April was a much busier month than March. There were a bunch of new developments, both at the beginning of the month and the end of the month. As there is a lot of ground to cover, let's hop in and get to it!
When Will New York Attorneys Learn? Argue Standing Before Mootness!
This month, the first case in my Lexis feed was Martinez v. Pure Green NYC Wholesale Corporation, 2025 U.S. Dist. LEXIS 59432 (E.D.N.Y. 2025). This case made me laugh out loud because you could sense how the judge was trying to give defense counsel a soft pitch—but the attorney struck out anyways.
As readers of this blog know, courts in the Second Circuit routinely throw out cases using the Calcano decisionby serial plaintiffs. In the Pure Green case, Pedro Martinez was a serial plaintiff who routinely filed web accessibility cases with the court noting that his counsel had filed over 700 similar cases in the Eastern District—a jurisdiction not known for being favorable to web accessibility cases. While defense counsel should have seized upon this in a motion to dismiss, they raised the issue tangentially through a letter requesting a pretrial conference. The court treated the letter as a motion to dismiss and denied the motion.
What did the defendants next pin their hopes on? Mootness, of course. Specifically, they asserted that, by deploying AccessiBe overlay across its sites, Pure Green had “completely and irrevocably remediated the Website.” I think any reputable web accessibility professional could see the wheels now falling off their wagon. And, not surprising to anyone (probably even the defendants), using an overlay and claiming that your site is completely fixed isn’t going to work.
What can we learn from defense counsel’s bungling in the Pure Green case? Obviously, don’t pin your hopes on mootness. We’ve blogged before about why it’s generally a loser argument. The bigger lesson is to take Calcano seriously and make a strong argument in a motion to dismiss that the plaintiff hasn’t demonstrated a clear intent to return. Here, defense counsel clearly didn’t do that and made it easy for the plaintiff to sneak by.
Arbitration Clauses Won’t Work if Users Can’t Read Them
The second case to come up in my Lexis feed isn’t really an accessibility decision, even though it started as one. It’s also unusual because it comes from a jurisdiction where we’d expect to see more web accessibility cases—the liberal Seventh Circuit that permits web accessibility suits against purely online companies (this is not an example of one of those companies, however). In Randolph v. Dillards, 2025 U.S. Dist. LEXIS 62131 (N.D. Ill. 2025), Erika Randolph sued the famous department store because its website wasn’t accessible. Dillard’s attorneys, however, had carefully snuck in an arbitration clause into the website’s terms of use that said that, by using the website, visitors agreed to arbitrate any claims that they have instead of suing Dillards. When Ms. Randolph sued Dillards, they moved to dismiss.
I thought that was a really interesting twist—and why doesn’t this issue come up more often? I’m not a contracts attorney and so I learned something new about this area of law. It turns out there are three ways a company can trap users to its terms and conditions on a website:
- “clickwrap” agreements (where the conditions are displayed and the user has to affirmatively click an “I accept” button that locks them into an agreement on a website),
- “browsewrap” agreement (where the policies are buried in the general terms and conditions of a website), and
- “hybrid” agreements (where the conditions are only made available through a hyperlink but the user still has to affirmatively accept the terms).
The court concluded that Dillard’s terms and conditions were “browsewrap” because all that Ms. Randolph had to do to bypass them was to close the popup window instead of affirmatively accepting any terms. When terms and conditions are “browsewrap,” courts are less lenient to the company and require that the user was given “reasonably conspicuous notice” of those terms and conditions and that they “unambiguously manifested assent” to those terms.
I think we can all see where this is heading. Regarding conspicuous notice, the court noted in passing that, “[a] website could have a notice in bold-colored highlighted text and that would make no difference to a blind person's ability to see it,” Id, at *10. Based on conflicting evidence, the court also found that “it cannot determine whether Plaintiff could have reasonably assented to the terms on Defendant's website.” Id, at *15.
Another Eighth Circuit Case—This One Dismissed on Mootness
It was just back in February, that we blogged about the first reported web accessibility case from the Eighth Circuit. That case (Frost v. Lion Brand Yarn Co.) came from the District Court in Minnesota. Today’s case, Myers v. Shangri-La Jefferson LLC, 2025 U.S. Dist. LEXIS 80900 (W.D. Mo. 2025) is from the Western District of Missouri. It’s a less interesting case because the only issue was whether the plaintiff’s complaint was moot because of corrections made by the defendant.
