- [Todd] Well, hello everyone. Thank you so much for joining us today. Today's webinar is Crystal Ball 2021: Predictions for the ADA Title Three Legal Landscape. And, here at TPGi we're so honored to have the guests that we have today. We're very excited. I'm excited about learning myself about what's happening in this presentation today and the content that will be shared. Just a couple of quick housekeeping notes. Everybody is entered in listen-only mode, other than our presenters. It cuts down on noise, et cetera. However, there is a Q and A box at the bottom of the screen if you happen to have questions that you'd like to ask our presenters. We'll try to get to those and that would be at the end of their presentation. Furthermore, I will be sending out a follow-up note to everybody just to make sure questions did get answered and make sure that you guys are taken care of there. Don't want to steal the thunder of the folks that we have presenting so I'm going to ask them to introduce themselves and I'm sending this to John and Kristina.

- [Kristina] Wonderful, thank you. And Todd, I'm assuming you saw those two questions that just came in. We wanna make sure we've got the captioner up and running.

- [Todd] Yes, thank you.

- [Kristina] So I'll hold for just a minute while you admit the captioner as a panelist so we can make sure that gets going. Let me know when we're ready.

- [John] Spoiler alert. This is an example of effective communication. We'll talk more about this in the presentation.

- [Kristina] Yeah and I guess in the meantime we can answer this other administrative question as well, as to whether the recording will be sent out with a link. I think Todd will address that later in what form or manner that will happen.

- [Todd] Yeah, so I will send out a followup to everybody and at that time the folks who would like to get a copy of this, that's the time to ask for it. I'll make sure to get your hands. We're happy share that with you.

- [Kristina] Great. Are we ready to roll then?

- [Todd] Yes, go ahead, thank you.

- [Kristina] All right, excellent, okay. Thanks everybody for joining us. Today we are going to be talking about, a little bit of looking back as the past is what helps predict the future. And then looking forward, Crystal Ball 2021, somewhat we'll be able to say what has already happened now that we're at the end of Q1, year 2021, and the rest of 2021 in the ADA Title Three Legal Landscape, specifically with respect to website accessibility and digital technologies. I'm Kristina Launey. I am an attorney with Seyfarth Shaw. I'm based in our California offices. And with me is John Egan. He is my partner in crime, I guess, on the other coast.

- [John] Hi everybody.

- [Kristina] Yeah, so John is also a leader of our ADA Title Three team. He's based in New York and you know, as he mentioned, right before we started rolling here, California and New York are two of the hotbeds of ADA Title Three Website Accessibility Litigation. So we'll tell you what's happening on each of our coasts and everywhere in between in terms of what's been relevant recently in developments and what might help us learn what's coming down for the rest of the year and onward. So with that, here is our legal disclaimer. We are attorneys but this is not an attorney-client relationship. We are not providing legal advice. We are just giving you general information today. We're gonna talk about the, you know, setting the stage. It always helps, even though I know so many of us have heard this over and over again, but it always helps to level set on what the laws are that apply, what an accessible website is. We're gonna talk about some of the data, we don't have the up-to-date data yet but we will soon so stay tuned to our blog. Lawsuits and settlements. Some strategies for avoiding litigation. And a roadmap to accessibility to close us out for the day. So with that, I will turn it over to John.

