Welcome to our first double-issue Legal Update! I didn’t plan to combine February and March into a single issue, but Jeff and I were swamped with the PacRim Conference. It’s really no fun putting together a double issue because there’s twice as much work so I’ll be going back to the old format soon enough.
TL;DR?
This is a long post so if you’re in a rush, here are the highlights.
- The Southern District of New York continues to make life hard for serial web accessibility plaintiffs. But, as discussed later, they are pointing out that it is very easy to sue just about anyone in the country from there.
- The Western District of Pennsylvania and the Northern District of Illinois are moving in opposite directions about the so-called “nexus test.” This is particularly relevant for lawsuits against online-only companies.
- One case (Extract Labs) shows why companies should not spend a ton of resources defending a web accessibility case.
- There is a lot of movement on the state level with proposed accessibility laws.
- Virginia proposes requiring public entities in the Commonwealth to get ACRs to demonstrate their accessibility.
- California’s controversial AB 1757 is back as SB 1486.
- New Jersey proposes requiring state agencies to meet WCAG and for its CIO to devise a certification process.
- A few cases demonstrate why taking a default judgment and not spending a dime to defend your web accessibility case isn’t such a terrible idea. Maybe the guys at Extract Labs should have done that?
SDNY and Intent to Return
One thing that hasn’t changed in the last two months is the Southern District of New York’s reliance on the Calcano requirement for serial plaintiffs to demonstrate an “intent to return”—a quick and dirty way that the court has been using for about a year now when we first reported on it. At a very high level, the analysis goes something like this. First, the Constitution requires that a plaintiff have “standing to sue,” which means that they demonstrate some “injury.” With serial plaintiffs who file cookie-cutter complaints, it's hard to say that they suffered an injury when they can’t access one website out of the several hundred that they may have complained about. Thus, one way that a serial plaintiff can show that they were “serious” about a particular website, according to the Second Circuit Court of Appeals in Calcano v. Swarovski, 36 F.4th 68, 75 (2d Cir. 2022), is to show a genuine “intent to return” to the website after the accessibility barriers are removed. The problem here is that courts find it just about impossible to devise a standard for meeting this requirement. The Calcano court (and decisions after it) have made clear that a plaintiff can’t just say that they will return. Instead, plaintiffs have specified the exact product that they intend to buy or presented evidence that they frequented the site many times before the lawsuit. In almost every case, plaintiffs have failed. I’m just waiting for the day that some clever plaintiff puts up a promissory note to buy at least $500 in merchandise from the defendant’s website within 30 days of the defendant making their website comply with WCAG 2.1.
While I’m still waiting for that clever plaintiff, the Southern District continues to toss out serial plaintiffs. Martin v. Second Story Promotions, Inc., 2024 U.S. Dist. LEXIS 32639 (S.D.N.Y. 2024)(plaintiff filed nine similar cases simultaneously and could not identify specific intent to return as a customer); Feliz v. iHealth Labs, Inc., 2024 U.S. Dist. LEXIS 16296 (S.D.N.Y. 2024)(plaintiff’s inability to find similar products at the same price insufficient to demonstrate intent to return).
Score 2-to-1 in Favor of Nexus Test in Western District of Pennsylvania
Most of us focus on New York, Florida, and California as the hotbeds of web accessibility litigation. Yet, thanks to the efforts of Kevin Tucker and the East End Trial Group LLC, Pennsylvania (and specifically, the Western District of Pennsylvania where Kevin is based) occasionally pops up on the radar.
Historically, plaintiffs in the Third Circuit Court of Appeals (where Pennsylvania is located) could not sue an entity for its inaccessible website unless there was a nexus between that website and a bricks-and-mortar physical place of public accommodation. The rationale traces all the way back to the Third Circuit’s opinion in Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998)(employer-sponsored health plan is not covered under Title III as it has no nexus to an insurance company’s physical offices). In late 2022, however, one brave district court disagreed with this trend in Douglass v. Blendjet, 2022 U.S. Dist. LEXIS 171718 (W.D. Pa. 2022), where the court noted,
The Court finds that Defendant - who solely engages in ecommerce - is not excused from Title III's mandate merely because it does not operate a brick-and-mortar store. To do otherwise would thwart the very purpose of the Americans with Disabilities Act.
