That collective groan you heard last night was from thousands of Arizona business owners who mistakenly thought that the tidal wave of ADA litigation in Arizona-more than 2000 cases in the past 18 months-had finally subsided. Unfortunately, it appears that another serial plaintiff has emerged, and this time he is focusing on website accessibility to persons with visual impairments.
A Texas resident named James W. Close has filed three lawsuits against Valley businesses alleging that their websites are not accessible to persons with visual impairments. Like the serial ADA plaintiffs before him, Mr. Close seeks injunctive relief, monetary damages and a reimbursement of his attorney's fees.
Whether websites are considered "public accommodations" under Title III of the ADA is an emerging-and largely undeveloped-area of law. The 9th Circuit has held that a public accommodation must be an "actual, physical place." Several other circuit courts have also adopted this same limitation. Some district courts have carved out exceptions to this general rule; for example, in certain cases where there is a "nexus" between the challenged service (i.e., lack of access to the company's website) and the place of public accommodation. The legal analysis depends on the facts of each case, including the nature of the business, as well as what, if any, services are offered by the company on its website.
A business facing a lawsuit brought by a serial ADA plaintiff, such as Mr. Close, has several options to consider. The first step, however, is to seek the assistance of an experienced ADA defense attorney.