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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

August 25, 2023

Website Accessibility Lawsuits: Several New "Tester" Plaintiffs—Vasquez, McMorland, Bullock, Mercedes, and Erkan—Targeting Businesses in Recent Flurry of Lawsuits

We continue to report on the plethora of serial plaintiffs who have collectively filed thousands of website accessibility lawsuits, primarily against small businesses, in state and federal courts throughout the country. These boilerplate lawsuits generally allege that these businesses’ websites are inaccessible to blind and visually impaired individuals who use screen-reading software, thus denying them full and equal access to the goods or services offered on the websites.

Several relatively new plaintiffs are now on the scene, including Nersi Nin Vasquez, Gabriel McMorland, Justin Bullock, Luis Mercedes, and Nihal Erkan, who, according to court records, have collectively filed nearly 100 lawsuits, the vast majority of which were filed in 2023.

  • Vasquez filed 19 lawsuits between June 8 and June 20, 2023. She is represented by Mizrahi Kroub LLP, which has filed more than 3,000 similar lawsuits in federal court (and, in recent months, hundreds of additional lawsuits in New York State courts).
  • McMorland has filed 48 lawsuits since March 2022, all in federal court in Pennsylvania. He is represented by Carlson Brown, which has filed more than 250 similar lawsuits.
  • Bullock and Erkan have collectively filed 17 lawsuits, including eight since August 4, 2023. They are represented by Mars Khaimov, who has filed more than 1,150 similar lawsuits.
  • Mercedes has filed 13 lawsuits since July 19, 2023. He is represented by Stein Saks, PLLC, which has filed more than 1,400 similar lawsuits.

As we have reported on numerous occasions, both state and federal lawmakers have taken steps in recent years to curb website accessibility lawsuits; however, to date, no legislation has been passed. In the absence of legislation or regulations promulgated by the US Department of Justice (DOJ), we recommend that businesses operating a website, mobile application, or both take steps to ensure that these online systems are accessible to users with disabilities and otherwise comply with federal, state, and local disability laws in accordance with DOJ guidance issued in March 2022. 

It should be noted that the DOJ recently submitted to the Federal Register for publication a notice of rulemaking under Title II of the Americans With Disabilities Act (ADA) that aims to improve access to websites and mobile applications for people with disabilities by creating a minimum standard for state and local governments to meet existing ADA obligations.

In the unfortunate event your business is served with one of these website accessibility lawsuits, please do not hesitate to contact the attorneys at Barclay Damon. We will continue to monitor the development of these cases.

If you have any questions regarding the content of this alert, please contact Rob Thorpe, partner, at rthorpe@barclaydamon.com, or another member of the firm’s Labor & Employment or Commercial Litigation Practice Areas or Hotels, Hospitality & Food Service Team.

The Labor & Employment Podcast is a weekly Barclay Damon Live podcast hosted by Ari Kwiatkowski that provides employers with important updates regarding ever-evolving state and federal labor and employment laws as well as a wide range of timely topics pertaining to labor and employment issues in the workplace. Click here to watch or listen to the Labor & Employment Podcast as well as Barclay Damon’s other podcast series: Cyber Sip and Cannabis Counselor
 

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