Wow, can you believe it's really December? Between national and personal events, I happy that November is in the rear view mirror. November also didn't bring us much in terms of web accessibility cases.
Eastern District of Pennsylvania Leans Towards Nexus Standard
Lexis was late in reporting the opinion in Wilkins v. Starbucks Corporation, 2024 U.S. Dist. LEXIS 200685 (E.D. Pa. Sept. 6, 2024) as it came into my feed two months late. In this case, Andrew Wilkins brought a class action lawsuit against the famed Seattle coffee company alleging that he could not use the company’s website because it was inaccessible.
The court applied the nexus test after noting that the majority of district courts in the Third Circuit have held that websites alone cannot be places of public accommodation. In general, this is true, with the exception of a few opinions like Blendjet. The court focused on the “in store promotions” and “special deals and offers available only on the website.” The court also noted that Mr. Wilkins alleged that the website "is used in conjunction with [Defendant's] physical locations, providing information concerning what is offered by Defendant at the physical locations and the opportunity to make purchases online and pick up at the physical store, amongst [other] things." The court went further and noted that the plaintiff “also alleges that he visited the website before visiting a Starbucks shop but was unable to avail himself of website functions that would have assisted him with transactions at the location.” All of these allegations were enough for the plaintiff to sufficiently allege a nexus and survive a motion to dismiss.
Eastern District of New York and Particularized Injuries
The second case that appeared in my Lexis feed was Martin v. Brooklyn Bagel & Coffee Company, 024 U.S. Dist. LEXIS 209165 (E.D.N.Y. Nov. 11, 2024). In this case, serial plaintiff Damian Martin sued a New York area chain of bagel restaurants alleging that barriers on the company’s website made it impossible to enjoy the same privileges at its restaurants.
First, the court focused on how Mr. Martin failed to allege his injuries with sufficient specificity. In an earlier blog, we’ve talked about the need to identify particularized injuries to establish standing. In this case, Martin alleged that
- The Website contains access barriers that prevent free and full use by the Plaintiff using keyboards and screen-reading software. These barriers include but are not limited to: missing alt-text, hidden elements on web pages, incorrectly formatted lists, unannounced pop ups, unclear labels for interactive elements, and the requirement that some events be performed solely with a mouse.
- The Website also contained a host of broken links, which is a hyperlink to a non-existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered.
The problem, according to the court, is that this is “entirely bereft of any details about how plaintiff encountered those violations or how those violations impacted him.” Id. at *6-7. This case is likely a more egregious case of failing to “connect the dots” than Albert Rizzi’s case that we discussed earlier.
Second, the court mentioned that the “cookie cutter” nature of the plaintiff’s complaint (and 57 other similar complaints filed in the same district). This was reinforced by the fact that Martin’s counsel (Stein Saks) has filed over 500 almost-identical web accessibility complaints. This raises obvious concerns in light of the Second Circuit’s Calcano decision. The court, however, did not engage in the typical Calcano analysis (which focuses on the plaintiff’s intent to return), so I consider this portion of the opinion as largely dicta.
Thank You Senator Bob Casey!
I’m not going to get into the politics of the last election. While this doesn’t quite qualify as a “legal update,” it will likely have an impact on new legislation—which is very much a topic that we cover. With that background, I’m relaying the sad news that Bob Casey (D. Pa), a democratic senator from Pennsylvania and longtime supporter of disability rights, lost his senatorial seat to his Republican challenger, Dave McCormick, a former hedge fund manager, by a 0.5 percent margin. I won’t repeat Sen. Bob Casey’s contributions, which are described elsewhere on the internet. That link does offer Senator Casey’s words to the disability community, which does bear repeating here.
It is important not to despair when it looks like majorities might be against you, or an administration might be contrary to what you believe in, either in disability policy, or more broadly. Just remember the recent examples of the power of advocacy and the results that can come because of that advocacy.
Thank you again, Bob Casey. You make me proud of the state that I was born in.
Rumors from Colorado
I've been hearing rumors that Colorado state agencies are pushing for an extension for HB 21-1110 deadline of July 2025. That's almost a year before the ADA deadlines-- and Colorado public entities are way far ahead of the rest of the country in making their web and digital technologies accessible. I haven't seen a draft bill and I honestly don't expect to see one until spring 2025; otherwise, Colorado public entities would take their foot off the gas pedal and shelve their digital accessibility programs until the next deadline.
As I alluded to in my last post, I don't believe that legislators or regulators have any idea how complex a task it is to make a public entity's web and digital technologies accessible. Information technology is so pervasive in modern society that simply identifying which IT systems are covered is daunting. Even a medium-sized city can have hundreds of applications that it uses for public services and that would be covered by HB 21-1110 and ADA Title II. Then, making those IT systems accessible may require years of work with their manufacturers.
When the ADA went into effect in 1992, public entities had to conduct a self-evaluation of their programs, services, and activities. If making these accessible required architectural changes, then a public entity had to develop a transition plan for removing barriers in its buildings. HB 21-1110 and the new ADA Title II web regulations are showing that physical accessibility is much easier than digital accessibility. In the world of physical accessibility, local governments can easily identify their buildings and remove barriers themselves.
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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