Legal Update: November 2022

Happy belated International Day of Persons with Disabilities! Up here in Seattle, the weather was exquisitely sunny and crisp. This month, my Lexis feed churned out more nexus cases, as courts struggle with trying to make sense of what the requirement means and how to apply it.

How NOT to Plead a Web Accessibility Case in a Nexus Jurisdiction

As readers of this blog know, I am not fond of the nexus test used in many web accessibility cases. In short, this test states that a company cannot be sued under Title III of the ADA for its website unless there is a sufficiently close “connection” or “nexus” between the website and a physical bricks-and-mortar establishment offering the goods and services of a place of public accommodation. The problem that courts run into when applying this test is the lack of uniformity over what constitutes a sufficient “connection” or “nexus.” In pleading a complaint in a jurisdiction that follows the nexus approach, it therefore makes sense to avoiding focusing on benefits or features that only occur on the website and never impact the customer experience at the business’s physical location. This basic logic seems to have been lost on Chris Langer’s attorney in Langer v. American Automobile Association, 2022 U.S. Dist. LEXIS 204591 (S.D. Cal. 2022).

Chris Langer visited the AAA website but was unable to understand videos because they lacked captioning. He then sued AAA, alleging that the videos on AAA’s website "provide value independently as a separate benefit and failure to provide closed captioning provides an inherently disparate and unequal experience to disabled customers." Mr. Langer also described how the website included other information, such as contact information and a AAA branch locator—exactly the kind of features that some courts say constitutes a nexus—but Mr. Langer did not allege that these features were inaccessible.

This is a critical distinction: a plaintiff needs to allege that the nexus between a website and a physical location occurs at the inaccessible content of the website. For instance, a plaintiff could allege that a store’s website has tons of features that create a close nexus with the store’s physical locations. The website may have a store locator that tells customers where the nearest store is located. Or the plaintiff can allege that the website has downloadable coupons for use at a physical store. Even if those features were only available on the website, the plaintiff would still fail the nexus test if they didn’t allege that some inaccessible feature on the website itself created a nexus.

This oversight made it too easy for the court to dismiss Mr. Langer’s complaint. Applying the same logic that I just described, the court concluded,

The complaint here does not allege that the lack of closed captioning on videos on AAA's website impeded Plaintiff's ability to access or order goods or services from AAA's physical locations. To the contrary, it alleges that ‘information on the website alone is a covered Benefit’ and that the videos themselves ‘provide value independently.’ In other words, ‘Plaintiff is essentially only alleging he was deterred from use of the Website.’ That the alleged value of the website and videos themselves is independent of the goods and services offered at AAA's physical locations demonstrates that there is no nexus between the two’… Absent such a nexus, there is no ADA violation based on any lack of accessibility of the website.

Langer, at *7-8 (citations omitted).

Southern District of New York Settling into Abandoning the Nexus Requirement

Back in August, I described Tavarez v. Moo Chocolates as an example of how the Southern District of New York was moving towards abandoning the nexus test—thus allowing purely-online companies to be sued under ADA Title III. Moo Chocolates appeared to disagree with the judge’s opinion and moved for an interlocutory appeal. And just a few days ago, the court issued its opinion.

Procedurally, an interlocutory appeal means having the case put on hold while the appellate court reviews an important issue (here, whether purely online companies can be sued under Title III). This is a bit unusual because appeals are usually only allowed after the trial court issues its final judgment. And, while Moo Chocolates may (and probably will) appeal the case if they lose, the district court seemed confident enough in its conclusion to flatly deny Moo Chocolate’s motion for an interlocutory appeal.

As the court noted, “under 28 U.S.C. § 1292(b), a district court may certify for appellate review any interlocutory order that (1) ‘involves a controlling question of law,’ (2) ‘as to which there is substantial ground for difference of opinion,’ and (3) where ’an immediate appeal from the order may materially advance the ultimate termination of the litigation.’”  Tavarez v. Moo Organic Chocolates, LLC, 2022 U.S. Dist. LEXIS 210720 at *11-12 (S.D.N.Y. 2022)(hereinafter, “Moo II”).

The court noted that the first element was easily met because Ms. Tavarez’s complaint also included a claim under New York City’s Human Rights Law, which allows lawsuits against online companies. Much more interesting was the way that the court addressed the second element,

Moreover, there is no "substantial ground for difference of opinion" as to whether a website qualifies as a place of public accommodation under the ADA. … The vast majority of other judges in this District who have confronted the issue have decided that Title III of the ADA applies to stand-alone websites. And Defendant has not advanced any arguments in opposition to the Court's challenged ruling that it has not already considered.

