EcomBack 2023 Website Accessibility Lawsuits Mid-Year Trends

In a surprising turn of events, Deborah Laufer, the plaintiff in the Acheson v. Laufer case currently under consideration by the U.S. Supreme Court (SCOTUS), has opted to withdraw her lawsuit. Simultaneously, she formally requested that SCOTUS dismiss the ongoing review of the case due to its lack of relevance.

This unexpected decision follows recent developments where Ms. Laufer not only discontinued her specific case but also decided to dismiss all her other pending ADA Title III lawsuits, asserting that her current case has lost its significance. In her submission to SCOTUS, she has highlighted that her case’s dismissal is warranted. Nonetheless, the defendant, Acheson, has expressed intent to challenge this course of action.

Oral arguments were heard by the court in early October 2023. Ironically, a recent audit of the Supreme Court’s website showed that it too is partially inaccessible.

Ms. Laufer’s strategy may have been influenced by the suspension of her previous attorney, Tristan Gillespie, owing to unethical conduct. The suspension stemmed from the U.S. District Court for the District of Maryland. Concerned that Gillespie’s conduct could overshadow her ADA claims and her commitment to advocating for individuals with disabilities, she made the decision to conclude all her ongoing cases.

The suspension of Gillespie has cast a spotlight on issues related to his management of ADA Title III “tester” litigation. During his tenure at the Thomas Bacon P.A. firm, he filed a considerable number of ADA Title III lawsuits on behalf of Ms. Laufer and Saim Sarwar with disabilities. Remarkably, this transpired while he was employed full-time as an Assistant District Attorney in Fulton County, Georgia. The Bacon Firm lodged over 600 lawsuits on behalf of Ms. Laufer and nearly 200 on behalf of Saim Sarwar. Intriguingly, it was Thomas Bacon from the same firm who represented Ms. Laufer in the SCOTUS case until her recent request for dismissal.

The findings resulting from Gillespie’s disciplinary proceedings underscore several problematic actions. Gillespie was found to have inflated his reported hours in numerous fee petitions, failed to engage in discussions about settlement terms with his clients (preferring instead to rely on an investigator/expert named Daniel Pezza), dismissed over 100 ADA lawsuits prior to the disciplinary hearing without consulting the plaintiffs, and made payments to Pezza, who incidentally is the father of Ms. Laufer’s grandchild. These actions have raised concerns regarding potential unethical fee-sharing. Despite the court’s characterization of this arrangement as concerning, no definitive conclusion has been reached about whether Ms. Laufer received financial compensation from Pezza, owing to the late revelation of their relationship.

The comprehensive report detailing Gillespie’s disciplinary case holds significance for attorneys who specialize in representing ADA Title III serial plaintiffs. This report delineates practices that should be avoided, including the insistence on attorney fees within settlement agreements that exceed the actual fees incurred. Gillespie attempted to justify these inflated fee demands as accounting for future compliance monitoring expenses; however, the court did not find this argument persuasive.

The pending case before SCOTUS is shrouded in uncertainty. Although the ordinary outcome would involve dismissing a moot case, the unique circumstances surrounding Ms. Laufer’s comprehensive dismissal and the contrasting viewpoints among the Courts of Appeals concerning the standing of ADA Title III “testers” in asserting claims offer compelling grounds for SCOTUS to proceed with its review.

About a year after the DOJ’s announcement to create website accessibility regulations for state and local governments under ADA Title II, the DOJ has now published its Notice of Proposed Rulemaking (NPRM) in the Federal Register on August 4, 2023.

Summary of Key Points from the NPRM:

Scope of Coverage: The NPRM aims to extend website accessibility regulations to state and local governments, encompassing departments, agencies, and entities associated with them.

Digital Properties Inclusion: The NPRM covers content on websites, mobile apps, and electronic documents posted there, focusing on conveying information, sensory experiences, and conventional files.

Accessibility Standards: Compliance with Web Content Accessibility Guidelines (WCAG) 2.1, anc 2.2 Levels A and AA, is required for covered websites and mobile apps.

Compliance Timeline: Public entities with a population of 50,000+ must comply within two years of the final rule’s publication. Smaller entities and special district governments have up to three years.

Exceptions: Certain exceptions apply, including instances of fundamental alteration, undue burden, archived content, third-party content, linked third-party content, and certain password-protected files.

Alternatives for Accessibility: Public entities can use “conforming alternate versions” or provide “equivalent facilitation” to ensure accessibility. Public comments were due by October 3, 2023.

EcomBack’s research has uncovered a noticeable lapse in the compliance of AB 2917, a law which went into effect in January 2023. This law clearly outlines that attorneys are required to promptly register any demand letters and accessibility complaints with the California Commission on Disability Access (CCDA) within a five-day period.

Yet, our findings show that many attorneys, the very individuals who should be at the forefront of championing this regulation, have largely ignored it. Since the beginning of 2023, not a single demand letter has been registered with the CCDA. By the time July rolled around, only 158 out of a total of 490 complaints had been reported.

What’s even more perplexing is that some of these attorneys, who zealously challenge businesses over accessibility standards, operate websites that themselves fall short of these benchmarks.

This glaring oversight suggests a double standard. While they are quick to hold businesses to account, they appear to be neglecting their own responsibilities, bringing into question the sincerity of their commitment to disability rights advocacy.

Read AB 2917 here

If your business has received a demand letter or lawsuit in 2023 for website accessibility email the CCDA and contact the State Bar to ensure that the complaint was registered with them as per AB 2917. You may want to email Assembly member Mike Fong to let his office know as well.