Two summers ago, a 61-year-old blind woman I’d never met sued me for allegedly injuring her. Her accusation: I had impeded her ability to buy a Snugarooz Floos N’ Fun Ball — a tug toy for dogs.
According to the complaint, Lisa Cantwell of Queens, New York, visited my online store, but issues with a product page’s metadata interfered with her screen-reading software, ultimately keeping her from completing the purchase. This, the suit claimed, constituted “a concrete and particularized injury,” that led to “direct harm and frustration” and constituted a violation of the Americans with Disabilities Act.
Cruelty, thy name is … Snugarooz Floos N’ Fun Ball.
The toy in question was one I carried in my Manhattan dog-training center, School For the Dogs. Dog-training classes, private lessons, and playgroups were the place’s main income generators, but near the front desk, I curated a small selection of toys and training tools. Some of these items were also sold through an online store I built myself on Shopify in 2017.
I liked carrying products from small vendors with stories behind them: a rubber bully-stick holder invented by a woman whose dog nearly died after swallowing the end of a chew; handmade treat pouches designed by a California mother after her daughter began volunteering at an animal shelter. The Snugarooz toy was made from recycled materials by a small business on Long Island.
The same week I got the summons, I’d begun discussions with another pet-business owner about buying a majority stake in my struggling company. I was desperate for a way out — or at least, a way forward. I’d started the training business in my living room in 2011. I had no business background and yet for years, pretty much every month was better than the one before it. But then the pandemic hit. At that point, I had more than a dozen employees, a two-story East Village storefront, payroll approaching $40,000 a month, and a 1-year-old daughter.
I had to close for a few months at the start of the pandemic, but there was no break on rent or utilities. Many of my best clients fled Manhattan that spring and never came back. The electric bill tripled. Some key employees left in the fog of it all, and those who stayed demanded higher wages because their own bills had skyrocketed. Determined to get to the other side of the madness, I took out loans and pivoted so many times I became dizzy trying to follow my own strategic plans.
Then I had another baby.
I had once thought of my business as my firstborn child, but increasingly, I wondered if it were more like Audrey Two, the carnivorous plant in Little Shop of Horrors — a ravenous organism that survived only if I continued feeding it my own blood. I was already barely hanging on. A lawsuit felt like it might finish me off.
The ordeal seemed terrifying but also … kind of fascinating.
The Americans with Disabilities Act is one of the great moral achievements of modern America. Of course, blind people should be able to access websites. Of course, businesses should make reasonable accommodations. But the ADA was enacted in 1990, back when “going online” involved listening to a modem screech like Yoko Ono trapped inside a fax machine, and Amazon was merely a rainforest.
But, small problem, the law doesn’t define what an accessible website is. That has created a vacuum now filled by consultants, remediation firms, accessibility software, and armies of highly specialized plaintiff-side law firms. To understand how this world worked, I spoke with David Stein, of Stein & Nieporent LLP, a Manhattan-based firm that has represented defendants in nearly 1,000 website-accessibility lawsuits over the past decade.
“There are no binding standards,” he told me, “and the cases almost never go to trial” — a combination that turns out to matter enormously.
Simply put: if you want to build a website that you can be sure will evade a lawsuit, you can’t; and if you want to go to court to make the case that your site does make accommodations for disabled people, you shouldn’t.
Sure, when building your site, you would be wise to follow a set of guidelines called WCAG — the Web Content Accessibility Guidelines — created not by Congress or the Department of Justice, but by the World Wide Web Consortium, an independent nonprofit founded by the web’s inventor, Tim Berners-Lee. The guidelines recommend using image descriptions, keyboard navigation, readable color contrast, standardized page structures, and about 1,000 other things. The most recent update is longer than most of my favorite Victorian novels.
While there are plenty of companies out there that may help make your site be more WCAG-y, no site is safe from litigation. This is because Congress has never written a standard into law, regulators have never formalized one, and courts rarely interpret any because the cases almost always settle before going before a judge.
“You’re dealing with an impossible situation,” Stein said. “The official guidelines are nonexistent, and even the unofficial guidelines are aspirational and somewhat subjective.”
