Wineries facing rash of lawsuits over accessibility

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If you get sued over how accessible your website is for people with visual impairments, fix the problems rather than settle the lawsuit, says Robert Duffy, president of the Greater Rochester Chamber of Commerce.

His statement was prompted by a wave of lawsuits over website accessibility filed by New York City-area law firms that recently reached the Finger Lakes. The suits appear to be looking for easy targets rather than equal accessibility.

“A lot of people have settled already out of fear of going to court,” Duffy said.

The chamber is taking a stand on the issue after a member who is being sued brought it to Duffy’s attention and then Duffy conferred with representatives of Rochester’s Center for Disability Rights.

Duffy said the chamber will take an active role by advising members and other business people on how to sidestep costly settlements and, with the center’s help, educate them on how to comply with the Americans with Disabilities Act. That law, enacted in 1990, requires that organizations make reasonable efforts to allow access for people with disabilities. If they don’t make those efforts, disabled people have the right to sue them to make them comply with the law.

The wave of lawsuits that has crossed the state focus on web access for people who are blind or visually impaired. Text-reading software can read aloud the words on the screen, but the screen-readers may not be able to translate certain links or images, depending on how they’re programmed. Deaf and hard-of-hearing people may need captioning in website videos, and those with developmental disabilities may need other accommodations.  

More than 1,000 suits focusing on these web accessibility issues were filed in New York state in the first half of 2018, according to a survey conducted by the Seyfarth Shaw Law Firm, based in Chicago. That represents one-fifth of such cases nationally.  

Payoffs in these cases are doing little to improve accessibility for people with disabilities, said Bruce Darling, president and CEO of the Center for Disability Rights.

“Our experience is that when folks are doing this unscrupulously, they’re going for settlement and cash payment instead of fixing the problem,” Darling said.

A search of such suits recently revealed two plaintiffs – Kathy Wu of Brooklyn and Yaseen Traynor of the Bronx – each had sued 35 or more entities including clothing and cosmetics stores in New York, wineries all over New York and even a shopping mall owner and an art gallery. The suits appeared to be carbon-copied from one to another, with settlements reached in most of them in two months or so. Even filing mistakes were repeated again and again as noted in the public log of legal cases. Both Wu and Traynor were described as having vision impairments.

Hickey Freeman was one of the companies Wu sued. The case was settled last fall.

The settlements generally don’t stipulate the terms in publicly available documents, but wine industry members say the usual amount is $10,000. And a review of several websites that had settled revealed only one or two that appeared to have added any information about accessibility.

“We encourage everybody not to settle these lawsuits,” Duffy said. “It is clearly … firms doing it as a scare tactic to get money rather than fix the problem. According to the ADA, there are no damages if you fix the problem.”

Some have said agreeing to a settlement just encourages more lawsuits.

Darling said businesses should focus on accessibility, not settlements. And, by working with the chamber, the center has an unusual opportunity to resolve access problems without an adversarial relationship.

“In the end, a business that is being sued should just find out what they need to do to rectify the situation and fix it,” Darling said.

Duffy’s advice comes too late for hundreds of businesses that have been sued by New York City and New Jersey-area lawyers representing clients who are visually impaired.

 The suing of wineries on Long Island and the Hudson Valley starting last fall raised an alarm in the wine industry.

The New York Wine and Grape Foundation spread the word in newsletters and at trade meetings, and offered webinars for its members on website accessibility.

Starting in January, six wineries in the Finger Lakes were also sued, one reportedly just two days after it had made improvements to its website with visually impaired visitors in mind.

At least three of the wineries settled their lawsuits last week, but Scott Osborn, president and co-owner of Fox Run Vineyards on Seneca Lake, called up Duffy instead.  Fox Run is a member of the Rochester chamber.

Osborn said he wants the website to be accessible to people with vision issues or other disabilities and had actually started working on making his website comply with the ADA.

“It’s not a process that can happen quickly,” Osborn said.

“I do want disabled people to access my website,” Osborn said, adding that it’s frustrating to wait in line for computer consultants to be available to work, and frustrating because there are no agreed-upon standards for making a website accessible.

The Center for Disability Rights will make itself available to consult with companies about their websites, Darling said. The nonprofit will need to charge something for the service, but the intention is not to make money, he said.

“We’re willing to look at the sites where people have threatened and say (whether) it looks accessible,” Darling said.

CDR officials said accessibility standards for websites have been added to the ADA (few people knew what a website was in 1990 when the law was adopted,) but those standards apply to government entities or businesses that accept federal contracts. Nevertheless, following those standards should keep a business in good stead with the ADA.  

A seminar at a recent wine industry conference, however, suggested it’s not that simple.

Everly Sifonte of User1st, a Washington D.C. consulting company focusing on digital access, told participants at an industry conference in Henrietta a few weeks ago that since there are no specific standards, wineries might spend a lot of money to improve their websites and still get sued.

Websites have to be reprogrammed to include accessibility in some cases, and they may still not be compatible with all text-reading software, he said.  He recommended businesses add a statement to their landing pages sharing the strategy for accessibility. “It shows legal intent to fix things,” Sifonte said.

Several attorneys representing visually impaired people who have sued for access or who represent those who have been sued were contacted for comment but did not respond. Some wineries have declined to talk about the lawsuits.  

One attorney who is talking, though, is Stephanie Woodward, director of advocacy for CDR.

“I’m ashamed of my profession because there are attorneys that are taking advantage of disability laws that were meant to help disabled people, and they’re giving disabled people a bad name,” Woodward said.

Both Darling and Woodward said some lawyers over the years have filed lawsuits to make a buck off the ADA but not to this extent.

“It 100 percent happened before. It just didn’t happen with websites,” Woodward said. At first lawyers drove by businesses to see who had a one-step entrance and sued them in batches to bring about quick settlements. Woodward explained that the law is clear that installing a small ramp to fix a one-step entrance would not be considered an undue burden on a business, so a judge could be counted on to rule in favor of putting in a ramp.

Then as technology came into play, litigants started using Google maps to identify likely one-step targets, Woodward said. And now they just search for websites to sue.

“I’m never opposed to anyone suing a business if their rights have been violated,” Woodward said. “I’m opposed to someone using disability laws for their financial benefit.”

Duffy said the chamber is having its own website evaluated and will share information with others, perhaps in the form of a top 10 list of actions companies can take to comply with the ADA.  And the chamber won’t stop with websites, he promised, saying it will discuss physical access as well, and nudge Monroe County and New York State bar associations about policing their members.

“We want the problem fixed,” Duffy said.

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