At Converge, we work with a lot of attorneys who are representing companies that get sued for web accessibility. Most of them have the good sense to just settle their cases immediately—and then start making their sites accessible. This is almost always the best strategy. Yes, your client is being randomly shaken down by a plaintiff who likely never wanted to be their customer. On the other hand, your client’s website likely does have a number of real accessibility problems that could cause discrimination against people with disabilities down the road. Rather than focus on the unfairness of being targeted, wouldn’t it be better to just settle the case and spend your money on your website?
Thankfully, however, there are enough obstinate defendants out there that drag themselves through the mud to create a bunch of caselaw! This post summarizes how mootness works in web accessibility cases. It reviews all of the cases we’ve discussed over the past three years on mootness. Hopefully, in the future, I’ll remember to keep updating this post so you’ll always have the latest information about mootness.
Haynes v. Hooters (11th Cir. 2018)
As I noted almost three years ago, the most famous case addressing mootness in web accessibility is Haynes v. Hooters Restaurants of America, 893 F.3d 781 (11th Cir. 2018). In this case, Mr. Gomez sued the famous restaurant chain and settled the case a few months later. The settlement agreement required Hooters to make their website accessible within six months and the parties agreed to refrain from litigation for two years. Shortly after the six month period expired, a different plaintiff (Mr. Haynes) brought a nearly identical lawsuit against Hooters.
Hooters claimed that Mr. Hayne’s case was moot but the Eleventh Circuit Court of Appeals disagreed. First, while Hooters had made progress in updating their website, there was no evidence that their site was fully accessible. Second, the settlement agreement operated between Hooters and Mr. Gomes—and it had no effect on the relief that Mr. Haynes could pursue against Hooters. Third, because Mr. Haynes was not a party to that contract, he couldn’t enforce it.
Cases After Haynes v. Hooters
Cases after the Hooters case reinforce the idea that mootness usually doesn’t work in web accessibility cases. For instance,
- Hecht v. Magnanni Inc., 2022 U.S. Dist. LEXIS 60836 (S.D.N.Y. 2022) denied a defendant’s claim of mootness simply because it had undertaken remedial efforts to eliminate barriers on its website. After noting that “[i]t is black-letter law that a voluntary cessation of challenged conduct does not ordinarily render a case moot," the court went on to deny the defendant’s mootness argument because, “it is unclear at this stage if the alleged violation continues to exist or will reoccur.”
- Brooks v. Lola & Soto Business Group, 2022 U.S. Dist. LEXIS 37246 (E.D. Cal. 2022) denied a mootness claim noting that the "[d]efendant has not met its burden to show it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."
- Quezada v. U.S. Wings, 2021 U.S. Dist. LEXIS 234057 (S.D.N.Y. 2021) rejected a mootness claim when a defendant added an overlay (AccessiBe) that promised to make a website comply with WCAG 2.1.
- Erasmus v. Andrea Tse M.D. Inc., 2022 U.S. Dist. LEXIS 107569 (E.D. Cal. 2022) rejected a mootness claim. While the defendant had removed videos without captioning from its website, it could not show that similar barriers would not exist in the future.
- Monegro v. I-Blades, Inc., 2023 U.S. Dist. LEXIS 43027 (Mar. 14, 2023) rejected a mootness argument where a 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 the state where the case was brought, but this would not satisfy mootness because the defendant could easily restart its business there through its inaccessible website.
- Martin v. Aspen Skiing Co. 2020 U.S. Dist. LEXIS 203037 (C.D. Cal. 2020) denied a mootness claim. Fixing a website wouldn't moot a claim under California’s Unruh Act as the plaintiff still has the claim for money damages.
- Langer v. Equity Lifestyle Properties, 2023 U.S. Dist. LEXIS 116436 (C.D. Cal. 2023) is an excellent review of mootness contrasting ADA built environment cases from those involving mere policy changes (here uploading captioned videos). Based on the ease with which future errors can occur, a policy change is not enough to satisfy mootness.
On the other hand, mootness can work in a few cases
- Langer v. Ralphs Grocery Co., 2022 U.S. Dist. LEXIS 134685 (S.D. Cal. 2022) accepted a mootness argument when a grocery store either removed non-captioned videos from its website or captioned the rest. It also instituted a policy to ensure that no videos without captioning would ever be loaded onto its website.
- Langer v. Russell Motorsports, Inc., 2022 U.S. Dist. LEXIS 68842 (E.D. Cal. 2022) accepted a mootness claim after the plaintiff complained that lack of captioning made several videos on the defendant’s website inaccessible. Shortly after the lawsuit began, the defendant either removed the videos or added captioning. And, because the plaintiff’s complaint gave no suggestion that the violation was likely to recur, the ADA claim was moot.
