An increasing number of lawsuits are being filed by a few law firms representing visually impaired or blind people, accusing companies’ websites of violations of public accessibility laws, such as the Americans with Disabilities Act.

And while these lawsuits — frequently brought without notice or prelitigation requests to cure the alleged violations — may have some merit, the approaches used by the plaintiffs’ lawyers to extract nuisance-value settlement claims may well violate federal criminal and civil laws.

This article explores whether the tactics of these plaintiffs’ attorneys violate the Hobbs Act and the Racketeer Influenced and Corrupt Organizations Act.

Introduction: A Lawsuit Is Filed

The scenario is familiar to many companies and litigators: A complaint is filed, unannounced, accusing the company of violating public accessibility laws because its website is not sufficiently accessible to the visually impaired.

Named in the complaint as the plaintiff is a blind or visually impaired person. As alleged, that person was particularly interested in buying a specific item — a T-shirt, bottle of shampoo, or other consumer item or service — from the company, but unfortunately could not because the website allegedly was not sufficiently accessible.

Specifically, the complaint will allege that blind people use screen readers to view the Internet, and — as alleged in Nunez v. N2G2 LLC, among other cases — “[i]n order for a screen reader to function properly when reading a website, the website itself must be properly coded to be compatible with the screen reader.”

The complaint will allege that there is a set of standards that the website should adhere to in order to be sufficiently accessible to blind and otherwise visually impaired people. The complaint may specifically reference Website Content Accessibility Guidelines 2.1 as such a standard.

The company’s website, as alleged, fails to meet that standard. Accordingly, the blind person was unable to order the desired bottle of shampoo. The complaint is brought to cure this alleged harm.

The complaint names numerous causes of action all related to public accessibility laws: perhaps the ADA or a variety of state and municipal causes of action, including the New York State Human Rights Law,[1] the New York State Civil Rights Law,[2] or the New York City Human Rights Law.[3]

Indeed, these laws protect the rights of people with disabilities, and help ensure that businesses provide adequate public accommodations. And there is some case law suggesting that websites might qualify as a place of public accommodation under various statutes.[4]

For example, in Robles v. Domino’s Pizza LLC, the U.S. Court of Appeals for the Ninth Circuit noted in 2019 that a restaurant itself is a “place of public accommodation” under the ADA.[5]

The court held that, although the website itself is not a place, it is used to access the restaurant, which is a place. Thus, even though the website is away from the restaurant, accommodations must be made on the website to make it sufficiently accessible to blind people.

The U.S. District Court for the Central District of California denied a motion to dismiss an ADA claim on that basis.

Accordingly, on their face, the claims pled against these companies may be viable, and the plaintiffs may be entitled to relief.

But the relief allowed under these statutes is limited. For example, the ADA is limited to providing equitable relief — i.e., requiring that the violator put measures in place to bring its website into compliance.[6]

The statute allows the court to award reasonable attorney fees as a part of costs.[7] But, there is no provision for an individual to get damages — or punitive damages.

The other causes of action are similar: The NYSHRL does not provide any basis for seeking damages, short of complying with a lengthy administrative procedure.[8] And the NYSCRL provides relief of no more than $500.[9]

Another option would be to simply ask the company to update its website. So what’s the potential benefit to filing a complaint instead?

The Settlement Demand

The company receives the complaint, and summons and retains an attorney. As is routine, the attorney reaches out to the plaintiff’s counsel for any number of reasons — perhaps to ask for an extension of time to respond.

A telephone call is arranged, and the plaintiff’s attorney cuts to the chase — the plaintiff is willing to settle the case for what usually amounts to two terms.

First, the company must agree to a nebulous term that it will bring its website into compliance at some distant point in the future. Second, the company must pay a sum of money — likely in the five-figure range.

These lawsuits thus appear to be a quick and inexpensive way to extract settlement revenues from any company that has a webpage. And the vast majority of companies will settle, because the cost of litigating is much higher than the value of the settlement demand. Notably, the bottle of shampoo is never demanded.

But in that fleeting moment on the telephone call, when a five-figure sum was demanded, a federal crime may have taken place — and a powerful counterclaim may have matured.

That is because that five-figure sum exceeds the reasonable value of the lawsuit — it is substantially more than the statutory damages, and significantly more than the attorney fees spent to date generating the complaint.

Under federal and state statutes, the settlement demand was likely an act of extortion under the Hobbs Act, and may also constitute an act of racketeering — also a federal felony — which further gives rise to a civil cause of action.

