Crain’s New York Business: Letter from Congress could affect local industry around ADA lawsuits

By: Aaron Elstein

Over the years, Manhattan attorney Jeffrey Gottlieb reckons he has brought more than 100 lawsuits against companies that haven't made their websites usable by the blind. Although federal law prohibits plaintiffs from collecting large amounts of damages, the cases are so irksome to the business community that Congress is asking the Trump administration to crack down on them.

"The absence of statutory, regulatory or other controlling language on this issue only fuels the proliferation of these suits," more than 100 members of Congress wrote in a June 20 letter to Attorney General Jeff Sessions.

Scores of New York companies, including Bulgari, Fairway Market and Zabar's, have been sued for operating websites that allegedly violate the Americans with Disabilities Act. That law was signed by George H. W. Bush in 1990 and led businesses to spend big sums installing wheelchair ramps and clearing impediments that prevented disabled people from entering stores and offices. But many companies never got around to making it possible for the blind to use their websites—a big issue in this era of online commerce.

In 2010 the Justice Department started drafting rules to address the matter, but last year all pending ADA regulations were withdrawn. The letter from Congress is an attempt to revive the regulatory push.

In the meantime, the lack of government oversight provides an opportunity for enterprising lawyers such as Gottlieb.

"If companies would just do what they're supposed to do and comply with the law, there wouldn't be any reason to sue," he said. "The ADA has been around for 28 years, and people know by now what it takes to comply."

Coding a website so the words are read aloud and graphics are described to people costs as much as $100,000, according to an expert who testified on behalf of grocer Winn Dixie in a Florida trial last year that's believed to have been the first of its kind. An expert for the plaintiff, however, reckoned the project could be done for as little as $35,000. The company set aside $250,000, and a federal judge ruled in favor of the blind man who brought the case.

Gottlieb and his ilk have made New York's federal courts a hotbed for ADA website litigation, with 335 suits filed last year, according to law firm Seyfarth Shaw, or more than 40% of all cases. The cases usually are resolved quickly out of court, and, according to a report earlier this year by the Lawsuit Reform Alliance of New York, it costs on average $16,000 to settle.

The vast majority of that money is paid to lawyers for services rendered because New York law bars plaintiffs from collecting more than $500 in damages. Most states don't allow for any financial damages in these cases.

"People are not getting rich here," Gottlieb said.