Generally speaking, the ADA applies to websites. There are various arguments that can be raised depending on the jurisdiction. Some jurisdictions like the Ninth and Eleventh Circuits have a more stringent view of the applicability of the ADA to websites, while other jurisdictions like the Second and Seventh Circuits allow for very few defenses. We’ve also helped clients work with third party vendors to improve accessibility. It is generally much more efficient to reach a nuisance resolution and engage in a compliance program, because the risk of a tag-along suit in a jurisdiction like New York, where defenses are virtually non-existent, is extremely high with well-known defendants. Once injunctive relief is agreed-to or a compliance plan is in place, it is very difficult to be sued because most ADA cases seek only injunctive relief.
Over the past year, we’ve defended several large brands in ADA website cases. We have briefed a number of motions to dismiss, both for lack of personal jurisdiction and on the merits. We’ve resolved each case on very favorable terms at a nuisance value.