March brought a concentrated run of decisions touching nearly every phase of ADA web accessibility litigation — from what damages are actually recoverable after a Title II win, to how the work product doctrine protects counsel-directed audits, to the continuing incoherence of the nexus test in the Eleventh Circuit. One decision also moves overlay vendor liability from theory to live litigation.
Payan v. Los Angeles Community College District: What Damages Are Available Under Title II?
As I have written before, winning compensatory damages against a public entity under Title II of the ADA or Section 504 of the Rehabilitation Act requires proof of intentional discrimination. That requirement flows through a chain of statutory incorporation: Title II defines its remedies by reference to the Rehabilitation Act, which in turn incorporates the remedies available under Title VI of the Civil Rights Act. The question that remained open after establishing intentional discrimination was a different one: damages for what, exactly?
The Ninth Circuit has now answered that part of that question in Payan v. Los Angeles Community College District, 2026 U.S. App. LEXIS 7210 (9th Cir. 2026), the same case that generated the 2021 remand I discussed in that earlier post. On retrial, a jury found LACCD had intentionally violated Title II on 9 of 14 claims, covering accessibility of the district’s websites, library databases, classroom software, course materials, and testing accommodations, and awarded $218,500 to Payan and $24,000 to Mason. The district court remitted both awards to nearly zero, relying on Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 221-30 (2022), which held that emotional distress damages are not recoverable under antidiscrimination laws enacted pursuant to Congress’ Spending Clause power because emotional distress is generally not compensable in contract law.
On appeal, the Ninth Circuit reversed the district court and reinstated the damage awards. The court agreed that Cummings bars emotional distress damages under Title II: although Title II itself was enacted under the Fourteenth Amendment rather than the Spending Clause, it “explicitly defines its rights and remedies as those of the Rehabilitation Act, which was enacted pursuant to the Spending Clause,” and the scope of remedies available under Title II “is ultimately determined by Title VI’s remedial scheme.” Payan, at *13-15. But the court drew a clear line: Cummings bars emotional distress, not all compensatory damages. Plaintiffs “may seek compensatory damages for lost educational opportunities under Title II of the ADA.” Id. at *17.
The problem with the Ninth Circuit’s logic was that it assumed the jury award would have been entirely for lost educational opportunities. This led Judge Lee to dissent in part on evidentiary grounds, concluding that the record was too thin to support a $200,000-plus award for lost opportunities.
Mootness: Jones v. Moscot.com, LLC
As we’ve previously discussed, mootness is a difficult argument for defendants in web accessibility cases. Under the voluntary cessation doctrine, a defendant bears the “formidable” burden of showing not only that it has fixed the barriers but that they cannot reasonably be expected to recur. Jones v. Moscot.com, LLC, 2026 U.S. Dist. LEXIS 46348, at *8 (S.D.N.Y. 2026). Moscot is a reminder, however, that the burden cuts both ways: a plaintiff who offers nothing in response to a defendant’s remediation evidence will lose. Here, Moscot submitted a detailed declaration from its Director of E-Commerce and a report from Level Access confirming that no accessibility barriers remained. Jones offered no declarations or exhibits in response. The court dismissed: “Jones fails to rebut the evidence establishing that Moscot has remediated accessibility violations in its website. Indeed, [he] does not offer any declarations or exhibits in response to the Aktan Declaration or the accompanying Level Access report.” Moscot, at *11. In our previous discussion about mootness, we mentioned a similar case, Toro v. Medbar Corp., 2024 U.S. Dist. LEXIS 91815 (S.D.N.Y. 2024), where the plaintiff offered no rebuttal evidence and the case was dismissed.
Work Product Protection for Accessibility Audits: Merrell v. Tapestry, Inc.
In Merrell v. Tapestry, Inc., 2026 U.S. Dist. LEXIS 63286 (C.D. Cal. 2026), the court held that accessibility audits conducted by AudioEye at outside counsel’s direction were protected work product and could not be compelled in discovery. Tapestry had worked with AudioEye since 2018, and plaintiff argued the audits were routine compliance materials rather than litigation-driven. The court examined the totality of the circumstances and determined whether the document was prepared in anticipation of litigation and “would not have been created in substantially similar form but for the prospect of that litigation.” In re Grand Jury Subpoena (Mark Torf/Torf Env’t Mgmt.), 357 F.3d 900, 908 (9th Cir. 2004). Given that Tapestry had been in web accessibility litigation since at least 2021, the audits would not have been created “in a substantially similar manner but for the prospect of this litigation.” Tapestry, 2026 U.S. Dist. LEXIS 63286, at *21. The privilege log was decisive — every item was either sent “at the direction of Defendant’s outside counsel, reflecting counsel’s legal advice,” or “specifically requested by, and intended to be transmitted back to, Defendant’s outside counsel.” Id. at *18-19. When plaintiff tried to route around the privilege by subpoenaing AudioEye directly, the court quashed it: the protection follows the documents even when subpoenaed as a third party. Id. at *52. Tapestry was still ordered to produce its accessibility policies and plans, user complaints, and (in part) source code — work product protection runs to counsel-directed audits, not general compliance documentation.
