Venturing Into Uncomfortable Places
Readers of this blog know that I spend a lot of time talking about “standing to sue.” For instance, I’ve talked about it in the context of Rizzi v. Hilton Domestic Operating Co. (E.D.N.Y. 2020) and in the context of testers in hotel reservation cases (some going in the defendant’s favor and some going towards the plaintiff). But more recently, I’m finding myself venturing into some “uncomfortable places” and even rethinking some very conservative opinions on standing.
So why am I venturing into these places? Well, it’s a growing feeling based on the thousands of lawsuits over web accessibility. Jason Taylor reports that we are on-track to hit 4,195 federal lawsuits on web accessibility in 2021. I think his numbers and logic are rock solid. While 4,195 may seem large, it doesn’t capture the full breadth of the problem, however, because it doesn’t include the thousands of demand letters, state claims, and administrative complaints. Web accessibility litigation has become an industry among plaintiff firms. In fact, at Converge, we were approached by a plaintiff law firm asking us to review hundreds of URLs of private companies to find ones with violations that they could sue. Obviously, we turned down the work but it reveals a basic fact: it’s simply too easy to bring web accessibility lawsuits and, in most cases, plaintiffs aren’t suffering any “harm” because they never had an intention of becoming customers.
The second reason has to do with the Supreme Court’s recent decision in Whole Woman’s Health v Jackson (U.S. 2021), which involved Texas law SB8 (which authorizes private citizens to sue anyone who aids or abets the performance or inducement of an abortion for a minimum of $10,000). Obviously, I’m not going to get into a discussion of abortion rights in this blog. Instead, I’m just going to focus on it at a procedural level. My first thought on reading about Texas law SB 8 was, “how would I possibly have standing to sue my neighbor because he drove his wife to an abortion clinic?” Examined at this level, SB 8 could have prohibited people dying their hair green and I’m suing now my green-haired neighbor. So, it doesn’t matter whether I’m pro-choice or anti-abortion; I’m not suffering an “injury” based on my neighbor’s decision so I shouldn’t get to sue him. Now, granted, SB 8 will likely be litigated in Texas state courts, which may interpret standing to sue very differently. But, if SB 8 was Federal legislation, I think it would be pretty easy to challenge the first time anyone tried to enforce it just on the basis of standing.
Uncomfortable Place Number One
And that brings me to Uncomfortable Place Number One—Justice Kavanaugh’s opinion in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (U.S. 2021), which was one of those judicial opinions that was fun to read. Why? Well consider the facts. TransUnion is one of the largest credit reporting agencies in the country. The U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) maintains a list of terrorists, drug traffickers, and other serious criminals and Federal law prohibits anyone in the United States from doing business with anyone on the OFAC list. So, TransUnion created a “product” called “OFAC Name Screen Alert” that compared only the creditor’s first and last name with the Treasury Department’s OFAC list and, if the names matched, alerted the customer that there was a “potential match.” Thus, if someone named “John Smith” was on the OFAC list, then every person named “John Smith” in America would be flagged as a potential terrorist whenever they needed to have a credit check run on them (e.g. when taking out a car loan, mortgage, credit card application, etc.). What could possibly go wrong with that idea, right?
Not surprisingly, it didn’t take long for problems to pop up. Sergio Ramirez was one of those unlucky people who happened to have the same name as a person on the OFAC list—a fact he discovered when a car salesman at a local dealership refused to sell him a car. Mr. Ramirez was obviously upset to be labelled a potential terrorist and so he sued TransUnion in a class action lawsuit under the Fair Credit Reporting Act (FCRA). The class included 8,185 individuals; of these, only 1,853 could show actual harm (such as being denied credit like Mr. Ramirez). The remaining 6,332 individuals were flagged internally at TransUnion as being on the OFAC list but their credit reports were never sent to a third-party (e.g. a car dealership extending a car loan). And so the real question was whether those 6,332 individuals had standing to sue TransUnion.
The FCRA was signed into law in 1970 by President Nixon. It requires credit reporting agencies like TransUnion to engage in a number of specific fair business practices and, when violated, authorizes private citizens to sue for actual damages or for statutory damages of not less than $100 and not more than $1,000.
I won’t dive too deep into Justice Kavanaugh’s opinion but here is the Reader’s Digest summary. There is a distinction between “legal injury” (which can be created by statute) and a “concrete harm” (a physical, monetary, or cognizable intangible harm). And, while Congress can identify a legal injury, it can’t confer a concrete harm; instead, it is the job of plaintiffs to identify that harm and the job of the courts to screen out cases where concrete harm doesn’t exist. Under that logic, I can’t sue my neighbor for driving his wife to have an abortion, even if the legislature says I can, because I don’t have a concrete harm. Okay, easy enough.
