The hotel and lodging industry has long been a target of Americans with Disabilities Act litigation. To no surprise, the industry has been hit hard by the latest wave of ADA litigation involving website accessibility, or so-called “surf-by” litigation (coined because someone simply visits a website to search for potential barriers to access). Countless demand letters and lawsuits alleging that a company’s website is inaccessible have resulted in private settlement agreements given the uncertain legal landscape.
The Eleventh Circuit’s recent opinion in Haynes v. Hooters of America, LLC, 17-13170 (11th Cir. June 19, 2018), however, calls into question the overall efficacy of such private settlement agreements and has shifted the momentum in favor of the plaintiff’s bar. Specifically, the three-judge panel reversed the district court’s dismissal of an ADA complaint against the restaurant chain Hooters of America. It disagreed with the district court’s finding that the claims were mooted by Hooters’ previous settlement agreement with another litigant.
On April 4, 2017, Dennis Haynes, who is blind, filed a Title III ADA complaint against Hooters in the U.S. District Court for the Southern District of Florida. He alleged that Hooters’ website was not compatible with screen reader software, which is used by the visually impaired to navigate internet websites. He sought an injunction, declaratory relief, attorneys’ fees and costs. This type of lawsuit is on the rise given the lack of government-issued website standards applicable to Title III entities. What distinguishes it, however, is that Hooters had already faced a “nearly identical website-inaccessibility lawsuit” filed on Aug. 22, 2016, and entered into a settlement agreement that was still in effect at the time this lawsuit was filed.
The Honorable District Court Judge Robert N. Scola Jr. dismissed the complaint on the grounds that it was mooted by a settlement agreement addressing the same issues and relief raised in the previous lawsuit. The plaintiff appealed the dismissal to the Eleventh Circuit, which considered whether: (1) the district court erred in holding plaintiff’s claims were moot given that Hooters had agreed to a remediation plan as part of an earlier settlement; (2) implementing a remediation plan moots a subsequent claim; (3) seeking relief that differs from the underlying lawsuit defeats mootness; and (4) a subsequent plaintiff can be bound by a settlement that resolved similar claims.
Notably, the Eleventh Circuit was not swayed by Hooters’ argument that it had already taken steps to remediate its website. It noted that “while Hooters may be in the process of updating the accessibility of its website, there is nothing in the record demonstrating that Hooters has successfully done so.” The panel went on to conclude that “it cannot be said that the issues are no longer ‘live.'” It also found that, while both complaints sought to enjoin Hooters to remediate its website, this complaint sought to enjoin Hooters to “continually update and maintain its website.” This distinction, according to the panel, undercut the claim that the issues had been previously addressed. Furthermore, the panel was concerned that only the plaintiff to the previous settlement agreement could enforce the remediation plan, as the district court did not retain jurisdiction over the settlement agreement and Haynes was not a party to it.
Here to Stay
The Hooters opinion highlights that ADA website litigation remains a hot-button issue that is not going away until there is a regulation that sets forth finite requirements. Lodging establishments that have already been targeted may find themselves embroiled in future litigation, and a settlement agreement may not protect them. As such, lodging establishments have to rely on the guidance and prioritize remediation. For some, it may make sense to consider a judicially approved settlement agreement.
In the coming months, the Eleventh Circuit will hear argument as to the broader issues concerning website accessibility in the much anticipated appeal, Winn Dixie Stores, Inc. v. Gil, 17-13467. A defense-oriented opinion in that case may scale back the Hooters opinion. In the interim, lodging establishments need to prioritize enhancement of their websites and mobile apps.
Here are some tips for lodging establishments:
- Audit your website to ascertain what potential barriers to access may be present. Pay close attention to your online reservation services given that there are specific Title III ADA regulations addressing this.
- Learn about the prevailing industry guidance on website accessibility, known as the Web Content Accessibility Guidelines (WCAG) 2.0 AA, and the recently-published WCAG 2.1.
- Consult with counsel and technologists on best practices for web and mobile app accessibility.
- Develop and implement a web and mobile app accessibility plan.
- Review your vendor contracts and consider adding or supplementing provisions on indemnification and representations and warranties.
Carol C. Lumpkin and Stephanie N. Moot are partners at the Miami office of global law firm K&L Gates.