Legal Update: December 2021

Happy New Year! Because of my crazy schedule, I’m pulling together this post on the last day of 2021 but it won’t go live until after the New Year. It’s been a real pleasure pulling together my monthly legal update posts and we hope to continue to keep our readers informed about the latest updates in web accessibility in 2022 and beyond! Thanks for joining with us!

While I’m sure December was an active month for new web accessibility cases, it was eerily quiet for judicial opinions. The only noteworthy case that came up this month is Quezada v. U.S. Wings, 2021 U.S. Dist. LEXIS 234057 (S.D.N.Y. 2021). In this typical web accessibility case, Jose Quezada alleged that he could not access the goods and services on the U.S. Wings website because the website was not accessible to his screen reading software. U.S. Wings moved to have the complaint dismissed on three grounds—and I thought the court’s analysis was worth discussing.

Using AccessiBe Won’t Help Your Mootness Argument

First, U.S. Wings asserted that it had contracted with AccessiBe to make its website accessible—thus making Quezada’s complaint moot. While the court did not discuss the controversy over whether services like AccessiBe’s actually improves accessibility, it did note that, because Quezada’s expert still found accessibility problems after U.S. Wings used AccessiBe’s services, it need to deny the defendant’s mootness claim because they had not “met its 'formidable' burden of demonstrating that it is 'absolutely clear' that the website has been brought into compliance and will remain as so.” Id. at *7 (quoting Diaz v. Kroger Co., 2019 U.S. Dist. LEXIS 93177 at *2 (S.D.N.Y. 2019). This makes sense; as we’ve discussed several times in this blog, establishing a mootness claim is very hard in web accessibility cases.

Finding Intent to Return is All in the Eye of the Beholder

Second, U.S. Wings also asserted that Quezada did not have standing because he did not show a clear intent to return to U.S. Wing’s website. We’ve discussed this element of standing before in the context of hotel online reservation systems, but U.S. Wings gives us an opportunity to investigate it more closely. Title III of the Americans with Disabilities Act (ADA) only allows private plaintiffs to obtain attorney’s fees and injunctive relief to address the harm suffered by the plaintiff. In an accessibility case, this harm is the inability to take advantage of the goods and services of an organization because of accessibility barriers. There isn’t any point in curing these accessibility problems, however, if the plaintiff isn’t likely to return. Being able to demonstrate an intent to return is vital for plaintiffs in web accessibility cases and some defendants, such as credit unions, have been very successful in having web accessibility cases dismissed when plaintiffs could not meet this burden. Identifying that intent, however, is a very fact-specific determination and so courts have focused on different factors in finding that intent. For instance,

  • Has the plaintiff visited the site many times or just a few times?
  • What was their motivation in visiting the website?
  • Would the plaintiff continue to have a reason to return if the website was accessible?
  • If the defendant offers delivery service, does it reach the plaintiff’s residence?

For U.S. Wings, it appears that it was this last factor—availability of delivery service—that the court focused on the most in denying the defendant’s motion to dismiss. In general, I think this outcome makes sense. As the court noted, identifying a clear intent to return is a highly fact-specific inquiry. The problem is that, when this challenge arises in a motion to dismiss, the parties haven’t undertaken discovery so the facts can’t usually establish a clear intent. Thus, defendants usually don’t succeed with this argument—unless the plaintiff lives thousands of miles away and is ineligible to use a company’s services (e.g. credit union cases) or the plaintiff was planning a vacation to a region that they don’t regularly visit (e.g. hotel reservation cases).

"Particularized Injuries" is a Grab Bag in the Second Circuit

The third and final argument that U.S. Wings raised to contest Quezada’s standing was that he had not alleged the exact barriers on its website with associated concrete and particularized injuries. We’ve also discussed this issue before in the context of Albert Rizzi’s case against Hilton Hotels. That case, however, was brought in the Eastern District of New York. While that may seem like a big difference geographically from the Southern District of New York, the difference is literally the distance between Manhattan and Brooklyn in New York. And yet the courts couldn’t be more different. While the Eastern District has brought us restrictive cases like Rizzi v. Hilton Domestic Operating Co., 2020 U.S. Dist. LEXIS 197728 (E.D.N.Y. 2020) and Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995 (E.D.N.Y. 2021), the Southern District of New York has been recently described as a favorite venue for plaintiffs in web accessibility holiday forum shopping. So, while the Eastern District dismissed Albert Rizzi’s case because he couldn’t identify the exact feature that was inaccessible on Hilton’s ever-changing website, the Southern District noted that the Second Circuit has a “low threshold” for injury-in-fact— simply asserting an inability to access a website and a desire for general deterrence of inaccessible content is sufficient. Nonetheless, a careful plaintiff should take care and try to meet the more thorough standing requirements from Angeles v. Grace Prods., 2021 U.S. Dist. LEXIS 182317 (S.D.N.Y. 2021), another case from the Southern District that we discussed in our September 2021 Legal Update.

Personal Jurisdiction

The Quezada case also piqued my interest because it was another case in which the court had little trouble finding that it had personal jurisdiction over a company that was hundreds of miles away. U.S. Wings is located in Hudson, Ohio. But U.S. Wings does a lot of business in other states and, as we’ve previously discussed on this blog, courts don’t have much trouble extending personal jurisdiction over such companies.


Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.

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