Moo II, at *13-14.

Moo Chocolates may have been prescient to seek an interlocutory appeal because if they have to wait until a final judgment, the tide in the Second Circuit may have already turned against them. Just a few days after the Moo II opinion, the district court for the Southern District of New York issued its opinion in Chalas v. Barlean's Organic Oils, LLC, 2022 U.S. Dist. LEXIS 211816 (S.D.N.Y. 2022). In that case, a blind plaintiff was unable to search for and buy a product from the Barlean’s website because the website was inaccessible. Barlean’s then moved to dismiss, asserting that the plaintiff had not identified a nexus between the website and a physical place of public accommodation.

The district court went through an exhaustive review of other web accessibility cases from the Southern District, including Romero v. 88 Acres Foods, Inc., 580 F. Supp. 3d 9 (S.D.N.Y. 2022); Tavarez v. Moo Organic Chocolates, LLC, 2022 U.S. Dist. LEXIS 154249 (S.D.N.Y.  2022); Paguada v. Athena Allergy, Inc, 2022 U.S. Dist. LEXIS 53633 (S.D.N.Y. 2022); Winegard v. Crain Communs., Inc., 2021 U.S. Dist. LEXIS 60964 (S.D.N.Y. Mar. 30, 2021); Thorne v. Formula 1 Motorsports, Inc., 2019 U.S. Dist. LEXIS 220080 (S.D.N.Y. Dec. 19, 2019); Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 (S.D.N.Y. Dec. 20, 2017) and concluded,

In the end, it will probably fall to the Supreme Court to resolve the existing Circuit split. Until that time, however, the best guess, in light of Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999), is that our Circuit, were it to consider the issue, would come  down on the side of the First and Seventh Circuits, and conclude that a website can be a "place of public accommodation" within the meaning of Title III of the ADA.

Chalas v. Barlean’s Organic Oils, LLC, at 15-16.

Split over the Nexus Requirement in the Eastern District of New York

Back in August 2021, I blogged about a new case, Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995 (E.D.N.Y. 2021). Since then, the Winegard case has generated a lot of questions—and I still get asked about it at conferences and presentations that I give. The reason? Because in his opinion in Newsday, Judge Komitee from the Eastern District of New York issued an unusually conservative reading of the nexus requirement that made it very hard for a plaintiff to bring a case over an inaccessible website under the ADA. Then in November 2021, I blogged about another case from the Eastern District, Martinez v., Inc., 2021 U.S. Dist. LEXIS 210585 (E.D.N.Y. 2021). In that case, Judge Cogan engaged in a much shorter analysis than Judge Komitee but came to the same conclusion—ADA Title III does not support a lawsuit against a purely online company. At the time, I concluded that there was a split between the Southern District and Eastern District of New York over the nexus test and whether purely online company could be sued under Title III. This conclusion may have been premature.

Earlier this month, Judge Garaufis from the Eastern District ruled in Martinez v. Gutsy LLC, 2022 U.S. Dist. LEXIS 214830 (E.D.N.Y. 2022) that a company that sold probiotic sodas through its website and that operated no physical place of public accommodation could be sued under Title III of the ADA. The judge’s analysis is one of the most cogent critiques of the nexus test—and echoes my critique of the nexus test.  Basically, this scholarly argument goes something like this…

  • There are opinions like Winegard and Mylife from the Second Circuit, but there are also plenty of cases from other districts that go completely the other way.
  • Courts that follow a narrow interpretation of the residual clause “place of public accommodation” ignore the fact that several of the examples of places of public accommodation in the ADA (e.g. insurance brokers and other rental, service, or sales establishments) are necessarily or even predominantly bound to physical bricks-and-mortar locations. This is because the ADA definitions should be read in terms of function instead of physical presence. Indeed, when the authors of the ADA wanted to talk about specific, physical places, they certainly knew how to do so—and they always used the term “facility”.
  • There are other examples where the term “place” of public accommodation is interpreted or even defined by statute as existing outside of physical places.
  • So much commerce now takes place over the internet that it would be absurd and unfair to not include online activities under the ADA. The ADA needs to be read broadly to protect the rights of people with disabilities and so it must also be read in a way that keeps pace with the times.
  • The Department of Justice has consistently taken the position that the ADA applies to goods and services of places of public accommodation, including those offered over the web.

I’m glad to see that someone else thinks that it’s time to abandon the nexus test.


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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