I need to begin this post by stating that absolutely no one is immune from becoming a victim in an ADA lawsuit. Even if your website is accessible, you can still end up on the receiving end of a lawsuit. Keep reading to learn how this can happen to you.
UsableNet indicated in their April 23 webinar that there are three types of law firms currently working in the ADA lawsuit arena. Here is the “CliffsNotes” version from the video recording:
Type 1 - Law firms that are sending out a notice of noncompliance or a letter of some sort. They may not even have a plaintiff who could file a lawsuit. Their goal is to make a quick buck. They invest little effort and typically have no intent to file. Often, they can easily be deterred with strong pushback.
Type 2 - Law firms that are sending out demand letters with more information and a stronger intent, or a stronger indication of the possibility they will file a lawsuit. These firms tend to seek a settlement but may be deterred by a letter. If they're seeking a settlement, it will be easier to negotiate because they have not invested the time and effort of filing a lawsuit.
Type 3 - Law firms that simply file a lawsuit without a demand. These are the most common. Such law firms are seeking a monetary settlement. Typically, they have done enough research to know there are real problems with the website, which puts them in a position to be able to negotiate with some strength. You will need to take them more seriously.
“…plaintiffs typically ask for a very large number, it could range as high as $250,000, more typical would be a starting demand in the range of 50 to $70,000. But plaintiffs are typically settling these cases for an amount that's in the range of 15 to $20,000.”
Note: PAII (Professional Association of Innkeepers International) included a link to this video recording in their “News You Can Use: PAII Member Edition for 5-8-2019.”
In the past two weeks, 7 new lawsuits have been filed against Innkeepers in US District Courts. These new filings have come from the Type 3 law firms mentioned above; one of these lawsuits could be about YOUR inn and you might not even know about it… YET!
The business owner may not receive a summons about a recently filed complaint for up to +/- 30 days, though it could be less, depending on the filing method. This window of time can be a very precious opportunity for the business owner, but ONLY IF THEY KNOW ABOUT THE COMPLAINT IN ADVANCE.
Two different attorneys have told me that this time period between when the complaint is filed and when the business owner physically receives the summons, allows the business owner to take or finish taking action on becoming compliant.
But keep in mind, 30+/- days is not much time if you haven’t even begun your ADA compliance journey. The odds that you are going to be able to produce a quality website in this brief time period, from scratch, that meets reasonable compliance, is extremely low.
However, if you have already begun the process but you just haven’t made it a priority to complete your ADA work, then this window of opportunity is the time to get it done.
Details about this new legal group filing complaints in our Innkeeping world
The makeup of these 7 new lawsuits are:
- 1 law firm filed all 7 lawsuits
- 3 different plaintiffs used this 1 law firm
These 7 Innkeeper websites were:
- Built by 4 different web design firms
- Using 3 different reservation companies
The complaints I‘ve had access to all have two things in common:
1) The plaintiff is blind.
2) The plaintiff was prevented from “…checking the Hotel’s room availability and online reservation service.”
The new legal group filing these lawsuits is mentioned in the New York Post article: “NYC is drowning in ridiculous, pricey lawsuits” (https://nypost.com/2018/12/04/nyc-is-drowning-in-ridiculous-pricey-lawsuits).
The following statistics are also from UsableNet’s April 23 webinar:
- 2015: 57 lawsuits
- 2016: 262 lawsuits
- 2017: 814 lawsuits
- 2018: 2282 lawsuits
- 31% up in Q1 2019 as compared to 2018
This increase in lawsuits is exactly what we see happening in our own Innkeeping Industry.
What’s disturbing about these new lawsuits is that the blind plaintiffs are stating that they couldn’t book a room without assistance, thus the booking engine is not compliant.
Innkeepers must be aware that a blind person has NO IDEA that the process of booking a room is not a function of the website, but rather a function of the booking engine. The nuance of leaving the URL of your website to go to the booking engine’s website just by clicking an availability button is completely lost in translation.
Why this is so SCARY!
One of our Advantage Plan clients received one of these complaints, and what we found so alarming is that there were NO items listed in the complaint about the usability of the website, other than the fact that the blind plaintiff was unable to book a room. You can see this in the language of the filing below.
“… access barriers make it impossible for blind users to even book lodging reservations on the Website.”
“In the wave of technological advances in recent years, assistive computer technology is becoming an increasingly prominent part of everyday life, allowing blind people to fully and independently access a variety of services, including booking lodging.”
“Defendant’s sighted customers can independently browse, select, and book lodging accommodations online without the assistance of others. However, blind people must rely on sighted companions to assist them in making an online reservation on the Website.”
“Plaintiff browsed and intended to access Defendant’s online booking and reservation service on the Website. However, unless Defendant remedies the numerous access barriers on the Website, Plaintiff and Class members will continue to be unable to independently navigate, browse, use and book a reservation on the Website.”
You can see in the language above that the blind plaintiff is confused between the accessibility of the Inn’s website and the accessibility of the reservation company. They appear to believe they are literally booking the reservation on the Inn’s website, when in fact they are booking the reservation on the reservation company’s website.
I understand that it’s easy to assume you are booking on the Inn’s website, especially when so many of these booking services allow you to replicate the look and feel of your website on their system. This seamless transition is a good thing for sighted users, because this allows them to feel like they haven’t deviated from booking direct, even though the URL’s have changed.
It’s important for all Innkeepers to make sure they understand this nuance themselves.
