February 5, 2023

Seyfarth Synopsis: Plaintiffs filed 3,225 website accessibility lawsuits in federal courts in 2022 — a 12% increase from 2021.

2022 was another record year for website accessibility lawsuits filed in federal courts. The total number of lawsuits filed in federal courts alleging that plaintiffs with disabilities could not use websites because they were not accessible and/or used assistive technology was 3,255-360 more in 2022 than in 2021. This increase by The 12% number of lawsuits in 2022 is only slightly below the 14% increase in 2021 and equals the 12% increase in 2020. While those numbers pale in comparison to the explosion of cases we saw from 2017-2018 experienced (an increase of 177%), the continued annual increases are still very significant.

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[Graph: ADA Title III Website Accessibility Lawsuits in Federal
Court 2017-2022: 2017: 814; 2018: 2,258 (177% increase from 2017);
2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (12% increase
from 2019); 2021: 2,895 (14% increase from 2020); 2022: 3,255 (12%
increase from 2021). *The number of cases that could be identified
through a diligent search.]

Of particular note is the fact that, based on our forthcoming 2022 ADA Title III lawsuit totals, these lawsuits accounted for a whopping 37% of 2022 ADA Title III lawsuits filed, versus approximately 25% in 2021.

In the first half of 2022, the reading rose steadily from 210 in January to 383 in March, falling to 164 in April and then rising to 412 and 448 in May and June. The monthly numbers were more consistent between 232 and 273 from July to October , falling to 163 in November before hitting 201 in December.

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[Graph: Total Number of Website Accessibility Lawsuits Filed by
Month (Jan. 2022 – Dec. 2022): Jan. 2021 (210), Feb. 2021
(285), Mar. 2021 (383), Apr. 2021 (164), May 2021 (412), Jun. 2021
(448), Jul. 2021 (232), Aug. 2021 (237), Sep. 2021 (247), Oct. 2021
(273), Nov. 2021 (163), Dec. 2021 (201). *The number of cases that
could be identified through a diligent search.]

Federal courts in New York, Florida and California continued to be the busiest by far, with Florida retaking second place and Pennsylvania beating California in third. Federal courts in New York continued to be bombarded with lawsuits, totaling 2,560 lawsuits in 2022 (continuing the upward trend of 2,074 in 2021, 1,694 in 2020, 1,354 in 2019 and 1,564 in 2018). Florida was a distant second with 310 lawsuits. California federal courts saw only 126 lawsuits in 2022 (stopping the previous uptrend of 359 in 2021, 223 in 2020, 120 in 2019, and 10 in 2018), as shown in the chart below. Pennsylvania surpassed the 200 mark with 216 in 2022, a substantial increase from 167 lawsuits filed in 2021 and 173 in 2020. Illinois retained fifth place with 19 lawsuits — significantly fewer than its 34 in 2021 and 32 in 2020 and 91 in 2019). Connecticut and Indiana stayed in the top 10 with relatively meager numbers of 5 and 2, respectively, and newcomers Massachusetts, North Carolina, and Minnesota beat Oregon and Wisconsin for the last 3 top 10 spots with 13, 3, and 1 submissions. or.

1275132c.jpg

[Graph: Top 10 States for Federal ADA Title III Website
Accessibility Lawsuits 2022: NY 2,560, FL 310, PA 216, CA 126, IL
19, MA 13, CT 5, NC 3, IN 2, MN 1. *The number of cases that could
be identified through a diligent search.]

1275132d.jpg

[Graph: New York, Florida, Pennsylvania, and California Federal
ADA Title III Website Accessibility Lawsuits 2017-2022: NY: 2017
(335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022
(2,560); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021
(185), 2022 (310); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173),
2021 (167), 2022 (216); CA: 2017 (9), 2018 (10), 2019 (121), 2020
(223), 2021 (360), 2022 (126).]

If you’re wondering why there are so few website accessibility cases in California compared to New York, it’s probably because the New York courts have been more favorable to the plaintiffs, especially when the defendant is an online-only business. Whether online-only businesses are covered by the ADA remains unanswered by the Second Circuit Court of Appeals; With few exceptions, however, New York District Court judges who have dealt with the issue have found that only online businesses are covered by the ADA.

In contrast, in California, both state and state appellate courts have concluded that online-only businesses are not covered by the ADA, making it much more difficult (if not impossible) for plaintiffs to sue online-only businesses for accessibility violations to sue. As a result, we anticipate there will be fewer cases related to website accessibility in both California state and federal courts in the future.

These numbers don’t account for the many warning letters from law firms that never result in lawsuits, as well as lawsuits filed in state courts (mostly in California) that are more difficult to prosecute. These numbers also do not include lawsuits filed alleging that a mobile app is inaccessible unless the lawsuit also alleges a website inaccessibility.

Will Title II rulemaking efforts planned for 2023 make a difference in the number of lawsuits in 2023? Unlikely as this process can take a long time and would only apply to state and local governments under Title II and not private companies. Although Title III rulemaking could follow, it is highly unlikely to be completed by the end of this Presidential term.

The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.

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