Uncomfortable Place Number Two
It shouldn’t be a surprise that my first Uncomfortable Place would lead naturally to my second one—disagreeing with Justices Kagan, Breyer, Sotomayor and (oddly enough) Clarence Thomas. All four justices take the position that the majority’s opinion makes no sense—Congress creates individual rights (and the right to sue) all the time. For instance, Congress authorizes suing for Copyright violations even without showing actual damages. And, when companies like TransUnion engage in reckless behavior (i.e. clearly they must have predicted that people like Mr. Ramirez were going to be injured), Congress can create a means for individuals to sue to prevent that kind of behavior even without showing an injury. The three liberal justices differ from Justice Thomas only insofar as they believe that Article III still requires a concrete injury—it’s just that Congress can decide what constitutes a concrete injury.
I disagree with the idea that Congress is the best judge of what constitutes a concrete injury simply because they don’t decide matters on a case-by-case basis. Take Sergio Ramirez, for instance. I don’t doubt that anyone would think that Mr. Ramirez suffered a “more significant” injury than the 6,332 individuals who never had their credit reports disclosed. When Congress wrote the Fair Credit Reporting Act back in 1972, I don’t think they could have envisioned that companies like TransUnion would create an “OFAC Name Screen Alert”—or what the impact of that product could be on consumers. Instead, plaintiffs like Mr. Ramirez-- and the members of his class—have to use a blunt and imprecise tool like a fifty-year old law to decide who is entitled to bring a lawsuit and then it is up to the court to decide who really suffered a concrete injury and is entitled to bring a lawsuit. And I don’t think it’s extending the Court’s power too far to say that the courts should be the ones determining whether Mr. Ramirez suffered a concrete injury while the 6,332 individuals who never had their OFAC status released do not have a concrete injury.
Also, I think the liberal judges and Justice Thomas tend to mix up damages with injury. What do I mean by that? Statutes like the Copyright Act (cited by the justices) and the FCRA permit lawsuits even if the plaintiff cannot prove actual damages. To establish actual damages means being able to point to something specific—like a broken leg and lost earnings—that a court can wrap a dollar figure around. Sometimes, however, damages are more subtle. For instance, not being able to buy the car you were all set to buy (e.g. Mr. Ramirez) or having to go to a different website to buy a product being sold on an inaccessible website. In these cases, a plaintiff may not be able to say exactly how much compensation they deserve in dollars even though they have an injury nonetheless. And, in some of these cases, laws like the FCRA permit liquidated damages between $100 and $1,000.
So What Does Any of This Have to Do With Web Accessibility?
So what does the Justice Kavanaugh’s latest thoughts on the Fair Credit Reporting Act and a controversial Texas abortion law have to do with web accessibility? Well, just about everything because all three hinge on standing.
It’s basic common sense that I shouldn’t be able to sue someone else unless I am personally affected (or “injured”) by that person’s actions. Otherwise, it simply isn’t any of my business. I shouldn’t get to sue my neighbor because he dyes his hair green, drives a lousy car, or helps his wife have an abortion unless I can personally show that it affected me. Otherwise, it simply isn’t any of my business—even if my legislature says it is. And similarly, I think it makes perfect sense that the courts should thrown out web accessibility cases where the plaintiff cannot show that they had any legitimate interest in becoming a customer.
It may seem ironic that Justice Kavanaugh’s opinion in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (U.S. 2021), provides a sound response against laws like Texas S.B. 8 when someone tries to enforce it. But it also can help stem the tide of web accessibility litigation, where plaintiffs use cookie cutter complaints that focus on common issues caught by automated scanning tools. Instead, TransUnion requires plaintiffs to show how they were injured in a very specific way instead of relying on general violations that affect wide groups of plaintiffs. For instance, instead of simply alleging that a site includes images with missing alternative text and missing form labels, a plaintiff should be required to identify exactly what they were looking for, why they were unable to find it, and what they had to do because the site was inaccessible. That’s not the kind of complaint that can be just copied-and-pasted between hundreds of identical complaints. Instead, it actually requires a bit of work by the plaintiff’s attorney.
Are there problems with this approach? Absolutely. As cases like Rizzi v. Hilton Domestic Operating Co. (E.D.N.Y. 2020) make clear, courts can go too far and impose almost impossible requirements for plaintiffs to establish that they have a concrete and particularized injury. It also means that, when it comes to correcting broader public rights, we have to rely on public prosecutors more. For instance, if my neighbor is polluting in his yard but the winds blow in the opposite direction, I won’t be able to sue her but my state attorney general can. Or if a credit union that I’m not eligible to join has an inaccessible website, I shouldn’t be able to sue them to fix their website—but the Department of Justice can.
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