Small Businesses Targeted with Predatory ADA Lawsuits
As a small business owner, you want to reach as many potential customers as possible. Building a website is a great way to do that. But it can also be a risky business.
Many U.S. District Courts have interpreted the Americans with Disabilities Act (ADA) to include websites as public accommodations. Unfortunately, many websites are not ADA-compliant, and opportunistic plaintiffs and lawyers have noticed.
The number of lawsuits against small businesses for non-compliant websites has risen sharply. A 2024 Usenet midyear report found that 66 percent of these businesses had an annual revenue of under $25 million. This trend underscores the importance of digital accessibility compliance, as the law can be inflexible for offenders under certain circumstances.
With more unidentified aggrieved parties filing suits against under-resourced small businesses, let’s look at how your small business could become a target.
Disability Rights Laws Are Strict
Generally speaking, Title II of the ADA applies to commercial facilities and Title III covers public accommodations that generate revenue like retail establishments. 42 U.S.C. § 12101(7)(E)
While the ADA provides a federal framework, many states have their own laws and regulations. For instance, Colorado has adopted legislation that aligns with federal standards for digital accessibility.
The Justice Department and most federal courts have interpreted the ADA’s definition of “public accommodation” to include electronic places – websites included. While the digital expansion of the term public accommodation is not without its legal challenges, the standard has been largely adopted partly because of how strict disability rights laws are. Essentially, you’re either in compliance or you’re not.
Small Businesses Beholden to Third-Party Accountability
The ADA’s current legal framework leaves small businesses vulnerable to private parties that lack sufficient oversight. This unregulated landscape creates challenges and risks for businesses seeking to comply with digital accessibility standards.
To meet ADA requirements, websites must include “widgets” that enable assistive technologies to navigate content. However, a lot goes into ensuring ADA compliance, particularly for under-resourced small businesses.
Many small businesses rely on widgets developed by tech companies, which may not be ADA-compliant. That’s because tech companies are not obligated to create accessible widgets, which leaves small businesses vulnerable to legal issues.
With the burden of compliance placed on small businesses, they must determine whether to invest in consultants and software vendors who can build ADA-compliant webpages or risk a non-compliance lawsuit.
Identifying a Predatory Digital ADA-Noncompliance Lawsuit
Digital accessibility is an important issue. Unfortunately, the ADA can be misused for financial gain.
While there’s likely some legitimacy to the complaint, there are a few questions you can ask yourself to determine if someone is trying to take advantage of you.
1. Does the Notice Include Boilerplate Language?
Let’s say your business received a demand notice from a law firm alleging your website violates
Title II and Title III of the ADA. The notice takes inventory of the alleged violations and sets a demand for monetary damages based on federal and, if applicable, state statutory requirements.
The demand also threatens to pursue litigation if the affected web pages are not brought into compliance and damages are not paid within a set time period – typically 30 days.
This may be a boilerplate lawsuit demand letter or a legitimate notice of a cause of action. Receiving a demand letter alleging ADA violations and a payment demand can be unnerving, which is why, ideally, you want an attorney to look over the notice to determine its legitimacy.
2. Is the Demand Legitimate?
There are plenty of legitimate disability rights law firms that represent plaintiffs in digital ADA
non-compliance cases. However, bad actors can be trolling the internet to hit unsuspecting small businesses with boilerplate demand letters or lawsuits.
A quick internet search can usually help you determine whether the demand letter you received
is legitimate. Look to see whether the law firm has a digital presence, or lack thereof, which can assist you in determining whether the sender is legitimate.
Note that generally, for Colorado businesses, ADA lawsuits regarding Colorado statutes must be brought by Colorado attorneys. Out-of-state attorneys can file federal lawsuits against Colorado businesses.
3. Does the Notice Name the Plaintiff?
In most civil cases, plaintiffs must be identified. However, a predatory ADA lawsuit may feature “mystery plaintiffs” who wish to remain anonymous. The demand notice often includes a clause stating the plaintiff fears retaliation.
Demands containing unidentified plaintiffs may not be legitimate.
It’s been my experience that upon questioning or challenging the validity of a demand that does not contain the plaintiff’s identity, the firm may not pursue the demand or the threatened lawsuit because they might not have any actual plaintiff who can attest to the actual harm that was suffered.
It is possible that the firm hired an individual to find non-compliant websites to target.
A Settlement-Oriented Plan
The plan is this: A law firm issues a demand letter for one or more alleged violations, threatening to take you to court unless you pay a settlement fee. The settlement amount is often far less than the cost of litigation, making it appear to be the only option.
Federal fines for ADA website non-compliance can be up to $75,000 for a first offense and up to $150,000 for repeat offenses. 42 U.S.C. § 12101
The state fine can be $3,500 per violation from each individual who files a complaint.
These statutory fines can be compounded since anyone can file a complaint for multiple violations found on the same website.
Securing settlements is a calculated move. The boilerplate lawsuits from an ominous law firm with a mysterious plaintiff could be a plan designed to intimidate small businesses and extract quick settlements.
This approach has gained so much traction that judges are now limiting the number of ADA website non-compliance cases they’re willing to hear.
Exploitation of Disability Rights Law
Advocates for the visually impaired say web accessibility is vital for full societal participation. Nearly everything can – and is – done online, and disability shouldn’t prohibit anyone from using the web.
However, as legal practitioners, we have to be able to distinguish between advocacy and ascendancy. Boilerplate lawsuits that extract quick settlements do very little to address underlying accessibility issues. For instance, why isn’t accessibility built into web design from the start?
Some law firms may go after small businesses because they’re easier to target than multi-billion dollar tech companies.
A Skilled Litigator Can Fight Predatory ADA Non-Compliance Lawsuits
With the potential costs of legal proceedings outweighing the initial requested amount to settle, why pursue litigation? The thing is, you should never have to face a predatory lawsuit on your own, especially when the details about who is suing you are sketchy.
That’s where our skilled attorneys come in.
Robinson & Henry’s attorneys are experienced in handling ADA website non-compliance cases for small businesses. We can work with you to:
Review the Allegations - The irony of ADA website non-compliance disputes is that they often require human review. We’ll review the allegations against the law and identify the best course of action.
Assess Actual Harm - Having an experienced civil litigation attorney on your team means that someone is looking into the actual extent of harm these allegations caused the plaintiff. This will help determine the extent of the impact and any liability.
Negotiate a Settlement - Generally, it’s best practice never to pay legal fines without an attorney present and to never enter into a settlement that doesn’t offer the defendant anything in return. We can negotiate a settlement for you that includes less financial strain and favorable terms, such as a confidentiality agreement.
Develop a Compliance Plan - We can guide you on bringing your website into ADA compliance to avoid future legal issues.
In many cases, the defendant’s understanding of web accessibility standards is outdated. I suspect, in many cases, any legitimate disputes could be resolved through another means of communication.
One in four adults lives with a disability, per the U.S. Centers for Disease Control and Prevention (CDC). This is a sizeable potential customer base for any business to alienate, and in my experience, the businesses sued for digital ADA non-compliance aren’t out to discriminate.
Protect Your Business from Digital Discrimination Suits
It’s more important than ever to ensure your small business website can be accessed by all users. However, Robinson & Henry understands that your company’s alleged failure to comply may have resulted in unfair targeting by someone with ulterior motives.
Our civil litigation team defends businesses of all sizes against ADA non-compliance suits. Call 303-688-0944 to schedule a consultation.
