For at least half of July, there were hardly any legal developments. This changed around the middle of the month as a few interesting web accessibility cases started popping up in my Lexis feed.
Sticking with Unruh? Be Careful What You Wish For
The first case up this month is Castillo v. Tommy Bahama R&R Holdings, Inc., 2025 U.S. Dist. LEXIS 130375 (C.D. Cal. 2025). In this case, Rebecca Castillo, a legally blind plaintiff using screen reading software, sued Tommy Bahama in California state court after encountering digital accessibility barriers on its retail website. Her original complaint included claims under both the Americans with Disabilities Act (ADA) and California’s Unruh Civil Rights Act. But when the defendant removed the case to federal court, Castillo amended her complaint to drop the ADA claim, leaving only her Unruh claim.
What is all this legal fuss about? In every state, we have two parallel judicial systems-- federal courts and state courts. If a claim only includes state law claims (e.g., Unruh claims) then they shouldn't be heard in federal courts unless they involve citizens of different states and rise above a specific dollar threshold (so-called "diversity jurisdiction"). If a claim involves federal law (e.g., ADA claims), then they can be brought before federal courts ("federal question jurisdiction"). If a claim involves both federal and state law claims, then they can be heard in either federal court or state court.
In this case, the district court ultimately remanded the case back to state court. Because she dropped her ADA claim, there was no federal question jurisdiction. She also had no diversity jurisdiction because her monetary demand was below the $75,000 threshold for diversity jurisdiction. Instead, she relied solely on her allegation of intentional discrimination, which is required under the Unruh Act for accessibility claims that are not ADA violations.
In the legal chess game we call "litigation," this move may appear to be a blunder. On the one hand, California state courts are generally more lenient towards plaintiffs than their federal counterparts. But Ms. Castillo's allegation of intentional discrimination boils to simply asserting that Tommy Bahama was notified that its website was inaccessible, the company knew about the problem, and it didn’t fix it. If that’s enough to meet the “intentional” standard under Unruh, then nearly any inaccessible website could be the target of a state court lawsuit simply by virtue of receiving notice. That would effectively nullify what constitutes "intent." We talked about exactly this scenario, however, in the Hunthausen v. Johnny Was case back in 2023-- and it appears that, at the pleading stage, simple knowledge and a failure to rectify is all it takes. I'm no California lawyer, but a quick search on Lexis for me immediately turned up that, "intentional discrimination requires willful, affirmative misconduct on the part of those who violate the [Unruh Act]." Martin v. Thi E-Commerce, LLC, 95 Cal. App. 5th 521, 538 (Cal. Ct. App. 2023). That tells me that, while Ms. Castillo was able to stay in state court, her claim may not survive there for long if she can't find more evidence of intentional discrimination.
EDNY Continues to Be a Roll of the Dice
Remember the Eastern District of New York? After Judge Komitee's decision in Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995 (E.D.N.Y. 2021), it seemed just about impossible to bring a web accessibility claim there. This month's decision in Hernandez v. Janie & Jack, LLC, 2025 U.S. Dist. LEXIS 130417 (E.D.N.Y. 2025). In this case, Timothy Hernandez, a serial plaintiff, sued Janie & Jack under the Americans with Disabilities Act and the New York City Human Rights Law, alleging that he was unable to purchase a pajama set on the company’s website due to accessibility barriers.
Judge Brian Cogan took a much more liberal view than his peer Judge Komitee and easily found that Mr. Hernandez had suffered an injury in visiting an inaccessible site and that he satisfied the "intent to return" requirement by alleging that he has repeatedly visited the site and would return to buy the item if the defendant made its site accessible.
While there was nothing remarkable in Judge Cogan's analysis, the case just highlights how web accessibility cases in New York are a roll of the dice.
Res Judicata and Non Class Actions
A long time ago back in 2020, we blogged about the Dolce and Gabbana case from Florida. In that case, a web accessibility case ended in a consent decree. Then, a second plaintiff sued Dolce and Gabbana and the case was dismissed on res judicata grounds.
One of the interesting things about the Dolce and Gabbana case was that it was not a class action lawsuit. So how did the decision bind third parties who were not involved with or had any reason to even know about that litigation?
While res judicata is one of those basic concepts one learns about it first year civil procedure, that doesn't mean that all judges agree on exactly what it means. For the court in the Dolce and Gabbana case, it simply required having a plaintiff who was representative of blind individuals and a "final judgment" of the court. This month, in Wilkins v. Invicta Watch Company of America, Inc, 2025 U.S. Dist. LEXIS 132982 (E.D. Pa. 2025), Judge Karen Marston took a very different view of what res judicata means.
In the Wilkens case, Andrew Wilkins filed a class action under the ADA alleging that the Invicta Watch Company’s website was inaccessible. Invicta moved to dismiss, arguing that Wilkins’s claims were barred by res judicata because of an earlier consent decree entered in a similar ADA case brought by another plaintiff, which purported to bind all visually impaired users as third-party beneficiaries. Wilkins countered that he was not a party to that case, not in privity with the earlier plaintiff, and never received notice.
The court sided with Wilkins, finding that the prior consent decree could not preclude his claims because the earlier case was not a certified class action and offered no due process protections. The court noted that, "It is a bedrock principle 'in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.'" Id. at *10 (quoting Hansberry v. Lee, 311 U.S. 32, 40, 61 S. Ct. 115, 85 L. Ed. 22 (1940)). The court went on to note that, while class actions are exceptions to this rule, a class was not properly certified in the previous litigation.
Using the Discovery Process to Force Plaintiffs to Settle?
In Jimenez v. Hyatt Corp., 2025 U.S. Dist. LEXIS 148432 (E.D. Cal. 2025), Flor Jimenez, brought a class action under the ADA and California’s Unruh Civil Rights Act, alleging that Hyatt’s website was not accessible and prevented her from booking hotel rooms online. Hyatt moved for sanctions, claiming that Jimenez had intentionally deleted critical evidence, including browser history and emails, that could have confirmed which webpages she visited and whether she truly intended to book a hotel stay. The court declined to dismiss the case but partially granted Hyatt’s motion, ordering Jimenez to submit her personal computer for forensic examination and to pay the associated costs, finding that her duty to preserve evidence began on the same day she first contacted her attorney about the matter.
I've long maintained that the first thing any defendant should do in a web accessibility case is settle it quickly. But sometimes a plaintiff doesn't want to settle quickly because they are holding out for a larger settlement, which only compounds the longer that they fight. The Hyatt case made me think that asking the plaintiff for their complete browsing and email history and a forensic is a good way to offset this and get plaintiffs to the bargaining table. After all, how many plaintiffs would be willing to give up their computer for a week or two while their computer is being examined?
Bill Tracker
I added the session dates for the legislatures in the table to help identify which ones have expired (e.g., New Mexico). Most of the active bills haven't budged-- likely because of summer breaks.
| State | Bill | Description | Latest Update |
|---|---|---|---|
| Federal | HR 3417 | The bipartisan Websites and Software Applications Accessibility Act of 2025 creates clear accessibility standards for private and public section digital platforms. May 2025 Legal Update | Introduced on May 14, 2025. |
| 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. As the legislature adjourned on March 22, I think we can call this bill dead. |
| 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. The current two-year session ends of January 13, 2026. |
| 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. The current two-year session ends on November 30, 2026. |
| Virginia | HB 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. Now chaptered into Virginia Code |
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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