More than 2,000 website accessibility lawsuits were filed in federal courts each year in 2018 and 2019, alerting business owners of the rising trend in website accessibility litigation. This trend is not going to slow down, as the U.S. Supreme Court declined to hear an appeal from the Ninth Circuit in the case Robles v. Domino's Pizza, LLC, which many hoped would provide nationwide clarity on the law in this area. With the Supreme Court declining to hear the case, business owners are required to comply with inconsistent decisions across the federal and state judiciaries, amid a regulatory vacuum from the Department of Justice. The latest industry to be targeted by these cases is the CBD industry.
The majority of website accessibility suits are generated from a small group of plaintiff’s attorneys, oftentimes representing the same individual repeatedly. With some exceptions, these suits tend to arise in patterns, with multiple suits brought contemporaneously against businesses within the same industry (e.g., hotels, restaurants, multifamily residential properties). The most recent industry to be hit by these suits appears to be the CBD industry. In November 2019, Medterra CBD, LLC and CV Sciences, Inc. (both producers of CBD oil) were sued by the same individual, Thomas Olsen, in the U.S. District Court for the Eastern District of New York. Mr. Olsen then sued Endoca, LLC (another CBD oil producer) on January 30, 2020.
All of the suits are relatively "standard" website accessibility suits, which claim that the websites fail to comply with Title III of the Americans with Disabilities Act (“ADA”) because they are incompatible with screen-reading software used by people with visual impairments. The suits claim that by being incompatible with this software, the websites discriminate against legally blind individuals in violation of the ADA, as well as the New York State Human Rights Law and the New York City Human Rights Law (suits in other jurisdictions similarly try to implicate the relevant state and local laws, such as California’s Unruh Civil Rights Act). As a measure of whether the websites comply with these discrimination laws, the suits compare the websites to the international accessibility standard, WCAG 2.0.
The law concerning website accessibility is far from settled. Title III of the ADA applies to "places of public accommodation," which is defined as entities that fall within 12 specific categories set out in the statute. Retailers that sell goods to the general public fit within one category, however when the ADA was initially passed in 1991, the focus was physical stores. The Department of Justice (the agency tasked with interpreting and enforcing the ADA) later concluded that websites associated with physical stores are covered. In recent years, courts have reached different conclusions as to whether websites must relate to a physical location in order to implicate the ADA.
Many website accessibility plaintiffs gravitate to federal courts in New York, because of pro-plaintiff decisions that have come out of the Eastern and Southern Districts. The legal efficacy of these decisions is subject to debate, considering that most (if not all) accessibility cases that are actually litigated only make it so far as the motion to dismiss stage. Nevertheless, even under a liberal interpretation, the business must still fall within one of the twelve categories established in the statute. A business selling CBD products to the public via an online store might be covered under the category applying to retailers, even without a physical retail location. By contrast, manufacturers and distributors, or other entities that only sell to businesses, have never been considered “public accommodations.” This of course does not prevent these businesses from being sued, but at least provides some strong defenses to ward off potential claims.
To make things more confusing, the Department of Justice has taken the position that while the ADA may apply to certain websites, compliance with WCAG 2.0 is not required by the law. Letter from Stephen E. Boyd, Assistant Attorney General, U.S. Department of Justice, to Hon. Ted Budd, United States Congress (Sep. 25, 2018). Therefore, whether or not a website is accessible is subject to a case-by-case analysis. While this interpretation provides businesses a means to defend against lawsuits claiming that their websites do not comply with WCAG 2.0, it does not provide any guidance on how a business can potentially avoid being sued in the first place.
The current suits against the CBD industry raise interesting questions about the future of website accessibility litigation, as it appears all but imminent that these suits will eventually make their rounds to state-sponsored marijuana growers/sellers. When these suits eventually come about, there is room for interpretation that the ADA would not apply to websites which support businesses that are still considered illegal under federal law. Similar arguments have been made in other contexts by businesses in the cannabis industry; though without success. See, e.g., Kenney v. Helix TCS, 939 F.3d 1106 (10th Cir. 2019) (finding that federal Fair Labor Standards Act applies to security company operating within Colorado’s state-sponsored cannabis industry).
Whether or not this trend in litigation against the CBD industry will continue is yet to be seen. However, these suits raise a flag for businesses operating within this space to consult with counsel, and take steps to avoid (or at least mitigate the risk of) litigation.