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Help- I’m Being Sued by Someone 2,000 Miles Away Because My Website is Not Accessible!

From the desk of Ken...

One day, your company is served with a complaint and summons to appear in U.S. District Court in Massachusetts because a blind plaintiff alleges that your website is not accessible. Now you’re forced to hire an attorney 2,000 miles away to defend your lawsuit in Boston—and you’re not looking forward to the prospect of protracted litigation on the other side of the country.

The Scenario

 
Your company,

• Prints T-shirts and other apparel for colleges, universities, and other organizations across the country.
• Is based in Seattle and has a manufacturing facility in Kentucky.
• Primarily sells direct to consumers through its website and it has no physical stores.

One day, your company is served with a complaint and summons to appear in U.S. District Court in Massachusetts because a blind plaintiff alleges that your website is not accessible. Now you’re forced to hire an attorney 2,000 miles away to defend your lawsuit in Boston—and you’re not looking forward to the prospect of protracted litigation on the other side of the country. To add to your irritation, you later learn that if the plaintiff tried to sue you in Seattle for not being compliant, the case would have been thrown out of court and that Massachusetts was one of the only places he could have sued you successfully.

Many companies would think that this kind of scenario could never happen to them, but this is exactly what happened to Sportswear, Inc., a Seattle-based sportswear company.

Access Now v. Sportswear, Inc

 

Access Now v. Sportswear, Inc., 298 F. Supp. 3d 296 (D. Mass. 2018). After Sportswear, Inc were sued in Massachusetts for not being accessible, they tried to have the case dismissed because they derived less than 4% of their annual revenue from Massachusetts. The court noted that Sportswear could be sued in Massachusetts because they transacted business there and that doing so would not be unfair to Sportswear because it had purposely availed itself by having product lines targeting Massachusetts customers. The court also determined that it would be reasonable for Sportswear to defend the suit from thousands of miles away because Sportswear had over $15 million in annual sales with a small but regular portion coming from Massachusetts. The court distinguished this case from Photographic Illustrators Corp. v A.W. Graham Lumber, LLC, 196 F. Supp. 3d 123 (D. Mass. 2016), where the court dismissed an accessibility suit because the defendant in that case had made only one small sale in eleven years in Massachusetts.

In an upcoming blog post, I’ll talk about forum shopping and the importance of where an accessibility lawsuit is brought. For now, it’s just important to know that there are a few places where it is much easier for a company to get sued—particularly if the company only does business over the Internet. Massachusetts is one of those places but Washington state (where Sportswear is based) is not. For companies of any reasonable size that do business over the internet, this may no longer matter if the company’s website opens themselves to these other markets where it is easier to sue internet-based companies for not being accessible.

Sullivan v. Walker Construction

 

While the Access Now case paints a bleak picture for companies doing business over the internet, consider what happened in Sullivan v. Walker Construction, 2019 U.S. Dist. LEXIS 77113 (S.D.N.Y. 2019). In this case, a New York plaintiff was browsing the internet and attempted to view several videos on the Walker Construction website. When he was unable to view the videos because they lacked captioning, he brought a class action suit against the construction company for not being accessible. Walker Construction is based in Washington state and does architectural and construction projects in Washington, Idaho, and Oregon. In this case, the court found that making a website available to residents in another state is insufficient to confer personal jurisdiction where there is not a reasonable probability that the website would be used to affect a commercial transaction in New York.

Implications

 

So, what can we learn from looking at both the Access Now and Walker Construction cases?

  1. While both cases relied on different state “long-arm” statutes for conferring personal jurisdiction, we can still develop some general conclusions that, if you do business over the internet and have regular customers in a state, you shouldn’t be surprised if you get sued for not being accessible in that state.

  2. Currently, New York and Florida are the two most popular states for web accessibility lawsuits—and, fortunately, these states make it harder for internet-only companies to get sued under the Americans with Disabilities Act (ADA). In places like Massachusetts and Illinois it’s a lot easier for internet-only companies to be sued for inaccessibility and so I wouldn’t be surprised to see more litigation in these areas in the future.

  3. Being served a summons in a web accessibility lawsuit can be a rude shock—particularly if it means appearing in a courtroom thousands of miles away. As awful as that experience sounds, it’s important to keep a few things in mind:

• Decisions like Access Now are not based on the American with Disabilities Act (ADA) or other disability rights laws. Instead, these decisions are based on basic principles of personal jurisdiction.
• While the lack of clear guidance from the Department of Justice over website coverage under the ADA is frustrating, inaccessible websites really do have a big impact on the lives of lots of people with disabilities. Even without clear guidance from DOJ, it’s been clear for years that building your website to Web Content Accessibility Guidelines (WCAG) will make you much less vulnerable to a web accessibility lawsuit because that is the ultimate yardstick that DOJ and disability rights groups use when they resolve cases. And, starting this process early is far less disruptive and costly than doing it quickly to settle a lawsuit.

Watch Ken’s 4-minute presentation on this topic
 

For more information, please reach out to info@compliancesheriff.com

 

Ken Nakata is the one of the most well-known attorneys in the area of IT accessibility and is the Director of Compliance Sheriff's Accessibility Consulting practice. He has worked for twelve years as a Senior Trial Attorney with the U.S. Department of Justice. He has argued on behalf of the United States government many times before the federal courts and has helped shape the government’s policies for the Americans with Disabilities Act and Section 508 of the Rehabilitation.

Disclaimer:

This information is provided for educational purposes only and not to provide specific legal advice. By using this site, you understand that there is no attorney-client relationship created and that you should always seek competent legal advice from a licensed attorney in your state.