Legal Update: April 2024

As readers know, I am not a fan of serial ADA plaintiffs. Rather than really “moving the needle” and facilitating meaningful change for people with disabilities, most serial plaintiffs settle quickly without regard to whether the companies they sued actually improved accessibility. Courts use several tools to dissuade this behavior. One case recently, however, has caused me to be concerned that one of these tools could be used too aggressively and weed out legitimate cases.

I’ve blogged many times about the Second Circuit opinion in Calcano v. Swarovski, 36 F.4th 68, 75 (2d Cir. 2022). Just last month, I summarized the analysis, so I won’t repeat it here. Because Calcano is such an important case and I’m sure I’ll be talking about it for months to come, here is the official copy of the Calcano opinion from Pacer. The problem with the Calcano opinion is that it potentially makes web accessibility complaints impossible—and this month’s opinion in Thorne v. Capital Music Gear LLC, 2024 U.S. Dist. LEXIS 67366 (S.D.N.Y. 2024) illustrates why.

In Capital Music Gear, Braulio Thorne tried to buy music equipment from the defendant’s website but could not because the website was inaccessible. The court noted right away that Mr. Thorne lacked standing. Specifically, the court noted that it could not determine that Mr. Thorne’s complaint was specific enough for the court to infer that he had a clear intent to return to the defendant’s website. I have no problem with this outcome. Instead, I have a problem with how the court got there. Calcano sets forth a three-part test for determining if a plaintiff has shown an injury in fact. Specifically, the complaint must demonstrate,

(1) . . . past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff's visits and the proximity of defendants' businesses to plaintiff's home, that plaintiff intended to return to the subject location.

Capital Music Gear at *6-7 (quoting Calcano, at 74). Based on the bare allegations in Thorne’s complaint, however, the court concluded that Mr. Thorne did not show a genuine intent to return. Looking only at the allegations in Thorne’s complaint and reading the court’s opinion, however, I don’t see how any plaintiff would be able not to have their case thrown out of court. The Calcano opinion was intended to address a specific type of plaintiff—serial web accessibility plaintiffs. The Calcano court's “intent to return” portion of its test excludes plaintiffs who filed dozens or hundreds of similar “cookie-cutter” complaints, but the way the test is worded makes it easy for a court to throw out any web accessibility case.

It just so happens that Braulio Thorne is such a serial plaintiff. He has filed hundreds of web accessibility cases in the Southern District of New York. In fact, one of his many cases was merged with the case that ultimately led to the Calcano opinion. This is the reason I agree with the court's outcome. I’ve downloaded the official Pacer copy of the Capital Music Gear opinion and encourage you to take a look. The intent to return analysis starts on page 8 of the PDF. It basically says that the following are insufficient allegations to show an intent to return.

• Plaintiff visited the defendant’s website several times looking for products to buy,
• Plaintiff was particularly interested in the defendant’s company because it specialized in a type of product and that the plaintiff intended to buy a specific product from that site when it became accessible, and
• Plaintiff has a long professional career that requires use of that type of product.

This doesn't seem any different from legitimate web accessibility complaints. What’s missing from this list? The fact that plaintiff is a serial plaintiff who has sued hundreds of other online businesses and never (or very rarely ever) returned as a customer. That should be a critical part of the analysis. Without it, I could see this use of the Calcano analysis as a dangerous tool that courts could use to toss out legitimate web accessibility complaints.