Wow, July has been an exceptionally slow month in my Lexis web accessibility feed. For the whole first half of the month, not a single case popped up in my feed! Almost two years ago, I blogged about a slowing in court filings that turned out to be the fault of Lexis (cases continued to be filed—they just weren’t getting picked up by Lexis). The same problem could be happening right now but I’m hoping instead that a lot of judges and their clerks are spending less time writing opinions and more time enjoying the summer.
Another Court Gets the Nexus Standard Wrong
In my last post, I talked about the split in the Ninth Circuit over the nexus standard. As readers may recall, in that post, I contrasted two opinions-- Erasmus v. Andrea Tse M.D. Inc., 2022 U.S. Dist. LEXIS 107569 (E.D. Cal. 2022) and Langer v. Oval Motor Sports, Inc., 2022 U.S. Dist. LEXIS 99575 (N.D. Cal. 2022)—and suggested that the more liberal approach in the Andrea Tse M.D. opinion made more sense because it didn’t limit website accessibility to the narrow web accessibility only to the narrow “eligibility criteria or screening process” provision of the ADA. Instead, I suggested that, where a complaint alleges that inaccessible website interfered with the enjoyment of the goods or services of a place of public accommodation, a more liberal approach should be followed.
This month brings us a great example of how a court can recognize this distinction and still get it wrong. In Erasmus v. Dunlop, 2022 U.S. Dist. LEXIS 127321 (E.D. Cal. 2022), Megan Erasmus returns to suing health care providers because videos on their sites lack captioning. In this case, Ryan Dunlop is a dentist who offers videos on his website to “induce customers to purchase its goods or services.” While her complaint primarily alleges that she is deterred from returning to the website, Ms. Erasmus also alleges that she was “denied the full use and enjoyment of the facilities, goods and services offered by Defendant,” which are offered only at the Defendant’s facility. After filing the complaint, Dunlop moved to have the complaint dismissed on several grounds, including that the website did not have a sufficient nexus with his bricks and mortar establishment—and the court agreed!
What makes the Dunlop opinion annoying is how carefully it analyzed the law-- and still came to the wrong decision! The court first noted that and an “injury” under the ADA occurs when a barrier either deters a plaintiff from returning to a facility or otherwise interferes with their full and equal enjoyment of the facility. Notwithstanding that basic understanding of the ADA, it then goes on to list several cases in which the Ninth Circuit limited the nexus standard to cases where the website barriers impedes access to a physical location (the court cited the Andrea Tse M.D. opinion as the minority viewpoint). Why web accessibility cases should be relegated to this narrower standard of impeding access (which only makes sense for eligibility criteria and screening processes) makes no sense when the ADA recognizes a much broader range of injury—such as when a plaintiff is generally deterred from visiting a facility or those barriers interfere with their full and equal enjoyment of a facility.
There is a lesson for plaintiff attorneys here. Regardless of where you are filing suit, be sure to allege that your client has a genuine interest in becoming a customer and would have visited the defendant’s bricks and mortar establishment but for the barriers on their website. But this additional element in your complaint may make it harder for serial plaintiffs. According to PACER, Megan Erasmus has sued thirty health care providers in California’s Federal courts. This suggests to me that she had no genuine interest in becoming a patient at any one of them and thus suffered no harm. Dismissing her complaint for lack of an injury would have been a much more straightforward way of disposing of her case than narrowing the nexus test to include only one form of discrimination. Unfortunately, the courts seem reluctant to force serial plaintiffs to clearly articulate that genuine interest in becoming a customer.
A Slightly Better View on the Nexus Test
It seems that whenever you see an opinion involving either Megan Erasmus or Chris Langer, an opinion involving the other one can’t be far behind. Last month, I contrasted two cases involving this unlikely duoand this month I’m going to do the same thing. Last month, Ms. Erasmus received a more enlightened interpretation of the nexus test and now it’s Chris Langer’s turn.
Like Megan Erasmus, Chris Langer is deaf and relies on captioning to understand the content of videos on websites. While Ms. Erasmus’s passion is dental and health care websites, Chris Langer’s passion is clearly racing cars. In Langer v. Cooke City Raceway, 2022 U.S. Dist. LEXIS 133433 (E.D. Cal. 2022), Chris Langer was unable to view videos on the Raceway’s website because they lacked captioning and so he sued the raceway. The defendant, however, never answered the complaint and so Chris moved for a default judgment. Before the court could enter that judgment, however, the court first needed to be sure that the case alleged a violation. In this case, the magistrate judge refused to do this based on the fact that Mr. Langer had not alleged a sufficient nexus between the raceway’s website and its bricks and mortar physical location.
