Braille Monitor                          October 2019

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Accessibility and Accountability: Drive-by Lawsuits Leave Pothole-size Problems

by Chris Danielsen

Chris DanielsenFrom the Editor: Chris Danielsen is the director of public relations for the NFB, and it is easy to see why he has been charged with packaging our message. His writing has the beauty of being both interesting and educational. His passion for what we do, coupled with his sense of trying to understand the other person’s position, make his contributions extraordinary. Here is what he says about click-by lawsuits, an issue discussed in the August-September issue by Eve Hill:

Link. Link. Image. Image. Button. Button. Our screen readers too often utter this and similar gibberish. We all know that there are plenty of inaccessible websites out there, and plenty more that, while not completely inaccessible, have frustrating accessibility barriers. The idea of suing them all probably brings a certain visceral satisfaction to many of us as we pound on our keyboards in exasperation. Some are doing just that. But certain lawsuits hurt our progress. Those are click-by or drive-by lawsuits.

Click-by or drive-by plaintiffs and their lawyers file dozens or hundreds of lawsuits against businesses, municipal governments, and other entities that are covered by the Americans with Disabilities Act, claiming that their websites are inaccessible.

Recently the Daytona Beach News-Journal reported that a man living in Daytona Beach, Florida, had filed some 130 lawsuits in the state since 2016. Many of the lawsuits were against Florida cities with public documents hosted on their websites that were not accessible to the man, Joel Price, and other blind people who use screen readers. Inaccessible government documents violate the Americans with Disabilities Act of 1990 and other laws. Acknowledging they had a problem, many of the cities were removing the documents from their sites and then replacing them when the accessibility issues were resolved. Some removed all the public documents at once, while others did it in stages. Thus, the news report began: “If you’re having trouble finding what you’re looking for on your city’s or county’s website, even information you know used to be there, you’re not alone.” The piece went on to report that Mr. Price, when interviewed, claimed that the cities he had sued were among several to which he was considering moving. The message of the article, intended or not, was this: If you can’t find what you need on your city’s website, it’s probably this blind guy’s fault.

Perhaps Mr. Price really was considering a move and couldn’t find the information he needed on the websites of the cities he visited. And the lawsuits did spur many of the cities to action. Some important accessibility victories may therefore have been won. But the article also reported that many of the cities had settled the suits that Mr. Price brought against them for between five and fifteen thousand dollars. It wasn’t clear whether all those cities were remediating the inaccessible documents on their websites or had plans to do so. Given the high number of lawsuits and the cash payouts, Mr. Price may also be what has come to be called a “drive-by” or “click-by” plaintiff.

As a start, these plaintiffs or their lawyers pick a category of business in a geographic area, such as wineries in upstate New York, and then file suits against them in alphabetical order, as if they simply read the listings from the Yellow Pages. Sometimes the legal complaints they file have the exact same allegations about each business, as if the language has simply been repeatedly cut and pasted. Occasionally this results in errors that immediately raise red flags, such as the name of the business not matching the address of the allegedly inaccessible website. In a few cases the lawsuits have been almost entirely without merit, meaning that the websites didn’t contain any accessibility barriers or only very minor ones.

Why is this a problem? For a few reasons. Lawsuits are complex things. When a blind person, or the National Federation of the Blind, alleges that a website is inaccessible, we must be prepared to prove it in court, because the burden of proof is rightly on the person or organization making the allegation. Proving a case involves gathering testimony and evidence, both to show the court that we’re right and to answer any arguments that the website owner might make in its defense. It takes patience, time, and money. If it is not done thoroughly and correctly, the case can be thrown out of court or lost on appeal. In the latter circumstance, an appeals court may issue an opinion that sets a bad precedent. Appellate courts publish their opinions, and lower courts in the same jurisdiction are bound by them. To put it simply, bad cases make bad law.

It is unlikely that plaintiffs and lawyers who file dozens of lawsuits at a time are prepared or have the resources to thoroughly investigate and prove each of them. Their intentions may or may not be good, but their strategy depends on the defendants quickly doing the legal equivalent of crying “uncle”: settling the case to put an end to the matter. Small businesses are likely to want to settle quickly when sued; it may be cheaper for them to pay a plaintiff’s attorneys’ fees than to fix their website, even though accessibility isn’t necessarily expensive. Cynical plaintiffs’ attorneys know this, and so they calculate that if they sue a few dozen businesses and each of those businesses pays a few thousand dollars to make the pesky lawsuit go away, this will add up to real money in their pockets.

