Forum Shopping For a Website Lawsuit Over the Holidays? Look No Further than the SDNY.

Seyfarth Shaw LLP

Seyfarth Synopsis:  A massive surge in website accessibility lawsuits filed in the Southern District of New York suggests some holiday forum shopping by the plaintiffs-side bar.

The Seyfarth ADA Title III Team wishes all of our readers a very happy holiday season!

As many of you already know, our Team monitors ADA Title III lawsuit filings nationwide (you can find our last two updates here and here).  While we hate to dampen your holiday spirits, we are writing to alert you that there has been an explosion of website accessibility lawsuits filed in New York federal courts in Q4 of 2021.

Our initial calculations indicate that, as of December 16, 2021, at least 688 website accessibility lawsuits were filed in New York federal courts in Q4 2021.  This represents a whopping 155 percent increase compared to the 272 website lawsuits filed in NY federal courts in Q3.  Especially noteworthy is that 89 percent of the Q4 lawsuits (615 cases) were filed in the Southern District of New York.  And, one firm in particular (Mizrahi Kroub LLP), has filed over 400 of those cases (at least 65 percent).

Based on these numbers, it looks like the plaintiffs-side bar has been doing some holiday forum shopping.  As we previously reported in Q3 of 2021, two judges in the Eastern District of New York issued favorable decisions to defendants with “website-only” businesses, holding that such websites are not covered under the ADA.  Shortly following those rulings, plaintiffs started filing more of their website accessibility lawsuits in the Southern District where several judges have held that the ADA does apply to web-only businesses.  The shift resulted in a dramatic decrease in the number of suits brought in the Eastern District.  Indeed, website accessibility lawsuit filings in the Eastern District decreased by more than 43 percent between Q3 and Q4 of 2021 (101 lawsuits in Q3 versus 57 lawsuits in Q4).

The bottom line is that Title III lawsuits really are the gift that keeps on giving to the plaintiffs-side bar.  Last year around this time, businesses were dealing with 150+ lawsuits by blind plaintiffs demanding braille gift cards, many of which were successfully defeated in motions to dismiss.  Several of those suits are on appeal to the Second Circuit now and others remain stayed pending these appeals.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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