- [John] Great, thanks so much, Kristina. So happy to be with all of you today. We have a lot to cover today so some things we're gonna move through quicker than others. Let's start with an overview. What laws apply or could apply to accessible digital technology. ADA Title Two, applies to state and local government entities. Title Three, kind of the core of our discussion, relating to places of public accommodation, publicly facing businesses that fall under a series of categories that we're going to talk about. Most accessibility cases filed in the country are filed under ADA Title Three and there are companion state and municipal laws where applicable. Section 504 applies to entities that receive funding from the federal government. 508 applies to federal agencies. Talked about this, State Non-discrimination Laws. You also have Municipal Non-discrimination Laws, the California Unruh Act, the New York State's Human Rights Law and the New York City Human Rights Law are but a few examples. For air carriers, airlines, the Air Carrier Access Act that actually requires the primary websites of carriers be conformant with WCAG or the Web Content Accessibility Guidelines, level two, double A. If you have no idea what that means, don't worry. We're gonna talk about it more. Healthcare, ACA Section 1557 in Medicare Regs. Okay, that's the broad overview of what could apply at the federal and state level. Background of the Americans with Disability Act. the landmark civil rights statute signed into law by George Herbert Walker Bush in 1990. I'm reminded recently, kind of reflecting on the incidents at the Capitol in January, of a sharp contrast to what happened 30 plus years ago when the ADA was stalled in Congress. A group of people with mobility disabilities basically approached the Capitol steps, got out of their wheelchairs and crawled on their hands and knees to the top of the Capitol steps known famously as the Capitol Crawl. In so doing they kind of chased the Members of Congress that were holding up the law. And as a result the ADA was passed and a landmark legislation it was. The ADA provides for, in many ways equivalent, for people with and without disabilities in our country. It was a product of bipartisan compromise, rather than storming the Capitol, they crawled up the steps. And as a result, a Republican President signed this law which rather than providing rigid difficult to achieve retroactive requirements was in many ways forward looking as it relates to physical accessibility. It allowed people to bring private party lawsuits, people to be their own attorneys general, to seek enforcement when they were violated in terms of their accessibility and equal access to various aspects of American life, employment, state and local governments, public transportation, public accommodations and telecommunications. But it did not provide for damages. So in many ways, the Americans with Disabilities Act was an example of bipartisanship, bipartisan compromise. Not everybody got what they wanted. The system is far from perfect but I don't think you can dispute that it was a very important law in the history of our country and it made a meaningful difference for millions upon millions of people. And we're dealing with an aftermath where I would argue that perhaps the law is being abused. I just wanna talk more about that, next slide please. Okay, what are the obligations under Title Three of the ADA relating to public accommodations? Well, if you have to have a physically accessible facility, you have to make reasonable modifications to the way you do business. Your policies, your practices and your procedures when that's necessary to provide equal access. But our main focus is gonna be the third topic, effective communication. Notion of providing information in a way that can be perceived by a person with a visual disability, hearing disability, cognitive disability. It requires the provision of auxiliary aids or services. And it's the right of the business to select what auxiliary aids or services to provide. Like for example, for somebody who is hard of hearing, having a captioner, provided on the webinar, that you're reading at the bottom either corner of your screen, is an example of effective communication. Has to be provided in a timely way, has to protect the independence and the privacy of a person with a disability, and it has to be timely. Okay, these are the structures of our ADA Title Three obligations. The remedies. As I said, private parties can bring lawsuits to seek injunctive relief. They go to the court and say, "I need this to be changed." Judge, jury can say yes or no. They cannot obtain damages. However, damages are available under certain state disability access laws, such as in California and New York, which I briefly touched on. DOJ, if the Department of Justice pursues you in an administrative proceeding, then they can assess penalties and you have the penalties on your screen for first and subsequent violation. So you either can be dealing with a private party litigation or with a DOJ initiated investigation. Next slide, please. What's a public accommodation? Public accommodation falls in the following 12 categories. Think publicly facing, think retail, think hotel, think restaurants, think places of public, of assembly like a stadium. Okay, these are places of public accommodation. Where do websites fit in all this? What is the degree of connectedness, relationship or nexus between a physical covered place of public accommodation and a website? Well that in some ways is an open question and courts don't necessarily agree on the right answer. Some courts, you don't need any connection between the website and a physical place. Other courts, you need a nexus. And most recently in the 11th Circuit, we have yet another standard that has emerged. So, the courts are not in agreement on the connection between the digital space, the new online marketplace, the new place in which all of us now, particularly in the pandemic are so engrossed and so integrated. And the obligations of this pre-online, pre-internet law, the ADA as to how accessibility ought to work in the new and ever-changing digital world in which we live. Next slide, please. What's an accessible website? Well, it's lots of things. It is diverse as the population of people with disabilities which is in itself one of the most, if not the most diverse, complex and large in number groups of "minorities." For people who are blind, it's the ability of a website to work effectively with a screen reader, programs that are on the computer that convert visual information, photographs, texts and convert it to audible form for those who are blind or are low vision. The ability to zoom or make texts larger for people who are low vision. For people who are color blind, having contrast patterns that will allow that information to be perceivable. For those who are blind or have visual disabilities, that's important. Keyboard navigability, to use a mouse requires that you be sighted, so an accessible website is one that can be navigated effectively using the keyboard. For people who are deaf or hard of hearing, captions like what you see on your screen are an example and an articulation of what accessibility is for that group of users. For people who have mobility disabilities or don't have full or any use of their hands, keyboard access is important because certain assistive technologies will take the place of a keyboard. Epilepsy, be mindful of flashing content. Colorblindness, we talked about. The Web Content Accessibility Guidelines, WCAG, and if you're really in the know you'll call them WCAG, is published by private group of experts, W3C, the World Wide Web Consortium, hence the three, World Wide Web Consortium. Well right now we're at level 2.1. I think there's some chatter of a level 3.0, which is kind of crazy considering where we are in the world and the challenges that businesses face. We'll talk about it. But right now we're at level 2.1, double A. Single A, basic stuff, low-hanging fruit. Triple A is aspirational, not really meant to be a standard. Double A would be considered the gold standard. We added, from 2.0 to 2.1 a few years ago, that added success criteria that were mainly