High Steaks Affairs: Internet Accessibility Lawsuits On The Rise - IT and Internet

Last month, Hallyu Korean BBQ (“Defendant”) was named
as a defendant in an internet accessibility lawsuit in the United
States District Court for the Southern District of Florida.
Plaintiff, who is blind, alleged that Defendant violated the Americans with Disabilities Act
(“ADA”) because its website contained barriers to access
for visually impaired individuals.

As our readers are aware, Title III of the ADA
prohibits discrimination on the basis of a disability “in the
full and equal enjoyment of the goods [and] services . . . of any
place of public accommodation.” Self-declared
“testers,” such as Plaintiff, typically claim a lack of
accommodation after browsing the Internet for website accessibility
issues. With no intent of ever setting foot in the physical
premises of businesses or purchasing from their online stores,
“testers” will demand monetary and/or injunctive relief
from businesses operating these websites. With internet
accessibility lawsuits on the rise, it is imperative that
businesses ensure that their ADA compliance measures are up to
date.

The Hallyu Korean BBQ Internet Accessibility Lawsuit

In Campbell v. Hallyu Korean BBQ, the subject
Plaintiffis a visually impaired woman that relies on a screen
reader to browse websites. Screen readers use auditory cues to relay
information to the visually impaired as they progress through
Internet websites. According to Plaintiff, the design of
Defendant’s website resulted in her screen reader failing to
effectively relay auditory cues. Plaintiff alleged that she became
significantly disoriented, and thus, was unable to learn about
Defendant’s goods and services. As a result, Plaintiff claimed,
she suffered discrimination under the ADA.

Important Considerations When Facing Website Accessibility
Claims

In internet accessibility lawsuits, a plaintiff typically
suffers an injury in fact when, among other things, “it [is]
reasonable to infer, based on the past frequency of plaintiff’s
visits and the proximity of defendants’ [businesses] to
plaintiff’s home, that [the] plaintiff intended to return to
the subject location.” A plaintiff’s risk of future harm
must be “material” and “sufficiently imminent and
substantial.”

Plaintiffs frequently use conclusory allegations of intent to
return to meet this standard. Oftentimes, these allegations are
boilerplate and mirror language found in numerous website
accessibility lawsuits filed by “testers” across
jurisdictions. Accordingly, businesses must conduct a
fact-intensive inquiry to scrutinize every aspect of website
accessibility claims for validity. Certain courts have made clear that threadbare
recitals and conclusory allegations parroting statutory language do
not allow plaintiffs to proceed beyond the pleading stage.

Use Preventative Measures to Curtail Accessibility
Lawsuits

Many businesses are all too familiar with receiving demand
letters that allege violations of the ADA. Some “testers”
send out hundreds of boilerplate letters after quick visits to
websites, demanding money and remedial accessibility-related
website changes. Frequently, these demand letters turn into
full-blown lawsuits if left unaddressed.

Website operators should remain aware of developing ADA
requirements and implement accessibility compliance measures. To
ensure compliance and prevent ADA liability, it is essential to
consult with experienced attorneys. The attorneys at Klein Moynihan
Turco regularly defend businesses whose websites have been targeted
for alleged lack of disability accommodation.

High Steaks Affairs: Internet Accessibility Lawsuits On The Rise – IT and Internet

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