Legal Update: December 2023

Happy New Year! 2023 was a good year for Converge Accessibility. In terms of legal cases, however, the year ended fairly quietly.

How to Satisfy the “Intent to Return” Requirement in the Second Circuit

 Over the last year or so, I’ve noticed that courts in New York started leveraging the Second Circuit’s opinion in Calcano to dismiss web accessibility cases brought by serial plaintiffs. In a nutshell, the analysis goes something like this:

  • A serial plaintiff files dozens of fairly similar web accessibility complaints,
  • The court notices that the allegations are “boilerplate” or “cookie cutter,”
  • The court then looks for evidence of a genuine interest in being a customer or, what it calls, an “intent to return”

Absent an “intent to return,” the court concludes that the plaintiff could not have suffered an injury and therefore has no standing to sue.

This approach, which was first articulated in Calcano v. Swarovski, 36 F.4th 68, 75 (2d Cir. 2022), may seem harsh. Indeed, as I’ve previously said, it has been applied quite harshly by courts against serial plaintiffs, it also serves to reduce the docket of web accessibility cases. After all, the three most popular jurisdictions for brining web accessibility cases are Florida, California, and New York. While courts in the first two regions can trim their dockets using the nexus requirement, courts in the Southern District of New York have rejected the nexus requirement and allowed purely online companies to be sued. Apparently, in response, the courts in New York have turned to Calcano as a way to prevent their dockets from exploding with web accessibility cases.

In October, I questioned whether a serial plaintiff would ever be able to meet the Calcano test. Earlier this month, that question was answered in Dawkins v. Brandy Library Lounge, LLC, 2023 U.S. Dist. LEXIS 217365 (E.D.N.Y. 2023). In this case, Elbert Dawkins, a serial plaintiff, sued a local restaurant because its website was inaccessible. After the defendant moved to dismiss the case, the plaintiff amended his complaint and stated that he learned about Defendant's restaurant on Tripadvisor and that he visited Defendant's website on two specific occasions because he "wanted to view the food menu and reserve a table." According to Plaintiff, he "likes fine spirits accompanied with good wine, and particularly wanted to have a European style dinner with his girlfriend on a date," so he "thought [Brandy Library] was the best place to impress his girlfriend." Id at *5.

These allegations were enough to satisfy the court that the plaintiff had demonstrated an intent to return. As the court explained,

Plaintiff has also adequately alleged his intent to return to Defendant's website and to visit Defendant's restaurant in the future because he has identified the particular aspects of the restaurant that piqued his interest, described his regular trips to the restaurant's general area, and explained his specific desire to bring his girlfriend to the restaurant on a date. These allegations are "more detailed than the complaints the Second Circuit dismissed for lack of standing in Calcano," and if they are accurate, they adequately allege standing.

Id at *14 (quoting Tavarez v. Moo Organic Chocolates, LLC, 641 F. Supp. 3d 76, 83 (S.D.N.Y. 2022)).

Another Case in Illinois?

Last month, I reported on an oddity—a web accessibility case from Illinois. This month, a new plaintiff and a new attorney are here to make sure Illinois doesn’t fall off the web accessibility litigation map. In Hussein v. Adidas America, Inc., Sumaya Hussein brought a class action lawsuit against the international sports clothing brand alleging that their website was inaccessible. The only problem? A few months earlier, another plaintiff named Carlos Herrera brought an identical lawsuit in New Jersey district court. What happened next is pretty obvious—the defendant moved to have Ms. Hussein’s claim stayed while the New Jersey claim goes forward.

This case should be interesting because New Jersey is part of the Third Circuit, which generally requires web accessibility suits to meet the nexus requirement. This means that the allegations in the Herrera case would largely be limited to aspects of the website that are closely connected to Adidas’s physical stores. But Ms. Hussein’s lawsuit is in Illinois, where the Seventh Circuit has rejected the nexus requirement. This means that her complaints could include aspects of the website that are not tied to Adida’s stores. While both suits will likely settle (like all web accessibility cases), it is interesting to ponder how a company could be separately liable for different parts of its website in different jurisdictions that follow different interpretations of the ADA.