focused for the benefit of people with cognitive disabilities and the ability of digital devices to be accessible, okay? So a lot of these criteria relate to, you know, landscape versus portrait mode and finger swiping and the kinds of things that we do on our phones every day. A lot of that 2.1 stuff includes that, and it's fully inclusive of 2.0. So everything that's in 2.0 is in 2.1. Not a legal standard under Title Three of the ADA and that's another area that's quite an onion that we will unravel as we proceed. Okay, Kristina talked about how history will teach us something about where we're going. The past predicts the future. You know, those who don't learn the lessons of history may repeat the same mistakes, right? So this is where we're gonna hopefully, get at our Crystal Ball and our starting points to look at where we've come from. The DOJ in the Obama Administration issued an advanced notice to propose rule making, suggesting that we have website accessibility regulations and they put that out for comment. There's some interesting things about that ANPRM such as some discussion of whether equivalent modalities would be accessible. For example, a 24 hour staff telephone service that would be able to provide information that would be the same as you'd be able to get on the website by way of a telephone service. This was one of the suggestions, one of the issues that were put out for comment. How much time should businesses have to comply? What about the impact, particularly on small businesses, of things like captions? And what standard, you know, should be employed? Next slide, please. DOJ did not wait to issue regulations. In fact, they never did issue regulations. But that didn't stop them from initiating enforcement actions against, you know, higher profile defendants. And the results of those enforcement actions were serious settlement agreements or consent decrees, which are to just, you know, or public settlements. And in those agreements, the businesses agreed to conform their websites to the Web Content Accessibility Guidelines, WCAG, 2.0 level, double A. And this was in many ways, the impetus for the plaintiffs' bar in basically piling on and initiating private party lawsuits in mass following the same kinds of concepts that a website must comply with WCAG 2.0, double A in order to be accessible, in order to be ADA compliant, in order to be equivalent for people in the digital space to kind of parallel the physical space. Then it all changed, kind of, but not really. Trump came in and I think it's fair to say he was pretty anti-regulatory. He withdrew many regulations in rulemaking. And this withered on the vine until it was finally withdrawn. Trump famously had his two for one rule, that for every regulation you add, you take two away. That pretty much spelt the death knell for all of this. But the DOJ engaged in far less enforcement activities. And in response to that, the plaintiffs' bar took up the mantle and filed many, many thousands of cases over the course of Trump's Presidency. A question was posed by a Member of Congress to the DOJ saying, "Hey, what's the deal? Our small businesses are getting hammered. We need you to act." And DOJ responded and they basically said, "Look, you know, we'll work with you if there's a law that's going to be passed to address this, but there's flexibility in terms of how businesses can comply. Businesses have known for a long time that the ADA applies. But how it applies, there can be flexibility." Without really getting specific about what flexibility is actually available, but there was the suggestion in this letter that was prepared by DOJ that there would be flexibility in terms of how to comply, kind of hinting, teasing perhaps, that's something other than WCAG might be enough. But not doing nearly enough in the way of specificity upon which businesses could rely and point to in terms of their own efforts in my humble opinion. Next slide. Okay, here we are. Joe Biden, Joe is here. And, where does he take this environment? That's the question of the day. Kristen Clark has been nominated for the head of the Civil Rights Division and within that is the Disability Law Section that's responsible for disability access enforcement at the federal level. Kristen Clarke is somebody who out of law school worked for DOJ, not surprisingly, but then she ended up with the New York State Attorney General's Office, where she was the director of the Civil Rights Bureau and brought a number of high-profile litigations like leave under AG Schneiderman, including some disability access cases. So not somebody who is ignorant most certainly of disability access work, she certainly knows of it and she enforced it at the New York Attorney General's Office. Most recently, she held the position of President Executive Director of the Lawyers Committee for Civil Rights under Law. So somebody with a progressive reputation. And so the question then becomes, you know, where does the agency go, assuming that she's confirmed? It's fair to say we're gonna see more enforcement. But I think what's different, you know, even though obviously Joe was Barack Obama's VP. And certainly some of the same kinds of folks are and the same folks in fact, are coming on board in the new administration. What makes this a little different is the fact that we're in a pandemic. We're in a very challenged business environment. We're seeing large parts of our major cities including New York be hit with blight. We're seeing small businesses closed, shutter. We're seeing restaurants that may never reopen again. We're seeing changes in consumer behavior that will be lasting. And so the question becomes, in this environment, is it going to be as aggressive of an enforcement approach that Obama's Administration took? I'm not quite sure. I'm not quite sure if that's going to be the case. I think you are going to see more activity. And I'd like to think that more technical assistance guidance will come out of this administration which was fairly common in prior administrations. And it can be very helpful thing when DOJ issues a technical assistance guidance in terms of giving businesses visibility and direction in terms of how to comply. And we might see rulemaking. You know, Obama's DOJ looked at and did rulemaking under ADA Title Two for website accessibility for state and local governments. At the very weaning days of the Presidency, they sneaked through, sneak is the wrong word, but they got through rulemaking for closed captioning obligations for movie theaters and other businesses and decimated by the pandemic, and obviously that happened before the pandemic. So you might see rulemaking and maybe just maybe, you might see rulemaking along this vain. But boy, there's really a lot of stuff to unravel in this when it comes to rulemaking because we have a pretty challenging environment where, I think we'll talk about this. You know, the WCAG standards have been a very challenging thing for businesses to implement. And there's a whole host of considerations that have to go into it. Are we gonna see more polarization? Are we gonna see, you know, are we going to see people storming or people crawling up the steps? Are we gonna see bipartisanship or are we gonna see tribalism and factionalism that seems to define this era? I don't know, but I guess I'm a little bit more on the pessimistic side. And so the fair assumption is that you're gonna see more lawsuits. You're gonna see more lawsuits because I think the federal administration probably has some really significant things to tackle. And I'm not quite sure that they're gonna throw themselves headlong into the business of rulemaking. But, I could be wrong, we could be wrong, we'll see. But maybe we'll see some more technical assistance. Maybe we'll see some more guidance of a productive nature from this administration. I think what we saw with Trump was the assumption that simply because you withdraw from a regulatory presence that's good for business but I don't think it's, I don't think that played out that way. I think that the withdrawal from regulations and rulemaking has been a negative for businesses in the website accessibility space, because it is in many ways chaos. Next slide, please.

