In early August, James Blanchard, co-owner of Blanchard Family Wines, answered a knock at his door. On the other side was something very unexpected: a lawsuit. The complaint was that the winery’s website violated the Americans with Disabilities Act (ADA), which extends to a business’ website.
Blanchard was shocked. He’d hired a large corporation to create his company’s website and hadn’t received any prior complaints—not from customers, and not directly from the plaintiff, David Katt, a legally blind Douglas County man who alleges that Blanchard’s website cannot be fully read by his screen-reading software, thereby prohibiting him from accessing the same content as sighted users. Blanchard Family Wines, the lawsuit says, is denying its goods and services to the visually impaired.
“I get emails all the time—scams and phishing schemes—and initially thought it was a joke. I immediately got an attorney to figure out what this was all about and quickly found out that this is known as a ‘drive-by lawsuit,’ where plaintiffs are suing hundreds of people at once. This individual has about 50 suits he’s filed here in Colorado this year. They’re not all [targeting] the same industry, but they’re all fairly small- to medium-size companies that are getting targeted,” Blanchard says.
Blanchard and another Denver-based independent culinary establishment being sued by Katt (which wishes to remain anonymous due to pending legal issues) both stressed that they wanted their websites and their businesses to be accessible to everyone, disabled or not. Neither business had any prior knowledge or warning that their sites were in violation of the ADA, which made the lawsuits especially surprising and upsetting.
“It’s so unfortunate, because we’re just a small family business,” says the anonymous owner. “We were doing well, and then COVID hit. We’re struggling to keep our doors open and get through to the other side. We want to be compliant; we want to be accessible to everybody. We can use all the business we can get. To be hit like this is a gut punch.”
Katt has filed the lawsuits with attorney Ari Marcus, who works at New Jersey-based law firm Marcus & Zelman. Marcus did not return 5280’s requests for comment.
“Overall, I think these serial lawsuits do more harm than good,” says Emily Shuman, director of the Rocky Mountain ADA Center. “They have the unintended consequence of giving the ADA a scary reputation, like this unexpected thing that will crash down on a business. I think most of these businesses, if they’d gotten an informal complaint from a patron, would take it seriously and see what they can do.”
On the other hand, Shuman points out, these laws aren’t new. Websites, like a business’s physical location, need to be usable for everyone. That means designing websites in a way that makes them accessible to people with disabilities, like using high-contrast color schemes and alternative text descriptions that can be read by screen-reading software for the visually impaired.
“With the pandemic and lots of commerce transitioning to being online, inaccessible websites are a big issue,” Shuman says. “There are good arguments on both sides, and unfortunately, there’s nothing that stops a person from filing 50 lawsuits at once. You could easily find 50 inaccessible websites in an afternoon.”
But, Shuman continues, “Most of the time when you see someone filing 50 suits at once, it’s more a money grab and not trying to make things get better.”
“It seems like a shakedown,” Blanchard says. “We’re all just trying to stay open and survive from week to week. These types of hits—which can be $30,000 to $50,000 if we stay out of court, or hundreds of thousands if we go to court—can cripple a business of our size. Our end goal is to be as accessible as possible, but these types of suits, that we can’t remedy at our level, cost significant amounts of money.”
Blanchard hopes that courts will rule more clearly as to what, exactly, ADA website compliance entails, and that website hosting and building companies, which many small businesses hire, are pushed into compliance. He says that in the past, large web companies have shirked responsibility for ADA compliance by saying they’re global corporations and can’t be up on ADA laws for all the countries in which they operate. According to Shuman, courts have ruled that it’s an issue of co-responsibility between the businesses and the website builders, but the businesses argue that compliance should be built into the websites from the get-go.
For small businesses looking to increase their web accessibility, Shuman offers some resources: There is a lot of information on the Rocky Mountain ADA Center site, including a link to Website Content Accessibility Guidelines. She also suggests using accessibility consulting firms to evaluate consumer-facing assets and technology.
As for Blanchard Family Wines, Katt’s lawsuit is pending in federal court; the winery’s next move is uncertain. It was offered a payout deal, but Blanchard would rather not take it.
And while Shuman says that lawsuits can be an effective way to inspire positive change for the disabled community, she doesn’t believe that these sorts of drive-by lawsuits are the way to do it. “Most of us in the ADA community don’t really condone this behavior,” Shuman says. “We certainly want businesses to do everything they can to comply with the ADA, but no one in the community would want them to be hung out to dry.”