Subscribe

Dozens of Northern California wineries face website accessibility lawsuits

North Coast wineries are part of a growing wave of lawsuits nationwide alleging that company websites aren’t compliant with federal and state laws requiring equal access to those with disabilities.

Cases naming wineries as defendants have more than doubled in the past five years in California alone, with at least one lawyer saying he expects them to spread to other types of businesses. Vintners and other businesses face thousands of dollars in penalties plus legal costs if they lose in court.

And these legal actions come as North Coast vintners have leaned heavily on e-commerce and digital marketing in the coronavirus pandemic to make up for the unprecedented hit to a key source of revenue — tasting room visits — from public health restrictions on physical access to their properties.

In recent months, several dozen complaints have been filed just in federal courts against mostly wine producers in Napa, Sonoma and surrounding counties, according to court records, industry groups and accessibility advocacy organizations.

Virtually all of them have been filed by the Center for Disability Access, a division of San Diego-based civil rights law firm Potter Handy LLP. Each of those is on behalf of one plaintiff, Andres Gomez.

Court documents describe Gomez as legally blind man who uses screen-reader software, which is designed to audibly describe what’s displayed on the screen and guide the visitor in navigating the site and inputting information.

Potter Handy attorneys involved with the cases didn’t respond to Business Journal inquiries. A number of defendant wineries in the lawsuits were contacted for this story, but they either didn’t respond or had no comment.

Just in Napa County alone, nearly four dozen federal lawsuits have been filed in the past six months against wine-related businesses, and Gomez is the plaintiff according to Michelle Novi, industry relations and regulatory affairs director for Napa Valley Vintners.

After cases started to be filed against upper New York state wineries in 2018, San Francisco-based industry advocacy group Wine Institute and trade groups Napa Valley Vintners and Sonoma County Vintners alerted their members about the risk of such legal actions and provided some tips that could start them down the road toward solutions.

“We’ve urged our members to review the accessibility status and make changes,” Novi said.

The last circular to its 550 members went out in December, just after a wave of California filings in November. The Napa group plans to hold a webinar for its members soon on compliance strategies.

But the challenge for vintners has been to rapidly upgrade their online presence during the pandemic to reach existing and new customers, according to Michael Haney, executive director of Sonoma County Vintners.

“One thing the pandemic did is force wineries to get into the digital age, and we saw wineries do that brilliantly,” he said. “There are best practices to make sure websites are accessible and open to all. We want all consumers to get to the website.”

Typical of the approach by plaintiffs in these lawsuits are the allegations against Brown Estate Vineyards LLC in Napa County, filed Dec. 8.

The complaint said Gomez visited the winery’s website in March and August 2021 “with the intent to purchase wine, or do some wine tasting, or potentially experience making their own wine” but “encountered numerous accessibility design faults that prevented him from navigating the site successfully” using screen-reader software.

Those impediments, according to the document, included lack of text descriptions for images, too low of contrast between background and foreground elements, lack of keyboard accessibility and a user interface that doesn’t have built-in instructions for assistive devices.

Brown Estate Vineyard settled the case on Jan. 13, but terms weren’t disclosed.

Quick settlement of these cases is common, according to Arif Virji, an attorney with Carle Mackie Power & Ross in Santa Rosa. He represents about a dozen wineries in Napa and Sonoma counties in these cases. He said California — and Wine Country, in particular — has become a “hotbed” for these cases.

“The lawsuits are currently focused on wineries, but we expect that all Northern California businesses will be targets sometime in the next six months,” Virji said.

Graph of ADA Title 3 website accessibility lawsuits in federal court shows an increase of 256% in 2017-2021. (courtesy of Seyfarth Shaw LLP)
Federal lawsuits on website accessibility have more than tripled in the past five years. (courtesy of Seyfarth Shaw LLP)

In federal courts alone, the number of federal website accessibility lawsuit filings has jumped 256% in the past five years, to 2,895 in 2021, according to Sacramento-based law firm Seyfarth Shaw LLP, one of the major go-to law firms for the wine industry in these cases.

New York had the most, with 2,074 filings, followed by California at 359 and Florida at 185. The law firm noted that California has so few cases compared with New York because many such filings are in state courts, as California law in this area is more stringent.

