SDNY Back to Rejecting Online-Only Title III Claims
In earlier posts, we’ve discussed the Southern District’s wavering interpretations regarding whether online-only companies are places of public accommodation and can be sued for maintaining inaccessible websites. In Fernandez v. Scanpan USA, Inc., 2025 U.S. Dist. LEXIS 192331 (S.D.N.Y. 2025), the Southern District of New York once again dismissed a website-only Title III ADA claim. In this case, a serial litigant alleged that Scanpan’s cookware website wasn’t screen-reader accessible, preventing him from buying a frying pan. However, Judge Gregory Woods wasn't swayed and followed the reasoning in his earlier Sookul decision, which we previously described as a more careful articulation of why online-only businesses are not considered places of public accommodation. In the Southern District, if you’re bringing a web accessibility case involving a purely online-only company, your chances all depend on which judge you happen to draw. The moment this case landed on Judge Woods’s docket, the plaintiff should have settled, as he should have known which way the case was going.
One interesting legal aspect of this case is that the plaintiff relied on the Supreme Court’s Skidmore decision. We’ve previously discussed how deference to agency interpretations of federal statutes is diluted after the Loper Bright decision. While the Loper Bright decision was controversial, Judge Woods’ handling of the plaintiff’s argument was not. Specifically, the plaintiff argued that the DOJ guidance supported his claim. That guidance reads, "the Department has consistently taken the position that the ADA's requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web." This, however, says nothing about whether online-only businesses are considered public accommodations.
A More Careful Reading of Calcano and Intent to Return
Previously, I’ve complained that the federal courts in New York were not giving any guidance about what constitutes an “intent to return” to satisfy the Second Circuit’s Calcano decision. In tossing out the plaintiff’s complaint in Melendez v. Raaka Chocolate, Inc., 2025 U.S. Dist. LEXIS 190842 (S.D.N.Y. 2025), the court offered a little more guidance. In that case, Judge Rochon noted that there are a myriad of ways to demonstrate an “intent to return.” For instance, a plaintiff can allege,
- An interest in a unique product available only on the defendant’s website. Guerrero v. Ogawa USA Inc., 2023 U.S. Dist. LEXIS 109579 (S.D.N.Y. 2023).
- A link between the website and a hobby or interest in which the plaintiff regularly engages. Maddy v. Life Time, Inc., 2023 U.S. Dist. LEXIS 115503 (S.D.N.Y. 2023); Tavarez v. Moo Organic Chocolates, LLC,641 F. Supp. 3d 76 (S.D.N.Y. 2022); Walters v. Fischer Skis U.S., LLC, 2022 U.S. Dist. LEXIS 142148 (N.D.N.Y. 2022).
- A personal connection to a defendant’s products. Sookul v. Fresh Clean Threads, Inc., 754 F. Supp. 3d 395 (S.D.N.Y. 2024); Dawkins v. Brandy Libr. Lounge, LLC, 2023 U.S. Dist. LEXIS 217365 (E.D.N.Y. 2023).
- A sudden need or desire for a specific product. Melendez v. Complete Tile Collection, LLC, 2024 U.S. Dist. LEXIS 175021 (E.D.N.Y. 2024); Riley v. Baggu Corp., 2025 U.S. Dist. LEXIS 150080 (S.D.N.Y. 2025).
- Repeated attempts to access a website on different occasions. Davis v. Wild Friends Foods, Inc., 2023 U.S. Dist. LEXIS 115542 (S.D.N.Y. 2023); Dawkins v. Schott NYC Corp., 2023 U.S. Dist. LEXIS 171967 (E.D.N.Y. 2023).
(I didn’t include all the citations, but I copied many of them)
In Melendez, the plaintiff alleged that she enjoyed high-end chocolates and had a particular interest in the defendant’s ginger snap chocolate. About her personal interest in high-end chocolate, the court noted that Ms. Melendez didn’t give any reasons for her personal interest. She also offered no information suggesting that she has regularly sought out or purchased high-end chocolates in the past. While Ms. Melendez identified a specific product that she liked (the defendant’s ginger snap chocolate), she didn’t offer “any facts as to why she wished to purchase the Ginger Snap chocolate bar, or why the Ginger Snap chocolate bar was ‘unique’ and ‘differentiated.’” Melendez, at *25.
H.R. 5605 Medical Device Nonvisual Accessibility Act of 2025
Props to my wife, Laura Ruby, for pointing this out! On September 26, Representative Janice Schakowsky (D-Ill.) introduced the Medical Device Nonvisual Accessibility Act of 2025 along with a host of bipartisan co-sponsors. The bill aims to make the user interfaces of home and consumer medical devices (more specifically, devices “not intended solely for use by a health care provider or in a setting outside the home”) accessible to nonvisual users. To do this, the bill requires the Department of Health and Human Services to work with the Access Board to develop standards and regulations for implementing the Act.
What does this have to do with web accessibility? Nothing really. It’s just a hugely important topic and something I have a lot of experience with. Accessible medical devices are a societal necessity as more and more of us need to monitor our weight, blood pressure, and blood sugar levels. As Laura can attest, I have a variety of devices that measure heart rate, blood sugar, muscle oxygenation, breathing volume and frequency, blood pressure, and more. Every time I hop on my bike or go for a run, my fitness data is being carefully tracked and securely beamed to a cloud storage system. Then I spend hours poring over spreadsheets of data trying to understand how to get the most value from my exercise time. The reason I mention this is that one feature I seek in almost any portable fitness or medical device is interoperability. This can go two ways—accessing the data and managing the settings.
- Accessing Data. Accessing the data off-device is essential. For instance, my Garmin blood pressure monitor uploads all of my data to the cloud, so I don’t have to remember my readings each time. While the device itself remains inaccessible, having the data available off-device is crucial.
- Adjusting Settings. Being able to manage the settings from a different device is also important because the tiny screens and limited UI features make it very hard to manage complex devices. For instance, my Garmin Edge 840 bike computer has a million complex settings for different sensors (heart rate, power, muscle oxygenation, speed, etc) and types of workout (indoor, outdoor, road, mountain, etc), and setting each of the different settings is a nightmare on the device. Garmin allows me to configure many of those settings on my phone or PC and “beam” them to my device during the next Bluetooth synchronization. My old Wahoo bike computer was even better at this this and required using my phone to set it up.
My experience here is not from the perspective of a user with a disability. At the same time, I believe that any user would benefit from having easier access to their data and using a familiar PC or smartphone interface to set their UI settings. While the nuances of implementing this bill will be left to HHS and the Access Board, I hope that they don’t miss a valuable opportunity to make medical devices accessible to all users.
Even though this bill isn't specifically relevant to web accessibility, I'll add it to the bill tracker.
Bill Tracker
No movement on any bills but added HR 5605.
| 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. |
| 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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