Nonetheless, two years later, the Western District returned to the nexus requirement in Murphy v. Spongelle LLC, 2024 U.S. Dist. LEXIS 12340 (W.D. Pa. 2024). And now, just a month after the Spongelle opinion, the court continued to follow the nexus standard in Murphy v. Hammacher, 2024 U.S. Dist. LEXIS 24246 (W.D. Pa. 2024).
As readers know, I am not a fan of the nexus standard. It hurts people with disabilities. It creates an arbitrary distinction that doesn’t keep up with modern society. But what really gets me about the nexus standard is that it isn’t consistently applied.
Everyone Already Knows that the Seventh Circuit Doesn't Follow the Nexus Approach... Right?
Ask most attorneys who follow web accessibility and I think most would say that it is settled law that the Seventh Circuit has squarely rejected the nexus test. Most would say that the Seventh Circuit case in Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557 (7th Cir. 1999) and the First Circuit opinion in Carparts Distribution Center, Inc. v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) stand as fundamental cases that let plaintiffs sue purely online-only companies in these circuits.
So it came as a bit of a surprise this month when the district court in Walsh v. Dania, 2024 U.S. Dist. LEXIS 24037 (N.D. Ill. 2024) suggested that it was striking out on unventured territory. In the Dania case, Ms. Walsh alleged that the Dania website was inaccessible and made it difficult for her to shop for furniture. Dania moved to dismiss asserting that websites are not places of public accommodation. The Dania court noted that the Doe opinion specifically included “electronic spaces” as areas where the ADA extended. As if that wasn’t clear enough, the Dania court then looked at the Seventh Circuit opinion in Morgan v. Joint Administration Board, 268 F.3d 456 (7th Cir. 2001), where the court noted,
The defendant asks us to interpret "public accommodation" literally, as denoting a physical site, such as a store or a hotel, but we have already rejected that interpretation. An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store. The site of the sale is irrelevant to Congress's goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public.
Id. at 459.
Honestly, I’m not sure what the Dania court was looking for when it suggested that it was examining a novel area. The Doe opinion pretty much settles the question—and the Morgan opinion reiterates the same position. The bottom line? There should be no doubt whatsoever that the Seventh Circuit has rejected the nexus standard.
New York May Be the Next Venue for Nationwide Web Accessibility Litigation
In past blog posts, I’ve discussed California courts using Unruh to go after out-of-state websites. For instance, in both the Licea and Thurston cases that I discussed in earlier posts, companies without any physical presence in California could be sued in California if they had sufficient contacts in-state. Oddly, the ability of a federal court to entertain a lawsuit against an out-of-state defendant often comes down to the state’s “long arm statute”—and New York’s long arm statute may make it a very tempting place for plaintiffs to sue.
In Campbell v. Gallery Model Homes, Inc., 2024 U.S. Dist. LEXIS 43503 (S.D.N.Y. 2024), a blind plaintiff in New York sued a company in Texas because she could not navigate the site to buy a queen-size bed. As readers of this blog likely know, the Southern District of New York has become a hotbed for web accessibility litigation. What readers may not know is that Texas is exactly the opposite. Early opinions from Texas held that the ADA is strictly limited to physical places and so it shouldn’t be a surprise that we never see web accessibility cases from there. But that doesn’t mean that they can’t be sued for their websites—and the Campbell case suggests that may be especially true with New York plaintiffs. While I’m no expert in New York’s long arm statute, the Campbell court didn’t consider the number of business transactions that Gallery Model Homes made to New York customers; simply the availability of the company website to New York and the presence of some New York customers was enough for the company to be sued in New York state.
Later in the month, another personal jurisdiction case from the Southern District came up in Velazquez v. Don Roberto Jewelers, 2024 U.S. Dist. LEXIS 55367 (S.D.N.Y. 2024), where the court offered a more thorough analysis than in the Campbell case. In Velazquez, a blind resident of New York sued a California-based jeweler because he could not buy a ring through its inaccessible website. Don Roberto argued that it sold jewelry predominantly in California at one of its physical locations. In 2021, they made only one sale in New York and in 2022, they made only two sales to New York. Nonetheless, the court held that it had personal jurisdiction over Don Roberto. Even the tiny volume of sales was sufficient for Don Roberto to be “transacting business in New York” as required by the statute and its use of its website was relevant because it was an “interactive” website and not merely a “passive” website because it allowed for the purchase of goods.
