March was a busy month at Converge Accessibility. In addition to DOJ issuing its disappointing guidance on web accessibility, there were also a few interesting legal cases to churn through. This month, I’m also going to try to provide links directly to the cases downloaded from Pacer—tell me if you find this useful because it’s a bit of a pain.
The Complaint Needs to Spell Out the Harm (and Plaintiffs Need to Understand Basic Accessibility)
The first case this month is Gomez v. Trinitas Cellars LLC, 2022 U.S. Dist. LEXIS 41785 (N.D. Cal. 2022), in which the court granted the defendant’s motion to dismiss a web accessibility complaint. This case isn’t unusual; it seems very typical of web accessibility decisions. This case does, however, make for a great case study in what needs to be alleged in a complaint. In this case, Andres Gomez sued a winery after he could not get information from its website about winery tours and wine sold at the winery. The court noted,
All that Gomez pleads about the barriers, as recounted above, is that (1) "[i]mages on the website lack a text equivalent readable by SRS," (2) "[t]he website contains script elements that are not identified with functional text readable by SRS," and (3) "[t]he visualization of the webpage contains impermissibly low contrast enabling differentiation of background and foreground elements." None of these plausibly show how the alleged barriers denied his full and fair enjoyment….It seems possible, for instance, that Gomez was still able to read the webpage with SRS despite its contrast, that the unidentified images were not material, and that the unidentified script elements did not impact the experience of reading the webpage—the pleading is too vague to assess if this is so.
Id., at *8-9 (citation omitted). Based on the court’s analysis, we can discern a good and bad version of each allegation. In the first instance, the court noted that it wasn’t clear if Mr. Gomez could make out the meaning of images despite the lack of text equivalents. Thus,
Bad: “images on the website lack a text equivalent readable by SRS”
Good: “images on the website lack a text equivalent” and “The lack of text equivalents made it impossible for plaintiff to understand the meaning or importance of images”
Bad: "[t]he visualization of the webpage contains impermissibly low contrast enabling differentiation of background and foreground elements."
Good: “Portions of the web page contains impermissibly low contrast between background and foreground elements” and “Because Mr. Gomez relies partially on vision to discern the basic structure of a web page, this barrier prevented him from fully making use of the web page.”
Given that relatively few users rely on both alternative text and high contrast, complaints that include both allegations usually reveal an attorney who found a defendant by using an automated testing tool because both missing alt text and poor contrast are very easy to test with such tools. If discovery revealed that Mr. Gomez was completely blind, I wonder if Trinitas could move for sanctions because the plaintiff included an allegation about low contrast that he could not have found and that would not affect him at all?
The Crazy 11th Circuit: What Constitutes an Injury?
The 11th Circuit, which oversees federal district courts in Alabama, Georgia, and Florida, plays an oversized role in web accessibility jurisprudence (I never thought I’d use those three words together like that!) because it hears appeals from the U.S. District Court for the Southern District of Florida. It’s the court that reversed the Winn-Dixie case and basically shut the door on web accessibility. That decision created a firestorm and, as I predicted last summer, led to a hasty retreat by the 11th Circuit from its disastrous decision. While that mess is still being sorted out, the 11th Circuit has now taken on web accessibility this month from a different angle: hotel reservation cases. While I usually don’t give much attention to this area of cases, I couldn’t help but comment on the 11th Circuit’s strange opinion.
First, let's set the stage about these cases and the legal issues we're talking about. To bring a hotel web accessibility case, a plaintiff alleges that they visited a hotel’s website and couldn’t find enough information about the hotel to make an informed decision about whether it will be accessible to them. Traditional web accessibility cases focus on the design of the web site; by contrast, hotel web accessibility cases zero in on what the website says (or doesn’t say) about the hotel. This kind of case was made possible by the 2010 amendments to the Department of Justice Title III regulations, which specifically require hotels to “identify and describe accessible features in the hotels and guest rooms offered through its reservation service…”.