The practical takeaway: structure any accessibility audit so that outside counsel directs the work and the report flows back to counsel. One wrinkle worth noting: some insurers will not cover an audit commissioned directly by counsel. In those cases, counsel should direct the client to commission the audit and instruct that the report be copied to counsel as part of the litigation defense, which preserves the privilege while keeping the work within insurance coverage.
The same plaintiff had no better fortune in the Northern District of California, where, ten days before the Tapestry ruling, he lost on standing in Merrell v. Marriott International.
Standing and Expert Exclusion: Merrell v. Marriott International
Decided ten days before Tapestry, Merrell v. Marriott International, 2026 U.S. Dist. LEXIS 58471 (N.D. Cal. 2026), handed the same plaintiff two independent losses. First, the district court in the Ninth Circuit applied a very Second Circuit style analysis by focusing on whether the plaintiff had demonstrated a genuine intent to return by examining factors including proximity to the defendant’s business, past patronage, the definiteness of plans to return, and frequency of travel near the location. Merrell’s serial litigation history worked against him: the court found his claimed intent to return to Marriott’s website implausible given the volume of cases he had filed and the absence of any particularized connection to the chain. This examination of “intent to return” is roughly similar to the Second Circuit’s approach in Calcano, which I have written about before, though the specific factors differ by circuit. Second, perhaps sensing he was trying to play a weak hand, Merrell argued that he didn’t need to form an intent to return until after the barriers were removed because those barriers “deterred” him from visiting the facility. The court disagreed. Instead, the Ninth Circuit has held that, “current deterrence is sufficient but not necessary for standing, and that plaintiffs with knowledge of an ADA violation at a place of public accommodation can establish a sufficient future injury for standing by either (1) showing that they are currently deterred from returning to the place of public accommodation because of a barrier, or (2) showing that they were previously deterred and intend to return to the non-compliant place of public accommodation.” Langer v. Kiser, 57 F.4th 1085, 1093 (9th Cir. 2023) (citing Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011)). In short, no intent means no deterrence.
The court also addressed plaintiff’s accessibility expert under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (the standard governing when expert testimony is admissible in federal court), and the result was not pretty. The expert (Dr. William Easttom) submitted a video of him testing Marriott’s website using a mouse rather than keyboard-only navigation. The court excluded the testimony as methodologically unsound. As both parties acknowledge, the relevant scientific community — accessibility professionals — strive to test websites in a way that best mimics the blind user’s experience. That requires utilizing screen readers exactly as blind users do. Easttom failed to do that. Instead, he combined both screen-reader outputs and his mouse in making his video. Accordingly, the court concluded that “the accessibility professional community would reject Easttom’s video as being an inaccurate replication of an average blind screen reader user’s experience.” On these grounds, limitation on the use of Easttom’s video testimony is warranted. Merrell may not use Easttom’s videos as evidence of Merrell’s search journey, but the videos are admissible to show attributes of the website. Merrell v. Marriott International, at *42-43.
The Silly Nexus Test: Espinal v. Gabriella Growers, Inc.
The Eleventh Circuit was once the most active circuit for web accessibility litigation. Then Gil v. Winn-Dixiethrew a wrench into the works: a three-judge panel issued a stunningly conservative opinion that made it nearly impossible to sue unless a website barrier completely denied access to a physical location’s goods and services. The full Eleventh Circuit vacated that opinion on mootness grounds, technically erasing it — but the damage was done. District courts have been struggling ever since to figure out what the law actually requires. Espinal v. Gabriella Growers, Inc., 2026 U.S. Dist. LEXIS 73576 (M.D. Fla. Apr. 2, 2026) is the latest data point. The court followed Haynes v. Dunkin’ Donuts LLC, 741 F. App’x 752 (11th Cir. 2018) — the only other circuit-level case on point, and a more plaintiff-friendly one — holding that because Gabriella Growers sells plants both online and in its physical store, the website “facilitates the use of” the physical shop and a sufficient nexus was established. It is one district court judge’s reading, not a circuit-level ruling, and does not settle the broader confusion in the Eleventh Circuit. The case also confirms that Title III only allows injunctive relief for private plaintiffs; the court struck plaintiff’s claims for nominal damages and interest.
