March started out slowly with hardly any cases, but then by the middle of the month, some interesting cases started showing up in my Lexis feed. All in all, I’d say it was one of the more interesting months in the last year for web accessibility.
Standing and Demonstrating an “Intent to Return”
In the past, I’ve blogged about frequently about the requirement for plaintiff’s to demonstrate standing, most recently just last month. As the court in Angeles v. Grace Productions summarized it,
To satisfy standing in ADA website cases specifically, courts in this district have required the plaintiff to allege certain facts in detail, including when they attempted to access to the website, what they were attempting to do on the website, the specific barriers that prevented them from gaining access, and how they intend to utilize the website in the future.
Loadholt v. ShirtSpace, 2023 U.S. Dist. LEXIS 36924 at *5-6 (S.D.N.Y. Mar. 6, 2023), quoting Angeles v. Grace Prods. Inc., 2021 U.S. Dist. LEXIS 182317 at *2 (S.D.N.Y. 2021). Plaintiffs often get hung up on the last element—how they demonstrate that they intend to return to the website and take advantage of the defendant’s goods and services.
For most serial plaintiffs, alleging an intent to return often reduces to an exercise in creative writing. After all, if you have just sued several dozen companies because their websites are inaccessible, how can you really convince a judge that you really intended to become a customer of any one of them? And even non-serial plaintiffs may feel some trepidation returning to the website of a company that they just sued in hopes of becoming their customer. If I had just sued a company because their website was inaccessible and then tried to buy something from them later, I wouldn’t be surprised if they just cancelled my order—or sent me a bag of coal instead.
This month, there were two cases from the same court (the Southern District of New York) that discussed this “intent to return” requirement. Both cases had almost identical fact scenarios but came to opposite conclusions
- In Loadholt v. ShirtSpace, Christopher Loadholt tried to visit the website of ShirtSpace in order to buy a t-shirt in March 2022. At that time, he was unable to find or buy the item he was looking for. Less than a month later, he sued ShirtSpace and, then visited the site again in June 2022 to try to buy a t-shirt. When the defendant moved to dismiss the case for lack of standing, Judge Andrew Carter noted that the plaintiffs repeated attempts to buy the same item (a “t-shirt”) was sufficient evidence of his intent to return. So the lesson from Loadholt appears to be that a plaintiff can satisfy the “intent to return” element by alleging repeated attempts to buy the same item—even if that item isn’t described precisely (e.g. what kind of t-shirt?) or when the repeated attempts take place after the complaint is filed.
- Eight days later, a different judge (Judge Analisa Torres) from the Southern District of New York used the same analysis to come to a very different conclusion in Tavarez-Vargas v. Annie's Publishing, LLC, 2023 U.S. Dist. LEXIS 42955 (S.D.N.Y. Mar. 14, 2023). In this case, Carmen Tavarez-Vargas visited the website of Annie’s Publishing, LLC on July 28, 2021 and April 4, 2022, with the specific intention of buying a “hook and needle kit” but was unable to complete her transactions because the website was inaccessible. Even though the facts were almost indistinguishable from the Loadholt case (two separate attempts to visit a website to buy a specific product), Judge Torres held that Ms. Tavarez-Vargas’s amended complaint contained only “bare, conclusory statements and lacks additional factual allegations that would allow the Court to infer that Plaintiff intends to return to Defendant's website.” Id. at *5. Instead, the Court wanted more, such as her “past frequency of visits” or “an ‘articulated interest in the products or services available on [Defendant's] website.’” Id. at *6 quoting Loadholt v. Dungarees, Inc., 2023 U.S. Dist. LEXIS 26006 at *2 (S.D.N.Y. 2023)
Standing of Testers in Website Accessibility
One of the other big news items this month was flagged by my friend Jack McElaney, who told me that Debbie Laufer’s case against Acheson hotels was granted certiorari by the U.S. Supreme Court. Unlike traditional web accessibility cases where there are no clear required standards, the Department of Justice’s regulations are quite clear about a hotel’s obligations to describe accessibility features on their website. Anyone who has followed my blog knows that the standing of so-called “testers” is a hotly contested issue and has created a massive split in the circuits. On the one hand, granting standing to testers challenges one of the basic tenets in constitutional law that a plaintiff needs to identify an “injury in fact” in order to have standing to sue. Granting standing to testers makes sense when discrimination may not be easily revealed without “tester” plaintiffs who are willing to “test” if discrimination has occurred.
