JSH Reporter JSH Reporter - Fall 2017 - Page 12

ACCESSIBILITY CLAIMS ARTICLE 012 WEBSITES: THE NEW FRONTIER FOR ACCESSIBILITY CLAIMS AUTHOR: David Potts EMAIL: dpotts@jshfirm.com The number of cases alleging violations of Title III of the Americans With Disabilities Act has fallen dramatically in 2017. Under Title III of the ADA, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Typically, this means that places of public accommodation must ensure that they are accessible by disabled individuals and comply with federal regulations that set the appropriate standards. Over the past year, courts have come down hard against serial Plaintiffs bringing Title III claims. Advocates for Individuals with Disabilities-the organization that brought more than 1,000 lawsuits against Arizona businesses alleging violations of the ADA’s parking regulations last year–has been largely thwarted, with all of their Arizona cases dismissed. The legislature amended the Arizonans With Disabilities Act to require that a business be given notice and 30 days to fix any violations before a lawsuit can be filed. And similar “tester” Plaintiffs have largely ceased to bring lawsuits in Arizona based on physical barriers to access. BIO: jshfirm.com/DavidCPotts The new frontier is the Internet. In the Ninth Circuit, the Internet is not itself a “place of public accommodation,” so it is not automatically subject to Title III of the ADA. For example, in 2011, a federal court in San Jose rejected a Plaintiff’s claim that Facebook was a “place of public accommodation” under the ADA. See Young v. Facebook, Inc., 790 F. Supp. 2d 1110 (N.D. Cal. 2011). A similar claim against Netflix failed a year later. See Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012). However, where there is a “nexus” between a website and a place of public accommodation, a website can be subject to the ADA. See, e.g., National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). As a result, where a website has that requisite “nexus” to a physical accommodation, Plaintiffs are beginning to bring Title III claims. Theresa Brooke, a serial Plaintiff who also brings lawsuits against hotels that lack pool lifts, brought eight new ADA Title III suits in Arizona in July 2017 alone, all alleging that out-of-state hotels violated the ADA.