Before we even announced Converge Accessibility a week ago, we already had three clients whom we were helping with website accessibility cases. Then, when I called a relative to ask about his mom this last week and he asked me what I was working on, he said, “oh really? We just got a demand letter too.”
All of these cases will settle quickly and likely with a consent decree or a settlement agreement. But I thought it may be useful to revisit a blog post I prepared months ago on the topic of avoiding future lawsuits after your company has already been sued once. This involves two related legal concepts—mootness and res judicata.
Let’s start with some simple definitions. First, a claim is “moot” if the harm that gave rise to the lawsuit has been eliminated. So, in a typical ADA lawsuit involving a barrier to users with disabilities (e.g. a physical barrier such as a set of stairs with a ramp or a technological barrier such as in inaccessible website), the defendant can claim a mootness defense if they simply added a ramp or made their website accessible. Then the only issue would be whether the plaintiff’s attorney can recover attorney’s fees. The reason for this is because ADA Title III only permits a private plaintiff to sue for injunctive relief and attorney’s fee. Injunctive relief, in this case, would be a court order requiring the defendant to eliminate the barrier—so that claim would be moot once the barrier was removed. Note that laws like California’s Unruh Act also allow a plaintiff to also recover for monetary damages in addition to injunctive relief. So, while the claim for injunctive relief may be mooted, the claim for monetary damages could continue.
Res judicata is a slightly different legal concept. It means that, once a claim has been decided by a proper court, it shouldn’t be relitigated again. For instance, Jane and Bob enter into a contract but Jane feels that she has been cheated. So she sues Bob and claims that Bob didn’t pay her the full amount she was owed under the contract. The case goes to trial and the court finds that Bob paid Jane what the contract requires. Later, Jane claims that Bob tricked her into signing the contract and brings another lawsuit claiming fraud. Bob could defend this case by claiming res judicata because this claim was part of the first lawsuit and was already decided. There is also a very closely related legal principle called “collateral estoppel” that would allow Bob to make a defense if the issue—and not the claim—was being relitigated.
Settling with a Regular Settlement Agreement
So let’s see how some of these legal concepts have played out in recent litigation—and let’s start with the way most defendant’s settle their cases—with a plain old settlement agreement. This is basically a contract that, in exchange for certain promises by the defendant, the plaintiff will drop their lawsuit. In web accessibility cases, these settlement agreements usually require the defendant to fix their website within a specific period. For instance, it may require the defendant to make their website conform to WCAG 2.0 A/AA within six months. While the first plaintiff can’t sue the defendant for the same claim (that their website was inaccessible) because of the settlement agreement, can someone else sue them?
This is pretty much what happened in Haynes v. Hooters Restaurants of America, 893 F.3d 781 (11th Cir. 2018). In this case, Mr. Gomez sued the famed restaurant chain and settled the case a few months later. The settlement agreement required Hooters to make their website accessible within six months and the parties agreed not to refrain from litigation for two years. Shortly after the six month period expired (but before the two year period expired), Mr. Haynes brought a similar lawsuit against Hooters. In both cases, Mr. Hayne’s and Mr. Gomez’s claims were based on Title III of the ADA and sought injunctive relief and attorney’s fees.
Hooters claimed that Mr. Hayne’s case was moot. At first, Hooters succeeded in convincing the trial court that the claim was moot but then lost on appeal to the Eleventh Circuit Court of Appeals. First, while Hooters had made progress in updating their website, there was no evidence that their site was fully accessible. Second, even though Mr. Gomez’s settlement agreement may include a requirement for Hooters to make its website accessible, Mr. Hayne’s could still seek a court injunction requiring Hooters to make their site accessible. Again, remember a settlement agreement is basically a contract—and that is a very different thing from a court order compelling Hooters to make their site accessible. Lastly, because Mr. Haynes was not a party to that contract, he couldn’t enforce it.
The real impact of Hooters is that settling with a settlement agreement is risky. On the one hand, it’s usually a quick and easy way to get out of litigation. Plus, you don’t risk being in contempt of court if you violate a settlement agreement, but you can be if you settle with a consent decree (next). On the other hand, unless your company is really serious about making your website accessible quickly, it offers no guarantee that you won’t be sued for exactly the same issue again. These are all important issues to discuss with your attorney.
Settling with a Consent Decree
A consent decree is a regular settlement agreement that is reviewed by and approved by the court. The big difference for lawyers is that, if one of the parties to the consent decree violates a term of the consent decree, it is violating an order of the court. This makes a consent decree a bit tougher on the parties. Also a consent decree is a public record so it can usually be discovered with some careful digging through specialty legal databases online.
While these factors may make it sound like a nightmare for defendants in a web accessibility lawsuit, a consent decree does offer one big advantage—in some cases, it can offer a defendant a “grace period” in which it will be much harder to sue them. To understand why, let’s look at what happened a few months ago when a blind individual (Nelson Fernandez) sued the fashion house Dolce & Gabbana in Florida for its inaccessible website. As in the Hooters case, D&G had been sued earlier but settled that case with a consent decree. For D&G, this first case was brought in New York State by Anneth Lezcano. And, when Mr. Nelson sued D&G, the company didn’t claim that the case was barred by mootness but instead claimed that Mr. Nelson’s case was barred by res judicata.
Remember that res judicata is intended to prevent the same issue from being relitigated in the courts. While formulations differ between courts, a rough generalization of the requirements for a res judicata to succeed are: (1) a claim was decided by a proper court, (2) there was a final judgment, (3) the prior claim involved the same parties, and (4) the claims are the same.
Because both Mr. Fernandez and Ms. Lezcano based their claims on D&G’s website being accessible to blind users, they both have identical claims so the fourth requirement of res judicata is met. But what are the first three requirements? First, D&G could be sued in New York just as easily as Florida so both courts had jurisdiction. Second, a consent decree is considered a final judgment, even though it didn’t come about through a trial. Third, while Mr. Nelson wasn’t a party to the first lawsuit, adequately represented the interests of Mr. Nelson through the scope of her claims and the thoroughness of the consent decree. Fernandez v. Dolce & Gabbana USA Inc., 2020 U.S. Dist LEXIS 28182 (S.D. Fla. 2020).
Even though the Fernandez case looks like it is on appeal to the Eleventh Circuit, I suspect the use of res judicata to defend against cases should pick up some steam in the coming months. More importantly, it’s an important tool that defense attorneys can use to convince plaintiff’s attorneys to think twice about spending too much time and money harassing your client.
Nothing in this post should be interpreted as constituting legal advice and you should always consult a qualified attorney in your area to discuss your situation.
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