In practice, this means accessibility litigation often functions less like traditional law enforcement and more like procedural roulette. Anyone who self-identifies as disabled and claims to have had a bad experience on a website for any reason can bring a suit.
Said Stein: “The plaintiff says the site is inaccessible; the defendant says it isn’t. That creates what’s called a ‘material factual dispute.’” He noted that some plaintiffs have filed hundreds of these cases. Some attorneys have filed thousands. His site lists 12 of the most prolific law firms filing these suits, and their 38 favorite plaintiffs. “The cases often seem less about improving accessibility,” he explained, “and more about recovering attorney’s fees.”
That, it turns out, is the heart of the matter: the fees.
ADA suits are referred to by the legal trade as involving “bits,” like websites, or “bricks,” like ramps. In both cases, the plaintiffs, if they were to go to trial and win, won’t walk away with damages; the verdict simply compels the defendant to attempt to fix the issue. So, in order to incentivize people with disabilities to pursue these cases, law firms guarantee that they’ll have their lawyers’ fees covered by the defendant if they win.
This is called “one-way fee shifting”: if the plaintiff prevails, the defendants owe both sides’ legal fees. The process isn’t transparent, but it’s likely the law firms are taking the work on pro bono for the plaintiffs (who then won’t owe anything if they lose), and that some money is passed from attorney to plaintiff when the cases, as they almost inevitably do, settle. For defendants, it’s lose-lose: even if they win, they still pay their own lawyers.
And if you want to bone up on ADA law yourself and represent your own business … you can’t. Limited liability corporations — the corporate form I used to organize my shop, and which many other small businesses likewise use — are required to be represented by a licensed attorney in court.
Every attorney I called told me the same thing: win or lose, going to trial would be more expensive than settling.
“The law doesn’t define what an accessible website is.”
Once a company has been sued, Stein told me, the cases are easily found in public databases, and this makes the business statistically more likely to get sued again. I guess it makes the copy-paste procedure especially easy. This is why, Stein told me, after several rounds of getting sued and trying to improve their site and then getting sued again, several companies he’s represented have stopped investing in trying to remedy the problem; instead, they just budget for litigation.
Many businesses try to rectify the issues by using third-party overlays that will change the site’s contrast or read the site aloud, among other features — you can activate them usually by clicking an icon in a site’s bottom corner. But Stein said that some plaintiff-side lawyers specifically target sites that use these tools because they can be an indicator that the company opted for a Band-Aid-type solution, rather than addressing the underlying issues. Copy, paste: more tidy litigation.
Accessibility lawsuits are hardly unique in the way they target businesses of all sizes in the name of an ostensibly good cause. California’s Proposition 65 — the law behind the cancer-warning labels on nearly every tangible item sold in the state — has spawned a similar industry of private-enforcement suits. The Telephone Consumer Protection Act regularly generates massive settlements over marketing texts that haven’t received the proper consent, even though the law was written long before text messages were even a thing. In 2018, Bloomingdale’s settled a class action suit for $1.4 million because of texts it sent to loyalty-reward customers who hadn’t opted in; the content of the message was “Reply Y now to confirm you want texts!” (And yet, there’s no law that has me opt in to condone the felling of forests required to keep my mailbox stuffed with Garnet Hill catalogs — it is legally allowed to send them because it sold me a fitted sheet in 2009.)
The broader pattern is hard to ignore: laws passed with generally admirable goals evolve into systems where settlement becomes more rational than compliance. In consequence, small businesses in America increasingly operate inside a haze of invisible rules, selectively enforced standards, and ambient legal risk.
Website-accessibility lawsuits represent this dynamic distilled to its essence. A law meant to help one disenfranchised group ends up hurting another group that might be struggling with a different set of problems. In between those two parties is a lawyer with a degree that he probably didn’t need if all he’s going to do is spend a matter of minutes updating a court filing template that’s worked countless times before.
What struck me most during this ordeal was how little either side benefits in the end, and how detached it all felt from human interaction.
I called a blind client of mine and asked whether she had ever struggled using my website.
“No,” she said. “And if I did, I’d probably just call the phone number at the bottom of the page.”
Exactly.