If I had to place bets on the way that the Supreme Court will decide this case, I wouldn’t put much faith in the plaintiff’s side. The concept of testers having standing to sue is based mostly in Fair Housing Act cases. In these cases, the only way to uncover discrimination is to have equally-qualified individuals of different races apply for the same housing—and when a plaintiff can show that one group was consistently denied housing and the other group was consistently offered housing, it’s easy to set the groundwork for a discrimination claim. Web and hotel accessibility cases, however, are fundamentally different. In these cases, “testers” are unnecessary because anyone can readily identify barriers or lack of compliance. If “testers” are granted standing in web and hotel accessibility cases, then the courts will have lost one of the only tools at their disposal for addressing serial plaintiffs. I imagine that all of the justices on the Court will be able to easily see this distinction—and, given the avalanche of web and hotel web accessibility cases, would be happy to do their little part to reduce the size of the federal court docket. In the meantime, expect to see a lot of courts putting their hotel and web accessibility “tester” cases on hold as they await the Supreme Court’s decision. See, e.g. Fernandez v. Salt Life, LLC, 2023 U.S. Dist. LEXIS 55288 (S.D. Fla. Mar. 30, 2023); Fernandez v. Frette North America, Inc., 2023 U.S. Dist. LEXIS 55290 (S.D. Fla. Mar. 30, 2023)(both cases staying proceedings in light of Acheson Hotels, LLC v. Deborah Laufer).
Some Twists on Mootness
Lastly, this month presented some interesting cases on mootness. First, in Tavarez v. Extract Labs, 2023 U.S. Dist. LEXIS 55615 (S.D.N.Y. 2023), Victor Tavarez sued an online seller of CBD and cannabinoid products because he was unable to purchase products from its inaccessible website. The court acknowledged the incredibly high burdens for a defendant to successfully assert mootness but noted that the defendant undertook a complete redesign of its site with the specific goal of conforming to WCAG 2.1 A/AA. Further, the defendant took each of the plaintiff’s allegations and focused their auditing efforts to fully resolve every identified issue. The defendant also hired an independent expert to continually scan and audit the site for any accessibility issues. Most importantly, while the plaintiff submitted a report from its expert (Robert Moody) that barriers persisted on the defendant’s website, the plaintiff failed to convince the court that its evidence outweighed the defendant’s overwhelming evidence that the accessibility issues on its website had been fully addressed.
While Extract Labs may have been successful in mounting a mootness defense, a far more typical case is Monegro v. I-Blades, Inc., 2023 U.S. Dist. LEXIS 43027 (Mar. 14, 2023). In this case, the defendant hired a contractor to remediate its website but offered no clear evidence that the barriers identified by the plaintiff had been remediated. The defendant even claimed that it ceased sales in New York (where the case was brought), but this would not satisfy mootness because the defendant could easily restart its business in New York through its inaccessible website.
So far, all of the discussion about mootness just reinforces what we’ve said before on this blog. While there is a natural tendency for defendants to take a “kitchen sink” approach and raise every possible defense early in litigation, this month’s decision in Kolesar v. Pro-Source Performance Products, 2023 U.S. Dist. LEXIS 45831 (W.D. Pa. Mar. 15, 2023) may give defendants pause. In this case, the plaintiff sought a comprehensive settlement agreement with the defendant after he tried to purchase sports supplements through its inaccessible website.
The defendant moved to have the plaintiff’s complaint dismissed on two grounds. First, the defendant presented the (more difficult) argument of mootness, asserting that it as already made sufficient updates to its website that it no longer presented the barriers identified by the plaintiff. To resolve this question, the court permitted limited discovery to allow the parties to gather evidence over the mootness issue. In other words, the litigation would continue for quite a few more months to resolve the issue of whether all the barriers on the website had been resolved (and, in all likelihood, the defendant will lose).
Second, the defendant argued that, because the plaintiff had no alleged a clear nexus between the defendant’s website and a physical bricks and mortar place of business, the complaint should be dismissed. While this is a MUCH easier issue for the court to decide, the court refrained until after it decided on the mootness issue. The court explained that
given that subject matter jurisdiction is a threshold inquiry which the Court must address before getting to the merits of the case), the Court will deny this alternative ground for the motion to dismiss without prejudice to its renewal once the period of jurisdictional discovery is concluded.
Kolesar v. Pro-Source Performance Products, 2023 U.S. Dist. LEXIS 45831 at *10-11.
So why do I draw attention to this holding? Since starting this blog, I’ve blogged that mootness is a loser argument and an uphill battle in all but the most compelling cases where a defendant can really show determined efforts to avoiding any possible accessibility problems. While it may sound appealing to clients, it needs to be saved only for those cases where it really makes sense. Otherwise, as Kolesar points out, raising a mootness defense can delay having a case dismissed for months while the court pursues a dead end argument. At the end of the day, this likely won’t save the defendant in the Kolesar case (because the Western District of Pennsylvania has been rejecting the need for a nexus between a website and a physical business location), but it could save the client a ton of unnecessary legal fees fighting over an issue that they will almost surely lose and prolonged heartburn over the protracted litigation.
Phew! Looking back, that turned out to be a lot longer than I anticipated. The bottom line seems to be (1) just like athletes need to choose their parents very carefully, litigants in web accessibility cases in the Southern District of New York need to choose their judges very carefully, (2) the Supreme Court is taking on the issue of tester standing in web accessibility cases, and (3) defendants need to seriously think twice before raising a mootness claim.
At Converge Accessibility, we focus on web and digital accessibility. If you find yourself facing litigation, hire a qualified attorney (we can recommend some if you're looking for help). We're also happy to strategize, evaluate claims, and bring your counsel up to speed quickly so they can offer you the best help.
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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