue for any business – insurance to cover litigation expenses. Dave Gibson at Accessibility.works has investigated insurance to cover accessibility claims and blogs about it at Will Insurance Cover Web Accessibility ADA Lawsuits. I can’t vouch for all of his conclusions, but he is absolutely correct when he points out that business owners should not assume their general liability policy covers accessibility claims for either physical access or web access.
My friend and colleague Bill Goren has blogged about a recent federal district court decision in Minnesota finding that internet only businesses are covered by Title III of the ADA. Websites covered by Title III. It is an interesting case because this is the first court in the Eighth Circuit to rule directly on this issue. You can read Bill’s blog (and others) for the details, but the most important thing for businesses to remember is that federal district court opinions are not binding on any other court, or even on the same court in a later case. The judge next door may disagree, something that has happened more than once in the Southern District of New York. Those of us with an professional interest find these cases fascinating¹, but until there is a circuit court decision there is little comfort to be taken in the opinion of a single district judge.
Next I’d like to point to two posts from Seyfarth Shaw’s ADA Title III blog. In the first, they discuss a recent decision from New York showing one judge’s extreme skepticism about the entire ADA litigation industry. See, Judicial Rebuke. In the other they point out that after a low in 2023 the number of federal ADA website lawsuits went up in 2024, driven in significant part by filings from a single law firm. See, ADA Lawsuits Rebound. Taken together with Bill Goren’s blog above these reflect what has been a very consistent pattern in ADA Title III litigation. Some individual judges take steps to rein in industrial ADA Title III litigation while others, by expanding the scope of the ADA to include internet only businesses and similar rulings, encourage this kind of litigation. The net effect is that while the number of lawsuits fluctuates from year to year there is no real long term decrease despite the good news and no long term increase despite the bad news. Case filings are not driven not by increasing or decreasing website accessibility, but rather by the choices of individual law firms and their pet plaintiffs. In short, private ADA Title III website litigation is not about accessibility and never has been; it is a means for plaintiffs’ attorneys to exploit the cost of litigation in federal court to make money by offering settlements that are just a bit cheaper than any cost of defense that might succeed. With federal judges limited to deciding one case at a time no individual judge can really take action that would either promote real accessibility or discourage industrial litigation. Any meaningful improvement in website accessibility will come only when the present legislative and administrative scheme is completely re-worked. Any meaningful decrease in the exploitation of the ADA as a way for lawyers to make money without in fact promoting accessibility will require the same. Congress has proven incapable of any kind of ADA Title III reform no matter which party has a majority and which party is in the White House, so I expect that we’ll continue to see the same kinds of reports in ADA blogs into the indefinite future.
On the Fair Housing front the Trump Administration’s announcement that it will cut funding for private groups that enforce fair housing laws is a good reason to reflect on just how fair housing enforcement works. We have five kinds of fair housing plaintiffs. DOJ is the big dog with the largest budget and the most power. There seems little doubt that DOJ will choose not to enforce fair housing or other civil rights laws during this administration. HUD itself handles housing discrimination complaints and will no doubt continue to do so, but it seems likely the word will eventually trickle down to the investigators that HUD is not going to seriously prosecute fair housing complaints. So much for government action. Private non-profits who receive federal grants are the third kind of plaintiff and the just announced cuts in grants is no doubt intended to cripple their ability to operate. It is not clear cutting grants will have the desired effect. While rules concerning Article III standing complicate the picture, litigation settlements are a source of funding for these organizations and with no federal money coming in they may step up their litigation activities to make up the difference. The fourth group is made up of professional private plaintiffs, that is, individuals not working for a non-profit who file many lawsuits as “testers.” Their activities will not be reduced at all, and they are among the most active plaintiffs. The last group is individuals who file suit without first filing a HUD or other administrative complaint. They are not numerous and the HUD changes will not affect them. I think that in any ecosystem when one predator steps aside others will rush in to fill the open space. By cutting grants to non-profit housing organizations HUD may simply encourage more and larger private tester lawsuits.
Does this mean internet businesses and housing providers should be discouraged? Not really. The best protection against litigation is doing the right thing; that is, making websites accessible and complying with the requirements of the FHA. This is not as easy as it sounds, but it is possible to reduce litigation risk with the right procedures in place. Look to right hand side of this page for a good place to start on those procedures.
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¹ One of the first rules in defending ADA Title III lawsuits is to know your judge because so much depends on the track record of the individual judge. Knowing what individual judges will do is part of the essential knowledge of lawyers who, like me, defend these cases.