According to the lawyers I spoke with, I probably could have settled the case and covered my own legal fees for under $5,000, but I got served at a moment where I was struggling to keep my business bank account in the four figures. And even if I’d settled, I was afraid there would be remediation expenses, plus the lingering possibility of future lawsuits. “Just ignore the whole thing!” was the advice I got from my friends, none of whom is a lawyer or a business owner. The problem was that it’s hard to sell a business that is in open litigation.
I hated the idea of closing the store because it was one of the few parts of the business still doing reasonably well. The store and the rest of the business generally operated as a unit, but the retail arm had its own site and LLC. This was good news: it meant if the training studio failed, I could maybe continue operating the online shop from home while slowly paying down debt.
But now that I had someone likely taking over the business, that calculus changed.
Unsure what to do, I asked the prospective buyer what her preference would be: settle the suit, or let the site go dark and hope the case evaporated?
She picked option two. So I shut it down.
A week later, she backed out of the deal entirely, and I had to pull the plug on everything.
This left me spending much of last year navigating a different — but simpler! — legal process: personal bankruptcy.
Under the ADA, plaintiffs don’t receive damages, but as I mentioned above, I am guessing that Lisa Cantwell walks away from the cases she’s named in with some token of appreciation from the lawyers. When I explained the situation to my blind client, she pointed out that most visually impaired people have trouble finding work. This made me feel for Lisa. A little bit. But it is a strange state of affairs if a blind woman’s inability to find employment leaves a bootstrapped small business like mine unable to continue supporting small vendors, who often had their own compelling stories — think single mother hand-stitching dog toys in her kitchen so she can put herself through nursing school.
I wondered if Lisa really had had an issue with buying the toy or if the lawyers perused sites and then just put her name on the filings? I found her on Facebook and messaged her to ask, but I never heard back; I emailed her law firm, but it didn’t reply.
The same week she sued me, Lisa was named as the plaintiff on 40 other cases against a motley crew of other businesses including Williams-Sonoma, Lululemon, and the Manhattan restaurant Balthazar. A lawsuit brought on by a stranger creates a funny kind of intimacy with odd parties. I began to think of these businesses as my litigation kin.
When I couldn’t sleep at night worrying about the collapse of a business I’d put my heart and soul into and had spent years of my life building, I went deep into Google to try to see what I could find about Lisa. I learned she had received a Labrador guide dog named Louie through the Guiding Eyes For the Blind; a profile of her on the organization’s site informed me that she was blind because she was born with underdeveloped retinas. Also: she worked in special education for 25 years, belongs to three book clubs (psychological suspense and historical fiction are her preferred genres) and likes to play ’70s folk music on the guitar. I knew I was behaving a little like a scorned ex-girlfriend by looking into these details, but I was heartbroken and stressed out, much like when I’ve been a scorned ex-girlfriend. Also, my business was created by a human being, me, and I wanted to know if there was a human being on the other end of the final straw, and if so, who she was.
Going deeper, I found out her address, her middle name, maiden name, and parents’ names. She has a son in his 30s who is married and lives in Connecticut, and a 29-year-old daughter who loves Disney World. Her husband is a New York Rangers fan and voted for Donald Trump. At one point, I even tracked down an old realtor’s listing for her home, and found myself studying her bedroom set and beige wall-to-wall carpet. There were green and blue Sterilite storage bins stacked in a corner, and an empty wire dog crate with a fleece blanket folded inside of it.
The details made the whole thing feel both more absurd and more sad. I couldn’t really bring myself to hate this person because, well, I didn’t actually know her. What I hated is a system that turned two ordinary people — two New York City dog lovers — into opposing parties in a federal case over a rope toy.
I absolutely support the underlying principle behind laws protecting Americans with disabilities, and wish I had known that my site needed to be better optimized. But as I now know, I could’ve invested a boatload into optimization and ended up in the same place. For that reason, I don’t think these cases are doing anything to improve the situation.
The internet once lowered barriers to allow for the creation of funky little businesses like mine — businesses that could be run without in-house counsel and a budget for litigation. Now, I worry that the web has been booby-trapped to prevent the rise of anyone whose Chief Accessibility Officer sleeps at the foot of their bed.
My own e-commerce days are certainly over. But I still participate on the other side of the equation. When my dog needs a new tug toy, I buy it from Amazon.