Intent and Getting Past the Pleading Stage in California

On New Year’s Day, my Lexis feed served up Hunthausen v. Johnny Was, LLC, 2023 Cal. Super. LEXIS 100467 (Cal. Super. Ct. 2023), which provided an interesting take on getting past the early stages of a web-based Unruh case in California state court. In Hunthausen, a blind plaintiff sued Johnny Was, a clothing store with multiple retail outlets in California, because its website was inaccessible. Rather than file an answer, the defendant filed a demurrer. While my civil procedure class was almost forty years ago, I’ve always thought of a “demurrer” as the legal equivalent of saying, “so what?” and forcing the court to look at the legal sufficiency of the plaintiff’s complaint—not really that different from a motion to dismiss for failure to state a claim. The defendant based their demurrer on several grounds—I’ll only consider two bases that I found interesting.

First up, the defendant argued that that plaintiff did not adequately allege intent. While intent is not required in ADA claims, establishing intent is required for web accessibility cases under Unruh that are not based on an ADA claim. Last year, when I described the recent California decision in Martinez v. Cot’n Wash, Inc., 2022 Cal. App. LEXIS 673 (Cal. Ct. App. 2022) that made this quite clear, I questioned whether just continuing to use a website after learning that it was inaccessible qualified as intentional discrimination. Well, according to the Hunthausen opinion, the answer seems to be “yes.” As the court explained,

The Complaint alleges, in relevant part:

Defendant's actions constitute intentional discrimination against Plaintiff on the basis of a disability in violation of the Unruh Act because Defendant has constructed a Website that is inaccessible to Plaintiff, knowingly maintains the Website in this inaccessible form, and has failed to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause.

By alleging that Defendant did not correct the barriers after being notified about the discriminatory nature of the barriers, Plaintiff has pled knowledge of the access problem sufficiently for the pleading stage. This, in turn, suffices for pleading Defendant's intent. The allegations are sufficient to place Defendant on notice of Plaintiff's theory of intent: that Defendant continued to offer a non-compliant website even after learning about the existing barriers. (See Ruiz v. Musclewood Inv. Props., LLC(2018) 28 Cal.App.5th 15, 22 [in Disabled Persons Act claim, knowledge of defects along with lack of action to rectify in response to an attempt to obtain corrective action, may permit an inference of intent].)

Hunthausen, at *7. At least at the pleading stage, it looks like plaintiffs shouldn’t have much trouble getting past the intent requirement. All that a plaintiff has to do to sue even a purely online company under Unruh is to put the company on notice that their website is inaccessible and come back to sue them later.

The other aspect of the Hunthausen opinion was how it treated standing to sue. Among the defendant’s argument was an assertion that the plaintiff had not met the requirements for standing to sue. As readers know, I’ve talked about standing to sue a lot, but it’s always been in the context of federal courts, where the U.S. Constitution restricts courts to hearing cases that involve “cases or controversies.” Standing can be quite different in the state court context and, apparently, is quite a bit weaker in California. The court in Hunthausen made clear that the California state courts aren’t as strict as federal courts and, in particular, appear to be much more lenient with respect to requiring an “injury in fact.” Specifically, the Hunthausen court focused on the fact that the plaintiff had not alleged a bona fide intent of using the defendant’s services and held that intent to being a customer is not required at the pleading stage.

The Hunthausen opinion does makes California state court seem like a perfect place to bring a web accessibility case under Unruh. After all, intent is easy to meet as long as you put the defendant on notice that their website is inaccessible before the discrimination occurred. Plus, you don’t even have to show that you suffered harm in the form of being denied the opportunity to becoming a customer. Nonetheless, it’s important to bear in mind that Hunthausen is just one opinion from a trial level court in California responding to a demurrer.


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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