Legal Update: October 2023

Anyone who knows me will know that I hate the end of summer. I'm really blessed to live in the Pacific Northwest; the weather is always moderate, we never get too hot or too cold, and we don't have drenching storms like I grew up with on the East Coast. The Pacific Northwest is so alive and green that even a gloomy day is wonderful. But these wonderful days don't hold a candle to the glorious days of summer up here. It will be a few months before the sparkling days of summer come back.

And Lexis also isn't helping my mood! This month's feed was pretty slow-- even with the inclusion of legislative updates.

California Passes AB 1404

When AB 1757 was making its way through the California legislature last term, a tag along bill (AB 1404) was also moving through the process. This lesser-known bill was pretty benign and uncontroversial. Here is the explanation from Legislative Counsel’s Digest:

Existing state law, the Unruh Civil Rights Act, and federal law, the Americans with Disabilities Act of 1990, prohibit discrimination on the basis of various specified personal characteristics, including disability.

Existing law, the Construction-Related Accessibility Standards Compliance Act, requires an attorney to provide a written advisory with each demand letter or complaint, as defined, sent to or served upon a defendant or potential defendant for any construction-related accessibility claim. Existing law also requires an attorney who sends or serves a complaint alleging that an internet website is not accessible to satisfy specified requirements, including, among other things, sending a copy of the complaint and submitting information about the complaint to the California Commission on Disability Access.

This bill would require an attorney, with each demand letter or complaint alleging an internet website-related accessibility claim, to provide the defendant with a copy of a written advisory notice pertaining to disability access laws, as specified. The bill would become operative only if AB 1757 of the 2023–24 Regular Session is enacted and takes effect on or before January 1, 2025.

While AB 1757 was tabled, AB 1404 was signed into law on October 13, 2023. Because AB 1404 only takes effect if AB 1757 gets passed, this suggests to me that everyone expects AB 1757 to become law next term.

What’s interesting to me is how AB 1757 and AB 1404 is being packaged to parts of the business community in California. While I think AB 1757 may dramatically expand litigation both against businesses and web developers, the California Apartment Association sees both laws as a way to protect landlords from frivolous web-accessibility lawsuits. In particular, they see AB 1757 as a deterrent because it would “provide a legal presumption that business websites adhering to the World Wide Web Consortium’s W3C Standard comply with accessibility requirements under both state and federal law.” AB 1404 would also protect housing providers by "emphasiz[ing] fairness by allowing rental housing providers the time and guidance needed to align their websites with the W3C Standard." I wonder if anyone bothered telling them what an impossibly high threshold WCAG compliance created?

New York Courts and Intent to Return

For the last two months, we've blogged about how the Southern District of New York is clamping down on serial web accessibility plaintiffs using the "intent to return" requirement  This pattern continued this month in Zinnamon v. Profound Color, LLC, 2023 U.S. Dist. LEXIS 186736 (S.D.N.Y. 2023), where a blind serial plaintiff alleging that he could not shop for a coloring book sold by the defendant’s company. In a number of previous posts, we’ve talked about how the Southern District of New York has been using the Second Circuit opinion in Calcano, to dismiss a plaintiff complaint if they cannot show a definite intent to return to a defendant’s website. The Zinnamon decision continues this pattern. In fact, when a web accessibility opinion from the Southern District opinion starts with, “[t]he complaint contained what have become boilerplate allegations of violations of the Americans with Disabilities Act,” you know exactly what the opinion is going to say.

Default Judgments

Back in August, I rounded up a few default judgments as a tool to gauge what a good first offer for defendants to use to settle an average web accessibility complaint. This month, started so slowly that, for the first half of the month, default judgments were the only thing I could report on. Here are a few more cases to report on from the Southern District of Florida.

  • Watson v. Island Vibes Kava, Inc., 2023 U.S. Dist. LEXIS 181498 (S.D. Fla. 2023)($5,192.00 in fees and costs).

  • Ariza v. Earth's Goddess Holistics & Juicebar, LLC, 2023 U.S. Dist. LEXIS 179678 (S.D. Fla. 2023)($11,316.70 in fees and costs)

Just a reminder: I only survey default judgments when I don't have much to do. Please don't consider this an exhaustive analysis!


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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