Northern California winery website accessibility lawsuits face judicial pushback

Some judges are pushing back on a recent wave of federal lawsuits against North Coast wineries and other California businesses over the accessibility of their websites to those with disabilities.

Over six dozen complaints have been filed in federal court against North Coast vintners, according to court records. The cases mostly were opened since last fall and by one plaintiff — Andres Gomez, described as a Miami man who is legally blind — and one law firm, Southern California-based Potter Handy.

Roughly one-third of those wine-related lawsuits already have reached settlements, court records show. At stake are damages under state law of $4,000 for each proven example that a website frustrated visitors using assistive tools such as screen readers, while federal law largely allows for damages of attorney’s fees.

Terms of court settlements are confidential. However, a parallel lawsuit against Potter Handy filed in state court April 11 by San Francisco and Los Angeles prosecutors asserts that the firm in the few thousand similar cases it has filed in recent years regularly asks for settlements north of $10,000, a choice many small businesses opt for as the cost to defend these cases can be $50,000–$100,000, according to that legal filing.

The Henry family of Napa Valley wine grape growers and vintners have found themselves in that dilemma.

For 83 years they have been farming the ranch on the northwest outskirts of Napa, and the Henry wine brand launched three decades ago. As a producer of about 15,000 cases annually and with only by-appointment public access to the 2-decade-old production facility and tasting room, the website is critically important, according to Michael Hendry, part of the second generation of family ownership.

“It is a choice of throwing away $100,000 or $20,000,” Hendry said.

But Hendry Winery’s legal team at Dickenson Peatman & Fogarty in Napa is among those that are opting to take the matter farther in court, encouraged by what they say are unusual developments in accessibility law in the past month.

First, some prosecutors in the state have sued Potter Handy to stop “serial filers” from taking advantage of the Unruh Act, California’s complement to the federal Americans With Disabilities Act.

Second, at least a few federal judges in the North Coast website accessibility cases have issued orders for Gomez and his legal team to show why they should consider California damages in the federal cases.

On April 11, district attorney’s offices of San Francisco and Los Angeles filed a 58-page complaint in San Francisco Superior Court, detailing the Legislature’s multiple attempts in the past two decades to stop abuse of Unruh. The action alleges that after state lawmakers in 2015 tightened the rules for filing Unruh cases in state courts that such claims took the cases to federal court. The prosecutor’s lawsuit seeks to stop the firm from pursuing such cases, pay back the settlements and penalize the attorneys involved $2,500 per violation.

Potter Handy attorney Dennis Price, who speaks for the firm, didn’t respond to requests for comment on the prosecutors’ case or the website accessibility cases. He did send this reaction to Bloomberg on the San Francisco-Los Angeles suit: "It is unfortunate that these DAs are picking on disability access advocates for political reasons. Both DAs are facing serious recall threats and are filing these claims in order to generate support."

Then on April 19, the federal judge in the case against Muscardini Cellars in Sonoma Valley issued an order to show cause, requiring Gomez to demonstrate within 21 days why the court “should not decline supplemental jurisdiction over the Unruh Act claim.”

That jurisdiction is the customary practice of federal courts taking into consideration state law claims, except in “exceptional circumstances,” wrote Judge Vince Chhabria. The judge pointed to 2021 and 2022 decisions in federal district and appellate cases that “high-frequency” litigants can be considered as such “exceptional circumstances.”

Such orders to show cause also have been issued in at least the cases against Raymond Vineyard in Napa Valley. But attorneys involved in those cases say they plan to ask the judges in their other cases involving Gomez to also consider issuing such orders.

An earlier order to show cause was issued April 8 in the case against another Napa Valley vintner, Kieu Hoang Winery. In that action, Judge Susan Illston pointed to testimony in February from Gomez in a website accessibility case against Gates Estates Sotheby’s International Realty in Calistoga that he did not presently intend to visit the valley but enjoyed “window shopping” of properties on local real estate sites.

Illston referenced 2019 and 2021 federal district and appellate decisions in determining that “it appears there is no basis for a claim under the Americans With Disabilities Act, and thus this Court lacks subject matter jurisdiction.”

But Potter Handy attorney Christopher Seabock filed a response by Ilston’s April 8 deadline that leaned heavily on the U.S. Department of Justice’s March 18 guidance on web accessibility under the ADA.

“It is not necessary that an individual intend to visit the physical business in order to sue for lack of accessibility of the website,” Seabock wrote.

Jeff Quackenbush covers wine, construction and real estate. Before coming to the Business Journal in 1999, he wrote for Bay City News Service in San Francisco. Reach him at jquackenbush@busjrnl.com or 707-521-4256.