Of course, defense counsel may be excused for thinking that mootness is an easy path to success. I can’t tell you how many lawyers call us thinking that is the first strategy they should try. Not surprisingly, it fell flat in the Myers case.
Other New York Cases Focusing on Serial Plaintiffs
There were a number of other web accessibility cases this month from the Eastern District and Southern District of New York. While any one of them makes interesting reading, as a whole they repeat the same patterns we’ve seen in other decisions involving serial plaintiffs from these courts. In Rendon v. Extreme Networks, Inc., 2025 U.S. Dist. LEXIS 61725 (S.D.N.Y. 2025) and Black v. 3 Times 90, 2025 U.S. Dist. LEXIS 71692 (E.D.N.Y. 2025), the courts found that the plaintiffs’ allegations were too vague or formulaic—lacking specific details about what they were trying to do on the website, why they wanted to return, or how they were meaningfully harmed. Both courts emphasized that a boilerplate assertion of interest, particularly when used in serial lawsuits, does not meet the threshold for Article III standing under the ADA.
On the other hand, New York courts still allow serial plaintiffs in web accessibility cases to move forward when they provide enough factual detail to demonstrate genuine interest in the site and intent to return. In Fernandez v. Vanilla Chip, LLC, 2025 U.S. Dist. LEXIS 73831 (S.D.N.Y. 2025) and Range v. Grand Greene LLC, 2025 U.S. Dist. LEXIS 73477 (S.D.N.Y. 2025), the plaintiffs cited specific products they wanted to purchase, listed dates of attempted access, and explained how accessibility barriers directly interfered with their goals. These individualized allegations were enough to withstand motions to dismiss. The Vanilla Chip case is also noteworthy, because it is another case in which the court rejected Chief Judge Laura Swain’s Meija v. High Brew Coffee decision and held that courts in the Second Circuit have, “found that it would be absurd to exclude cyberspace from the ADA's mandate.” Vanilla Chip, at *25. In Fernandez v. Buffalo Jackson, 2025 U.S. Dist. LEXIS 70885 (S.D.N.Y. 2025), the court questioned the sincerity of Felipe Fernandez’s allegations, noting the very similar patterns of allegations made by his attorney with eight other plaintiffs (including Jacqueline Fernandez in the Vanilla Chip case). The court did not dismiss the case outright—instead ordering jurisdictional discovery to assess whether the plaintiff had standing.
An Awful Section 508 Process
On the day before this month's blog was due to go live, Lexis dropped Devtech Systems v. United States, 2025 U.S. Claims LEXIS 1116 (Fed. Cl. 2025) into my daily feed. This is one of those rare Section 508 cases that involved a bid protest. The facts in this case are simple enough. Devtech was bidding on a multimillion-dollar project with the U.S. Department of Health and Human Services (HHS). They lost the project to a different company, which offered a cheaper and more accessible solution, and filed a bid protest to force HHS to award the contract to them instead. While I agree with the opinion, I thought it was worth pointing out as an example of how agencies are messing up Section 508.
We don't talk much about Section 508 of the Rehabilitation Act, 29 U.S.C. 794d, but it is essential to our world of digital accessibility. In a nutshell, the law requires that all electronic and information technology that is developed, procured, maintained, or used by federal agencies needs to be accessible to people with disabilities. In practice, however, agencies focus mostly on how technologies are "procured" (leaving out the other three verbs), because plaintiffs can only sue under Section 508 for procurements. Congress left it up the U.S. Access Board to come up with standards for what "accessible" means. In the Section 508 regulations created by the Access Board, the Board cleverly included the "best meets" requirement (currently at E202.7),
Where ICT conforming to one or more requirements in the Revised 508 Standards is not commercially available, the agency shall procure the ICT that best meets the Revised 508 Standards consistent with the agency's business needs.
This recognizes that accessibility isn't a binary decision and that most products don't meet all of the standards. It encourages vendors to use accessibility features as a competitive feature-- thus making all digital technologies more and more accessible over time.
That simple logic, however, appears to have been lost on the accessibility team at HHS. According to the court's opinion, the agency is first supposed to decide who will be the winning bidder, completely ignoring the accessibility of the product. Only then should it look at the VPAT. The agency is then prohibited from buying any product that it deems "red" based on the agency's scoring of VPATs, as follows:
- Green. EIT Products fully meet intent of all applicable Section 508 Provisions. Risk of failure to meet all Section 508 Requirements is very low.
