Legal Update: August 2023

There has been a real slowdown in my Lexis feed this month. Are the courts are issuing fewer opinions? Does Lexis have fewer people collecting and entering opinions? Are both factors at work because it's summer and even the nerdiest attorneys would rather be outside enjoying the day with a cool drink instead of working indoors?

Serial Plaintiffs Should Not File Cookie Cutter Complaints in New York

Back in June, I blogged briefly about Calcano v. Swarovski North America Ltd., 36 F.4th 68 (2d Cir. 2022), which seemed to be taking the Southern District by storm for web accessibility cases. The bottom line in that case was that the courts require some clear indication of exactly what the plaintiff sought to buy online (and why) when they tried to make an online purchase. Whether you have to meet this level of rigor, however, may all depend on the judge you end up in front of or whether your attorney files too many cookie cutter complaints. Two cases this month illustrate these ideas.

For instance, in Donet v. Isamax Snacks, Inc., 2023 U.S. Dist. LEXIS 141913 (S.D.N.Y. 2023), a blind plaintiff named Maricela Donet tried to purchase gingerbread and classic flavor whoopie pies from the Isamax website but encountered barriers, such as not being able to place her focus on links and not being able to access alternative text on images. After she sued Isamax, the company moved to dismiss, stating that the plaintiff needed to identify which links and product images were inaccessible to her. The court quickly dismissed this argument, noting that, “Further detail on which locations on the website are out of compliance with the applicable statutes is not necessary at this stage because a complaint need not provide 'detailed factual allegations' to survive a motion to dismiss.” Id at *7.

The Donet case is interesting to contrast with Cromitie v. Imperial Wholesale, Inc., 2023 U.S. Dist. LEXIS 149520 (S.D.N.Y. 2023) from later in the month. In this case, the plaintiff unsuccessfully visited the defendant’s website with "the intent of shopping for some cloth tablecloths and dinner napkins," but was unable to shop for products or make a purchase because of accessibility barriers on the website. After she filed a complaint, the defendant moved to dismiss. The court granted the defendant’s motion noting that the plaintiff, “allege[d] no specific facts about her experience on the Website—such as any particular products she viewed or was interested in viewing, or how she learned of Website in the first place” and that her “vague interest in returning to the website to browse and potentially purchase these products once the online store is made accessible to her is vague, lacking in support, and do[es] not plausibly establish [that she] intended to return to the Website.” Id. at *6. On the same day as the Cromitie decision, the same judge released her opinion in Fontanez v. Valley Lahvosh Baking Co., 2023 U.S. Dist. LEXIS 149437 (S.D.N.Y. 2023), which added a few more details of the "intent to return" requirement. Even though Mr. Fontanez identified the products he wanted to buy (heart-shaped crackers) and when he visited the website, he "does not allege, for example, how he learned of the Website, why he was so interested in acquiring heart-shaped crackers in various flavors from this Website, or whether he searched for comparable crackers elsewhere." Id. at *6.

How do we make sense of these different outcomes? Apart from the fact that they are written by different judges, there isn’t much distinguishing the two cases. In Donet, the plaintiff was searching for a specific product—gingerbread and classic whoopie pies—but that seems like a minor distinction. The Cromitie court did make one distinction—the fact that the plaintiff had encountered nearly identical problems on other websites.

Interestingly, too, Cromitie has apparently encountered identical problems on dozens of other websites. Indeed, Cromitie has filed "carbon-copy complaints," each alleging that the websites at issue malfunction in the exact same way—by, among other things, "fail[ing] to accurately describe the contents of graphical images, fail[ing] to properly label title [sic], fail[ing] to distinguish one page from another, [and] contain[ing] multiple broken links."

Cromitie, at *7. Mr. Fontanez similarly filed dozens of nearly-identical complaints. As the court noted, "the Second Circuit has explained that when a series of 'carbon-copy complaints" have been filed, courts should consider 'the broader context of Plaintiffs' transparent cut-and-paste and fill-in-the-blank pleadings.'" Fontanez, at *8; see also, Brown v. Am. Spoon Foods, Inc., 2023 U.S. Dist. LEXIS 154850 (S.D.N.Y. 2023).

Is a Default Judgment Worth Considering?

In web accessibility litigation, there are usually two possible routes that most defense attorneys can choose from. The first route is to just settle the case quickly and recommend to the client that they fix their website (or face similar lawsuits in the future). Far and away, this is the most popular route and sensible outcome. The second route is to fight the case. This option tends not to work as well because it drives up attorney fees and the outcome is usually the same-- the client still needs to fix their website if they want to avoid future litigation. But there is a third option: just do nothing. This isn't a course that most attorneys would recommend unless they have a pretty thick skin. But looking at what happens next is instructive because it gives us a sense of what kind of damages a court would likely award-- and that is a great data point for your attorney in settling a case.

At the end of this month, my Lexis feed finally gave me the court's opinion in Mason v. Herbarium LLC, 2023 U.S. Dist. LEXIS 154878 (C.D. Cal. 2023) even though the case was decided in early July. I also went into PACER and uploaded a copy of the Mason opinion if you want to read it.

So what's the bottom line? An Unruh claim is worth only $7,500. That seems awfully low when one considers that Unruh damages ($4,000) are more than half of the award and the attorney's time was only worth $3,500. While I obviously don't discuss every default judgment in web accessibility cases that I come across, I have discussed several of them in past posts, so a quick summary may help. Here is a listing in rough chronological order:

We can safely ignore the Danger and Gomez cases because the courts dismissed them. The remaining cases are really all over the place and doesn't point to a specific dollar figure for settling. But given that these figures include the attorney's time in moving for a default judgment and making the arguments before the court, an attorney probably could use them an upper figure for a settlement in most typical web accessibility cases.


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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