Legal Update: September 2025

In Herrera v. Retrofitness, LLC, 2025 U.S. Dist. LEXIS 176550 (D.N.J.. 2025), the court granted the defendant’s motion to dismiss a website accessibility claim brought under the ADA alleging that Retrofitness’s website was not accessible and denied him equal access to the goods and services of its gyms. However, he never alleged any intent to visit a Retrofitness location or use its services beyond browsing the website. The court held that the plaintiff lacked standing because he failed to show a “real and immediate” threat of future injury, as required for injunctive relief under the ADA. He did not live near any Retrofitness location, did not assert any plans to visit one, and did not demonstrate that he was deterred from accessing a specific place of public accommodation. Because Herrera did not plead any genuine intent to patronize Retrofitness’s facilities, the court dismissed the case for lack of standing.

What makes the Herrera case interesting, of course, is that it was a decision from the district court in New Jersey. The analysis here aligns well with the Second Circuit’s Calcano decision, which we discussed extensively on this blog. New Jersey, however, is part of the Third Circuit so Calcano is not a binding precedent.

Two weeks later, the Court in Hwang v. Couple Spa 65, Inc., 2025 U.S. Dist. LEXIS 188283 (E.D.N.Y. 2025), reminded us what those Calcano factors look like in action when it granted default judgment in favor of a blind plaintiff. Plaintiff Jenny Hwang described multiple visits to the site and identified specific barriers that prevented her from accessing service and location details. The court found that Hwang had standing under Calcano v. Swarovski N. Am. Ltd. because she “allege[d] that, on multiple occasions, she visited the Website but was unable to obtain information about defendant's services, prices, location and hours of operation due to specifically identified accessibility barriers” and that “it is reasonable to infer an intent to return [because] plaintiff states that she intends to return to the Website ‘immediately’ after its accessibility barriers are removed because she ‘enjoys the Japanese-inspired interior of the salon and a wide variety of unique spa services offered by [defendant], and would like to visit one of [defendant's] physical spa locations.’” Id., at *10-11.

In Toro v. Artizan Coffee Co., 2025 U.S. Dist. LEXIS 182210 (E.D.N.Y. 2025), the court denied most of the defendant’s motion to dismiss a website accessibility lawsuit brought under the ADA, NYSHRL, and NYCHRL. The blind plaintiff alleged that Artizan Coffee’s website was not compatible with screen reader software and that this prevented him from independently browsing products and completing purchases. He further alleged that the website’s inaccessibility denied him full and equal enjoyment of goods and services offered at the company’s physical location.

The court rejected Artizan’s argument that the plaintiff lacked standing and focused particularly on the exact item that he wanted to explore and buy—"decaffeinated coffee pods for his Nespresso-branded coffee machine”—and clearly articulated his reasons for seeking out this specific item. According to the court, this exactness also supported his “intent to return” because he described his preference for organic Nespresso pods, his preference for decaffeinated pods, the difficulty finding such items, the fact that the defendant carried this exact combination, and the fact that he tried three times (unsuccessfully) to purchase this specific item. The court denied the defendant’s motion to dismiss, except for the plaintiff’s demand for civil penalties under state law, which the court found unavailable in private litigants. Id. at *19–21.