Even before COVID-19 entered our lives, it was clear that more and more businesses were realizing the importance of engaging with consumers online. Now, as most are forced to limit their in-person activities or shut them down altogether, we are seeing an even sharper trend in businesses investing in their online presence – especially with the creation of new websites and social media platforms to communicate status updates and allow for online ordering.
What business owners may not be aware of, especially as they race to do what’s necessary to keep their businesses afloat in these unprecedented times, is that there is a growing trend of federal class action lawsuits claiming those websites and point-of-sale terminals violate Title III of the Americans with Disabilities Act (the “ADA”). The ADA requires all businesses to remove any obstacle that interferes with a disabled person’s ability to access their products or services online. If a claim is successful, the defendant can be required to pay the plaintiff’s attorneys’ fees and costs, and incur the cost of redesigning its website or point-of-sale system to comply. California also has its own, supplementary set of statutory law – the Unruh Civil Rights Act (“UCRA”), which mirrors the ADA but additionally opens the door to statutory damages.
These lawsuits have typically been brought by groups of visually-impaired consumers who claim that a certain website fails to accommodate their disability – and now, whether by valid plaintiffs or not, the cannabis industry is their next target. Cannabis company NC3 Systems, which operates as Caliva and is backed by Jay-Z, was sued on July 12 for “its failure to design, construct, maintain, and operate its website to be fully and equally accessible to and independently usable by (the p)laintiff and other blind or visually-impaired people.”
The class action alleges that the plaintiff, Bruce Begg, tried to access www.caliva.com as recently as January 2020 and “encountered multiple access barriers that denied him full and equal access to the facilities, goods and services” that Caliva offered to the public, including the ability to “learn about store locations and hours and contact information; make an online purchase, determine prices for and availability of certain products, and related goods and services available both online and in stores.”
Begg claims for all he can in damages under the ADA and UCRA:
- A declaratory judgment that NC3 Systems was in violation of the ADA and that it had taken no action that was reasonably calculated to ensure that caliva.com is fully accessible to, and independently usable by, individuals with visual disabilities;
- A preliminary and permanent injunction enjoining NC3 Systems from further violating the ADA and UCRA, and requiring it to take the steps necessary to make caliva.com readily accessible to and usable by visually-impaired individuals;
- An award of costs and expenses of this action;
- An award of attorneys’ fees and expenses; and
- An award of statutory minimum damages of $4,000 per offense per person pursuant to section 52(a) of the California Civil Code.
We’ll continue to follow this case and provide updates as we can. In the meantime, this case serves as a great reminder to all of our business owners that it’s absolutely essential to be proactive in ensuring your digital platforms are ADA-compliant – even if you haven’t received a complaint yet. As with Telephone Consumer Protection Act (TCPA) claims, we expect the industry to begin experiencing an aggressive wave of filings. Some complaints will be legitimate, but some won’t be as there will always be individuals looking for a quick payout from businesses who know that it makes more economic sense to pay a nominal amount in settlement than get tied up in expensive litigation or negative media attention. Don’t give them any more reason to target your business next.