- [Kristina] Yeah John, you know, I think it's worth pausing, you know, briefly 'cause I don't know. I somewhat agree, somewhat disagree with you. I mean, I think.

- [John] Tell me.

- [Kristina] Well.

- [John] Yeah.

- [Kristina] Website accessibility, just providing access to individuals with disabilities period is on Biden's radar, it's high on his radar. I think you could tell from, you know, day one of his Presidency, the White House website being accessible, you know, that was significant. And I think that was probably quite deliberate, you know, to send a message that this is going to be an important issue for the Biden Administration. I think it's probably, you know, unfortunate that the Biden Administration has to deal with so much other stuff out of the gate than, you know, the issues that in a normal presidency that, you know, wasn't dealing with an instruction and a pandemic might be dealing with right out of the gate. But I think it, that would signal that this is a priority. It's just a matter of, when are they gonna get to it, right? I mean, they're not able to.

- [John] Yeah.

- [Kristina] Get their nominees through Congress right now because of all the partisanship. So that's an issue, you know, getting folks actually nominated and getting to work. But then once that happens, what happens then? You know, do we see the rulemaking process that was withdrawn by the Trump Administration restarted? Even if it is restarted, do they, you know, restart with the, what was it? I can't remember the number well, over one or 200 comments that were solicited by the DOJ to assist in the regulatory process. You know, how much time do we go? And I think they did two comment periods in that time. You know, and when we had seen the regs, you know, in process for six years and then nothing. So, you know, at what point do they restart that process? Would they be able to fast track it? I think that's, you know, where there's so much uncertainty. But I do agree with you that I think it's incredibly likely that we do see a return to where we were under the Obama Administration of the DOJ starting to enforce the ADA with respect to website accessibility and, you know, just on the basis of all, you know, different types of accessibility actions that could be brought under the ADA and issuing technical assistance again, which, you know, could actually benefit both sides. You know, that's what's causing all the litigation that we're gonna talk about in a minute, is just the uncertainty that has been out there and both businesses and the disabled community would like some certainty surrounding what is required and what isn't. So.

- [John] Yeah, definitely. Excellent, yeah I know, I mean and then this was really nicely. I'm sorry, go ahead.

- [Kristina] I was saying, yeah this, we're going to the same place. Others are trying to take action.

- [John] Yeah, exactly. So I think, you know, this Online Accessibility Act was proposed. We're not gonna spend a lot of time on it. You know, basically what it would require would be that businesses have, get into substantial conformance and rather than have DOJ issue the regulations or propose the regulations, it would be the United Access Authority. The federal agency comprised of individuals designated by the president, half who are representatives of agencies, have members of the public. They come from a kind of a cross section. It's probably the right agency to look at this to be honest. They do deep dives in physical accessibility all the time. They are accessibility focused. As well as the task of this law, which is basically sponsored by the same individual that wrote that letter to DOJ, would also provide that, you know, the Access Board could evaluate and should evaluate alternative means of access, perhaps something less robust than WCAG, although WCAG would be enough. Where I think the law goes a little bit sideways is requiring notice and comment, I'm sorry, not notice comment, notice and opportunity to cure. You wouldn't be able to file a lawsuit right away, you'd have to basically provide the business with notice and 90 days to address the issue. And then after that period expires, you have another 90 days to present the issue, to file the complaint with DOJ. And then DOJ would have 180 days to decide whether or not to function on it. And so this is something, this notion of asking people with disabilities to provide advanced notice is something that's been proposed before for many years, at least 10 years in various reform activities and it hasn't went anywhere. It's been very strongly opposed by the disability advocacy community and that's why I don't think that, you know, that this law is necessarily going anywhere. But it's certainly is a step in the right direction in the sense that we really do need, to Kristina's point, and I also I'm hopeful and optimistic that, you know, this administration is gonna recognize the crisis that we're in and act because we really need rulemaking, we need guidance, and businesses need times to comply. And that's what we need right now. That's what this moment demands. And so yeah, I'm pleased with the, you know, that the White House is making the website accessible and it's taking more of an interest but, you know, this is, I guess basically a Republican proposed law. I think that the notice and opportunity to cure piece of it probably needs to come out in order to get bipartisan support but regulation in this area does need bipartisan support. I mean, that is what we need here. And it needs to be something that's attuned to what businesses are actually going through in trying to actually make their websites accessible.

- [Kristina] Yeah and I think, you know, I would say I commend legislators for, you know, trying to push reform. And I commend them for writing to the DOJ to try to, you know, get the DOJ to take action and regulation also. But this bill, you know, doesn't stand a chance, you know, based on, it's a reintroduction of a bill that was, you know, introduced last year and didn't stand a chance. So like John said, you know, there were some issues with this bill for sure. But, you know, the fact that anyone's just, you know, continuing the discussion at that level is what needs to happen.

- [John] All right, so the next phase of this, we're gonna go really fast because we've gotta get to the substance in terms of the case law development. So, we're gonna go through some statistics. Those statistics are on our website, adatitleiii.com. It's an awesome URL. And we follow all the most recent stats and filings. So I'm gonna go through it super fast. And you can find more on our blog. This is the number of filings dating back to, I guess, 2013. This isn't just website cases, this is all in website, at least the last couple of years by physical accessibility policies and procedures, service animals, the whole deal. And you can see it's really exploding. And it's amazing that in the pandemic it only decreased by 70 cases. I mean, that itself is shocking.

- [Kristina] And, you know, just real quick, like John said, he's gonna blow through these slides. We will have, you know, an accessible version that has all of the information, you know, of the slides after the fact. And as he said, you know, all of this information is provided on our blog as well.

- [John] That's a really good point. This is the monthly filings for the, our pandemic year. I guess we're still in the pandemic year but 2020 was the pandemic year. You can see it dipped in April and May. That kind of shock. That shock factor when courts closed and didn't know what to make of it, but then it picked right back up in June. And we had probably the most number of filings in January of 2021 than we've ever had. We had well over 1,100 ADA Title Three lawsuits filed. And so that portends for 2021 to be a record breaker. This is the top states. California leads the pack, New York and Florida. New York used to be below, much far below Florida. And now it's picked up again, New York has a damages statute query whether that's involved. Florida is going kind of in a different direction as we'll see.

- [Kristina] Yeah and it's worth noting that California, and this is again, all of 2020, California had 5,869 lawsuits just in Federal Courts.

- [John] Wow.

- [Kristina] And New York had 2,238. So that's the difference between the first spot and the second spot there.