The Increasing Prevalence of Website Accessibility Lawsuits

According to recent statistics, thousands of website accessibility lawsuits are filed each year.[10] Seyfarth Shaw LLP found 3,225 website accessibility suits filed in federal court alone in 2022.[11] The firm noted, “New York federal courts continued to be bombarded with lawsuits, totaling 2,560 lawsuits in 2022.”[12]

The numbers show an upward trend of double-digit increases every year for the past five years.

However, according to Accessibility.Works, 66% of these suits were filed by just five law firms — three in New York and two in California.[13]

This surveyor also noted that in 2022, over 600 lawsuits were filed against companies that had already been sued in the past — a 143% increase over 2021.[14]

Some have speculated that is because these law firms may look for defendants who previously have been sued. As Accessibility.Works wrote,

The Hobbs Act and Racketeering Statutes

The Hobbs Act began as the Anti-Racketeering Act, which was passed “at a time when Congress was very concerned about racketeering activities,” as articulated by the U.S. Supreme Court in its 1978 U.S. v. Culbert decision.[16]

The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”[17] The statute covers the conspiracy to commit extortion as well as the actual attempt.

Mere threats of litigation do not constitute inducement of fear under the Hobbs Act.[18] However, where a lawsuit is, in the words of the U.S. District Court for the Southern District of New York’s 2014 ruling in Chevron Corp. v. Donziger, “not pursued by lawful methods alone,” the lawsuit or threat to initiate a lawsuit may constitute extortion.[19]

At least one court — the U.S. District Court for the District of Arizona, in its 2021 Strojnik v. Driftwood Hospitality Management LLC  ruling — has held that “a plaintiff’s attempt to settle may become coercive and extortionate when he pursues a settlement amount well in excess of the actual personal cost of his forgoing injunctive relief.”[20]

Previously, in 2017, the same court identified the practice as “extortionate” in its Advocates for Individuals with Disabilities LLC v. MidFirst Bank decision.[21]

Because extortion under the Hobbs Act requires only “the obtaining of property” to which one is not entitled, the question is whether the amount of money they seek to obtain is greater than the value to which they are legally entitled.

In other words, as of the date of the settlement offer, is there a delta between the amount that the law legally entitles them and the amount they demand?

That delta may rightfully be considered property to which they have no rightful claim of entitlement. The attempt or conspiracy[22] to extract that money as a settlement demand arguably is Hobbs Act extortion — even if the settlement demand is ultimately lowered, and the company ultimately agrees to pay to a lower amount.

To assess the value of the lawsuit as of the date of the settlement demand, consider the reasonable attorney fees spent to date. Many of the complaints follow cookie-cutter templates, with little variation from one to another.

For example, one law firm, Mizrahi Kroub, filed a total of 345 digital ADA lawsuits in 2022.[23] According to a motion to dismiss in one of these cases, Weekes V. United States Tennis Association Inc., fully 79 of those were “nearly identical cut and paste complaints” filed on behalf of the same blind person.[24]

A reasonable attorney fee for copying and pasting a complaint is a small fraction of a five-figure sum like $20,000. Even with whatever statutory and other damages may be pled, the value of the case as of the date of the first settlement conference is frequently miniscule in relation to the settlement demand.

That makes the five-figure settlement demand — the attempt to obtain money beyond what the plaintiff is legally entitled to at that point in time — a potential act of extortion under the Hobbs Act.

Notably, the Hobbs Act does not provide a civil cause of action. But the Hobbs Act is defined as racketeering activity in the federal RICO statute.[25] The RICO statute makes it unlawful to engage in a “pattern of racketeering activity,” or to “conduct or participate, directly or indirectly, in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity.”[26]

“Enterprise” is defined to include any corporate entity, partnership, association or other legal entity.[27]

The RICO statute provides a civil cause of action for “[a]ny person injured in his business … by reason of a violation of section 1962 of this chapter.”[28]

If the accused is found liable, RICO provides a mandatory treble damage award and attorney fees.[29]

To the extent a blind person and their attorneys are working in concert in a pattern of extortionate conduct, they may both be liable for federal RICO violations.

Importantly, a Hobbs Act or RICO violation does not rise or fall with whether the lawsuits are potentially meritorious. As the Ninth Circuit held in 2007 in Molski v. Evergreen Dynasty Corp., lawsuits that are “probably meritorious in part,” but containing exaggerated allegations, can be used as a “harassing device to extract cash settlements.”[30]

That case, which named a serial ADA litigant as vexatious, recognized that “false or … exaggerated claims of injury, … made with the intent to coerce settlement, are at odds with our system of justice.”[31]

Indeed, it is a violation of the ABA Model Rules of Professional Conduct to use the settlement process in bad faith,[32] and a court may sanction firms and require a judge to determine whether future complaints contain colorable allegations.[33]

On top of sanctions, it may very well be that these demands and business models are rising to the level of extortion and violating federal law.

