For nearly three months, the Philadelphia eateries were under siege by a lawyer for blind New Yorkers.
In December 2017, lawyer C. K. Lee represented a Long Island man who sued Federal Donuts, claiming the doughnut and fried chicken shops’ website wasn’t fully accessible to blind people. The next month, Lee sued again, this time for a client in Queens against the Oyster House in Center City. Lee later targeted Campo’s Deli on behalf of a Manhattan woman who, by that February, had already sued six Philly restaurants with Lee as her lawyer.
Vedge, Green Eggs Cafe, and the Couch Tomato were sued over their websites too, according to court records. When the blitz of lawsuits ended in March, Lee had brought cases against 19 Philly-area eateries on behalf of eight blind New Yorkers.
“He kind of carpet-bombed the area,” said Matthew Monroe, an attorney for Vedge.
Lee, who leads Lee Litigation Group, a 13-member New York City law firm that has filed more than 1,000 class actions since 2009, did not return requests for comment.
The Philadelphia restaurants were caught in a wave of lawsuits nationwide from disabled consumers who say company websites are violating the Americans with Disabilities Act (ADA), a 1990 civil rights law that prohibits discrimination based on disability. As more business is done online, many websites are not fully accessible to the disabled, preventing them from buying goods, making reservations, or accessing information independently.
Still, the flurry of lawsuits has critics questioning whether the legal actions are helping expand access, or if a handful of lawyers are merely cashing in on a legal gray area.
There were 2,258 federal ADA lawsuits over allegedly inaccessible websites in 2018, up 177 percent from 814 the year before, according to Seyfarth Shaw, a Chicago-based law firm that defends businesses in such cases. Most of the cases were in New York, where more than 1,500 were mostly filed by 15 law firms. Pennsylvania had the third-most federal suits last year with at least 42, nearly all of which were brought by three law firms, according to the Seyfarth Shaw data.
Shutting out some users
To be accessible for blind consumers, websites must be compatible with “screen reader” software that reads web content aloud or translates it through “refreshable braille" devices. If a site is not properly coded, screen readers can’t describe an image, for example, or convey what must be entered in online forms. Blind consumers should be able to operate websites by keyboard functions too.
Other issues include videos without captions for the deaf, or flashy displays that could trigger seizures for those with epilepsy.
Such roadblocks can prevent blind consumers from accessing potentially important information. John McInerney, a blind man who is interim CEO of the Pennsylvania Association for the Blind, said his credit card company sends emails made up almost entirely of images that can’t be read by his screen reader. Another common problem, McInerney said, is when websites ask consumers to prove they’re human by typing in characters displayed on a screen. Often, websites don’t make accommodations for those who can’t see the test, shutting out blind consumers, he said.
“When the ADA was passed, the internet wasn’t the social common it is today. But people live their lives online today," said Meredith Weaver, an attorney for Disability Rights Advocates, which settled a website case against the streaming giant Hulu. “The ADA was intended to flex with advancements in technology in order to accomplish its purpose, and that purpose is promoting full participation of people with disabilities in all aspects of society.”
The new attention to web accessibility has created business opportunities for firms like Accessibility Shield, a Norristown start-up that launched in March and keeps clients compliant. The 10-employee firm has developed a search tool that scrapes web pages to find violations, and offers manual testing and consultation to fix violations. Ron Bowes, chief technology officer at Accessibility Shield, said he plans to release open source code for free to expand access on the web.
“Ninety-nine percent of the websites out there have some violations,” said David Middleton, chief operating officer of Accessibility Shield. “We want to get to the point where people just think about it. You would not design a shopping center without wheelchair ramps. We want to make it so you would not design a website or digital application without accessibility.”
While there are no formal U.S. government standards for businesses, a consortium of industries, universities, and governments has developed widely respected Web Content Accessibility Guidelines.
In 2017, the Justice Department scrapped plans to draft specific rules on ADA website compliance, a move critics say opened the door to more legal action. The Justice Department, which declined comment this week, said at the time that it was evaluating whether regulations were "necessary and appropriate.”
“This whole tsunami of lawsuits is largely the fault of the Justice Department in failing to come up with clear guidance and rules on what businesses need to be doing,” said Minh Vu, an attorney at Seyfarth Shaw, the ADA defense firm.
More than 100 members of Congress signed a letter to then-Attorney General Jeff Sessions in June 2018, warning that the absence of specific rules “fuels the proliferation” of the suits.
“In most cases these suits are filed for the purpose of reaching a financial settlement and do little or nothing to improve website accessibility,” the lawmakers wrote.
Federal judges in Florida, New York, and California have allowed high-profile website accessibility cases against the grocer Winn Dixie, the burger chain Five Guys, and the pizza giant Domino’s, respectively, to proceed. Those precedents, and the lack of rules from the Justice Department, created a “perfect storm” for Lee to bring cases against the Philadelphia eateries, said Monroe, the lawyer for Vedge.
Of the 19 restaurant cases in Philadelphia last year, at least 11 settled, according to court records.
“There was a blitz last year in Philly of these lawsuits, but they’re happening across the state. We call them drive-by lawsuits,” said Melissa Bova, of the Pennsylvania Restaurant & Lodging Association. “It’s a money grab that doesn’t address or fix the issue of accessibility.”
Bova said the hospitality industry wants there to be a “notice and cure” period that would give businesses time to come into compliance to avoid a violation.
Settlements in such cases range from a few thousand dollars to six figures, depending on the size of the company and the cost to defend the case, those familiar with the agreements say.
The cost of compliance can also run from a few thousand dollars all the way to six figures, especially if websites must be rebuilt from scratch, web developers and defense lawyers said. Accessibility Shield, the Norristown website tester, said it charges monthly rates ranging from $10 to $126 to check websites that are constantly changing.
Benjamin Sweet, an ADA plaintiffs lawyer based in Pittsburgh, rejected the argument that lawyers and clients are in it for the money, saying that’s a common argument from businesses losing consumer cases. He said that the settlement amounts are too small to encourage lawsuits and that most of his clients are activists seeking remediation of the websites.
In Philadelphia, the eateries didn’t disclose settlement amounts, but Conor Corcoran, a defense lawyer for Campo’s Deli, said in court papers that “Lee begins the bidding at $30,000.”
After Corcoran flagged Lee’s long list of lawsuits in court papers, Lee withdrew his lawsuit against Campo’s.
“It scared them off,” Corcoran said.
Lee hasn’t sued a Philly restaurant since.