A wave of lawsuits has been filed against a number of wineries accused of violating the Americans with Disabilities Act (ADA) by having insufficiently accessible websites for the visually impaired. It’s a story sure to generate a lot of negative publicity, but may also just be the latest trend in generating attorney’s fees.
“This year looks to be a record for filings” that invoke the ADA, says Adam Morey, public affairs manager for the Lawsuit Reform Alliance of New York. California, Florida and New York are the leading jurisdictions for these lawsuits, he says.
These lawsuits have been filed in two different courthouses before 15 different judges against wineries from relatively well-known producers such as Bedell Cellars, Pindar Vineyards, Channing Daughters and Wölffer Estate on Long Island, to the smaller operations such as Hudson-Chatham and Demarest Hill Winery in the Hudson Valley, north of New York City.
Built to deny access
Kathy Wu of Brooklyn, New York, is listed as the plaintiff in the lawsuits that Manhattan attorney Bradly Marks filed in early October. While most are still in the waiting phase, U.S. District Judge Paul Gardephe has already referred the action against Hudson-Chatham Winery to a magistrate judge.
Marks, reached at his Varick Street offices, says it’s his firm’s policy never to comment on ongoing cases. His two co-counsels, Jeffrey Gottlieb and Dana Gottlieb, did not return phone calls or emails seeking comment.
None of the wineries returned phone calls or emails seeking comment.
Wu complains that the wineries’ websites are constructed and maintained in a way that hinders access by the visually impaired, and thereby prevent her and other blind people from being able to buy wines or enjoy the producers’ facilities and accommodations.
The U.S. Justice Department does not have firm guidelines on what makes a website ADA compliant. Law Reform’s Morey points out that “wherever there is a gray area in the law, attorneys, a small subset of attorneys, take advantage of it.”
Chicago-based law firm Seyfarth Shaw LLP reported that plaintiffs filed 4,965 federal ADA lawsuits in the first six months of 2018, up from 7,663 for all of 2017. If filings continue at the same rate, there will be nearly 10,000 ADA lawsuits filed this year, an increase of 30% over 2017.
“They’re oftentimes just a shakedown,” Morey explains. “Oftentimes the attorney will just send a demand letter and that threatens litigation. Rarely is there any follow-up that accessibility has been achieved.”
Correcting the issue
There is a relatively easy fix to website accessibility problems.
“The good news is there is a way to know what you need to do to make a website work [for the visually impaired]…and that is the Web Content Accessibility Guidelines (WCAG),” says Chris Danielsen, director of public relations for the National Federation of the Blind. The guidelines are issued by the W3C, or the World Wide Web Consortium. “What we normally tell people is that to be non-visually accessible, you’ve got to meet at least Priority Level AA.”
“We are not involved in the suits,” Danielsen stressed. “And I have not checked out these websites…In the National Federation of the Blind, our general rule is to contact a company that has accessibility issues” because generally companies do not want to keep blind people out. “A winery is going to want whatever customers it can get.”
Danielsen also says that his organization offers help to those who wish to make their websites more accessible by providing human testers “to make sure it actually works. There are automated programs that can tell you whether you’ve done the technical stuff, but there are some issues” that only a blind person using the site will find.
As of October 30, no court dates or hearings had been scheduled.