At Converge Accessibility, our blog posts normally go out at 9:00am Pacific every Monday morning. This week, however, I held back until Wednesday so I could be sure to capture all of the cases that came in during the whole month of February. Lexis was pretty quiet during the last few days of the month but it was busier earlier-- certainly, a lot more cases than during January.
The Nexus Requirement: Lloyd v. Facebook
The first case that came across my feed was Lloyd v. Facebook, Inc., 2023 U.S. Dist. LEXIS 20515 (N.D. Cal. 2022). The allegations in this complaint ranged from an ADA web accessibility claim to fraud and negligence—I won’t bother trying to repeat them here. The caption of the case really says it all—it’s a web accessibility case against Facebook being brought in California. That much should also tell you exactly what’s going to happen: the court is going to dismiss the case. Why? Because the plaintiff in this case has fallen victim to one of the classic blunders. No, Mr. Lloyd did not get involved in a land war in Asia. Instead, he filed a web accessibility case in the Ninth Circuit against a company that doesn’t have a bricks and mortar place of business-- and thus failed the nexus requirement.
Broadening Standing to Sue: Young v. Metropolitan Learning Institute
Next up is a much more interesting case. In Young v. Metropolitan Learning Inst., 2023 U.S. Dist LEXIS 23206 (S.D.N.Y. 2023), Lawrence Young, a blind screen reader user, sued a school, which provided courses for new English speakers who aspired to work in the health care field, because the school’s website was inaccessible. The school moved to have the complaint dismissed because Mr. Young was neither a new English speaker nor demonstrated any interest in entering the health care field.
The court denied the defendant’s motion and allowed the case to proceed. First, the court held that Mr. Young could allege an “informational injury” where a defendant deprived him of the information he needed to make a meaningful choice about whether the school could serve his needs. Second, Mr. Young met the requirement of showing his intent to return based on the frequency of visits to the website and his stated interest in the products and services offered there. Based on these facts, the court held that the plaintiff’s complaint met the requirements for standing.
I found it interesting to compare Young with the long line of credit union cases in which courts have held that a plaintiff had no standing. In those cases, a plaintiff usually lived hundreds of miles away from a credit union or could not meet the basic membership requirements to ever become a member of the credit union. What would happen, however, if the plaintiff alleged that they didn’t know where the credit union was located or whether they could qualify as a member? In that case, could they also suffer an informational injury even if they could never become a customer. In the credit union cases, the plaintiff typically knew (or should have known) that they couldn't qualify to become a customer—and dismissing the case for lack of standing makes sense. Apparently, Young isn’t one of those cases.
Expect Fewer Unruh Cases in Federal Court: Brooks v. Tapestry, Inc.
Viewed superficially, Brooks v. Tapestry, Inc., 2023 U.S. Dist. LEXIS 25767 (E.D. Cal 2023), is not a remarkable case. Valerie Brooks (a known serial plaintiff) sued a company that operates the Kate Spade website and line of stores because their website was inaccessible. She sued the company in Federal court in California under both the ADA and California’s Unruh Act. The defendant moved to dismiss both claims. For the ADA claim, the court denied the defendant's motion because Ms. Brooks could access the Kate Spade stores even though the website was inaccessible (rejecting the 11th Circuit’s Winn-Dixie standard). The court also noted that Ms. Brooks had alleged a clear nexus between the website and the Kate Spade stores because she intended to place an order on the website for in-store pickup.
Things got interesting when the court turned to Ms. Brook’s Unruh claim. Remember that this is a case brought in a California Federal court, which ordinarily only hears cases between California litigants if they involve Federal laws (like the ADA). As a matter of efficiency, courts will usually hear state law claims that arise from the same facts as the federal claim (variously called “pendent,” “ancillary,” or “supplemental” jurisdiction)—but they don’t always have to hear those state law claims if they don’t want to. The court explained that the Ninth Circuit in Arroyo v. Rosas, 19 F.4th 1202 (9th Cir. 2021), gave district courts good reason to decline expanding ADA cases to include Unruh claims. In Arroyo, the court noted that California faced problems with repeat litigants in Unruh cases—and so the California legislature introduced procedural hurdles for bringing Unruh claims in state court. Plaintiffs could avoid these hurdles, however, by pairing Unruh and ADA claims and bringing their lawsuits in Federal court. Between 2018 and 2019, this shift resulted in the number of such claims going from 3% to 22% of all civil cases filed! Based on this background, the court granted the defendant’s motion to dismiss Ms. Brook’s Unruh claim-- and it makes perfect sense that we will see fewer Unruh claims in Federal court in the future.
Tougher Pleading Requirements in Second Circuit: Loadholt v. Dungarees, Inc
It’s interesting watching how courts respond to the flood of ADA web accessibility complaints. In some cases, they require plaintiffs to provide a ton of details of exactly what they encountered. Or they restrict cases to the narrowest type of ADA claim. In Loadholt v. Dungarees, Inc, 2023 U.S. Dist. LEXIS 26006 (S.D.N.Y. 2023), the court took a slightly different tack and required the plaintiff to articulate why they had a particularized interest in the defendant’s goods and services. Christopher Loadholt is a blind serial plaintiff. He sued Dungarees because their site was inaccessible, claiming only that he visited the site twice because he was interested in purchasing “belts and a jacket.” Citing the Second Circuit’s opinion in Calcano v. Swarovski, 36 F.4th 68, 75 (2d Cir. 2022), the court held that this kind of vague window shopping did not make his allegation of injury "plausible."
Here, the [complaint] contains no non-conclusory, factual allegations that would allow the Court plausibly to infer that Plaintiff intends to return to Defendant's website. Plaintiff alleges that he visited Defendant's website on two occasions in Spring 2022 to "potentially" purchase "some belts and a jacket" from Defendant's website, but he was unable to do so because of the website's alleged access barriers. Plaintiff further alleges that he "would like to return to the Website to browse and potentially purchase" some of Defendant's products. Setting aside the bare-bones, vague allegations that Plaintiff was "potentially" in the market for "some belts and a jacket," Plaintiff's allegations that he visited the website "with the intent of shopping for and potentially making a purchase" of those items, and "would still like" to return to the website to "potentially purchase" the items, does no more to allege intent to return than the boilerplate allegations described in Calcano. See Calcano, 36 F.4th at 76-77 (noting that plaintiffs needed to describe, inter alia, details of past visits or the frequency of such visits, what items they purchased in the past, why they want to purchase particular goods now, and why they would do so "immediately" when those goods became accessible in order to "nudge [plaintiffs'] claims across the line from conceivable to plausible").
Loadholt v. Dungarees, Inc, 2023 U.S. Dist. LEXIS 26006 at *4-6.
So what’s the bottom line post-Loadholt? If you’re a plaintiff in a web accessibility case in New York, you really need to “sell it” in your complaint. Instead of being interested in “belts and a jacket,” Mr. Loadholt should have explained why a Dungarees brand belt and jacket had special meaning to him. It would also have helped if he alleged that he made past purchases and owned other Dungarees brand belts and jackets. Plus, it would have helped Mr. Loadholt's case if he identified the specific dates and times he went to the site only to have his heart broken because the site was inaccessible. Even if you're going for the look of a rugged, emotionally unavailable farm hand in your Dungarees belt and jacket, it still helps to bring a little more drama into your complaint.
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.