Who tests the ADA testers?
ADA and digital accessibility litigation are full of claims filed by “testers.” How far should that be allowed to go?
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Testers are individuals who have no intention of ever buying the product or visiting the location the website revolves around.
Testers only visit websites or physical locations to determine whether or not they are compliant with the Americans with Disabilities Act or a soft target for a demand letter or lawsuit. They then pass their test results along to their associated law firm, which generates the official paperwork identifying the tester as the potential plaintiff.
A less nice term for “ADA tester” is “serial plaintiff” — some of these individuals are listed as plaintiffs on hundreds of lawsuits, with dozens being filed in a single day.
An even less nice term is troll. I can’t put the other terms I’ve heard used in a family publication.
Headlines like “Robbing Beyonce Blind: The ADA Litigation Monster Run Amok” are written by people (usually without disabilities) indignant about the costs of digital accessibility ADA lawsuits filed against businesses such as New York art galleries, colleges, and Beyonce, to name a few.
Now the pendulum is swinging back.
Judges really hate two things:
- Forum shopping (looking for a favorable court to file a lawsuit, then stretching the facts of the case to support it), and;
- Insincerity, expressed either by litigants or their attorneys.
New York is one of the favorite jurisdictional destinations of serial plaintiffs, with almost half of 2020 ADA litigation being filed there. New York federal courts have not been silent about their disdain for ADA testers filing serial accessibility litigation.
The first New York commentary on digital ADA testers that I know of occurred in Diaz v. Kroger…