UseableNet: 2022 Year End Report: ADA Digital Accessibility Lawsuits Trends Involving: Websites, Mobile, or Video

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The UsableNet research team monitors and documents all digital accessibility-related lawsuits where a website, mobile app, or video content is the subject of a claim in federal court under the ADA or in California state court under the Unruh Civil Rights Act. The following report outlines trends found during 2022. Data and images can be shared when referencing UsableNet as a source and linking to www.usablenet.com.

ADA-based cases kept pace with 2021 despite key rulings in circuit courts. With as many as 100 lawsuits filed per week, cases will again total more than 4,000 in 2022.

Many companies have received multiple ADA-based lawsuits. Often, the first lawsuit is for the website and the second for a mobile app. More cases can come from new plaintiffs. Additionally, plaintiffs were also found to file lawsuits against a sister brand or parent company. In some instances, the exact website receives lawsuits from different plaintiffs. The bottom line? If a company's website, apps, or other digital content is not accessible, it is at risk.

The DOJ restated guidance in March 2022, but it failed to give businesses clarity. Instead, the guidance seems to have encouraged a rise in filings. Additionally, some significant court decisions in mid-2022 likely caused a reduction in weekly lawsuits after they hit a high in June.

The Eleventh Circuit court decision significantly reduced the suits seen in Florida, but the New York-based decisions just changed the focus to industries that are not just online but have some sort of property or location that the website services.

E-Commerce websites are cited the most in digital accessibility lawsuits. Companies with physical locations are high on the target list.

Recent cases have brought a nexus requirement into focus. A nexus is a connection between the website or app and the physical location. Examples are traditional brick-and-mortar retailers, restaurants, and other businesses with an online and physical presence.

Filings are rising against companies with less than 50 million annual revenue. This trend reflects the need for plaintiff firms to find and file claims in volume.

This could be a natural progression or due to changing consumer trends. Many of the largest companies have already been sued and have accessibility programs, which would make for a natural progression to smaller companies. The increase in e-Commerce sales due to the pandemic has also brought more attention to smaller, up–and–coming e-Commerce brands.

Almost 20% of the top 500 e-commerce websites received a lawsuit in 2022. Over the last five years, almost 80% of the top 500 e-commerce websites received a lawsuit.

Almost 400 (391) of the Internet Retailer Top 500 list received an ADA-based digital lawsuit in the last five years. Large e-commerce sites are complex, often change content and code, and many have a physical location (nexus). This combination makes them very likely to receive lawsuits if they do not have a strong accessibility program.

The top 10 plaintiff law firms account for 75% of all federally filed cases; in contrast, the top ten defense law firms represent 19% of federal cases.

There are more than 750 different defendant lawyers across hundreds of law firms working on active ADA-based lawsuits, while only 48 plaintiff law firms and 67 plaintiffs make up all the filed claims. This is based on data from federally filed ADA-based lawsuits.

Lawsuits in 2022 reflect the importance of considering accessibility for all digital channels and content.

The majority of plaintiffs and firms are focused on testing and filing against websites. There are a few plaintiff firms that have focused more on mobile apps and video, particularly in California.

Almost 600 companies with an accessibility widget on their website received a lawsuit in 2022.

Businesses using accessibility widgets received 575 lawsuits, a 36% increase from 2021. Many of these lawsuits also list the widget features as a barrier to equal access in addition to WCAG violations and other user web barriers.

Methodology:

The UsableNet research team reviews all lawsuits filed in federal courts under the ADA and in California under Unruh –over 12,000 this year. The cases are reviewed to identify cases where a digital property is the subject of the claim and not a physical one. This allows UsableNet to keep our clients informed and provides them with the most up-to-date advice for planning their digital accessibility initiatives. Source Data is based on UsableNet’s research team’s collection across multiple legal sources from January 1, 2022, to December 14, 2022.

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