- [John] Yes, yes, yes. This is good because we can capture this by captioning. This is excellent. Kristina, you're on the ball. Okay, this is a graphical image showing, you know, the direction over time in the various states. As I mentioned, New York has kind of flip-flopped over Florida now. New York is kind of above Florida in terms of the number of filings. California continues to be really the hotspot. And, you know, so many cases are filed in California State Court and those are much more difficult statistics to track. So this only shows you federal. So that, in addition, you have state which makes California even more of a leader in terms of the number of filings. This is website, it's missing 2020 because we're working on it. That's a very, very intensive task, to sort out the website cases, there's a lot of manual review that has to happen. So you see in 2018, there were 2,258 cases. In 2019, 2,256 website cases. This is just website, federal cases. Much of the activity is in the form of demand letters, which many of you may know. You get a demand letter, it says, "I'm gonna sue you unless, you know, call me and, you know, work it out." That's not reflected here either. I mean, it just feels, I don't know Kristina if you agree with this but, it just feels like website stuff is just so much more and more of what we do every single month and I wonder where it goes. What do you think?

- [Kristina] Yeah I mean, I always think it's gotta level off at some point but it's continued to increase year over year. And you know, 2021 has been a very busy year. It seems like plaintiffs' attorney is trying to make up time from the time lost during the pandemic in 2020. And, you know, one slightly complicating factor this year is we've gotten a lot of lawsuits filed against hotels for the alleged failure of the hotel reservations websites to provide information that the regulations, say need to be provided on the accessible features of the hotel. So, you know, part of the reason why we haven't put out our data yet for 2020 or even the first quarter of 2021 is it makes our task of weeding through the lawsuits to make sure our data is as accurate as possible even more difficult because we've gotta pullout reservations websites cases which are very different from, you know, cases dealing with the accessibility of the actual website.

- [John] All right. I think that's it for stats. No, we have one more. Okay, right. So this is New York website accessibility cases for 2019. You see New York kind of leads the pack and the reason why was because, Kristina's gonna talk about the Robles case, which was a case that kind of deferred plaintiffs' lawyers to State Court resulting in some low federal numbers. But a lot of the New York federal litigation is website. I mean a lot, a lot, a lot. And so this kind of reflects that.

