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We partnered with Janelle Lewis, partner at Jackson Lewis P.C., to discuss the digital accessibility landscape, and how you can increase accessibility and reduce legal risk in 2022. Watch 'The State of Digital Accessibility And ADA Lawsuits in 2022' Webinar.
Below is a full text description of our ADA Digital Accessibility Lawsuit report to help all users:
Tile 1: 2021 End Year Report ADA Digital Accessibility Lawsuits – Websites, Mobile, Apps, Video
Image description: Multiple Icons are on different colored tiles. There is a white eye on a blue tile, a dark blue ear on a lighter blue background, a blue courthouse on a white tile, a white hand on an orange tile, and a peach brain on a blue head on a peach tile.
Tile 2: 2021 Digital ADA Lawsuits Exceed 4000
The text reads: Over 10 lawsuits are filed every day.
ADA-based cases, where the subject of the claim was either a website, mobile app, or video content, reached a rate of over 10 per day in 2021 with over 4000 in total. That is a 15% increase from 2020. Cases counted include those filed in federal court and those filed in state courts such as California under the Unruh Act with a direct reference to violation of the ADA.
Image description: A bar graph showing the trend of cases since 2018. 2018 had 2314 cases; 2019 had 2890 cases; 2020 had 3503 cases, and 2021 has 4055 as of December 2021. A gray courthouse is behind the bar graph.
Tile 3: Companies Continue to Get Multiple Lawsuits
The text reads: Many companies have received multiple ADA-based lawsuits. Often, the first lawsuit is for the website and the second for a mobile app. Additional lawsuits have been filed against the same website, app, or against another related brand in the case of a holding company. In some instances, the same website receives lawsuits from different plaintiffs.
The bottom line is if websites, mobile apps, and content are not accessible, there is a chance to receive multiple ADA lawsuits, regardless of how many times a settlement has been reached.
Image Description: A pie graph showing the percentage of companies sued this year that had a previous lawsuit. 15% i.e. nearly 500 lawsuits in 2021 were against companies that have received a previous ADA Digital Lawsuit.
Tile 4: The Effect of Key ADA Cases
The text reads: Key court decisions this year have affected the volume of cases in different ways. The Winn-Dixie ADA appeal decision in Florida's Eleventh Circuit was good news for companies facing federal website accessibility lawsuits. New York's decisions are removing media and content sites as targets re-adjusted focus to nexus and traditional public accommodation.
The Eleventh Circuit court decision significantly reduced the suits seen in Florida, but the New York-based decisions just changed the focus to industries that are not just online but have some sort of property or location that the website services.
Image description: Bar graph showing the number of cases in California, New York, and Florida from January 2021 to December 2021. January had 91 cases filed in California, 145 in New York, and 29 in Florida. February had 202 cases filed in California, 93 in New York, and 35 in Florida. March had 252 cases filed in California, 59 in New York, and 96 in Florida. April had 96 cases filed in California, 180 in New York, and 10 in Florida. May had 76 cases filed in California, 183 in New York, and 14 in Florida. June had 142 cases in California, 216 in New York, and 16 in Florida. July had 147 cases filed in California, 109 in New York, and 12 in Florida. August had 143 cases filed in California, 81 in New York, and 3 in Florida. September had 150 cases filed in California, 82 in New York, and 3 in Florida. October had 127 cases filed in California, 112 in New York, and 6 in Florida. November had 95 cases filed in California, 466 in New York, and 5 in Florida. The last week of November saw a significant number of cases filed in one week. This appears to be a one-off end-of-year effort by one plaintiff firm in New York and not a weekly trend so far. December has 110 cases filed in California, 170 in New York, and 12 in Florida so far.
Tile 5: Industry Leader Board
The text reads: E-Commerce websites are cited the most in digital accessibility lawsuits. Companies with locations are high on the target list.
Recent cases have brought nexus (a business with a connected physical location) into focus. That could be fashion retail but also sports teams with stadiums, venues, restaurants, banking, and other business that have both an online and offline presence.
Image description: A pie graph of e-Commerce websites with digital accessibility claims versus other industries. e-Commerce accounts for 74% of accessibility lawsuits. The percentage of lawsuits by industry follows: e-Commerce 74%; Cross-Industry Companies 5%; Food Service Industry 4%; Digital Media & Agencies 3%; Healthcare 3%; Entertainment & Leisure 2%; Banking/Financial 2%; Education 2%; Travel/Hospitality 1%; Automotive 1%; Real Estate Agencies & Properties 1%; Fitness & Wellness less than 1%; Telecommunications less than 1%; Insurance less than 1%; Self-Service less than 1%; Grand Total 100.00%.
Tile 6: No Company is Too Small
The text reads: The percentage of companies sued with revenue below 50 Million per year is growing.
This could be a natural progression or due to changing consumer trends. Many of the largest companies have already been sued and have accessibility programs, which would make for a natural progression to smaller companies. The increase in e-Commerce sales due to the pandemic has also brought more attention to smaller, up–and–coming e-Commerce brands.
Image Description: 2 pie graphs showing the percentages of lawsuits filed against companies that made less than 50 million and companies that made more than 50 million for the years 2020 and 2021. In 2020, 30.46% of companies sued for accessibility claims made over 50 million dollars in revenue while 69.54% of companies sued for accessibility claims earned less than 50 million dollars in revenue. In 2021, 18.92% of companies sued for accessibility made more than 50 million dollars in revenue while 81.08% of companies sued had earnings less than 50 million dollars in revenue.
