California's laws regarding website accessibility pose numerous potential risks for companies, with penalties per violation of up to $7,500 under the California Consumer Privacy Act ("CCPA") and $4,000 under the Unruh Civil Rights Act ("Unruh Act").  Recently, an appellate court in the Fourth District further clarified the exact reach of California's jurisdiction to almost any website that sells to California residents, even if such activity is not explicitly directed

In the case of Thurston v. Fairfield Collectables of Georgia, LLC filed August 26, 2020 in the Court of Appeals of California, Fourth District, Division Two ("Thurston v. Fairfield"), the court broadly applied California website accessibility laws to a Georgia-based company.  We summarize the details of the lawsuit below, changes that can be made to address accessibility and why businesses need to implement these changes now.

What Happened in Thurston v. Fairfield?

Fairfield Collectables of Georgia ("Fairfield") is an online retailer, selling diecast models of cars and other vehicles utilizing print catalogs and the internet, and is the largest retailer of diecast models in the United States.  While Fairfield did not direct any marketing to California specifically, Californian consumers accounted for 10% of its consumer base, and 8% of its total sales, with total sales to California addresses totaling around $320,000 to $375,000 a year.

Thurston, a "tester" user who has previously filed suits under the Unruh Act, then sued Fairfield in California's state courts for violations of WCAG guidelines ¹.  Thurston claimed that due to Fairfield's web design, she was unable to use or navigate their website, and deterred her from purchasing any of Fairfield's products.  The fact that Thurston never made a purchase on the website in the court's opinion was "a distinction without a difference." In light of this, even if an individual does not consummate a sale, they may still have a claim against the website owner.  Businesses should be mindful that websites must be accessible to all potential customers or website visitors, not just current customers.

How Does a California Court apply California Law to a Georgia Company?

Fairfield moved to quash the initial lawsuit, believing that there could be no jurisdiction over Fairfield as it had no connection to California: it did not specifically conduct business in the state, did not have any offices in the state, or have any employees within the state.  The trial court granted Fairfield's motion, leading to Thurston appealing the matter.

At issue on the appeal was whether or not Fairfield was subject to "purposeful availment" to California's jurisdiction. Purposeful availment is a concept whereby a business or person seeks the benefits from a state, whether they are the laws of a state or the market within the state.

The general rule for whether websites create purposeful availment with a particular state is a sliding scale.  Online businesses with websites that are used to conduct business, enter contracts and involve repeated transmission of files are more likely than not considered to be availing themselves to personal jurisdiction within a state. These websites are typically considered as "interactive websites." However, websites that are just present for informational purposes, like a blog, are considered "passive websites" and are unlikely to be subject to personal jurisdiction.

In addition, California may review supplemental information such as marketing efforts directed at California residents or sales made to California consumers. Previously, California jurisdiction has been extended to a Nevada hotel chain that had no physical presence in California, and has been similarly extended to a business where only 1% of its annual sales came from Californians ².

In Thurston v. Fairfield, it is unsurprising that the appellate court deemed that Fairfield had substantial connections with the State, as it had made approximately 8% of sales to California residents, totaling over $300,000 a year.

Finally, the court deemed that it was perfectly reasonable to apply jurisdiction, as (1) Fairfield could always elect to not sell to Californians and (2) contrary to Fairfield's concerns, this decision did not rule on whether the Unruh Act applied to Fairfield ³.

How to Address Accessibility

Compliance with the Web Content Accessibility Guidelines (WCAG) is challenging.  There are many considerations and technical issues to truly make your website accessible for all people living with disabilities. - SaaS companies often claim that products, such as Java Script Overlays can address accessibility, but these generally do more harm than good as it relates to SEO & Page Load Speed.  Ultimately, this may not move you any closer to compliance than you would be by doing almost nothing, which is not where you want to be in the process. Similar results can occur with Scanning Tools – many companies hit with these accessibility lawsuits or claims of non-compliance are often surprised to find out the scanning tool(s) they have run historically only checks for about 1/3 of the WCAG Success Criteria; leaving them very open to claims from disabled consumers.

Now more than ever, with the precedence set for the need to comply with the CCPA and Unruh Act as well as the historical and ongoing need to be ADA compliant ⁴, it is extremely important to engage with a 3^rd Party Accessibility Expert to accurately gauge where your website stands today with respect to accessibility and how you can take actionable and relevant steps to make it compliant moving forward. Companies like Accessible360 (“A360”), a national live-user auditing firm, can complete this important evaluation and provide guidance on the technical means for a website to achieve compliance.  A360 performs manual, human-driven audits of websites and digital properties that include individuals with full blindness to ensure you are in fact complying in full with the WCAG Guidelines. They note that their process is built on a roadmap of showing actionable improvements, starting with the baseline measures of adding things like an Accessibility Statement, posting their badge to show you have in fact engaged a 3^rd Party Auditing Firm and then working with their team of experts to break out the deficiencies on your site into manageable stepson your path compliance. A360 has worked on many of the landmark accessibility cases as it relates to the ADA regulation of websites, and understands all of the relevant requirements that may apply to your company’s website even as these are rapidly developing.  We would be happy to pass along their contact information if your team is serious about compliance moving forward.

Accessibility Is Critical

As of 2020, California has the 5^th largest economy in the world, and presents a lucrative consumer base.  Businesses across the United States should keep an eye on Thurston v. Fairfield, as this suggests that any websites used by California residents may be subject to the website accessibility requirements of the CCPA and the Unruh Act.  Furthermore, while this type of litigation is becoming more prevalent in California, similar litigation concerning website accessibility arising from the Americans with Disabilities Act (ADA) has occurred within federal courts of other states, such as New Hampshire, New York, Florida, and Massachusetts.  In short, even without California's accessibility requirements, the ADA may dictate that website accessibility is required.

Commerce has been substantially shifting further away from brick-and-mortar locations to the internet, and with the current pandemic driving further demand for online shopping and other services, accessibility cannot be overlooked.  It is now more important than ever for businesses to implement or refine a compliance plan for website accessibility.

If you would like more information on how Newmeyer Dillion or A360 can assist you with ADA compliance, please contact us and we can guide you through the process.

¹ https://www.w3.org/TR/2018/REC-WCAG21-20180605/

² The Court cites two cases, Snowney v. Harrah's Entertainment, Inc.(2005) 35 Cal.4th 1054, 1062 (concerning a Nevada hotel chain which touted the proximity of their hotels to California and was found to have derived a benefit from Californian consumers) and As You Sow v. Crawford Laboratories, Inc.(1996) 50 Cal.App.4th 1859 (exerting jurisdiction over an Illinois paint manufacturer with less than 1% of sales coming from California, concerning a lawsuit based on California's Proposition 65)

³ While the appellate court did not apply the Unruh Act, it did push the case back to the trial court, where that specific question will be resolved.

⁴ As mentioned in our prior publications and discussed further below, the Americans with Disabilities Act ("ADA") requires places of public accommodation to provide accommodations to those with disabilities and can be deemed to require website accessibility under certain circumstances.