July was a busy month for the courts and serial ADA web accessibility plaintiffs...
Another Strange Nexus Opinion
As readers of this blog know, I am not a fan of the nexus standard. In a nutshell, this standard is used in some jurisdictions (e.g. Florida and California) and requires that a plaintiff who is suing a company because of their inaccessible website show a strong “nexus” or connection between that website and the company’s bricks and mortar physical locations. The nexus standard was created because the ADA’s language can be read to only cover physical locations. While I don’t agree with that assertion, I understand where it is based. Starting from that foundation, the logic of the nexus standard then makes sense in the abstract; the problem is it completely falls apart in application.
The most extreme application of the nexus standard was the 2021 case of Gil v. Winn-Dixie, 993 F.3d 1266 (11th Cir.), opinion vacated on reh'g, 21 F.4th 775 (11th Cir. 2021). In that case, the Eleventh Circuit held that unless the website effectively blocked a person with a disability from walking into a Winn-Dixie store, the nexus standard wasn’t satisfied. Even though the Eleventh Circuit vacated its opinion, lower courts could still consider it under the right conditions. This month, the district court in Fernandez v. Flanigan’s Entertainment, Inc., 2023 U.S. Dist. LEXIS 114131 (S.D. Fla. 2023) did exactly that—but in the most bizarre way.
The discussion heats up in a very Winn-Dixie way when the court states,
The issue here is whether Plaintiff's Complaint sufficiently alleges that Defendant's Website creates an intangible barrier that excludes Plaintiff from accessing the goods, services, privileges, or advantages of Defendant's physical restaurant.
Id. at *8. Then the court describes the barriers identified by the plaintiff,
According to the Complaint, Plaintiff alleges that Defendant's Website allows users to secure information about the locations of Defendant's physical restaurant, purchase merchandise that is also available for purchase in and from the physical restaurant, arrange in-store pickups and curbside delivery of merchandise purchased online, purchase food and beverages also available for purchase in and from the physical restaurant, and purchase gift cards. Plaintiff further alleges that Defendant's Website "clearly provides for and is connected to Defendant's restaurants for its operation and use" and the "Website is an intangible service, privilege, and advantage of Defendant's brick-and-mortar restaurants."
Id. at *8-9. Okay, so clearly that’s the wind-up for kicking the plaintiff’s complaint out of court, right? After all, nothing here identifies a barrier that prevented the plaintiff from going to the restaurant. But then the very next sentence flips the logic.
Based on Plaintiff's allegations relating to Defendant's Website, which appear similar to the allegations in Haynes and Mattress Xperts, and factually distinct from the website in Gil, the Court finds dismissal inappropriate at this time.
Id. at *9.
Surprised? I was but I shouldn’t have been. My problem with the nexus standard is that it leads to completely unpredictable results. The strength of Mr. Gil’s connections between the website and the physical store in Winn-Dixie were so much stronger than Mr. Fernandez’s. In Winn-Dixie, Mr. Gil couldn’t get his prescriptions refilled online and so had to wait hours at the store. In Winn-Dixie, Mr. Gil alleged that he couldn’t access the digital online coupons and had to humiliate himself by asking strangers at his local store to read the paper coupons to him. Those are strong connections between the (inaccessible) website and the physical Winn-Dixie store. By contrast, Mr. Fernandez alleges he couldn’t use the website to locate the defendant’s restaurant (but a Google search would have likely worked). He also alleged that he couldn’t buy food or merchandise online for pickup at the store (but nothing prevented him from walking to the store and ordering it directly). I’m not saying that I disagree with the Fernandez opinion because I think that the Winn-Dixie opinion was incorrect. What I disagree with is the whole nexus standard itself. And, if you believe that rule of law means that we should have predictable outcomes in legal cases, you should disagree with the nexus standard as well.
Testers Can be Customers Too
Back in March, I mentioned that the Supreme Court was taking up the issue of whether “testers” (a person who only “tests” a website without intending to be a real customer) could sue companies under the ADA for their inaccessible websites. Just a few days ago, our friends at Seyfarth Shaw reported that the Supreme Court may not have a chance to decide this issue because Ms. Laufer has decided to withdraw her appeal and have her cases dismissed.
Last month, I discussed how New York was getting tough on plaintiffs in web accessibility cases--- and the courts were using the Second Circuit opinion in Calcano to force plaintiffs to show a clear intention to return as a customer. With the Supreme Court likely punting on the tester standing, then, no court in New York would let a tester sue for website accessibility, right?
Apparently not if you’re a tester with a penchant for honey butter. In Davis v. Wild Friends Foods, Inc., 2023 U.S. Dist. LEXIS 115542 (S.D.N.Y. 2023), Kevin Davis was a serial plaintiff and tester—and the defendant seized on this in its motion to dismiss and asserted that he had suffered no actual harm. But the defendants picked this fight with the wrong tester because it just so happened that Mr. Davis was crazy about honey butter.