To have “standing to sue” requires (1) an injury, (2) caused by the defendant, and (3) that is legally redressable. I think of this as law's “no harm, no foul” rule. Therefore, in hotel web accessibility cases, the plaintiff needs to assert that the hotel failed to describe an accessible room (i.e. element two-- a defect “caused by the defendant”) and that the Title III regulations require that description (i.e. element three-- a defect that is “legally redressable”). Usually, they can show an injury (element one) if they can demonstrate an interest in booking a hotel room, such as by showing an intent to visit the region. When they can’t show an interest in booking a hotel room, however, where is their injury? This month, the 11th Circuit said that an actual injury wasn't needed because “frustration and humiliation” constitute a “stigmatic” injury sufficient to confer standing to sue. Laufer v. Arpan LLC, 2022 U.S. App. LEXIS 8270 (11th Cir. 2022).
I have two objections to the court’s analysis. First, the court doesn’t identify the injury correctly and ignores what the ADA and its regulations are intended to redress. The hotel reservation regulation—and Title III the ADA in general-- were created to ensure that people with disabilities had equal access to the goods and services of places of public accommodation. When a plaintiff can’t show an intent to avail themselves of those goods and services, there isn’t an injury. The accommodation (i.e. accessible room descriptions) is only a means to preventing that injury. The court cites its earlier opinion in Sierra v. City of Hallandale Beach, 996 F.3d 1110 (11th Cir. 2021), where, the court held that a deaf plaintiff suffered only “stigmatic” injuries when trying to watch uncaptioned videos that the City posted on its website. Title II of the ADA (and the requirement for auxiliary aids and services like captioning on videos) are designed to uphold the equal participation by people with disabilities in the programs, services, and activities of local government. Again, the accommodation (i.e. captioning videos) is only a means to preventing that injury.
My second objection with the Arpan decision is it risks an overbroad interpretation of "injury." When courts confuse the injury that a law or regulation was intended to address with the means to prevent or redress that injury, they risk broadening rights in unpredictable ways and undermining the meaning of standing to sue. For instance, if I ran an online-only retail business, I am a place of public accommodation in much of this country (there’s currently a split in the circuits about whether an online-only business is a “place of public accommodation” under the ADA). Therefore, I have an obligation to engage in readily achievable barrier removal. If my business has an inaccessible narrow front door, do I really have to replace it with a wider door when I don’t see customers at my business? And if a wheelchair user noticed my narrow doorway and felt frustrated its narrow width, can he sue me? To my mind, the answer to both questions is “no”—and it’s because there is no injury.
I’ve blogged earlier about the need to define “injury” better. It makes no sense to require hotels to describe accessibility features to people who have no interest in renting a room-- just as much as it makes no sense to allow people to sue their neighbors just because they don’t like the fact that they had an abortion. After all, standing to sue is the “no harm, no foul” rule—and in both cases, the plaintiff hasn't suffered a harm.
Other Cases This Month
Most of the other cases of the month didn’t add much to the conversation. For instance, in Hecht v. Magnanni Inc., 2022 U.S. Dist. LEXIS 60836 (S.D.N.Y. 2022), the court reminded us that it is just about impossible for a defendant to succeed on a motion to dismiss based on an argument of mootness. In Wilson v. Jord Inc., 2022 U.S. Dist. LEXIS 58849 (W.D.N.Y. 2022), the court dismissed a New York lawsuit against a Missouri corporation on the basis of personal jurisdiction, but offered the plaintiff ample opportunity to amend his complaint to allege the company’s strong ties to New York state. And Sanchez v. NutCo, Inc., 2022 U.S. Dist. LEXIS 51247 (S.D.N.Y. 2022) is another personal jurisdiction case that a small twist: the defendant asserted it didn’t control the website because its corporate affiliate did. Nonetheless, the court didn’t have any trouble denying the motion to dismiss because the defendant still did a substantial amount of business in the New York.
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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