Earlier this week, on April 29, 2013, a man with hearing impairments filed suit against Bed Bath & Beyond alleging that it failed to provide captioning or a transcript for the product promotional video on display in its Los Angeles-area store. The suit alleges that the videos provide valuable information to shoppers that enables them to make better buying decisions, but the videos are not accessible to him and others with hearing impairments.
The plaintiff in the case, Alexander Johnson, sues frequently in California courts over a variety of issues. On the same day he sued Bed Bath & Beyond, he filed at least five other access lawsuits in L.A. Superior Court against other public accommodations. There is a distinct possibility that Mr. Johnson and his lawyer are exploring the possibility of serial claims in this area, but certainly other deaf or hearing-impaired plaintiffs could challenge under a similar theory.
Those who think that this is yet another example of California lawyers and litigation run amok should take note of a recent decision from one of the most conservative appellate benches in the country. In Feldman v. Pro Football Inc. (4th Cir. 2011), the Fourth Circuit Court of Appeals held that the Washington Redskins had to provide captioning of the lyrics to the songs to which the Redskins’ dancers danced, among other aural content conveyed at the stadium for its deaf and hearing-impaired fans. This case represents the application of the same principles to the retail context.
The potential for this kind of lawsuit is not limited to retailers, although they may be the most likely to make use of videos. Many sports and entertainment venues, hotels, airlines, and other kinds of private businesses make use of videos in interacting with their customers and should make sure ideally that they are captioning any video or film content, or at least providing a transcript that presents the aural content. When the producers of the videos or films are third party vendors, be sure to ask them to provide a captioned product and/or to agree to indemnify you should you be sued for the inaccessible product.
David Raizman is a shareholder in the Los Angeles office of Ogletree Deakins.