Legal Update: January 2022

It must be something about winter as the drop in judicial opinions in web accessibility continues to drop. But quantity is rarely an indicator of quality because it has been a tumultuous month indeed. Let's start with the biggest news of the year...

Forget About Winn Dixie?!?!

(See latest updates at the end of the article)

So the absolute biggest news from last month is that Winn Dixie is dead. I called it, but I was a bit surprised by how abruptly it happened.

Okay, I’m going to toot my own horn. Back on April 7, I described how the Winn Dixie decision was reversed by a three-judge panel of the 11th Circuit and created a legal standard that made it almost impossible for a plaintiff to bring a web accessibility case in that circuit. The plaintiffs (joined by a host of disability rights groups) immediately insisted that the 11th Circuit hear the case “en banc” (meaning that the whole 11th Circuit decide the case). Barely two months later, I predicted that the 11th Circuit would bend over backwards to reverse the opinion on mootness (fast forward to about 26:30 in the video to hear why I think this prediction made sense). What I didn’t predict was how abruptly it declared the case moot. Here is a copy of the court’s order.

The practical effect of the 11th Circuit’s order is that the Court’s earlier decision simply never happened. So, all the hand wringing and Chicken Little declarations that the sky was falling was overblown. Of course, the 11th Circuit would take the opportunity to avoid this controversy if it could. So that means that web accessibility cases can continue as if that aberrant decision never happened. And that also means that the district court’s decision (which held that Winn Dixie needed to make its website comply with WCAG A/AA) is still good law in the Southern District of Florida.

Update: After making this post, I hopped back into Pacer and looked at the latest activity. Well, it seems that the Winn Dixie just can't leave things alone. Even though they've fixed their website, they still are pressing ahead with their appeal because they object to the award of $100,000 in attorney's fees to Mr. Gil. So on January 18, Winn Dixie filed a motion for rehearing en banc, which the court granted on January 25th. I did mention that I thought the court was a bit abrupt in its initial ruling. So plaintiff attorneys in Southern Florida shouldn't be popping open the champagne yet. I'm still standing by my prediction that the 11th Circuit will dispose of Judge Branch's unusual decision. My money is for the court ruling that the case is moot or otherwise not judiciable. Or the 11th Circuit may rule that it will follow the traditional nexus test. I just can't see the court stepping out of line with the rest of the courts in this country and adopting a new and much narrower interpretation of the ADA.

Even If the Nexus is Clear, Plaintiffs Still Need to Identify It

If you’ve been a reader of this blog, you’ll know by now that a basic element to bringing a web accessibility case in the 9th Circuit (most of the western states) is that a plaintiff has to identify a “nexus” or connection between what happens on the website and what happens at a physical bricks and mortar location. This is an ancient requirement that traces its roots back to the Civil Rights Act of 1964 and the Constitution, but it is what it is. So it shouldn’t be a surprise that, when a plaintiff doesn’t allege that connection, in a district court in the Ninth Circuit, they are going to get their case dismissed. And that’s exactly what happened in Gomez v. Smith, 2022 U.S. Dist. LEXIS 6157 (N.D. Cal. 2022). Here is a copy of the Gomez decision.

What’s the Point in Answering a Complaint?

I grinned when I read the opinion in Jaquez v. Brilliant Home Tech., 2022 U.S. Dist. LEXIS 7240 (S.D.N.Y. 2022). In this case, the defendant basically did nothing—and so the court entered a default judgment against them. And so you’d think that the world would end for our benighted defendant.

Well, maybe not so much. Instead, the court ordered damages ($1,000 under New York State law), attorney’s fees ($8,320) and costs ($479). That comes to a total of $9,799, which isn’t that far off the mark of what it costs to get an attorney to help you defend one of these cases.

All this makes me think that, if I were an attorney representing a client in the Southern District (or elsewhere), it may often pay to just ignore the lawsuit and get a default judgment—and spend your money instead on fixing your website? Here is copy of the Brilliant Home opinion.

Finally, a Lawsuit Involving an Online Health Care System

Online health care systems are proliferating around the country—yet so few of them include accessibility. This may not seem like a big deal for people with disabilities at a surface level because it’s easy to get the same basic services by telephone that were available before. What’s far more insidious, however, are the advantages that non-disabled patients enjoy, which are unknowingly not made available to patients with disabilities. Bone v. Univ. of N.C. Health Care Sys., 2022 U.S. Dist. LEXIS 7937 (M.D.N.C 2022) was a case that sought to close this gap. I’m only going to tease it here—but I suspect that this will be a big topic in my upcoming podcast with Thomas Logan and Josef Pevsner. Here is a copy of the Bone v. UNC opinion but be warned... it's realy loooooooong....


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.

The opinions linked to from this blog are also taken directly from PACER, the Federal government's docket system used by judges and lawyers to manage documents in Federal court litigation. We cannot assure that these public documents accessible.

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