Updated: Apr 19
For many years, corporate counsels in Tennessee have dealt with ADA accessibility claims filed by teams of trial lawyers and “testers,” often targeting multi-unit businesses for serial civil litigation alleging noncompliance with technical specifications. Now, a new wave of claims alleging barriers to website accessibility – using the same M.O., but with some new and important jurisdictional twists – could soon pose new compliance and liability challenges for Tennessee business owners.
“These new types of lawsuits follow a well-established playbook that a segment of the plaintiffs’ bar has utilized quite successfully and profitably for decades,” explains Zan Blue, managing partner at the Nashville office of Constangy, Brooks, Smith & Prophete LLP. “A law firm and a ‘tester’ team up to send the tester to a business of public accommodation to see whether individuals with disabilities have access in accordance with rather arcane and very specific regulations. The tester reports back to the law firm, which then may send a demand letter or file a lawsuit.”
Blue, who serves as the elected member General Counsel for the Nashville-based Tennessee Business Roundtable, is quick to note that such testing schemes sometimes do produce evidence of real barriers to access. Far more often, however, he says that the violations revealed by such tests tend to be technical than practical in nature.
“The law firm offers to settle quickly if the business agrees to certain modifications and, of course, pays the law firm some money,” says Blue. “Because the amount of money involved in such cases often isn’t enough to justify litigation, many respondents simply pay up,” he says. “Recently, a law firm in Memphis has been filing quite a few of these cases against retail and restaurant establishments, so owners of Tennessee businesses, especially those in which public accommodation is central to their business model, should remain vigilant.”
While the well-established form of serial ADA litigation commonly involves testers using wheelchairs to assess technical compliance with spatial access specifications in retail stores, hotels and restaurants, Blue describes how some litigators and testers are now moving online. “There now appears to be a growing wave of website-accessibility litigation, nationally and to some extent in Tennessee, and while these claims focus on a different context of public accommodation, they use the established ADA-lawsuit playbook,” he says. “A tester, usually a person who is visually impaired, visits a website, then reports back to a law firm, and the same sort of demand-sue-settle cycle ensues,” he says.
Such virtual-accessibility claims may be far easier to generate than claims alleging denial of access at physical business locations. For one, “testers” don’t need to invest additional transportation time and expenses to visit websites; they can do so at nearly any time and from practically any location.
Location is also a factor for business website owners. “These types of cases are problematic because any Tennessee business with an internet presence is open to be sued anywhere they are soliciting and making sales,” says John R. Wingo, a Member in the Nashville office of Stites & Harbison, PLLC, a Roundtable-member firm. “We have seen some judges push back on ‘repeat filers’, but that hasn’t stopped the suits. Such cases haven’t gotten much traction here [in Tennessee], but they could with just one or two negative opinions.”
Recent increases in website-accessibility litigation might be what’s driving Tennessee toward the top of a list on which few states want to be. According to an analysis by Chicago-based law firm Seyfarth Shaw LLP of federal ADA Title III lawsuits filed in 2021, Tennessee last year broke into the top ten nationally for the number of Title III lawsuits overall with a total of 91.
While that number still pales in comparison to top-ranked California – whose 5,930 ADA Title III lawsuits filed in 2021, according to Seyfarth Shaw LLP’s analysis, accounted for over half the total number of filings nationwide – Blue and other Tennessee attorneys warn that determining jurisdiction in virtual environments can effectively create an entire additional layer of fact-finding and associated legal costs.
“One of our Tennessee-based clients recently received a demand letter from a California law firm concerning the accessibility of the business’s online e-commerce site,” explains Blue. “The law firm likely will sue in California state court using California law, and if so, at a minimum the client will have to fight about whether California courts have personal jurisdiction - and that’s expensive.”
Matt Haskell, partner at Roundtable-member firm Gullett Sanford Robinson & Martin PLLC of Nashville, agrees with Blue’s concern about the costs for Tennessee businesses of fighting personal jurisdiction disputes in such cases. “The potential for virtual-accessibility claims to be brought outside of Tennessee will drive costs up, given higher litigation expenses generally in California and many other states,” says Haskell, who was appointed earlier this year as chair of the Roundtable’s Competitiveness Council. “But local California counsel can be managed better if Tennessee-based counsel can perform the heavy lifting to argue personal jurisdiction,” he points out.
How can Tennessee business owners protect themselves? If a law firm has already issued a demand letter or filed a lawsuit, Roundtable-member attorneys say one thing to consider is fighting back – hard. “It’s been my experience that these firms only do this if it makes money, and I try in each case to ensure that the effort results in a negative or minimal return,” says Haskell. “There’s some expense associated with that, but making a plaintiff work reduces the motivation for this type of serial claim.”
In addition to deterring would-be serial filers by making the “squeeze” more expensive than the potential “juice” from claims with little or no merit, there’s another preventative strategy Tennessee businesses can employ to proactively protect themselves against both types of ADA Title III claims: Do the “testing” yourself.
“Think about using your own ‘tester’ for your physical facilities in which the public is welcome, and ask your website maintenance vendor to evaluate your website,” Blue suggests. Haskell adds that even when a business has already been targeted by a tester case, “the comparable cost of resolving one of these claims inexpensively can serve as a great, if narrow, compliance audit on its own.”
“For most Tennessee businesses,” says Blue, “these strategies will likely cost less time and money than responding to even just a couple of lawsuits or demand letters. And proactively ensuring ADA-compliant access to your real and virtual properties for persons with disabilities simply makes good business sense.”