Crain’s New York Business: New York stores caught in web of litigation

By: Aaron Elstein

After President George H.W. Bush signed the Americans with Disabilities Act in 1990, businesses spent big sums installing wheelchair ramps and clearing impediments that prevented disabled people from entering their stores and offices. But many firms never got around to making their websites usable for the blind—an emerging issue in this era of e-commerce.

Now a Manhattan lawyer is hauling local companies into court over this. Jeffrey Gottlieb last week brought suits against grocers Fairway Market, Gristedes and Key Food for operating websites that allegedly violate the ADA. He has filed about 25 similar cases in recent months, court records show.

"All we are asking is [for] these companies [to] fulfill their legal and moral obligation," said Gottlieb, whose office is in the Gramercy area.

Scores of New York companies, ranging from Bulgari to Zabar's, have been sued for failing to make their website ADA-compliant, according to records in Manhattan federal court. Staten Island–based Key Food and Manhattan-based Fairway and Gristedes did not respond to requests for comment.

The business community is not pleased to be on the receiving end of this litigation wave.

"Bombarding businesses with a bunch of lawsuits to get quick settlements is not the purpose of the ADA, and it doesn't make the internet more accessible for the visually impaired," said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York. "We support the ADA, but a law with such good intentions cannot be allowed to be exploited so a few law firms can turn a profit."

$16,000 a pop

Gottlieb said he and other lawyers are not reaping large sums because the ADA bars damages from being awarded in these suits, most of which are settled out of court. Attorneys who file these cases are allowed to pursue collection of their legal fees, which the Lawsuit Reform Alliance said are about $16,000 per case. Plaintiffs are allowed a maximum of $500 per settlement under New York law.

"These cases are not about money—there are no windfalls to be had here," Gottlieb said. "Frankly, my first reaction when I learned about this [website accessibility] problem was surprise that it's still a problem."

The race to the courthouse turned into a frenzy starting in June, after a case involving a Florida supermarket went to trial and a federal judge ruled the retailer's website had to be as accessible as its stores. In August a federal judge in Brooklyn ruled a blind plaintiff had a "substantive right" to use an art-supply retailer's website.

Installing software that makes a website accessible to the blind costs as much as $100,000, according to an expert who testified on behalf of the defendant at the Florida trial, although an expert for the plaintiff reckoned it could be done for as little as $35,000.

Gottlieb, who runs a two-attorney firm with his daughter that specializes in consumer and employment law, expects to remain busy filing suits because he thinks 90% of business websites violate the ADA.

"Companies have had 27 years to comply with the law," he said. "They can't argue this is something they didn't know about."