What this strategy doesn’t necessarily do is improve the accessibility of the websites that are the subjects of the lawsuits. Some plaintiffs and lawyers may sincerely believe that, when business owners must pay up, they learn their lesson and fix their websites. (One lawyer told me that he was pleased to be able to do so much good with so little effort.) That may even sometimes happen, particularly if the business owner is smart enough to realize that failing to fix the website may bring another lawsuit down the road. Most of the time, though, the approach won’t bring meaningful change.

What click-by lawsuits have been very successful at doing, however, is mobilizing some companies, business groups, and policymakers against the ADA and the rights of people with disabilities. Last year, the National Federation of the Blind fought against the so-called ADA Education and Reform Act, which would have curtailed the ability of disabled plaintiffs to file suit. Our efforts were not enough to stop the bill from passing in the United States House of Representatives. Fortunately, it was never taken up by the Senate, but it’s a sure bet that the coalition who supported it will try again. After a blind California man successfully sued Domino’s Pizza, the company is now asking the United States Supreme Court to rule that the ADA cannot and does not apply to websites. Powerful business lobbying organizations including the U.S. Chamber of Commerce are lining up behind this argument. If the Supreme Court accepts the case and rules as Domino’s wants, then blind people will be left with little or no legal recourse when we experience online discrimination.

This is where holding ourselves and others accountable comes in. The National Federation of the Blind has no need to make apologies for our legal strategy. We always seek partnership and collaboration with businesses and government entities before pursuing litigation and file suit only when they absolutely refuse to work constructively with us. We have reached several agreements to improve accessibility without ever entering the courthouse with companies including Expedia and Monster.com. Whether or not we use the courts, we reach agreements that are publicly posted to our website and require specific steps toward accessibility and accountability for maintaining it. We have also made clear that we disapprove of plaintiffs and lawyers who fail to do likewise, most recently through Resolution 2019-09 passed at our national convention in Las Vegas.

But, just as we hold ourselves organizationally accountable and call out bad actors who imperil our rights, we must all be individually accountable as well. Each of us can and should be an effective accessibility advocate. In the November 2018 issue of the Braille Monitor, my colleague Karl Belanger wrote an excellent article describing how we can bring accessibility issues to the attention of companies we deal with. We can all follow the steps Karl described whenever we encounter an accessibility barrier. In addition to alerting businesses to accessibility issues, this strategy demonstrates that inaccessibility is real and affects real people. We can also let businesses and the public know that we, as individuals and as members of the organized blind movement, are willing to help them serve all their customers equally.

If persuasion fails, of course, we must be ready to fight; we cannot simply roll over in the face of discrimination. But fighting discrimination doesn’t always mean going to court. We can call out the businesses who are discriminating against us, refuse to do business with them online or off, and tell our friends and families to avoid doing business with them as well. We can publicly commend entities that take accessibility seriously and send business their way. When there are serious and systemic barriers, we can file complaints with the United States Department of Justice.

And yes, if necessary, we can go to court. But we must use our nation’s legal system in a strategic and coordinated way that results in positive and permanent change. Members of the National Federation of the Blind who think that legal action may be necessary and appropriate should inform their affiliate president, who can then coordinate with President Riccobono to ensure that the contemplated action fits in with our legal strategy and priorities.

Finally, to return to the click-by problem, accountability means making sure we aren’t drawn into such litigation. When members are contacted by lawyers or even by other blind people who ask us to sign on as plaintiffs in a lawsuit or series of lawsuits, we should politely decline to do so, even if the person making the request claims to be a member or working on behalf of the Federation. Then inform Valerie Yingling, our national legal program coordinator, of the solicitation. Valerie can be reached at 410-659-9314, extension 2440, or by email at [email protected]. We know that at least one individual, Mr. Juan Carlos Gill, is soliciting participation in serial lawsuits. Mr. Gill attended the national convention and may attend state conventions. We believe that his efforts are representative of the click-by litigation discussed here, and either Valerie Yingling or President Riccobono should be informed when he contacts members or attends state conventions.

There is a long way yet to go in achieving a fully accessible Internet for everyone, and we must continue the effort to get there without giving ammunition to those who want to make it harder or even bring it to a premature end. At the same time, we have made tremendous progress through a careful, coordinated legal strategy, as well as by other means. As in all our efforts, let’s work together with love, hope, and determination to make sure blind people can fully participate in our increasingly digitized society.

To get an overview of the legal actions we are currently taking and to learn how you can help some of those efforts and engage in effective individual advocacy, visit our legal web page at www.nfb.org/legal.

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