When I was at the Justice Department, August was a notoriously slow month. At first, I blamed the summer heat but there’s more to it than just that. Lawyers aren’t terribly different from other people. With September around the corner, they really just want to get in a few more days of summer before the regular year starts up again.
Now that I live in Seattle, I feel even more strongly this way. Summer comes late in the Pacific Northwest and, when it does, it just sparkles. Honestly, there is nowhere in the country that is prettier than Seattle in August. So I put off writing this legal update longer than others.
Another Reminder that Unruh Extends Beyond California
First up this month is another case that reminds us that California’s Unruh Act can extend to companies that do business outside of California. Why is this a big deal? Because Unruh lets plaintiffs receive liquidated damages of $4,000 per claim—which can add up to a lot in web accessibility cases. Just ask Target Corporation, which paid $6 million to settle its web accessibility claim with the NFB.
The bottom line is that, if you do enough business in California, then the courts in that state may exercise personal jurisdiction over your organization and allow California residents with disabilities to sue you—even if you don’t have a physical presence in the state. I first mentioned this almost two years ago when I described the Thurston v. Fairfield Collectibles of Georgia case. In that case, a Georgia-based company that sold a little over 10% of its sales in California had “purposefully availed” itself of California law by conducting this much of its website business in California. This month, the California Court of Appeals repeats that same message in Licea v. Bump Boxes, 2022 Cal. App. Unpub. LEXIS 4784 (Cal. Ct. App. 2022). Bump Boxes sold supplies to expectant mothers only through its website. The company was based in Illinois and hosted its website through a company in Washington state. They neither operated facilities in California nor employed employees or contractors in California. Nonetheless, they derived approximately 10% of their sales from customers in California. The Court of Appeals noted the close similarities between this case and the Fairfield Collectibles case and held that Bump Boxes had sufficient contact with California to be sued there.
Is Florida Coming Back for Web Accessibility Cases?
Since the 11th Circuit’s opinion in Winn-Dixie, there’s been a dearth of web accessibility cases from Florida. As readers may recall, the 11th Circuit opinion was an extremely narrow ruling that made it just about impossible to bring a web accessibility case. While that opinion was later vacated by the same court—with the practical effect that the case had simply never happened— plaintiffs seemed understandably shy to test the waters.
This month, a magistrate judge issued an opinion in Ariza v. S. Moon Sales, Inc., 2022 U.S. Dist. LEXIS 144467 (S.D. Fla. 2022), which is noteworthy for two reasons. In this case, Victor Ariza could not access the website of South Moon Under, a women’s clothing store in Fort Lauderdale and sued the company. The defendant never responded to the complaint, but, before a default judgement could be entered, the court first needed to ensure that the plaintiff had pled its case properly.
Returning to a Plain Nexus Standard
First, the court needed to find that the plaintiff had alleged a connection between the company’s website and a traditional bricks-and-mortar place of public accommodation. This was established because the plaintiff alleged that the website let users (i) purchase merchandise that is also available to buy inside the store, (ii) find the location of the physical store through a "store locator" feature, (iii) purchase gift cards for use online or in the store, and (iv) sign up for an "electronic emailer" to receive exclusive online offers, benefits and discounts. What is striking about this analysis is how different it is from the Winn-Dixie analysis, which made it impossible for a plaintiff to sue a company unless its website effectively blocked a user from accessing its physical establishments. Instead, this is a return to a much more liberal version of the nexus standard. In fact, I’d say it’s a bit too liberal in some areas. For instance, the first element (the ability to purchase the same goods online or in a store) creates no dependence between the website and a physical store. Also, the second element (a store locator feature) is irrelevant in this age when search engines can provide exact locations just as easily. Otherwise, the third and fourth elements noted by the court are typical ingredients in a traditional nexus formulation.
COVID Funding Does Not Create Rehabilitation Act Liability
South Moon Under was affected by COVID-19 and received funds under the Paycheck Protection Program (PPP) of the CARES Act. The plaintiff cleverly leveraged this to include a claim under Section 504 of the Rehabilitation Act, which prohibits discrimination by federal agencies and by federal fund recipients. I won’t get into the details of this niche argument but the bottom line of the court’s analysis is that Section 504 did not apply because the PPP funds were for a specific targeted used and did not constitute federal assistance to the entity “as a whole.”
Much Ado About Nothing
Victor Ariza wasn’t quite finished for the month of August. Earlier, he had sued another South Florida clothing store called Wolf Fashion because of its inaccessible website. Like South Moon Under, the defendant never bothered answering the complaint and so a default judgment was entered against them.
The total damage? $11,216 for the following expenses:
- Attorney Fees: $6,460.00
- Service of Process Fee: $43.00
- Filing Fee: $402.00
- Expert Fee: $4,275.00
- Copy Costs: $36.00
The real expense, however, will likely be fixing their website as the court also ordered the defendant to make its website conform to WCAG 2.0 A/AA within six months. Ariza v. Wolf Fashion, LLC, 2022 U.S. Dist. LEXIS 153587 (S.D. Fla. 2022).
Growing Split in the Second Circuit Over the Nexus Standard
I’ve commented before about how I believe courts mess up the nexus standard. In that post, I also described how there is a growing split between the district courts in the Eastern District and the Southern District of New York. In the Eastern District, we have opinions like Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995 (E.D.N.Y. 2021) and Martinez v. Mylife.com, Inc., 2021 U.S. Dist. LEXIS 210585 (E.D.N.Y. 2021), which basically assert that unless a website effectively block you from accessing a benefit at a physical place of public accommodation, a plaintiff can’t sue an organization. In the Southern District, by contrast, opinions like Jaquez v. Dermpoint, Inc., 2021 U.S. Dist. LEXIS 96067 (S.D.N.Y. 2021) let any online company be sued. Whoever would imagine that the short distance of the Brooklyn Bridge would separate such different opinions about web accessibility?
Well, it appears that the Brooklyn Bridge just got a little bit longer. In Tavarez v. Moo Organic Chocolates, LLC, 2022 U.S. Dist. LEXIS 154249 (S.D.N.Y. 2022), Victoriano Tavarez sued Moo Chocolates because its website was inaccessible. Moo Chocolates has no stores and sells all of its products online. Nonetheless, the court “concur[red] with the vast majority of other judges in this District who have decided the issue that a ‘place of public accommodation’ includes public-facing websites that are not tethered to a physical location.” Id., at *4. While I won’t go into the court’s analysis deeply, it’s worth noting that the court focused on the ADA’s inclusion of “travel services” in the list of covered businesses—even though travel services are often not performed in physical locations.
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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