Another Reason to Settle Quickly—You’re Not Likely to Get Your Attorney Fees
Remember Tavarez v. Extract Labs? We’ve blogged about the case three times in the last year because it’s such an unusual case. First, I noted that it was unusual because the defendant managed to have the case dismissed after it fixed its website and convinced the judge that the case was moot. A month later, my colleague Jeff Singleton took a look at the defendant’s website—concluding that the judge got it wrong because the site used an overlay and there were still accessibility barriers. Finally, in May 2024, I discussed Tavarez as part of my roundup of mootness cases and put the Extract Labs opinion squarely in the category of “questionable” decisions.
Well, the case is back – but with a twist. Extract Labs decided to push their luck and seek to get their attorney’s fees! This is allowed in ADA cases—a court has the discretion to award attorney’s fees and litigation costs to the prevailing parties. In this case, Extract Labs asked the court to focus Tavarez to pay its $32,797.50 in attorney's fees and $1,012.28 in costs!
The court denied Extract Labs motion because there was no evidence that Tavarez’s claim was "frivolous, unreasonable or groundless," or that he "continued to litigate after it clearly became so." In particular, just because Extract Labs had “fixed” its website (thus potentially rendering the lawsuit moot), Mr. Tavarez had no obligation to accept his word for it.
I usually don’t spend much time reviewing cases about awards of attorney’s fees but this was an exception. It’s remarkable to me that stubborn defendants fight for pyrrhic victories; Extract Labs paid over $30,000 defending a lawsuit that they could have easily settled for half as much.
Proposed State Legislation
Virginia Proposes Bill to Require Local Governments to Take Steps to Make Digital Technologies Accessible
In February 2024, the Commonwealth of Virginia introduced its HB 1355 (Information Technology Access Act), which takes a slightly different angle towards making digital technologies accessible. Unilke Colorado’s 21-1110, it doesn’t simply drop WCAG on local governments and open them up to liquidated damages if they fail to comply. Instead, in its current iteration, HB 1355 seems to be a procurement-focused bill that requires covered entities to obtain a “vendor-paid and completed Accessibility Conformance Report.” The bill specifies that it will apply to all state agencies, public education institutions and any political subdivisions in Virginia. Also, it requires that ACR be completed by “a digital accessibility subject matter expert with significant experience with product evaluation or by a qualified neutral third party.”
It will be interesting to see where this bill goes. Apparently, the Virginia House must have thought it required a lot of input because the current effective date isn’t until July 1, 2025.
California’s AB 1757 Comes Back—In a Slightly Different Form
Last year, California created some fireworks with AB 1757. At the time, there was some concern that the bill would create a tsunami of possible litigation. Then, just a few months later, the bill was quietly tabled to the next session.
Well, SB 1486 appears to be the new AB 1757. This bill was introduced on February 16. If this bill proves to have some legs to it, I may do a fuller review of the proposed legislation, but my initial take is that it includes most of AB 1757’s core concepts.
New Jersey Introduces Web Accessibility Bill
Not wanting to be late to the party, New Jersey also introduced a new web accessibility bill. On March 18, New Jersey Senate Bill 1016 was introduced and requires state agencies to meet WCAG A/AA and proposes that the state Chief Technology Officer create a certification process for state agency websites.
Default Judgments
Some helpful data points that I came across while looking for other cases this month. Could be useful to help guide settlement decisions.
- Gomez v. Curious Palate, 2024 U.S. Dist. LEXIS 52736 (C.C.D. Cal. 2024) $9,708 (including $4,000 in statutory damages under Unruh and $5,708 in attorney’s fees)
- Watson v. 27 Entrepreneurs Holding LLC, 2024 U.S. Dist. LEXIS 19520 (S.D. Fla. 2024) $4,872 (attorney’s fees and costs)
Disclaimer
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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