Summer is coming to an end up here in Seattle. The days are now noticeably shorter— the sun sets about 2 hours earlier than in the middle of June. While the cooler weather and gorgeous autumn colors are nice, it’s still hard not to get depressed this time of year.
Every month seems to start slowly in the world of web accessibility. This month, the first interesting case didn’t pop up until almost the middle of the month.
Why Aren’t More Cases Brought in the Seventh Circuit
In McCabe v. Tire Web LLC, 2024 U.S. Dist. LEXIS 163346 (E.D. Wis. 2024), Melissa McCabe visited onlinetires.com (owned by the defendant) but was unable to use the website because it was inaccessible to her screen reader. She then sued Tire Web LLC, a California based company, but the defendant never responded. She then moved for a default judgment, which was supported by the Magistrate Judge.
This case is pretty unremarkable from a legal perspective. The magistrate judge noted the Seventh Circuit (which includes Wisconsin) does not require that websites be connected to a physical place of public accommodation. This shouldn’t come as a surprise—the First Circuit, Seventh Circuit, and a few other districts either never followed the nexus standard or abandoned it.
What is remarkable are the facts of the case. First, it was brought in Wisconsin—not what most of us think of when we think about web accessibility litigation. My mind immediately goes to “cheese litigation” when I think of Wisconsin. Second, Tire Web is based in California, which stringently applies the nexus standard. Given how easy it is to sue online companies in places like Chicago (also in the Seventh Circuit) and Boston (part of the First Circuit, which also doesn’t use the nexus test), why aren’t more cases brought there? We do see a bunch of cases against purely online companies in the Southern District of New York, but I think plaintiff attorneys in Boston and Chicago are missing the boat. Or maybe a few attorneys are getting the news because I read about a lawsuit that was almost simultaneously filed in Chicago for web accessibility.
Section 508 Update
Section 508 rarely makes the news but Lexis did have two quick items to report this month. As a quick reminder, Section 508 of the Rehabilitation Act requires that federal agencies refrain from discriminating against people with disabilities whenever they develop, procure, maintain, or use electronic and information technology. Section 508 is thought of as a procurement law instead of a civil rights law, however, because it is only enforceable with respect to procurements.
Section 508 Only Provides Injunctive Relief
Private plaintiffs can sue under Section 508 but they can only get awarded injunctive relief. This month, in Dee v. Granholm, 2024 U.S. Dist. LEXIS 170899 (D.D.C. 2024), a plaintiff tried to seek compensatory damages and the court dismissed this element for lack of subject matter jurisdiction.
Federal Agencies: You’re Being Watched
I also noticed this week that the Government Accounting Office (GAO) noted that the Office of Management and Budget (OMB) is now tracking agency’s Section 508 implementation. According to the GAO, OMB staff will be looking at three factors: (a) agency responses to GSA surveys, (b) desk officer reviews, and (c) agency budget requests to ensure that agencies are prioritizing accessibility.
Thank goodness someone is doing this work after the Department of Justice dropped the ball in fulfilling its statutory obligation under Section 508 to conduct its survey of Section 508 implementation by the federal agencies.
How to Demonstrate an Intent to Return
Regular readers of this blog will know that I’ve spent a lot of time summarizing a relatively recently requirement for serial web accessibility plaintiffs to adequately allege an “intent to return” after the Second Circuit Calcanodecision. Most of the time, plaintiffs fail this test. This month, in Melendez v. Complete Tile Collection, LLC, 2024 U.S. Dist. LEXIS 175021 (E.D.N.Y. 2024), Rhondine Melendez met this test because she had a very specific and pressing need for a specific mildew-resistant tile that the defendant sold because she was renovating her bathroom. In this case, the magistrate judge noted that Ms. Melendez didn’t have to show that the defendant was the only one who sold the tile. Personally, I doubt that Ms. Melendez is going to buy her bathroom tile from the defendant’s company even if she won the lawsuit. I’m sure that the defendant isn’t happy about the lawsuit and won’t consider her a great customer who deserves great service. If a court is going to allow plaintiffs to get past a motion to dismiss, they should be required to condition any award on them returning to be a customer!
The defendants in the Melendez case also lost on a mootness argument. Mootness rarely works but it’s likely to work even less well when the solution adopted by the defendant is to use an overlay.
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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