Can Using an Overlay Win a Lawsuit?

Say What?!

Earlier this week, Ken and I had an interesting call. One of our clients read Ken’s Legal Update for March and asked if just buying a subscription to AccessiBe could moot an active lawsuit! Now, I’ve got your curiosity piqued, right? Read on to learn more about how this unfolded.

The Legal Case

Let’s dive a little deeper into this case. In his monthly legal update, Ken talked about Tavarez v. Extract Labs, 2023 U.S. Dist. LEXIS 55615 (S.D.N.Y. 2023). Here’s what he said about the case.

"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) indicating 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."

Remarkably, our client—who isn’t a lawyer-- then went on Pacer and downloaded all the filings on the case. Now that’s dedication! Ken tells me that Pacer is the online electronic docket system used by the federal courts in the United States. It’s fairly inexpensive and gives you free access to all of the case filings in a particular case. But it’s lousy for legal research because, while you can look up a specific case, you can’t do text searches across different cases. So, if you want to learn about all the latest web accessibility cases, for instance, you will have to read the thousands of cases that are filed each day. But I digress…

Ken logged into Pacer to learn more about Extract Labs. The complaint was originally filed in November 2021 and, after some initial legal wrangling, the defendant filed a motion to dismiss in February 2022. The motion was accompanied by a declaration from the defendant’s Director of Marketing and a listing of 108 similar lawsuits filed by Mr. Tavarez—104 of which were filed within one day of his lawsuit against Extract Labs! That motion was never heard because the plaintiff then amended his complaint. In June 2022, the defendant then filed a second motion to dismiss, a second declaration from the marketing director, and a slightly prettier version of the list of Mr. Tavarez’s lawsuits. The judge’s ruling was based on this second motion and declaration.

Reader’s Digest Version

Don’t have time to read a ton of legal documents? Here’s the reader’s digest version:

  1. The first declaration by Extract Labs Marketing Director focuses on Extract’s Labs reliance on overlays (specifically, AccessiBe). In fact, the Marketing Director even attaches a report by AccessiBe that they provide to customers facing litigation. (To see how this report only covers a small portion of WCAG, see my previous blog post on “A Different View into Accessibility Overlays”.)
  2. In the second declaration by the Marketing Director, Extract Labs seems to have stepped up its game. Now the company had completely rebuilt its website and, while they still used AccessiBe, they now used WAVE and a separate “Accessibility Checker” to evaluate their website. The marketing director even downloaded NVDA and personally confirmed that each of the elements in the complaint and amended complaint were fixed.

But is the case really moot? And is the website accessible? Those are two very different questions. Let’s examine each more closely.


In his original complaint, Mr. Tavarez stated that, in August 2022, he visited Extract Labs website and encountered two accessibility issues.

  1. The screen reader fails to read advertisement pop up links. The website then requires the use of the cursor to close the advertisement.
  2. The screen reader fails to read the links on the website.

In his amended complaint, Mr. Tavarez expanded his list to include four accessibility barriers.

  1. The screen reader fails to read descriptions linked to images on the website, impeding Plaintiff’s ability to make an informed choice as to products to purchase as a sighted New York customer would.
  2. The screen reader fails to read product descriptions, impeding Plaintiff’s ability to make an informed choice as to products to purchase as a sighted New York customer would.
  3. When navigating the pages to select products, the screen reader cannot read all of the products available for selection, impeding Plaintiff’s ability to make a purchase as a sighted New York customer would.
  4. The screen reader fails to read when an item is added to the “cart”, impeding Plaintiff's ability to make a purchase as a sighed New York customer would.

In response, the marketing director declared:

  1. Product descriptions linked to images on our website are capable of being read by screen reader software.
  2. Product descriptions are now capable of being read by screen reader software.
  3. Our website allows screen reader software to read products available for selection when navigating pages to select products.
  4. The website allows screed reader software to read when an item is added to the "cart" for purchase.

