What can be made of this assortment of information concerning ADA litigation over website accessibility?
May 2025 website accessibility litigation – 445 new cases, 123 of which against previous defendants and 119 against websites using some form of widget that supposedly improves accessibility.¹
May 2025 headline “Federal Trade Commission Orders accessiBe to Pay $1M For Misleading Claims Relating to Automated Website Accessibility Remediation Tool”²
Another May 2025 headline: “New York Federal Courts Are Not Rolling Out the Welcome Mat for Serial Plaintiffs in Website Accessibility Lawsuits Anymore”³
December 2024 headline: “Websites Are Not Places of Public Accommodation Subject to Title III of the ADA, Federal Court in New York Rules” (4)
June 2023 headline: “Lawsuits over disabled Americans’ access to websites have surged.” (5)
The first thing you might note is that the last headline is just at two years old. It was, however, at the top of Google search hits for “ADA Website Litigation.” If you are looking at the internet for information about the changing litigation landscape you have to be careful about your sources. I blogged about DOJ’s new Title II website regulations when they were finally adopted last April (6) but it was barely news since they had been proposed years earlier and more or less copied WCAG 2.1, the private accessibility standard that litigants and courts have used for years.
As for the first and third headlines, a new decision from a federal district judge is always interesting, but New York federal courts have had mixed views of the application of Title III of the ADA to stand alone internet businesses for years and the old adage “know your judge” hasn’t changed as the key piece of information for any defendant.(7)
The accessiBe fine from the FTC is news because, as the Usablenet article cited above shows, at least 25% of new filings in May were against businesses supposedly protected by a widget of some kind. The real news is, however, that it has taken the FTC many years to figure out what the accessibility community knew long ago; that is, widgets and similar tools that claim to completely automate website accessibility only work in a limited fashion. (8)
So then, has there been progress in either making the internet more accessible for the blind or making the courts less dangerous for online businesses? As to the first, there certainly has as the largest companies have invested in accessibility and many more developers now emphasize accessibility both in design and remediation of websites (9). As for the latter I think the answer is no. The law firms who file website accessibility lawsuits have proven they can easily pivot from one venue to another when a court or courts seem unfavorable.(10) In terms of litigation we are going sideways and the eternal truths about industrial ADA litigation remain:
- The law firms that file the lawsuits do not care about practical accessibility; that is, whether a disabled person can use the website, but instead look for technical violations of the WCAG 2.x standards as a justification for a lawsuit.
- Too many internet business operators still do not care about accessibility, and too many others have placed an unjustified reliance on a widget or similar tool because they do not understand what accessibility means.
- It is still difficult for small internet businesses to create and maintain accessible websites in a cost effective manner because the available development and testing tools cost too much or are not used at all. You can still create your own e-commerce website, but it probably won’t meet WCAG 2.x standards.
This means we still need what we have needed for years; that is, (a) some way to both identify tester standing issues and dispose of tester cases quickly and inexpensively, (b) more education for small businesses on what accessibility means, (c) better development tools, especially those that would insure accessibility for template placed website design products like WordPress, SquareSpace and others, (d) a new Title III regulation that is based not on compliance with a complex technical standard, but instead on the practical usability of a website, and finally, (e) a pleading standard that requires the identification and description of specific accessibility problems as a prerequisite to the continuation of a lawsuit (11). There has been lots of motion, but little progress in accessibility for the many small online businesses and even less is dealing with industrial scale ADA website litigation. Up, down or sideways? Sideways is, I’m afraid, the answer.
++++++++++++++++++++++++++++++
¹ These figures taken from Usablenet’s monthly tracker at Usablenet Website Tracker
² See FTC Press Release for the original report from the FTC and Seyfarth Shaw Article for the quoted headline.
³ See Seyfarth Shaw Article 2 for the quoted headline.
(4) See Ogletree Deakins Article
(5) See, The Economist Article
(6) See, ADA Title II website regulations – does anyone have a better idea?
(7) See my blog from December 13, 2022 – “Quick Hits, Happy Holidays Edition” – for a useful analysis from one of those federal judges:
The sheer number of judges who, when presented with this statute, have diverged in their interpretations, tells this court that the plain language of Title III of the ADA is ambiguous as to whether standalone websites are covered entities under the statute.
(9) I can’t endorse any developer because I’m a lawyer and I don’t have the technical expertise to judge their work. I can say I had a great time working with Equalize Digital on their podcast earlier this year (Equalize Digital Podcast) as I have with long established accessibility specialists like Usablenet and more recent entrants into the field like Access Design Studio. I can email anyone who is interested a list of those with whom I have some familiarity.
(10) For example, now that the Third Circuit’s view of Title III has been adopted by federal courts in the Western District of Pennsylvania, hundreds of lawsuits have been filed in Pennsylvania state courts under Pennsylvania’s ADA equivalent state law. The same has happened in New York and California. The results have been mixed, but one reason statistics about ADA website litigation differ from source to source is that some include state court litigation while others don’t.
(11) It would be a radical change, but for years federal courts have referred lawsuits that are likely to fail from pro se litigants like prisoners to magistrate judges who screen them to weed out the meritless cases before the defendants are required to spend thousands of dollars on defense. Doing the same for serial ADA filers would at least limit the use of ADA lawsuits as a means of making a quick buck from the threat of litigation against defendants who can’t afford the considerable expense of litigation.