Legal Update: June 2023

Summer came early this year in Seattle. June can be an iffy month but, this year, it was glorious. The days were mostly sunny with little humidity and high temperatures around 70 degrees. When I used to live on the east coast, we often had only about a week of beautiful weather like this before the heat and humidity descended on us. In Seattle, days like this can go on for months. It's hard to resist these gorgeous halcyon days...

This month, all of the legal action has been taking place on the east coast-- and specifically in New York. I've noticed an interesting trend in web accessibility cases, as courts make it harder for serial web accessibility plaintiffs under the legal requirement of "standing to sue." While I have no problem with courts trying to limit the number of serial web accessibility cases, the way that they are going about it seems wrong.

Standing to Sue in the Second Circuit: Effects of Calcano

This month starts with a decision from the Southern District of New York in Rendon v. Berry Global Inc., 2023 U.S. Dist. LEXIS 93809 (S.D.N.Y. 2023). While we have noted that it is relatively easy to sue purely online businesses in the Southern District of New York because courts there have largely dropped the nexus requirement, this doesn't mean that this venue has become a plaintiffs' paradise because they still have to address some sticky standing to sue requirements.

In Rendon, two blind individuals filed web accessibility lawsuits against dozens of companies based on web accessibility-- including a suit against Berry Global. The court dismissed the case for lack of standing to sue. First, the court noted that,

In the ADA context, the so-called Kreisler factors are used to determine whether standing exists: "(1) the plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff's visits and the proximity of [defendant's business] to plaintiff's home, that plaintiff intended to return to the subject location. In the context of websites, "the third requirement can be met by non-conclusory, plausible factual allegations from which it is reasonable to infer, based on the past frequency of visits and the plaintiff's articulated interest in the products or services available on the particular website, that the plaintiff intends to return to the website."

Rendon at *6-7 (citations omitted). Next, the court noted that the court revisited Kreisler in its opinion in Calcano v. Swarovski North America Ltd., 36 F.4th 68 (2d Cir. 2022), which further refined what needs to be pled to satisfy the Kreisler requirements. Specifically, the Rendon court noted that,

In Calcano, the Second Circuit held that, "Plaintiffs' conclusory invocations of the factors we found relevant in Kreisler are insufficient to establish standing." In that case, four visually impaired plaintiffs alleged that various retailers violated the ADA by failing to offer gift cards containing braille. The court held that the plaintiffs' identical and conclusory allegations that each of them resided "in close proximity to Defendants' businesses, has been a customer at Defendant's [location] on prior occasions, and intends to immediately purchase at least one store gift card from the Defendant as soon as the Defendant sells store gift cards that are accessible to the blind" simply parroted the court's language in Kreisler and were "merely legal conclusions couched as . . . factual allegations." The court found that the plaintiffs' "vague assertions that they have been customers at Defendants' businesses on prior occasions," did not "nudge their claims "across the line from conceivable to plausible." Moreover, three of the plaintiffs did not provide "any details about their past visits or the frequency of such visits;" they did not "specify which stores they visited or what items they purchased;" and they did not "say why they want to purchase braille gift cards . . . so urgently." The court concluded that, "Without such basic information, Plaintiffs cannot possibly show that they have suffered an injury that is 'concrete and particularized.'

Rendon at *7 (citations omitted).

To sum up, Kreisler requires evidence that a plaintiff has to show a genuine interest in a company's goods and services, such as past purchases or proximity to the defendant's business. Then, Calcano refined that analysis to require specificity. For instance, if a plaintiff is going to rely on past purchases from the defendant's establishment, they need to provide exact details about when and where they made purchases. Plus, they need to identify exactly what they wanted to buy but couldn’t purchase online.

It didn't really help matters that both plaintiffs in Rendon asserted that they had standing as "testers". Even though the question of whether testers have standing in ADA cases is currently before the Supreme Court, the court is Rendon didn't have any issues disposing of the standing of testers anyways. At the same time that they addressed the plaintiff's other forms of harm (e.g. the allegations that the plaintiffs suffered an "informational injury" or a "dignitary injury"), the court fell back to the same lack of exacting specificity to conclude that the plaintiff had not sufficiently identified an injury-in-fact to confer standing.

So what should we make of the Rendon decision? The bottom line is that the Southern District is fickle with web accessibility cases. If you are a serial plaintiff (like the plaintiffs in Rendon) or just unlucky enough to draw the wrong judge, you may get subjected to the Calcano requirements. Until recently, however, most of the web accessibility cases in the Southern District didn't require this kind of excruciating detail in a complaint; could this new heightened scrutiny in web accessibility cases be due to the Southern District’s shift towards permitting online-only companies to be sued?

The Rendon decision makes for good reading-- and I'd encourage anyone litigating a web accessibility case in the Southern District to check it out. Of all the analyses of Calcano that I've read from any court in the Second Circuit, the Rendon decision most clearly articulates exactly what needs to be contained in a complaint to confer standing to sue.

A Few More Second Circuit Cases About Standing to Sue

As the month went on, there were a number of other web accessibility cases from the Second Circuit that applied Kreisler and Calcano to standing to sue. First,, the Eastern District decided Suris v. Crutchfield New Media, LLC, 2023 U.S. Dist. LEXIS 96603 (E.D.N.Y. 2022), in which the court focused on the same "intent to return" requirement in the Calcano decision. Here, the court noted that,

Here, Plaintiff offers no explanation as to what products he intends to return to purchase, why he is interested in purchasing those products, or any "description of concrete plans" or "specification of when the 'some day'" he plans on returning will be.