In response the plaintiff’s expert Robert Moody examined the site in June 2022 and found the following deficiencies:

  1. The logo found on this site, which acts as a link to the homepage, is not labeled and cannot therefore be interpreted by any screen reader as to what the graphic represents nor the underlying purpose of creating a way to return to the site’s homepage.
  2. Throughout the website, there is text providing information. For example, on the “New To CBD?, What is THC-O and What does it do?, What is CBT (Cannabitran)?, What is CBC?, and View Lab Test” not all text is labeled to integrate with the screen reader. The information is skipped over to the next available link, heading, or button as the text is not accessible. The site moves directly to the active buttons and fails to describe or reference the content or context.
  3. Product price is not labeled properly to integrate with the screen reader. The regular and sale price are not distinguished from each other. Without providing proper information, this would create a barrier for a visually impaired user.
  4. The notification that an item has been added or removed from the shopping cart is not labeled to integrate with the screen reader.
  5. Inside the shopping cart, the subtotal is inaccessible. This information is not relayed to the user. Thus, bars the user from confirming the items in their shopping cart before purchase.

In addition, plaintiff’s expert also found that AccessiBe widget used by Extract Labs posed independent accessibility problems and did nothing to resolve the issue he identified. Simply based on this information, Ken says that the court was wrong to dismiss Mr. Tavarez’s complaint because there are still triable issues of fact on three of the four allegations in the complaint.

Those four allegations are:

  1. Images Not Properly Labeled. Plaintiff’s expert and defendant’s expert disagreed on whether images were properly labeled.
  2. Inadequate Product Descriptions. The experts also disagreed about whether product descriptions and prices are accurately read by a screen reader.
  3. Inability to View All Products Available to Select. Only the plaintiff’s expert commented on this point, so plaintiff appears to win on this one.
  4. No Notification When Products Added to Cart. Again, the experts disagree on this point.

Ken says that, at this early stage of the litigation, the court is supposed to interpret any controversies in favor of the party who is not trying to have the case dismissed.

Did The Marketing Director Get It Right?

I wanted to look at what the court appeared to focus on— the declaration of Extract Lab’s Marketing Director. Using NVDA takes a little practice—and testers who don’t work constantly with screen readers, like NVDA, tend to miss things. Let’s see if the Marketing Director actually got it right.

As with most legal complaints, the first challenge is to determine exactly what the plaintiff is talking about. This is because there usually aren’t a lot of details provided and the allegation is typically general in focus. This appears to play a part in what the plaintiff claims vs what the Marketing Director claims.

What I Found - Issue 1

The first issue in the plaintiff’s amended report appears to be related to informational images on the site. Images such as shown in the “Featured In” section of the home page and images that inform the user about things such as “Veteran Owned”, “Non-GMO Ingredients”, “Certified Organic Ingredients”, “Manufactured in a cGMP Facility”, and “Third-Party Lab Tested”.

The images under “Featured In” appear to be background images and do not provide an equivalent alternative text. Yet the screen reader can set focus to this control, and they are told it is “clickable” even though nothing happens when clicked.

The other informational images are marked as decorative, yet the information provided does not appear elsewhere on the page or, in most cases, the product description pages.

Based on this, I would say this is a valid issue as expressed by the plaintiff. It seems the Marketing Director’s lack of knowledge about what information should be conveyed to screen reader users prevented him from accurately assessing plaintiff’s claim #1.

What I Found - Issue 2

The second issue in the plaintiff’s amended report is related to the product images. The plaintiff says that the text equivalent provided for the product images impeded his ability to make informed choices about the product. The Extract Lab’s Marketing Director declared that, using NVDA, the product descriptions for images on the website were read by the screen reading software. Looking at the home page and the product pages, I would say that the statement made by the Marketing Director is true, but is the alternative text provided, correct?

In some cases, the image text on the site does correctly convey the visual image but there are also way too many images with alternative text that appears to be for SEO rankings. For example, many images use alt text such as:

“edibles | thc edible gummies | best thc gummies | buy thc online | cbd gummies | best cbd gummies”

That type of alternative text does not describe the visual image and is not beneficial for a screen reader user. This is especially true when far too many images contain this type of alternative text. It could be argued that this over verbosity makes it difficult for a screen reader user to properly navigate and select products for purchase, thereby creating an inaccessible experience. At a minimum, it fails to conform with WCAG Success Criterion 1.1.1 Non-text Content as this criterion requires that the text alternative serves an equivalent purpose as the image.