Sample Website URL:
Sample Booking Engine URLs:
Depending on who you use for your reservation company, you will see the URL change from your website URL to your booking engine’s URL when you click on your Check Availability, Reservation, Book Now, etc. links, buttons, and widgets.
Above are samples showing the initial part of a reservation company URL when you click on the reservation system links from your website. Note: These companies are listed for educational purposes only to help you identify when the web address changes from your website to the booking engine.
What to Expect?
If your business has received a lawsuit filed in a US District Court, then you might receive an email from ANOTHER law firm offering assistance (see sample email below). This email could be your first alert to a lawsuit that has been filed. DO NOT IGNORE such emails. This type of email is typically received at the beginning of the 30+/- day window that may allow you to get your ADA act together.
Subject: New Web Access Lawsuit Against (Inn Name)
Dear (Innkeeper Name),
I hope this email finds you well. I am reaching out to you about the Plaintiff v. Defendant lawsuit that was filed on (Date) in the (Location) District. I have attached the complaint for reference. The suit is based on the premise that (Plaintiff) attempted to use the (Inn’s website URL) website in recent months but was unable to do so because of "access barriers." …
In the past several years, we have quickly resolved scores of ADA web access cases for far below the “market” value of similar cases. We are familiar with the practices of plaintiffs’ firms in this area, such as (Law Firm).
I would be happy to speak with you about my impressions of the complaint, the current law in this area, and strategy moving forward. To provide you with an overview of recent developments in website accessibility litigation, I have attached a couple of articles.
I hope you find them helpful, and that we are able to speak about this new matter, at your convenience
On a Personal Note
I have an amazing friend who is blind, and I traveled on vacation with him and his fiancé (now wife) one summer. So, I completely understand and respect why this sector of the traveling public needs lodging providers to respond to their needs. I’m sure we can all agree that the issue lies with the law firms representing repeat plaintiffs who are not following the instructions on your websites to CALL FOR ASSISTANCE should they experience any issues booking a room or using your Inn’s website, and instead are choosing to file a lawsuit. Many innkeepers are working towards accessibility, as everyone in our industry should be striving to do. The problem arises when legal firms begin exploiting ADA laws for monetary gain.
When we first began studying ADA lawsuits a few years ago, we discovered only three plaintiffs in Florida who had submitted over 2,500 ADA lawsuits between them starting in 2009:
- Howard Cohan (1650 suits from 2013 to date)
- David Poschmann (304 suits from 2014 to date)
- Patricia Kennedy (832 suits from 2009 to date)
I am concerned that if our industry does not find a way to address these three new plaintiffs who have suddenly appeared on the Innkeeping scene two weeks ago, something very similar could happen, especially if they start winning these lawsuits. Between these three new plaintiffs, they have filed 30 lawsuits just in the past 18 months. Note: Not all of these lawsuits are lodging related.
We DO NOT recommend that you wait until you are involved in a lawsuit to begin working on ADA requirements for your business. You must do so now. Although this ADA work is not going to PREVENT you from receiving a lawsuit, it will allow your legal counsel to deal with the lawsuit more quickly and efficiently.
You may or may not be a client of Acorn Internet Services, Inc. but we want you to understand that we care deeply about this industry. Currently, we stay in communication with a small handful of other marketing and web design firms who are also committed to the well-being of our industry. Unfortunately, not all firms have this same desire to help our industry thrive.
Some of these less concerned firms have told Innkeepers:
“Don’t worry about ADA, you aren’t going to get sued.”
“If you get a complaint from an attorney, just email them and tell them thank you for letting you know.”
“Some companies are screaming about ADA, but it’s no big deal, they are just trying to drum up business.”
The evidence presented by the rapidly escalating number of ADA lawsuits against B&Bs clearly states otherwise.
However, as I was finding Innkeepers who had a lawsuit filed against them in the past two weeks, I faced a dilemma. Do I keep quiet and just let them find out when they receive their summons? Or do I find a way to make sure they know about these lawsuits, sooner rather than later, so they have a better chance of addressing them?
I chose the latter. First, I contacted the other marketing firms with whom we do communicate and filled them in on what I discovered so they could address these issues with their client base. Since some of the innkeepers on the list use other providers for their web presence and marketing, I then decided to ask Kris Ullmer, President and CEO at PAII, if she would be willing to address the situation with them since she is currently working with AH & LA on ADA issues.
We are now at a point when Innkeepers MUST educate themselves to know if a lawsuit has been filed against them as soon as it happens. Acorn IS will be holding a special hands-on webinar in the next few weeks for our Advantage Plan clients. During the webinar, I will be teaching our Advantage Plan clients how to use various tools to spot a recently filed lawsuit in advance of receiving a summons, and we will be going over what steps to take should this happen to them.
As I said at the beginning, a proven and qualified web design firm can provide you with a website that meets reasonable accessibility guidelines intended to minimize the likelihood of a lawsuit, but doing so does NOT guarantee that you won’t end up as a victim of an ADA lawsuit. The best steps any Innkeeper can take is to do everything they can for their business according to the established ADA guidelines. Doing so can put your attorney in a position to quickly and efficiently resolve your case, should one occur.
Acorn Internet Services, Inc.
President and Co-Founder
Disclaimer: The information provided in this blog post is not intended and should not be taken as legal advice. You should contact an attorney for advice on specific legal preparation for ADA.