- [Kristina] Yeah, I mean, I think the other thing to note about this slide which, well the information reflected on this slide which is the most website accessibility lawsuits are filed or were filed in 2019. And again, as soon as we're done with the data, we'll post them as to 2020 as well. But the, what's significant about this is remember when we showed you the slide about all lawsuits filed under Title Three of the ADA, California was way ahead. And now for just website accessibility lawsuits, New York is by far the leader with 1,300 such lawsuits. Followed by Florida with 526, then California with 120, then Pennsylvania with 92. And I'll stop there because those are the states in which we see the most of the ADA Title Three website accessibility lawsuits filed. Part of the reason why California is so low on this front is because we see a lot of demand letters in California and we see a lot of lawsuits filed in State Courts in California. And we see a lot of lawsuits filed in New York because there have been cases that have come out there that were very plaintiff friendly. So the plaintiffs obviously want to be in the courts where they think they're gonna get the best outcome. So that is a very important theme to keep in mind as we go into the next slides in which we're gonna talk about key cases from 2020 and 2019. And then a little bit of what's come out in 2021. But what we can divine from the trends in 2019 and 2020 as to what we think we're gonna see in the way of litigation in 2021 and beyond. Before we go onto that, just real quick. One question we had was the bill number for the Online Accessibility Act of 2021. That's HR1100. We have a summary of that bill on our blog, adatitleiii.com. Like John said, that's ADA and then little i, little i, little i for the three, like the Roman numerals on there. And we'll try to hit some of the other questions when we have time and near the end or if they come up as we're going through these slides. So, the first case to talk about which we're gonna just go through very quickly because we've talked about it before, we won't belabor it, is the Robles vs Domino's Pizza case. It is out of the Ninth Circuit, which means it is a decision from a Federal Court on the Appeals Court level, which is the level in between the very first court, the Trial Court and the US Supreme Court. And what the Domino's Court did on the Ninth Circuit level is it overturned the Trial Court's ruling, which dismissed the case on due process and primary jurisdiction grounds. And what those two things are, is it means that Domino's argued that it could not be held liable for a violation of Title Three of the ADA due to a website that may or may not be accessible because it violated its due process rights because there are no regulations stating what it means to be an accessible website. So how could it be held to some standard that it wasn't told that it was going to be held by. And also primary jurisdiction that, this isn't for the courts to decide yet. The DOJ should enact regulation. It has the jurisdiction in the first place over this area of the law. And as to both of those arguments, the court said, "No, we're not buying it. We're the court, it's our job to interpret laws and fill in the blanks in laws all the time and we can do that here as well." And so what it also did in issuing its ruling, the Ninth Circuit said that the ADA applies to websites and mobile apps, which was significant because that wasn't an issue in the case, that have a nexus to a physical place. Now that's inconsistent with what the rule is in some other circuits, which is significant and we'll talk about that in a minute. The other thing that it said that is significant is that telephone service as an alternative might be a viable alternative means of effective communication. But that wasn't something that could be decided at the early motion to dismiss stage because it would be, something that you would need facts, the facts of when the telephone service was available, for example, is it available 24/7 or only during certain times? Would be very relevant in determining whether it would be an alternate effective means of communication. Domino's said, "Hey, Supreme Court, you know, help us. You know, we need you to review this decision of the Ninth Circuit that we think is wrong." And the Supreme Court said, "No, we don't think this is important enough for us to decide at this time." And remember, that doesn't necessarily mean anything. The Supreme Court would have been reviewing this case just on the specific rulings in this case which were, you know, due process, primary jurisdiction, the limited issues decided before. So that takes us then to the other appeal that had been argued even before the Domino's case. So the Gil vs Winn-Dixie case was out of a Florida Trial Court in the Southern District of Florida. On the appeal, it was argued in October, 2018. We just got the order on this about a month ago. So we've been waiting for, you know, two years essentially for this ruling and it was quite a significant ruling. The Appeals Court, you know, did the same thing that the Domino's Court did and said, "No, we disagree and we're sending you back to the Trial Court to do this right the second time around." But on the opposite basis, the Trial Court in Winn-Dixie had ruled in favor of the plaintiff and had issued a three-year injunction requiring the website be made accessible, according to the WCAG 2.0 level, double A criteria, required training, required third party content on Winn-Dixie's website to be accessible, made Winn-Dixie essentially responsible for that. Again, very significant because there isn't really anything else out there on that point. It required a web accessibility policy be adopted and it awarded fees and costs to the plaintiff. That's what the Trial Court had done. Then, you know, so we're talking, you know, two years plus later, the Appeals Court says, "No, we think you were wrong, Trial Court, in finding in favor of the plaintiff because websites are not places of public accommodation under Title Three of the ADA. And the grocery store, Winn-Dixie, can't be held liable under Title Three in any other way because the website is not an intangible barrier to the plaintiff's ability to access the physical store." In other words, you know, the plaintiff could still go to the physical store and the inability to use the website, because it was accessible, did not interfere with his ability to use the physical store. So this case was going to go back down to the Trial Court to be redetermined, unless perhaps the plaintiff were to, you know, file a petition with the US Supreme Court or as the plaintiff elected to do as the next step, file a petition with the 11th Circuit Court of Appeals for an en banc decision. Essentially, "Hey, we want a bigger group of you guys to revisit this decision, or guys and women, to redetermine this decision that the 11th Circuit panel had issued because we think it was wrong. We think that their decision was contrary to the precedent, essentially the case law that the 11th Circuit has decided before and courts are bound to follow precedent. And we also think it is contrary to US Supreme Court authority that might be applicable." The basis for these arguments were number one, that the court did not pay attention to the 11th Circuit's nexus standard, so essentially whether there has to be a nexus between the website and the physical place of business for the ADA to apply. "The court," it said, "erroneously compared blind users to a sighted customer who does not have internet access and that that's not the proper comparison and that that's not consistent with prior precedent. The proper analysis," they're arguing in this petition for en banc rehearing, "is that number one, whether the inaccessible website constituted different treatment of individuals with disabilities under the ADA and whether auxiliary aids and services were provided to ensure effective communication with individuals with disabilities." They also argued in this petition that, "The majority rule in issuing the 11th Circuit decision should not have decided in essentially setting new precedent that websites are not places of public accommodation because that was not something that the Trial Court below had decided and a Court of Appeals is only supposed to review decisions that were actually decided by the lower court." And then the final thing that they're arguing on this en banc petition is that, "The appeal was moved because the three-year injunction that the Trial Court had ordered had already expired." So everything that Winn-Dixie possibly, you know, could or should have done or was ordered to do, you know, the time has already passed. So now the 11th Circuit will determine whether to take up this rehearing and we'll follow it and let you know how it comes out. So the significance here, you know, bigger picture is we just talked about the Ninth Circuit rule, that there has to be a nexus to a physical place of business for a website to be subject to Title Three of the ADA. In the 11th Circuit, to establish a violation of the ADA based upon an allegedly inaccessible website, a plaintiff has to show that the inaccessibility of the website prevented him or her from accessing the goods or services of the places of public accommodation. And then the third, you know, camp essentially, is that a web-only business, regardless of whether it has a physical place of business or not can be subject to Title Three of the ADA. So what does that mean? It means that Winn-Dixie, even though it was significant because we've been waiting for this decision for years and years and the Winn-Dixie decision was one of the only dispositive rulings we have on website accessibility, we only have a handful of them in which a court or a jury, you know, reached a final decision saying this website on the facts violates Title Three of the ADA because it is not accessible. And, so for now we don't have that anymore. It was also super significant because of the ruling it made on the third party content and because it ordered Winn-Dixie to conform to the WCAG Guidelines. So, we wait and see for now. And in the meantime, we have this patchwork of, you know, same place we were before of it really depends on what court you're in as to whether there has to be a physical nexus with a physical place of business for a website to be subject to Title Three of the ADA. And, you know, it's for now, unless the Supreme Court takes this up which, who knows, maybe it'll happen this year. It still depends on where you are. Further in the category of depends on where you are, we got what we think is the first decision out of this area, Western District of Virginia and the circuit within which it sits on this topic. And this court held, in Mejico versus Alba Web Designs, that web-only businesses are subject to Title Three of the ADA. So that's consistent with the first circuit rule and the court here followed the first circuit. You know, this is interesting also because the court here was very swayed by the world that we live in right now and said that, "You know, the modern world of e-commerce plus the pandemic forcing, you know, more people out of physical stores and to be conducting business via the internet, you know, weighs even more in favor from a policy perspective of web-only businesses being subject to Title Three of the ADA." I should note that the first circuit rule, even though this Mejico Court here followed the first circuit rule, the first circuit rule isn't applicable specifically to website accessibility. It's just that the decisions that the first circuit courts have decided on the issue of whether a website can be a place of public accommodation, you know, those sorts of things had been extended to website accessibility under Title Three. A bit convoluted but the bottom line is its, we don't have a first circuit opinion on point, but lower courts have extended the first circuit cases that are analogous to website accessibility to hold essentially that web-only businesses are subject to Title Three of the ADA. Hopefully I stated it more clearly that time. More nexus cases. So the theme here, right, is we saw a couple of nexus cases come out in 2019, 2020, 2021. We think that this is still going to be an issue that we're gonna see litigated more because again, it depends on what court you're in. And, you know, maybe we'll see a higher court finally, you know, set a more consistent rule on this. In the Eastern District of Pennsylvania, the court threw out a lawsuit because there was no physical nexus to a physical place of business with the website. And then in California, we have the Martinez cases, one versus a credit union and apologies, I referred to the Thurston case above but it's on the next slide here. This Martinez vs San Diego Credit Union case was the second California Appeals Court. So this is a State Court level now but the Appeals Court is, you know, like the equivalent of the Ninth Circuit. It's the middle Appeals Court between the Trial Court and the California Supreme Court. And it was the second Appeals Court in California to hold that websites with a nexus to a physical place of business where customers go are covered by Title Three of the ADA. The lower court had, you know, actually been even stricter on that point and the Appeals Court here overturned it. And then we have the Martinez vs Cot 'N Wash case which just came out a couple of weeks ago in which the court held that digital spaces are not places of public accommodation without a nexus to some physical place, I'm sorry I said within but it should be without an access to some physical place. And here they followed the Martinez case above as website, you know, as being the majority rule in California, that a website without a physical nexus to a place, a physical place of business are not covered by the ADA. And even though these cases were ruling on issues of State Law, California's Unruh Act, they were based upon an underlying violation of the ADA so that's why these courts analyzed the ADA. Is that clear as mud to you? If so, you're, you know, not alone because again, the bottom line is that even amongst courts in the same jurisdiction as, you know, the Martinez Court shows, you had a Trial Court that was issuing an opinion that the Appeals Court said, "No, we don't agree with that." Then you have another Trial Court saying, "Oh, we're gonna choose to agree with this Appeals Court decision." So even amongst State Courts, some courts are trying to do a little bit of gymnastics I think in some instances to try to reach the outcome they want to reach. So, the bottom line is you just gotta know what court you're in. You can't say, oh, you know, this one case came out of, you know, like the case we just talked about in the Western District of Virginia, where, you know, this court said, "Web-only businesses are subject to the ADA. So that's the rule now." If you come to the Ninth Circuit, you still have to have a physical nexus and a website because websites, you know, can be accessed just about anywhere, can in theory, an action based upon an inaccessible website can in theory be brought in any court. So for those reasons, you know, Winn-Dixie really right now is a pretty limited utility. Here's the Thurston case. We talked about this over and over again. The decision was affirmed in 2019 so it's nothing real new but here the court did actually issue an order granting damages to the plaintiff and requiring that the website be brought into conformance with WCAG 2.0, double A. And found that ordering conformance with the WCAG Guidelines was not over-broad or uncertain. That kind of ties into the primary jurisdiction and due process that we talked about with the Domino's case. You know, they're saying, "No, this is a standard that can be followed. We don't think it is uncertain or overrode." And there aren't many cases where the court has actually pointed to a standard to which the website should be conformed, you know, in large part because there is no standard set forth in the law.