I have argued before that the nexus test is unworkable, and Espinal illustrates why. The court’s reasoning is essentially circular: because Gabriella Growers has both a website and a physical store, selling goods online “facilitates” the physical shop — and therefore satisfies a test designed to ensure some meaningful connection between the website and that physical location. But e-commerce is at least as much a substitute for visiting a store as a facilitator of it. Taken to its logical conclusion, the court’s reasoning would satisfy the nexus requirement for virtually any retailer with both a website and a physical presence, leaving little work for the test to do at all.
When Your Overlay Vendor Gets Sued: Parikh v. accessiBe, Inc.
My colleague Jeff Singleton and I have written extensively about the risks of relying on accessibility overlays to achieve ADA compliance. Parikh v. accessiBe, Inc., 2026 U.S. Dist. LEXIS 61042 (S.D.N.Y. 2026) illustrates this point. Three businesses sued for having inaccessible websites brought a breach of contract claim against accessiBe after the overlay they purchased failed to fix those barriers. accessiBe’s terms of service disclaimed any guarantee of WCAG compliance and capped damages at the greater of the amount paid over the prior six months or $50. The court found that cap effectively limited plaintiffs to nominal damages, which triggered the public policy exception for gross negligence under New York law: a party cannot contractually insulate itself from its own gross negligence.
On the gross negligence question, the FTC’s prior finding against accessiBe was one factor among several. The court also pointed to a fact sheet endorsed by more than 850 accessibility professionals concluding that no overlay product can achieve full WCAG compliance, a blog post stating that automated tools detect only about 30 percent of WCAG issues, and accessiBe’s own internal testing, which found WCAG compliance errors on nearly all websites tested. Taken together, that evidence supported the inference that accessiBe marketed a product as achieving full accessibility while possessing substantial internal knowledge that it could not. The court separately held that accessiBe’s claim that its widget would “stop any lawsuit in its tracks” was mere puffery and not actionable. Id. at *22-24.
The practical takeaway: overlay vendors with similarly aggressive marketing and unflattering internal testing records face real exposure even behind a limitation-of-liability clause. For companies that have relied on overlays, this is another reminder that the vendor’s promises may not protect you when a claim arises.
Bill Tracker
Yikes, it's amazing how fast the anti-abusive web litigation cases are taking off-- both Georgia and Utah have laws that look like they are about to pass.
Another note is that the deadlines for the new Virgina bill are coming up fast-- April 24, 2026!
| 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. | |
| Federal | HR 5605 | The Medical Device Nonvisual Accessibility Act of 2025 requires HHS and the Access Board to develop regulations and standards for accessible consumer medical devices October 2025 Legal Update | Introduced on September 26, 2025. | |
| Federal | HR 7328 | The Protecting Small Businesses from Predatory Website Lawsuits Act seeks to amend the ADA to add administrative steps before any web accessibility lawsuits against small businesses February 2026 Legal Update | Introduced on February 2, 2026. | |
| California | AB 2190 | Limits ability to bring web accessibility lawsuits by amending California's Unruh Act. February 2026 Legal Update | Introduced February 19, 2026. | |
| 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. | |
| Georgia | HB 1470 | Creates cause of action against individuals who file abusive web accessibility lawsuits February 2026 Legal Update | Introduced February 26, 2026. As of early April, this has passed the house and senate and looks like it will pass. | |
| Missouri | HB 1674 | Enables state attorney general to seek damages from attorneys engaging in abusive web accessibility litigation. December 2025 Legal Update | Introduced as nine separate bills in early December 2025. May have passed House in January 2026 (unclear). | |
| New Mexico | HB 295 | Requires WCAG 2.1 AA for all state agency websites and creates new Office of Accessibility. February 2025 Legal Update | Looks like an attempt to resurrect HB 120, which passed the legislature and was vetoed by the governor. As of February, "action postponed indefinitely," which doesn't sound promising. | |
| 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. Signed into law by the governor on January 20, 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. | |
| Utah | SB 68 | Act Against Abusive Website Access Litigation makes it easier to sue someone who claims a company's website is inaccessible. January 2026 Legal Update. | Introduced January 2, 2026. As of early April, it's on the verge of being signed into law. | |
| 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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