Unlike last month, there is hardly anything happening this month in terms of web accessibility legal developments. But be sure to see my other post from the same day, however, about some disturbing patterns elsewhere and an important call to action.
Eastern District of Pennsylvania Repeats Nexus and Intent to Return Requirements
In earlier blog posts, we’ve talked about how the Eastern District of Pennsylvania follows the nexus requirement. We also talked about how it has followed the Second Circuit in requiring a demonstration of an intent to return to satisfy standing to sue. In this case, Judge Timothy Savage held that Smashburger’s website met this requirement because it served as a gateway to its brick-and-mortar restaurants. Because the website allowed users to find store locations, browse menus, and place orders, it was functionally tied to the restaurants, making its inaccessibility a barrier under the ADA.
The court also addressed whether the plaintiff had sufficiently pled an “intent to return.” While the plaintiff, Andrew Wilkins, had not previously visited a Smashburger restaurant, the court found that his allegations were just enough to survive a motion to dismiss. Wilkins lives near several Smashburger locations and claimed he visited the website with the intent of possibly ordering food. The court reasoned that his proximity to the stores and stated desire to return—combined with his inability to use the website to identify a nearby restaurant—supported a plausible inference of future harm. Although the court noted the allegations were thin, it found them adequate at the pleading stage, leaving the credibility of Wilkins’s intent for later stages of the litigation.
Discovery Stay Against UserWay Denied
Put this more in the gossip category than the web accessibility category. Because it affects our industry and also because May was a very slow month for legal developments, I’m putting in an entry. BloomsyBox.com is an online gift and flower shop. They subscribed to UserWay and were “drawn by UserWay’s representations that the product would shield the company from ADA lawsuits and that UserWay would provide legal support.” Nonetheless, BloomsyBox.com was sued for accessibility barriers on their website. Instead of just learning their lesson and moving on, BloomsyBox filed a class action lawsuit against UserWay alleging breach of contract, consumer fraud violations, violations of the Magnuson-Moss Warranty Act, and negligent misrepresentation. BloomsyBox.com, LLC v. UserWay, Inc., 2025 U.S. Dist. LEXIS 101511 (D. Del 2025). UserWay moved to dismiss the case. While this motion was pending, they also moved to halt discovery—meaning that they don’t have to provide any information to the plaintiff about their case.
Putting aside what you may think about overlay providers or the fact that UserWay is hardly the worst overlay company when it comes to making bold marketing claims, Judge Sherry Fallon went through a thorough (albeit short) analysis of the relevant factors in issuing a stay in discovery and denied UserWay’s motion. I have no idea where this litigation is going. But I’m a bit surprised we don’t see more litigation like this against companies that are a lot worse in their marketing than UserWay. If more overlay companies get sued for misrepresentations, start warming up the popcorn.
Websites and Software Applications Accessibility Act of 2025
In the middle of the month, Representatives Steny Hoyer (D-MD) and Jeff Sessions (R-TX) introduced a bipartisan bill Websites and Software Applications Accessibility Act of 2025. ChatGPT says,
The Websites and Software Applications Accessibility Act of 2025 (H.R. 3417) is a proposed federal bill aimed at establishing clear, enforceable accessibility standards for websites and software applications. The bill directs the U.S. Access Board to develop regulations ensuring digital content is accessible to individuals with disabilities, and it authorizes the Department of Justice and the Equal Employment Opportunity Commission to enforce compliance. Notably, the bill covers both public- and private-sector digital platforms and fills a long-standing gap in the ADA and Section 504, which have lacked explicit digital accessibility standards. If enacted, it would mark a major step toward consistent, nationwide digital accessibility.
At this stage, I’m not wasting much time thinking about this bill because I think it will fizzle out. Is the law needed? I certainly think it will help. Does the law make sense? Absolutely. Will it become a law? Highly unlikely. Not in this political environment. Even in better times, there have been plenty of other Congressional digital accessibility bills that have gone nowhere. Don’t just take my word for it. Lexis seems pretty pessimistic too.
What didn’t make much news was that Pete Sessions also introduced another bill on the same day called the Accessibility Constituent Communication Act of 2025, which basically repeats and augments the responsibility of federal agencies to provide information to the public in different accessible formats. That bill is probably going to go just as far.
Colorado HB 25-1152 Signed!
Last month, I blogged about Colorado HB 25-1152. In a nutshell, it automatically would require contractors who provide digital content to a Colorado public school to indemnify the school if that content was inaccessible. On May 24, it was signed by the governor and is now law!
This may have a huge impact on anyone selling digital technology to Colorado public schools. Vendor’s lawyers are fond of pushing back on indemnification clauses in contracts. Well, now, even a contract is silent, an indemnification clause is automatically read into the contract.
On the other hand, the new law could be largely meaningless. As I also mentioned last month, indemnification clauses tend not to work in civil rights cases. The reason is simple: an entity can’t simply contract away its civil rights obligations. An indemnification clause does exactly that because it makes someone else bear the entirebrunt of a duty. By contrast, contribution clauses are usually upheld because they don’t shift the entire burden but only make each party pay their fair share.
Bill Tracker
This month, we’re adding Colorado’s HB 25-1152 to the tracker. Updating the tracker, New Mexico’s HB 120was vetoed by the governor! I think this is just a symbolic act and will be overturned given the huge support that the bill had in the legislature.
| State | Bill | Description | Latest Update |
|---|---|---|---|
| Colorado | HB 25-1152 | Requires insertion of new clause holding vendors liable for inaccessible IT sold to public schools | Signed by governor on May 24, 2025. |
| New Mexico | HB 120 | Requires WCAG 2.1 AA for all state agency websites by April 1, 2026 and creates new Office of Accessibility. February 2025 Legal Update; January 2025 Legal Update | HB 120 passed the final House vote 60-3 on March 18 and passed the Senate vote 40-0 on March 20, 2025, but was vetoed by the governor on the same day. |
| New Jersey | S 1016 | Requires state agencies to meet WCAG A/AA and proposes that the state Chief Technology Officer create a certification process for state agency websites. February-March 2024 Legal Update. | Passed Senate March 18, 2024 and referred to committee. |
| Pennsylvania | HB 485 | Requires public entities to create a plan for meeting WCAG by July 1, 2028. February 2025 Legal Update | Introduced February 4, 2025. |
| Virginia | 2541 | Requires vendors to provide a VPAT/ACR and for vendors to submit a plan for closing any gaps. January 2025 Legal Update. | Approved by governor on March 24, 2025. |
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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Hi Ken,
You mentioned Jeff Sessions in the introductory paragraph. Which I see you meant Pete Sessions.
Initially, I was shocked. I thought Trump buried that guy years ago, and to see him in your blog, I was like, he went from Alabama to Texas? Guy is resilient. ;-)
Thanks for all the news you provide. I usually skim through monthly.
Michael