The federal cases seek relief under Americans With Disability Act’s Title 3, which governs accessibility at businesses.

Originally written to cover physical access to the premises, which spurred a round of lawsuits about wheelchair access to tasting rooms, restaurants and other venues over a decade ago, Title 3 has been interpreted in the courts to apply to also apply to websites. California adopted ADA and Section 508 of the federal Rehabilitation Act into its Unruh Civil Rights Act, codified in California Civil Code section 51.

Virji pointed out that the existing teeth under the ADA and Unruh can be substantial. ADA violations are strict liability, so intentional discrimination isn’t necessary to prove, but remedies are limited to injunctive relief and reasonable attorney’s fees. But Unruh has minimum damages of $4,000 per violation, going up to three times actual damages.

Firm rules for website accessibility have been murky. In 2010, the U.S. Justice Department started toward rulemaking on applying ADA Title 3 to website accessibility, but that effort languished since.

Until the federal standards are established, courts have pointed to those developed by the World Wide Web Consortium, a global group commonly known as the W3C and recognized as the go-to source for how the websites should be built.

Its Web Content Accessibility Guidelines, or WCAG, have three levels of compliance: A, AA and AAA. The latest version is 2.1, released in 2018, and version 2.2 is set to be released in a few months, with version 3.0 set to roll out next year. Courts have pointed to WCAG 2.1 AA as the accessibility benchmark for businesses.

In early March, 181 accessibility advocacy groups wrote a joint letter to the Department of Justice, asking for action on rulemaking for website standards. The agency responded on March 18 with guidance that largely restated previous instructions for ADA website accessibility, according to the law firm Seyfarth Shaw.

Meanwhile, National Federation of the Blind, one of the signatories to that letter, has been backing Congressional action on developing standards and for providing a clear path for businesses to fix website problems before litigation, according to John Pare, executive director for advocacy and policy.

“We are disappointed that some attorneys seem to be more interested in a quick monetary settlement as opposed to working with companies to ensure that their website is accessible,” Pare said.

Because of the growing number of lawsuits over website accessibility, specialty consulting businesses that audit and fix websites have emerged in recent years, in addition to added services in this area by traditional website development companies.

This problem has spawned a newer form of these consultancies that develop software with varying levels of automation that website owners can install to quickly provide what is intended to be a standards-compliant accessible experience. For example, a visitor can change the colors of certain elements to be more high-contrast or not have colors that can’t be seen by some with certain conditions.

Some of the North Coast vintners named in the lawsuits have such software, called overlays, running on the websites named in the complaints. For example, defendant Jackson Family Wines contracts with AudioEye for software running on its Matanzas Creek Winery website, which was named in a complaint, and its corporate sites.

Another defendant, Cline Cellars, uses the accessiBe service on its site and others in the portfolio.

David Moradi, CEO of AudioEye, said these legal actions are just getting started.

“This is a massive problem,” he said. “There are 1.9 billion websites in the world, and the traditional approach to do everything at the source, which advocacy groups prefer, that will not scale.”

In addition to automated solutions that alter the website to accommodate visitors’ visual, auditory and other challenges, the company provides quarterly audits of client websites to highlight problems that their information technology team or consultants should prioritize for fixes. The company said it has 75,000 to 85,000 clients.

The firm knows of two of its winery clients that have been sued. The certification statement that is included in the website software package notes what standards the site is meeting and what the plan for review and upgrades is. Such a statement can be part of the litigation defense, according to Dominic Varacalli, AudioEye’s chief operations officer.

But National Foundation of the Blind’s board last year passed a resolution that was skeptical of the suitability of overlay software to automatically fix accessibility issues with websites.

Jeff Quackenbush covers wine, construction and real estate. Before the Business Journal, he wrote for Bay City News Service in San Francisco. He has a degree from Walla Walla University. Reach him at jquackenbush@busjrnl.com or 707-521-4256.


Correction, April 4, 2022: Sojourn Cellars was not named in the lawsuit against Cline Cellars.

Show Comment

Our Network

The Press Democrat
Sonoma Index-Tribune
Petaluma Argus Courier
North Bay Business Journal
Sonoma Magazine
Bite Club Eats
La Prensa Sonoma
Sonoma County Gazette