Id., at *7. Then, the Southern District applied a similar analysis in Velazquez v. Nextphase, Inc., 2023 U.S. Dist. LEXIS 105152 (S.D.N.Y. 2023).

How Can a Plaintiff Win?

The analyses used by the courts may seem to make sense in the abstract. After all, if a plaintiff doesn’t really intend to become a customer, they shouldn’t have standing—and the clearest way to test that intent to become a customer is to require the plaintiff to identify exactly what they want to buy and when they intend to do it. In practice, however, that simply isn’t realistic.

Most companies only make information about their goods and services available through their website. Unless a blind plaintiff either heard about a product from a friend or read about it on another website, how could they possibly tell a court exactly what they wanted to buy? In short, the Calcano analysis may encourage companies to make their websites inaccessible because doing so would make it impossible for plaintiffs with disabilities to identify the products that they want to buy!

One of the last decisions this month offers a glimpse of what meets the Calcano standard. In Guerrero v. Ogawa USA Inc, 2023 U.S. Dist. LEXIS 109579 (S.D.N.Y. 2023), Edelmira Guerrero (a serial plaintiff) sued Ogawa USA because he could not purchase a massage chair from the company’s website because the website was inaccessible. The court denied the defendant’s motion to dismiss in a web accessibility case and held that the "intent to return" prong of Calcano was met where, a plaintiff alleged that they

want to purchase a unique, differentiated and highly valuable ... product [of the defendant] and has tried to do so on three specific dates. The verified FAC also states that [plaintiff] got as far as attempting to add a product to her "cart," usually one of the last steps before completing a purchase, not merely a general difficulty in browsing. The verified FAC shows that, but for accessibility barriers, [plaintiff] would make a purchase on the Website and is now unable to do so.

Guerrero v. Ogawa USA Inc., 2023 U.S. Dist. LEXIS 10957 at *7-8 (S.D.N.Y. 2023). In fact, the Guerrero opinion also makes for good reading alongside the Rendon opinion because they are a point-by-point contrast of how to win and how to lose in a web accessibility case in the Second Circuit post-Calcano.

Why I'm Annoyed by These Decisions

I can’t help but feel aggravated by the analyses used in the opinions this month. No doubt, Mr. Guerrero had a friend or colleague tell him about the product that he allegedly wanted to buy. Going to the Ogawa World website, the company’s telephone number and hours of operation are plainly identified. In short, if Mr. Guerrero really wanted the chair, he could have just picked up the phone and placed an order. Yet, Mr. Guerrero has standing to sue because he suffered an injury by not being to purchase his massage chair online. By contrast, other plaintiffs who are stymied by a completely inaccessible site can’t identify the exact product that they want to buy because the defendant’s website is inaccessible. These plaintiffs, however, don’t have standing to sue post-Calcano. This doesn’t appear fair because it creates unfair barriers and rewards the wrong class of plaintiffs.

While Calcano may include a modicum of common sense in web accessibility cases, it becomes nonsensical in other ADA cases. Just yesterday, this nightmare scenario came up in my Lexis feed: the Eastern District opinion in Gomez v. West Shore Inn Restaurant, Inc., 2023 U.S. Dist. LEXIS 113744 (E.D.N.Y.). In this case, Alexander Gomez visited the West Shore Inn Restaurant but encountered numerous architectural barriers that made it impossible for him to independently access the facility. After he filed his complaint, the defendant failed to answer and so he moved for a default judgment. The magistrate judge nonetheless recommended dismissing the plaintiff's complaint because Mr. Gomez had not identified a specific intention to return.

Let that sink in for a moment. A mobility-impaired plaintiff encounters barriers while dining at a restaurant but can't sue under the ADA because they haven't alleged exactly when they will return? Calcano dealt specifically with a series of blind plaintiffs who filed largely cookie-cutter complaints against companies that failed to offer braille gift cards through their customer service telephone lines. In its opinion, the Second Circuit focused on three factors that convinced the court that the plaintiff's complaint failed to demonstrate an intention to return: the lack of details of exactly when the plaintiff would return, the vagueness of exactly when they visited the establishment in the past, and, most importantly, the fact that the complaint was largely cookie-cutter contents that suggested that they had no genuine interest in becoming a customer. The simple reality is that the Calcano court opinion was dealing with serial plaintiffs who had no intention of either buying a gift card or using it at one of the defendant's stores-- instead, they just wanted to bring a lawsuit. These factors make no sense when applied to an architectural barrier case like Mr. Gomez's complaint. Mr. Gomez actually did visit the West Shore Inn Restaurant for several hours to have a meal. Mr. Gomez actually was a customer of the West Shore Inn Restaurant, was subjected to discrimination, and was injured. These factors alone gives him standing to sue under the ADA. Applying Calcano in a traditional ADA case like Mr. Gomez's case means that plaintiffs like Mr. Gomez need to potentially experience discrimination twice before they can sue once.

To get a sense of the contours of the Calcano-- and why it really only applies to cookie-cutter complaints like typical web accessibility cases-- here is a link to Calcano decision.


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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