Tile 7: Large E-Commerce Brands in Focus
The text reads: 20% of the Top 500 e-Commerce websites received a lawsuit in 2021. Over the last 4 years, over 80% of the top 500 e-Commerce websites have been sued. 19.6% i.e. 98 cases in 2021 were against the Top 500 e-Commerce retails. 82.4% of the Top 500 received an ADA-based digital lawsuit since 2018. 412 of the Internet Retailer Top 500 list received an ADA-based digital lawsuit related to one of their brands in the last 4 years. Large e-Commerce sites are complex, changing content and code often, and many have also a physical location (nexus). This combination makes them very likely to receive lawsuits if they do not have a strong accessibility program in place.
Tile 8: Leading ADA Law Firms
The text reads: Top 10 plaintiff firms file three-quarters of all Digital ADA lawsuits. While the top ten defense firms represent less than 15%.
More than 1,000 different lawyers across hundreds of law firms work in defense on active ADA-based lawsuits. The number of plaintiffs and plaintiffs firms is less than 100. This reflects the focus of most plaintiffs and firms to file a significant number of lawsuits every month.
Image description: A list of the top 10 defendant law firms and a defendant lawyer's mindset. The defense lawyer's mindset is “We will defend you, but you should be accessible.” The Number one Defendant Lawfirm for digital accessibility is Dentons US, LLP; Number two is Jackson Lewis P.C.; Third is Lewis Brisbois Bisgaard & Smith LLP; Fourth is Morgan, Lewis, Bockius LLP; Fifth is Ogletree Deakins, Nash, Smoak & Stewart P.C.; Sixth is Seyfarth Shaw LLP; Seventh is Sheppard, Mullin, Richter and Hampton LLP; Eighth is O’hagan Meyer LLC; Ninth is Littler Mendelson P.C.; Tenth is Kaufman Dolowich & Voluck LLP.
Second Image Description: A list of the top 10 plaintiff law firms and a plaintiff lawyer's mindset. A plaintiff lawyer's mindset is “We will sue you if you do not provide an accessible website.” The number one plaintiff Lawfirm is Mizrahi Kroub LLP, and they started filing accessibility lawsuits in October; Number 2 is Jeffrey A. Gottlieb, ESP.; Third is Wilshire Law firm; Fourth is Shaked Law; Fifth is Lipsky Lowe LLP; In sixth is Cohen & Mazrahi LLP, who haven't filed accessibility lawsuits since July; In 7th is Mars Khaimov Law PLLC; Eighth is Center for Disability Access; Ninth is Stein Saks PLLC; Rounding out the top 10 is Marcus & Zelman LLC
Tile 9: Websites Are the Primary Target
The text reads: Lawsuits in 2021 reflect the importance of considering accessibility for all digital channels and content.
The majority of plaintiffs and firms are focused on testing and filing against websites. There are a few plaintiff firms that have focused more on mobile apps and video, particularly in California.
Image Description: A table detailing the percentages of desktop websites, video content, mobile app, combined website and mobile app, and mobile websites that have been sued. Desktop websites had 94% of the claims; Video content had 6% of the claims; Mobile applications had 4% of the claims; Combined web & app had 2% of the claims, and mobile websites had less than 1% of the claims.
Tile 10: Importance of Mobile Apps
The text reads: Mobile app usage has risen, and lawsuits have followed. Over 100 companies received a claim across different industries.
34% of companies who received a mobile app lawsuit had previously been sued for website inaccessibility.
Image description: Industry Total Percent - eCommerce 25%; Digital Media & Agencies 16%; Food Service Industry 10%; Fitness & Wellness 7%; Banking/Financial 6%; Healthcare 5%; Entertainment & Leisure 3%; Travel/Hospitality 3%; Real Estate Agencies & Properties 2%; Education 1%; Automotive 1%; Insurance 1%; Telecommunications 1%; Other 19%. A Grand Total of 100.00%.
Tile 11: Accessibility Widgets and Overlays Offer No Guarantees
The text reads: Over 400 companies who have an accessibility widget or overlay on their website have been sued.
The text reads: The promise to prevent ADA lawsuits by using an accessibility widget or overlays isn't real. Many lawsuits in 2021 list widgets and overlay features as a barrier to equal access in addition to other inaccessible aspects of the website. This means these approaches give plaintiffs more claims to add to a lawsuit, not less.
Image Description: A bar graph showing the number of lawsuits against companies using widgets from January to December: Jan had 27; Feb had 21; March had 35; April had 34; May had 32; June had 39; July had 42; Aug had 35; Sept had 40; Oct. had 39; Nov. had 50, and December has 36 so far.
Tile 12: Final
Methodology: The UsableNet research team reviews all lawsuits filed in federal courts under the ADA and in California under Unruh –over 12,000 this year. The cases are reviewed to identify cases where a digital property is the subject of the claim and not a physical one. This allows UsableNet to keep our clients informed and provides them with the most up-to-date advice for planning their digital accessibility initiatives.
Source: Data is based on UsableNet’s research team’s collection across multiple legal sources from January 1, 2021, to December 13, 2021.
Next steps: A trusted partner can help you improve accessibility and reduce legal risk. Contact us for a free consultation with an accessibility expert.
Get a free evaluation of your website against the latest accessibility standard (WCAG 2.1) test with UsableNet AQA.