Here, the allegations concerning intent to return are significantly more detailed than in Calcano. Plaintiff alleges more than profession of an intent to return to the Website. Specifically, Plaintiff provides details about his past visits to the Website, including what item he hoped to purchase. He also alleges that he has visited the Website on five prior occasions in order to purchase organic honey sunflower butter and details the dates of those visits. From Plaintiff's allegations, it is plausible that he, in fact, intends to return to the Website. The product in question is designed to appeal to consumers in general and is one that would be purchased on a website. Plaintiff alleges that he enjoys honeyed butter, is generally interested in organic food as part of his diet, and was interested in trying a new brand to enjoy a healthy and tasty new food. The FAC alleges why Plaintiff would be interested in this honey butter in particular. Defendant's honey sunflower butter, according to the FAC, is a distinctive product. The FAC states that it "is marketed as allergen friendly and a healthier eating option because Defendant does not use excess sugar or palm oil in its unique recipe for this delicious snacking option." These allegations are sufficient to plausibly allege intent to return to establish standing.
Id. at *18-19.
Serial plaintiffs were apparently on a winning streak. On the same day as the Davis opinion came down, a court in the Northern District of New York held that Veronica Maddy had standing to sue post-Calcano because she suffered actual harm despite filing over 70 similar web accessibility lawsuits. Apparently, just as Kevin Davis likes honey butter, so Veronica Maddy loves body lotion. She frequents web sites looking for body lotions and has a large collection of body lotions. Regarding Calcano,
She specifies not only the product she wishes to purchase—body oil—but she also alleges facts that make it plausible that she wishes to purchase the product from Defendant. Plaintiff has a hobby of collecting body lotions and oils from various brands and enjoys purchasing different branded lotions to add to her collection, and the website offers the Morroccanoil Dry Body Oil, which is a high quality body lotion that Plaintiff wants to add to her collection.
Id. at *17-18. And what does she say about filing over 70 similar complaints about web accessibility? She very cleverly responds, it is not evidence of abuse of the legal system, but instead "demonstrates the systemic and rampant discrimination faced by Plaintiff and other visually impaired consumers on a daily basis when using the internet, which goes directly to the very issue the ADA was meant to address.” Id. at *9.
The hot streak for serial plaintiffs hit a dead end later in the month, however, in Toro v. General Store, LLC, 2023 U.S. Dist. LEXIS 124787 (S.D.N.Y. 2023). Even though Jasmine Toro was able to identify exactly the style of earrings that she wished to buy and exactly when she (unsuccessfully) visited the defendant’s website to buy them, the court seized on the fact that Ms. Toro filed at least 21 nearly identical complaints and that, based on the cookie-cutter style of complaints, she likely did not suffer concrete harm. Then, on the same day, as the Toro opinion came down, the same judge issued her opinion in Velazquez v. Home Controls, Inc., 2023 U.S. Dist. LEXIS 124514 (S.D.N.Y. 2023) in which the court found no injury in a case where a plaintiff had filed over 100 nearly identical lawsuits.
Mootness and Alternatives to Inaccessible Content
Readers of this blog will be familiar with poor Chris Langer, a serial plaintiff who never seems to do well in federal court. A few months ago, I summarized mootness cases—and Chris’s name appears on the losing side of the mootness argument three times in a row. Chris finally won a mootness claim but still ended up getting his case kicked out of court on a summary judgment motion.
First, just a reminder about the difference between a summary judgment motion and motion to dismiss. At least 95% of the opinions that I talk about are based on motions to dismiss. These are early motions (before any discovery) where the courts look at the bare legal sufficiency of the case. Neither party has (hopefully) invested much in the case so far and the facts borne out in discovery haven’t been revealed. Plus, losing a motion to dismiss isn’t fatal; a plaintiff just has to spiff up their complaint and try again. By contrast, a motion for summary judgment is an entirely different beast. This is filed after the costly discovery process and right before the trial. The parties have invested months—if not years—in the litigation and racked up huge legal fees. The question now becomes whether there are enough questions to go to trial—or whether the case can just be decided quickly. Also, losing a summary judgment motion is usually dispositive and fatal for the losing party.
Given Chris’s lack of success in his other cases, he was lucky to make it this far in his lawsuit against Equity Lifestyle Properties. In this case, he wanted to watch some videos about campsites owned by the defendant because he wanted to go camping. Unfortunately, the videos on the defendant’s website were not captioned so Chris could not understand their contents. During the course of the litigation, the defendant captioned all of its videos, adopted a policy to ensure that future videos would be captioned, and asserted that Langer’s complaint was now moot. The court gave a thoughtful analysis of mootness in ADA cases and contrasted permanent architectural changes (where it is highly unlikely that future barriers would appear) from less-permanent policy changes and concluded that there was no evidence that the defendant would not accidentally upload videos lacking captioning in the future. Langer v. Equity Lifestyle Props., 2023 U.S. Dist. LEXIS 116436 at *8-12 (C.D. Cal. 2023)
Unfortunately for Chris Langer, his day in court was not over yet because the evidence also showed that the information provided in the videos was also readily available elsewhere on the defendant’s website. While the court couched its analysis of this point in a suspicious nexus argument, the simple fact remains that Chris Langer was not denied effective communication under the ADA and thus suffered no injury. Id. at *16-17.
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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