- Yellow. EIT Products can be made capable of meeting the intent of all applicable Section 508 Provisions by using alternative methods for some or all of the products. Risk of failure to meet all Section 508 Requirements is low.
- Red. EIT Products fail to meet the intent of any of the applicable Section 508 or the VPAT is materially incomplete. Risk of failure to meet all Section 508 Requirements is high.
As the court explained,
The [HHS] Solicitation specified that the Agency's "evaluation of the VPAT [was] independent from the other factors" and was based on the offeror's ability to meet the Section 508 requirements. The Section 508 compliance team explained in an email to the contracting officer that VPAT Proposals rated red are not acceptable for award while proposals rated yellow or green "are acceptable to be offered a[n] award."
Id, at *12 (citations omitted). In short, HHS's Section 508 process lets the agency buy any product unless it completely flunks accessibility. In what universe is that process even remotely consistent with the best meets analysis required by the Access Board's regulation? Agencies are supposed to buy the product that best meets the Section 508 Standards, not just buy anything they want unless it's an accessibility disaster.
At the end of the day, it wouldn't have made a difference to Devtech because it was that accessibility disaster. The winning offeror was rated "green" and Devtech was rated "red." On the other hand, I have a sneaky suspicion that Devtech may have just been honest in their VPAT while the winning vendor overstated the accessibility of their product. After all, in the digital accessibility world, few products are perfectly accessible and earning a "green" rating is just about impossible. As our saying goes, "Show me a perfect VPAT and I'll show you a liar."
An Interesting Default Judgment
The last case I wanted to mention this month took a bit of research. I came across a new article in my Lexis feed that Fit2Run was ordered to make its website accessible. It took a bit of research but I found it on Pacer. The headline in the Law360 article slightly oversells the case-- Fit2Run just took a default judgment. The case is Ariza v. Robinson Sports, Inc., No. 24-61206 (May 2, 2025).
While I normally don't talk much about default judgments, this one jumped out at me for a few reasons. First, Fit2Run is a fairly large company; it run dozens of running stores in Georgia, Florida, and Puerto Rico. This isn't the kind of company that usually takes a default judgment. Second, the default judgment itself required the company to undertake a fairly thorough compliance program, including,
- Developing and implementing a Web Accessibility Policy,
- Requiring third-party vendors who participate on its website to be fully accessible,
- Creating an accessibility statement on its website to reinforce its Web Accessibility Policy,
- Require web content staff to undertake mandatory annual accessibility training,
- Perform annual automated testing and provide reports to plaintiff's counsel,
- Fix any errors identified by plaintiffs within 30 days
Normally, courts stop at ordering the defendant to make their sites accessible and pay the plaintiff his fees. The only oddity was that the court ordered compliance with WCAG level A and not AA. As the case isn't reported (yet), here a link to the judge's order, which I uploaded to our site.
Colorado Wants Contractors to Indemnify Schools for Inaccessible Technology
I apologize because I didn’t see this coming. Earlier this year, the Colorado legislature introduced HB 25-1152, which would require public schools in Colorado to insert a special clause requiring contractors to meet the Office of Information Technology standards—and to indemnify the school if they get sued because the technology was inaccessible. We participated actively in the rulemaking for these standards just last week, so we’re intimately familiar with what they require.
Now, it looks like HB 25-1152 passed the legislature and is heading to the governor’s desk for signature!
I’m all in favor of holding vendors’ feet to the fire because their customers (in this case, school districts) shouldn’t be expected to be experts in WCAG and digital accessibility. I don’t think, however, that a simple indemnification clause is going to work. From a practical perspective, it’s not quite so simple because, while most barriers are usually due to the vendors, some barriers can also be introduced by the customer. This comes up, for instance, when the customer adds their content and forgets to add alt text to their images. Shifting all of the costs of litigation to the vendor isn’t fair if the state or local government is partly to blame. From a legal perspective, indemnification clauses usually fail in civil rights cases, because the duty to not discriminate against people with disabilities can’t be delegated away. Contribution clauses (where each party shares in the costs based on how much they are to blame) are looked upon more favorably and makes more sense from a practical perspective too.
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 | Passed both houses and now awaiting signature by the governor. |
| 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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