Website lawsuits, events regulations, environmental rules: What’s new in California wine business law
Vexing the California North Coast wine industry in recent years have been lawsuits over winery website lack of access for the those with visual challenges, the new political debate over winery events, and ever-changing environmental regulations.
Journal researcher Michelle Fox surveyed a handful of attorneys on some of those issues, posing questions from Journal wine reporter Jeff Quackenbush.
Dozens of lawsuits have been filed against North Coast wineries in the past 12 months over website compliance with state and federal accessibility laws. What is the significance of this situation for the industry? What can vintners do to help protect themselves from and in such actions?
Gregg Ficks: This is an issue that affects most consumer-facing industries in California, and in the country.
Under the California statute on which most plaintiffs filing these lawsuits in California rely, a successful plaintiff can recover his or her attorneys’ fees, in addition to statutory damages.
This unfortunately appears to have incentivized professional plaintiffs (aka “website testers”) and their attorneys to file these lawsuits without regard to those plaintiffs’ intent to patronize the wineries or other businesses they are suing, based on technical or temporary website accessibility glitches, and often without advance notice to the business with a chance to correct the alleged problem (at least not without the plaintiffs and their attorneys demanding money in order not to sue).
…. these lawsuits have increased exponentially over the past decade and even faster since the onset of COVID, and most businesses choose to settle these lawsuits because of the expense and business disruption that litigation would cause.
This remains true even though some businesses recently have successfully challenged website accessibility claims in federal courts in the Bay Area based on lack of “standing” by the plaintiff (that is, that the plaintiff was not an actual or potential customer of the business) and similar theories. For now, at least, some plaintiffs and their law firms simply have started filing these lawsuits in other courts seeking different results there.
One longer-term approach to try to solve this problem is to focus on lobbying and legislation to change how these laws are applied, and to change how some plaintiffs and their attorneys (mis)use them.
While no one would suggest that people with disabilities should be denied access to our businesses, changing the current legislation with regard to, for example, excessive/repeat lawsuit filers or lawsuits based on minimal, technical, or non-material violations of website accessibility guidelines, and adding or expanding legal mandates for plaintiffs to provide reasonable notice to businesses and an opportunity for them to cure any website accessibility shortfalls before any attorneys’ fees and statutory damages could be available, could serve the intent and purpose of the accessibility laws while not unnecessarily harming businesses, and not feeding the coffers of a few non-customer professional plaintiffs/website testers and their attorneys.
Beyond that, and in the short and medium term, businesses in our community should be proactive in seeking to comply with accessibility laws and standards for their websites and apps (and also for elements of their physical premises that are visited by the public) in order to minimize the risk of becoming targets for these lawsuits, and in order to comply with the law.
Towards those ends, businesses in our community may want to update their digital properties practices....
Jeremy Little: Most of these suits have settled. CMPR had the privilege of representing over 20 wineries involved in these disputes. Unfortunately, part of this is the cost of doing business.