- [John] And just, Kristina, just really quickly. And this was without a trial, right? This was without a trial. This was on summary judgment. The following discovery, plaintiff made a motion that there could be a ruling as a matter of law. And without a trial, the court basically found this way.

- [Kristina] Right.

- [John] Right.

- [Kristina] This case, the Wright versus Thread Experiment case, the reason why I have included this case, this one is out of the Southern District of Indiana, January 22nd, 2021 so also this year. This one was a motion for default judgment, which means the defendant was sued and did not appear to defend itself in the case. The court, you know, issued a ruling and judgment even though the defendant wasn't there to defend itself. That's how default works, unfortunately. And found that the allegations of the complaint, so this means the court is only looking at, what did the plaintiff allege happened? It doesn't look at the truth of the allegations. Found that the allegations were sufficient to state a claim for relief against the web-only business and ordered the business to bring the website into compliance with the ADA and its implementing regulations within 90 days, which is really fast to bring a website into conformance with accessibility standards and said it would shut down the website if it didn't achieve full compliance within 90 days. And then it also denied the plaintiff's request that the defendant must comply with the WCAG Guidelines that the plaintiff may monitor the compliance and get paid to do that and that the defendant must retain a specific consultant to help us with that. So I bring this up for two reasons. One is because if you hear about this decision it's, you know, an outlier because the facts were pretty extreme, the defendant did not defend itself at all. And because we see a lot of complaints where the plaintiff is asking for policies and procedures and a specific consultant be retained, et cetera, et cetera. And the court here said, "No, the ADA doesn't require that. So I'm not gonna order that as a result of this." We're running out of time. So I'm gonna hit the highlights of the last few. The DOT versus Scandinavian Airline System case. This case is at least a year or two old now but I raise it every time and it also arose under the Air Carrier Access Act not the ADA. But I like to talk about it because it has the concept of the separate but equal website, that is expressly prohibited by the Air Carrier Access Act. It is not expressly prohibited by the ADA because it's simply just not addressed in the ADA. But it is not a good idea because it will be argued by plaintiffs that it's essentially separate but equal and that separate is never equal for various reasons. And that it is discriminatory to have a separate, allegedly accessible website. Also be very, very careful with widget or overlay products. This is one.

