In federal courts alone, the number of federal website accessibility lawsuit filings has jumped 256% in the past five years, to 2,895 in 2021, according to Sacramento-based law firm Seyfarth Shaw LLP, one of the major go-to law firms for the wine industry in these cases.
New York had the most, with 2,074 filings, followed by California at 359 and Florida at 185. The law firm noted that California has so few cases compared with New York because many such filings are in state courts, as California law in this area is more stringent.
The federal cases seek relief under Americans With Disability Act’s Title 3, which governs accessibility at businesses.
Originally written to cover physical access to the premises, which spurred a round of lawsuits about wheelchair access to tasting rooms, restaurants and other venues over a decade ago, Title 3 has been interpreted in the courts to apply to also apply to websites. California adopted ADA and Section 508 of the federal Rehabilitation Act into its Unruh Civil Rights Act, codified in California Civil Code section 51.
Virji pointed out that the existing teeth under the ADA and Unruh can be substantial. ADA violations are strict liability, so intentional discrimination isn’t necessary to prove, but remedies are limited to injunctive relief and reasonable attorney’s fees. But Unruh, has minimum damages of $4,000 per violation, going up to three times actual damages.
Firm rules for website accessibility have been murky. In 2010, the U.S. Justice Department started toward rulemaking on applying ADA Title 3 to website accessibility, but that effort languished since. Until the federal standards are established, courts have pointed to those developed by the World Wide Web Consortium, a global group commonly known as the W3C and recognized as the go-to source for how the websites should be built.
Its Web Content Accessibility Guidelines, or WCAG, have three levels of compliance: A, AA and AAA. The latest version is 2.1, released in 2018, and version 2.2 is set to be released in a few months, with version 3.0 set to roll out next year. Courts have pointed to WCAG 2.1 AA as the accessibility benchmark for businesses.
In early March, 181 accessibility advocacy groups wrote a joint letter to the Department of Justice, asking for action on rulemaking for website standards. The agency responded on March 18 with guidance that largely restated previous instructions for ADA website accessibility, according to the law firm Seyfarth Shaw.
Meanwhile, National Federation of the Blind, one of the signatories to that letter, has been backing Congressional action on developing standards and for providing a clear path for businesses to fix website problems before litigation, according to John Pare, executive director for advocacy and policy.
“We are disappointed that some attorneys seem to be more interested in a quick monetary settlement as opposed to working with companies to ensure that their website is accessible,” Pare said.
Because of the growing number of lawsuits over website accessibility, specialty consulting businesses that audit and fix websites have emerged in recent years, in addition to added services in this area by traditional website development companies.
This problem has spawned a newer form of these consultancies that develop software with varying levels of automation that website owners can install to quickly provide what is intended to be a standards-compliant accessible experience. For example, a visitor can change the colors of certain elements to be more high-contrast or not have colors that can’t be seen by some with certain conditions.
Some of the North Coast vintners named in the lawsuits have such software, called overlays, running on the websites named in the complaints. For example, defendant Jackson Family Wines contracts with AudioEye for software running on its Matanzas Creek Winery website, which was named in a complaint, and its corporate sites. Another defendant, Cline Cellars, uses the accessiBe service on its Sojourn Cellars site and others in the portfolio.
David Moradi, CEO of AudioEye, told the Business Journal that these legal actions are just getting started.
“This is a massive problem,” he said. “There are 1.9 billion websites in the world, and the traditional approach to do everything at the source, which advocacy groups prefer, that will not scale.”
In addition to automated solutions that alter the website to accommodate visitors’ visual, auditory and other challenges, the company provides quarterly audits of client websites to highlight problems that their information technology team or consultants should prioritize for fixes. The company said it has 75,000 to 85,000 clients.
The firm knows of two of its winery clients that have been sued. The certification statement that is included in the website software package notes what standards the site is meeting and what the plan for review and upgrades is. Such a statement can be part of the litigation defense, according to Dominic Varacalli, AudioEye’s chief operations officer.
But National Foundation of the Blind’s board last year passed a resolution that was skeptical of the suitability of overlay software to automatically fix accessibility issues with websites.
Jeff Quackenbush covers wine, construction and real estate. Before the Business Journal, he wrote for Bay City News Service in San Francisco. He has a degree from Walla Walla University. Reach him at [email protected] or 707-521-4256.