So why do I say that Cooke City Raceway is a more enlightened interpretation of the nexus standard? Because Chris Langer never said that he had any interest in actually visiting the raceway. As in the Erasmus v. Dunlop, the judge reviewed a litany of opinions from the Ninth Circuit and concluded that barriers on a website have a nexus to a place of public. Accommodation when they deter the plaintiff from accessing the goods or services of a place of public accommodation. Unlike the Dunlop case, however, Chris Langer never said that he had any interest in visiting the raceway.
Like Ms. Erasmus, Chris Langer is no stranger to federal court litigation, but his experience dwarfs her thirty cases. According to PACER, Mr. Langer has sued over 500 companies in California’s Federal courts. While it may seem that he has experienced a bit of rough justice in these cases, it’s a little hard to feel sorry for him.
Before Applying the Nexus Test, Courts Should Ask if the Plaintiff Ever Wanted to be a Customer
A few days later, another familiar plaintiff, Andres Gomez faced the same situation that Chris Langer encountered. In Gomez v. SF Bay Area Private RVS, Inc., 2022 U.S. Dist. LEXIS 134399 (N.D. Cal. 2022), Mr. Gomez sued a California car rental agency because their website was inaccessible to him using a screen reader. As in Cooke City Raceway, the defendant never answered the complaint and so the plaintiff moved for a default judgment—but first the court had to determine if it could have heard the case in the first instance. The court determined that it did not have subject matter jurisdiction over Mr. Gomez’s complaint because he had “not shown that he has a true desire to patronize the Car Rental but for the Website's barriers” id, at *8.
To me, this is the most straightforward way of dealing with web accessibility cases in nexus jurisdictions. A few weeks ago, I proposed a two-step analysis for using the nexus test in legitimate web accessibility cases—but that assumes that the plaintiff actually wanted to become a customer of the defendant’s company. Before a court even gets to this two-step test, it first makes sense to go back to basics and ask if an injury occurred. When a plaintiff can’t establish that they had no genuine intention to become a customer, their case can be dismissed on standing to sue without touching on the nexus standard.
When Mootness Works
If you have been following this blog for awhile, you’ll know that mootness is a difficult argument to win in web accessibility cases. This is because fixing the accessibility barriers on your website after a complaint is filed does little to guarantee that those barriers won’t pop right back up after the lawsuit goes away.
Sometimes mootness does work. Courts seem more willing to agree with a defendant and throw out a case on the basis of mootness in response to a defendant’s motion for summary judgment but not on the defendant’s motion to dismiss. Why is this? A motion to dismiss is made early in the litigation before any discovery has taken place. Winning a motion to dismiss is a tall order—a party effectively says, “even if we interpret all of the facts in favor of the other side, I still win.” At this early stage of the lawsuit, the court has no idea if the facts will show that the defendant honestly fixed the barriers and that they are not likely to reappear. So it is really hard to win a motion to dismiss on the basis of mootness. Once discovery is complete and all the evidence has been collected, either party can (and usually does) file a motion for summary judgment. In filing this motion, the party is saying, “we can avoid going to trial because the preponderance of the evidence clearly shows that I win.” At this point, it’s much easier to win on a mootness claim because the court can consider how likely it is for the discrimination to recur based on the evidence collected by the parties.
To illustrate this idea, in another case this month, our friend Chris Langer demonstrates how a defendant can win a mootness claim on a motion for summary judgment. In addition to suing speedways, Mr. Langer also sued Ralphs Grocery Company, a chain of popular grocery stores in Southern California, because videos on the company’s website lacked closed captioning. Langer v. Ralphs Grocery Co., 2022 U.S. Dist. LEXIS 134685 (S.D. Cal. 2022). After the complaint was filed, Ralphs promptly captioned some of the videos and removed the others from its website. To win a mootness argument, the court required the defendant to prove that it was “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” To meet this “reasonable expectation” test, the court focused on witness testimony that supported the Ralphs’ argument that it had an existing policy of captioning its videos and that it had instituted a system to ensure that future videos would be checked for captioning prior to posting. Ralphs also provided witness testimony that it has not received other complaints about lack of captioning and that every video on its website was checked for captioning. By contrast, Mr. Langer presented no evidence and only expressed a generalized concern that future videos would not be captioned. On the basis of this evidence, the court granted Ralphs’ motion to dismiss.
Of course, we rarely see cases like Ralphs Grocery precisely because we rarely see web accessibility cases reach the summary judgment stage. Instead, most cases are settled far short of the completion of discovery. At these earlier stages of litigation, it is really hard (but not impossible) for a defendant to meet the high burden of a mootness claim.
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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