Legal Update: December 2021

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).