No matter how you choose to view how this issue would impact a screen reader user, the fact is that the Marketing Director’s statement misrepresents the real issue in that the alternative text is not an equivalent for the image displayed and that this is a valid issue as claimed by the plaintiff.

What I Found - Issue 3

For issue number three, I was not able to reproduce the claim that the screen reader cannot read all the products available for selection. Without a deeper dive into the site, this claim does appear to be moot.

What I Found - Issue 4

Issue number four is the most critical issue of the group. When adding an item to the cart from the product detail page, AccessiBe displays a screen that says, “Processing data, please give it a few seconds…”. While this is read by the screen reader it isn’t very useful. Once the item is added to the cart, the cart slide out is displayed but no announcement is made. The focus remains on the content behind the cart slide out. The screen reader user must “discover” the cart slide out by navigating to the end of the page. There is a lot of content to navigate through. So much so that I would consider this a blocking issue for screen reader users!

The Marketing Director’s declaration that the website allows screen reader software to read when an item is added to the "cart" for purchase is also misleading. Once the user “discovers” the cart and gets focus set there, they can eventually interact with the cart, but not knowing the cart is even there is a huge issue. This again demonstrates that the Marketing Director’s lack of knowledge about what information should be conveyed to screen reader users prevented him from accurately assessing plaintiff’s claim #4 which has resulted in a blocking issue remaining on the website.

My Verdict

Because of the way that Mr. Tavarez framed his complaint, his entire lawsuit depends on the four issues mentioned above. This means that, if Extract Labs can show that they have addressed these four issues—and that they have a system in place to prevent their recurrence—Mr. Tavarez’s lawsuit is moot.

Based on the fact that the plaintiff's expert and the Marketing Director disagreed, the defendant had not met this standard and so the court was wrong to dismiss the case. But, even if the case had gone to trial, I believe that the case was not moot. From my quick review, only one of the four barriers has been resolved.

Ken says that it’s also important to note that a different plaintiff alleging different claims would not be mooted by Extract Labs’ actions.

So why did Mr. Tavarez make his own complaint so easy to shoot down? Specifically, why didn’t he include broad, general claims about the site being impossible to navigate and use with a screen reader. Ken says that part of it is just questionable lawyering (after all, when you’re filing 104 cases on the same day, it’s hard to be precise). But another part has to do with the fact that courts in New York can sometimes be very particular about requiring plaintiffs to be VERY specific in their pleadings.

So, what happens if a different plaintiff sued Extract Labs? Well, unless they alleged the same four issues that Mr. Tavarez alleged, their case would not be moot unless Extract Labs could show that their actions fixed all of the problems on their website. Is the Extract Labs site accessible? The short answer is “no.”

In Conclusion

The Extract Labs website currently falls well short of being accessible. Even a lawyer like Ken could find obviously issues like improper color contrast (WCAG 1.4.3), flashing content (WCAG 2.3.1), and visual keyboard focus being lost (WCAG 2.4.7). Now some may say that AccessiBe provides features to allow users to overcome these WCAG failures, yet I would argue that being accessible by default is always best. Also, if you open the AccessiBe panel on this website using only the keyboard and then tab to the profile toggles, how do you know which one has focus? There is no visual indication of focus provided, proving that AccessiBe itself is failing to conform with WCAG. And don’t get me started on how using AccessiBe's “Use Website In a Screen-Reader Mode” toggle button, which is only available to a screen reader, changes the headings on the page to be even less accessible.

What are the lessons learned?

  1. Don’t Count on Mootness. As Ken says, mootness rarely works. In this case, the court just got it flat out wrong based on the declaration of the experts. Ken says that this isn’t a great case to try to hang your hat on if you want to raise a mootness claim.
  2. Be Wary of Your Own Screen Reader Testing.
  3. Overlays Won’t Cure Accessibility Problems and Won't Win a Lawsuit.

If you find yourself in need of assistance with your website accessibility, please give Converge Accessibility a chance to discuss how we can help! Don’t wait, contact us today!

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