- [John] This is one of the questions. Yeah, this was one of the questions. So I like where you're going.

- [Kristina] This was one of the cases where this came up. There has been a slew, one out of slew, a handful of other cases filed against entities that have widgets or overlays including, oh gosh, I'm forgetting the name of the case right now though but the case where Karl Groves actually submitted a long declaration with the complaint going into the issues that the overlay we're actually creating with the website rather than improving the accessibility of it. So that case is still in the early stages. But, the bottom line is to just take care with things like that. Mootness cases, mootness means we fixed the website, it's accessible. So since the only relief available under the Title Three of the ADA is injunctive relief, meaning fix it, you should dismiss the case, judge. They are very fact specific. Depends on the judge you're in front of and the very specific facts of your website so be very careful with that. One case to highlight, the Hilton versus Rizzi case from 2020, last year. In this case, Kathy Walhbin, who we all know and highly respect had submitted a declaration in support of this case saying that a blind person can use the screen reader. And the court found that the claim was moon, said, "Yeah, the website is accessible so, you know, this case should not move forward." We put a slide here with two standing cases that aren't new but we highlighted it because defendants still do try to challenge standing which means that the plaintiff either did not suffer an injury or cannot suffer future injury. And, you know, here those are very, very fact specific. It's usually like, these are credit union cases where the plaintiff can't become a member of the credit union. And captioning cases, these cases, we've seen more and more captioning cases be filed, not against the universities, 'cause those cases have now settled. These two big universities but it's something to watch for. Since we do need to wrap up, we have the last couple of slides here for strategies for avoiding and defending litigation. We've all been through this before but, you know, creating and maintaining accessible websites and mobile apps. Think about a 24/7 telephone line. Have an accessibility statement, policy, procedure. Training, training, training, training, training. Take care with your vendor contracts and third party content. And then, you know, some companies think about a consent decree like John mentioned earlier. We have a slide here that you'll see when we pass out the materials, that talks about the issues associated with third-party content on the website and, you know, the one word on it from, quite a while ago from the DOJ that, you know, when you're talking about social media, to make sure that at least the information is provided in an accessible format somewhere else. And then the typical roadmap to accessibility. You know, get help. Get qualified accessibility counsel. Get a qualified digital accessibility expert. Watch out for privilege issues especially when you're in litigation, attorney-client privilege and work product privilege are important. Manual and automated testing, not just automated testing, manual also and user testing. Training. We can talk about training over and over and over again. And then make sure that in addition to your internal policies and procedures, that you have a mechanism to receive and act upon accessibility user feedback. So with that, I know you all had questions, apologies, we didn't get to most of them. We will try to go through them and get back to you if we can on some of them. But, you know, watch our blog and let us know if you have anything else that you think would be of interest so we could try to get back to you.

- [John] Yeah I mean, real quick. I mean, you know, if we have a minute or two, you know, one of the questions that was raised was the accessibility of email advertisements. I think there was a couple of questions on this actually. So, you know, if you have a PDF on your website, then to be accessible the PDF has to be workable with a screen reader. But what happens when you send a PDF by email as part of an advertisement that covered it? They're not, is that not. I have not seen an accessibility litigation over the accessibility of email. The ADA expressly has a carve out or an exception for accessible products. Manufacturers don't have an obligation to provide accessible products. Is an email a product? You know, it's something that the courts haven't yet really looked at. It's a good question to raise. But when we talk about best practices, when we talk about getting automated user testing, when we talk about training your staff, when we talk about prioritizing remediation, you know, focus on your website. You know, because I'm not really seeing email-based litigation. The website should be your primary focus. And then I just gotta say again, the widget thing. Look, you know, there has been litigation over the widgets. There's no quick fix here folks. It's very alluring for a web developer or somebody on the inside to say, "Hey, there's this widget that I can drop into the website and make everything better." But the bottom line is that these issues exist at the court level, and many issues are not going to be able to be redressed by an install of a widget or even an overlay. It is a much deeper level of engagement, a deeper level of commitment. You need to think about how people with disabilities use your site. You need to evaluate that. And candidly in this environment where businesses are getting sued left, right and center, including businesses that are on the brink of collapse, it's not a very nice environment. And there's a lot of skepticism. And there's a lot of negativity. But put yourself in the position of the person with a disability who wants to access the site. And the quick fix solutions are no solution, okay? It requires deep, meaningful engagement over a long period of time. And working with a company like this one and other qualified folks is a good investment, okay?

- [Kristina] Awesome. Thanks John. Of course, we're never gonna let you all go 'cause you keep asking good questions. But Greg, you just asked, "What cases involved websites with overlays?" I believe Lainey has a post on lflegal.com that has links to quite a bit of those. And if it doesn't, I know somebody else has a blog post that has links to almost all those cases that have been filed. And Glenda pointed out that I misspoke as to who requested the en banc hearing. It wasn't the plaintiff but the result is the same that we're still going to en banc hearing, but thanks for the clarification. And then Craig, a question about mobile apps, you know, delivery, et cetera. There have been a lot of mobile app lawsuits as well racking up throughout the last year. So with that.

- [John] And demand letters. And demand letters too. A lot of demand letters over mobile apps specifically.

- [Kristina] Yap, so with that, I think we'll call it a day. Oh, and Greg, lflegal.com, Lainey Feingold's website. So Todd with that, any wrap up points.

- [Todd] No, thank you so much. This was just fantastic information. And, everybody please look forward to a follow up from me in which you can ask additional questions, receive a copy of slide deck, recording, et cetera. And, we'll see you all on the next one.

- [Kristina] Thank you.

- [John] Thanks everybody.