We are seeing some new worrisome trends in accessibility litigation that are particularly relevant to retailers, particularly those with large multi-dimensional digital footprints (e.g., websites, mobile apps, digital media), which are summarized below. Should you need any assistance in evaluating your exposure to these trends, we are standing by to provide assistance.

First, in recent weeks, plaintiffs firms who have previously been very active in website accessibility litigation, have issued demand letters to retailers alleging (oftentimes, incorrectly) that the retailer’s mobile apps are inaccessible and therefore violate the Americans for Disabilities Act (ADA) and related state statutes. What is particularly concerning about this development is that in many instances, the retailer had already settled a website accessibility action with the same plaintiffs' firms. These new claims against the same retailers for alleged accessibility claims that were the subject of their prior agreement is a concerning attempt at double-dipping that is not only poor form, but likely also violates the terms of the prior agreements and the retailers' understanding that in entering into prior settlements, they were also buying peace.

Second, while we previously saw plaintiffs targeting websites as being allegedly overall noncompliant from an accessibility standpoint, we are now seeing an increasing movement of plaintiffs' firms breaking down a company's digital presence into separate elements in order to pursue multiple accessibility claims. For example, a plaintiff firm may challenge the company's use of inaccessible PDFs on the website, only to then subsequently pursue the use of videos without close captioning; then the company's online job applications, and now the focus on mobile apps. This approach potentially gives plaintiffs' firms several bites at the proverbial apple, enabling them to generate multiple litigation opportunities from the same individual company.

There are several steps retailers can take to proactively protect against these tactics:

  1. Mobile app claims are the next big target for plaintiffs firms. Take measures to understand who owns and operates your mobile apps and review your agreements with subcontractors and developers to ensure that you: (a) are passing the obligation of ADA compliance down to the developer and/or operator; and (b) reviewing your indemnification rights.
  2. Approach accessibility settlement agreements with a broad perspective in defining the scope of the agreement to cover your entire digital presence.