Conclusion

The Hobbs Act and the RICO statute, along with parallel state law statutes, can be used by both prosecutors and defendants to help ensure that settlement demands are proportionate to the reasonable value of lawsuits — which, in the case of website accessibility lawsuits, is minimal.

Because, in most cases, the damages will be limited to attorney fees spent to date, there will not be any money for the named plaintiffs, and only limited value to the law firms.

Bringing the Hobbs Act and RICO statute to bear in such cases may help ebb the flow of costly website accessibility lawsuits.

Nika Aldrich is a shareholder and litigator at Schwabe Williamson & Wyatt PC.

Amanda Kohls, a J.D. candidate at the University of Florida’s Levin College of Law, was a summer associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Column first appeared in the Law360 on October  4, 2023.

[1] N.Y. Exec. Law §290, et seq.

[2] Civil Rights Law §40, et seq. or §40-c, et seq.

[3] N.Y.C. Admin Code §8-101, et seq.

[4] Sullivan v. Bdg Media , 71 Misc. 3d 863, 870-871 (Sup. Ct. NY 2019) (website is a “place of public accommodation” under the NYSHRL).

[5] 913 F.3d 898 (9th Cir. 2019).

[6] 42 U.S.C. §12188(a)(1) & 42 U.S.C. §2000a-3(a).

[7] 42 U.S.C. §2000a-3(b).

[8] See N.Y. Exec. Law §297(9).

[9] N.Y. Civil Rights Law §§40-d, 41.

[10] David Gibson, 2022 Website ADA Lawsuit Statistics Summary, AccessibilityWorks.com (Feb. 9, 2023) (available at https://www.accessibility.works/blog/2022-website-lawsuit-statistics/).

[11] Kristina Launey & Minh Vu, “Plaintiffs Set a New Record for Website Accessibility Lawsuit Filings in 2022,” (Jan. 23, 2023) (available at https://www.adatitleiii.com/2023/01/plaintiffs-set-a-new-record-for-website-accessibility-lawsuit-filings-in-2022/).

[12] Id.

[13] David Gibson, supra, n. 10.

[14] Id.

[15] Id.

[16] 18 U.S.C. § 1951; United State v. Culbert , 435 U.S. 371, 375 (1978).

[17] 18 U.S.C. § 1951(b)(2).

[18] Chevron Corp v. Donziger , 974 F.Supp.2d 362, 577 (S.D.N.Y. 2014), aff’d 866 F.3d 74 (2d Cir. 2016).

[19] Id.

[20] Strojnik v. Driftwood Hospitality Mgmt LLC , 2021 WL 50456 (D. Ariz. Jan. 6, 2021), aff’d, 2022 WL 1642234 (9th Cir. May 24, 2022).

[21] See, e.g., Advocates for Individuals With Disabilities LLC v. MidFirst Bank , 279 F. Supp. 3d 891, 893 (D. Ariz. 2017).

[22] 18 U.S.C. §1951(a).

[23] Nick Awad, “Digital Accessibility Lawsuits Filed in New York in 2022,” Accessibility.com (July 6, 2023) (available at https://www.accessibility.com/blog/digital-accessibility-lawsuits-filed-in-new-york-in-2022.)

[24] Weekes v. United States Tennis Assoc. Inc., Civ. Act. No. 1:22-cv-01812, Dkt. No. 12 (S.D.N.Y. May 6, 2022).

[25] 18 U.S.C. §1961(1)(B) (defining “racketeering activity” to include “any act which is indictable under any of the following provisions of title 18, United States Code: . . section 1951 (relating to interference with commerce, robbery, or extortion).”

[26] 18 U.S.C. §§1962(a) & (c).

[27] 18 U.S.C. §1961(4).

[28] 18 U.S.C. §1964(c).

[29] Id.

[30] Molski v. Evergreen Dynasty Corp. , 500 F.3d 1047, 1062 (9th Cir. 2007).

[31] Molski, 500 F.3d at 1062.

[32] Model Rules of Pro. Conduct r. 3.1 cmt. (Am. Bar Ass’n 1983).

[33] Molski, 500 F.3d at 1064.