- Langer v. B.R. Guest, 2021 U.S. Dist. LEXIS 206570 (C.D. Cal. 2021) accepted a mootness claim by a hotel that was sued because its videos were not captioned. In this case, it turned out the videos were captioned—a glitch by the company hosting the video had temporarily removed the captioning. When the hotel was notified of the problem, they immediately had the captions restored.
- Rizzi v. Hilton Domestic Operating Co., 2020 U.S. Dist. LEXIS 144884 (E.D.N.Y. 2020) accepted a mootness claim because the hotel had fixed all of the issues in the complaint in the two years that litigation dragged on since the complaint was first filed.
And then there are some really questionable decisions that have relied on mootness.
- Tavarez v. Extract Labs, 2023 U.S. Dist. LEXIS 55615 (S.D.N.Y. 2023) dismissed a web accessibility claim brought by a serial plaintiff who filed 104 identical cases on the same day. While this case appears to be incorrectly decided, we’ve also heard rumors that the plaintiff’s attorney just lost interest because he had 103 other cases that were less of a hassle.
- Gil v. Winn-Dixie, No. 17-13467-CC (11th Jan. 5, 2022) dismissed a web accessibility case as moot and avoided a difficult rehearing en banc.
Wow! I thought we had little to say about mootness, but we've actually talked about it a lot!
Making Sense of It All
Looking back, I now notice that mootness has worked in a lot more cases than I thought it had. I still hold to my original claim, however, that mootness is really an uphill argument in web accessibility cases.
Why is that? It simply that websites are not simple, static creations. Physical barriers in the real world can be easily identified and, once removed, they tend to stay removed. Websites never stay the same because content is always being added and taken away. Also, unless an organization has really tight policies, there is also no guarantee that things will stay the same. Usually, all it takes is one part-time college intern adding inaccessible content to a website to mess everything up!
Putting aside the questionable decisions and focusing at the cases where mootness has legitimately worked bears out what a defendant needs to do to make a mootness claim work:
- completely remove the type of barriers that the plaintiff encountered and
- implement clear policies to make sure that new barriers of the same type are not created in the future
Note also that, in three out of the four cases where a mootness claim worked, the plaintiff’s allegations involved non-captioned videos. Removing a video from a website takes little to no skill, other than a passing familiarity with the content management system (CMS) editor. Hardly any of the cases that we see involved captioning, however.
Also note that, of the two elements to a good mootness claim, it’s the second element that is really hard to establish. If you have a competent audit performed by any accessibility consultant truly worth their salt, you’re going to know all of your existing barriers and you’ll be able to make your website accessible. The problem is implementing clear policies to keep it that way. Sure, you can try to use automated solutions (but they miss three-quarters of accessibility problems—and probably won’t catch the big blocking issues identified in your audit) or you can try periodic “light” manual testing (but you’ll likely have a lot of problems that keep slipping between the cracks), but those "solutions" really don't meet the bar because one of your content creators will inevitably create inaccessible content at some point unless your policies focus on them.
How Can Converge Make a Difference?
At Converge, we believe that our accessibility solutions are more robust than other accessibility consultants for one simple reason—we help you create the policies to keep your content accessible. While I really believe mootness is a tough argument for defendants to win, I believe we can get you a better solution for winning a mootness claim. Here's why.
Recently, we realized that the real source of the problem was a lack of rigorous training for content creators. Now, when we do an accessibility audit and review the results with developers, we try to separate (1) the errors that were created by content creators from (2) the errors that were part of the CMS infrastructure. This enables us to create a learning management system (LMS) based training course specific to the types of errors that those content authors created (and which landed you a lawsuit in the first place). And, because it’s in an LMS, supervisors can spot exactly who has taken the course and whether they’ve passed all the tests showing that they know exactly what to do based on the actual problems found on your website. In the world of web accessibility, this is as close to a “clear policy to make sure that new barriers of the same type are not created in the future” (see element number 2, above) as you're likely to find.
If you’re using a different accessibility consultant, chances are that they haven’t thought about solutions like this—or how they can help you avoid risk in the bigger picture. And they probably don’t offer solutions like WebAlign®, which can make your whole web development lifecycle revolve around WCAG-compliance. Instead, they probably just want to convince you to sign up for more of the same expensive audits or ineffective (but snazzy looking) automated testing tools. The difference is knowing what the law requires... and then creating technical solutions that get you as close as possible.
If you’d like to see how we can offer you really effective, innovative solutions that actually make a difference, reach out today!
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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