Nightmare dogBrooke v. A-Ventures, LLC, 2:17-CV-2868-HRH, 2017 WL 5624941, at *1 (D. Ariz. Nov. 22, 2017) is a case with an unusual procedural posture and a holding that shows a frightening misunderstanding of issues concerning website development. According to this judge, making a website accessible is an admission of an ADA violation and a business website can never be fixed so well that a case against it is moot.

Brooke is a serial plaintiff represented by one of the nation’s most prolific serial filers, Peter K. Strojnik. The case is unusual procedurally because the defendant allowed a default against it and opposed the relief sought only as an opposition to the entry of a default judgment. It isn’t clear whether this was a strategy or an accident, but as in other cases we’ve discussed* the result was a very low award of attorneys’ fees to the plaintiff. Kudos then to defense counsel for avoiding the waste of money on attorneys’ fees that is often a feature of serial litigation.

Less unusual procedurally but highly educational for those in the hospitality industry is the plaintiff’s use of  28 C.F.R. § 36.302(e)(1)(i) as the basis for her claim. This regulation requires that hotels and other places of lodging:

“ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms”

The status of websites as places of public accommodation is up in the air, and the relationship between a website and a physical place necessary to treat the website as a service is still poorly defined, but as reservation system websites have been regulated for a long time. There is also little doubt that making reservations to stay in a place of public accommodation is a service. Small inns, bed and breakfasts and individual residence owners who rent via the internet should take note. Restaurants that take reservations on line may also want to consider whether Section 36.302(a) requires that they make provisions for reserving accessible tables.

The opinion is disturbing however. The Court found that “Defendant has substantially admitted the merit of plaintiff’s Title III ADA claim by modifying its on-line reservation system in response to plaintiff’s complaint.” Rule 407 of the Federal Rules of Evidence prohibits the use of subsequent remedial measures as evidence of culpability for the very good reason that using remediation as evidence of liability discourages it. Businesses told that remediation will be considered evidence of liability under the ADA will certainly be discouraged from undertaking it if there is any doubt about whether the ADA requires it.

Most problematic however is the Court’s finding that remediation of the website was not sufficient to moot the Plaintiff’s claims.  Considering the mootness argument the Court writes:

A change to a website is akin to a change in policy, which courts have found are not sufficient to meet the stringent standard for proving a case has been mooted by a defendant’s voluntary conduct if the policy “could be easily abandoned or altered in the future.” Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013). Defendant’s website could easily be abandoned or changed in the future,18 as could its new internal policy.

If the defendant spent a thousand dollars on concrete work and a new sign to create an accessible parking space there is little doubt the Court would have found that mooted any claim related to parking; in fact, a number of cases have so held.** The reasoning is simple. Nobody is likely to tear up concrete or remove a sign just to create an inaccessible parking space. In this case it is likely the defendant spent far more than a thousand dollars creating new programming for the web application that takes on-line reservations, and it would as foolish to dismantle those changes as it would be to jackhammer out an accessible curb cut. Websites, because we only see them on a computer screen, appear infinitely and easily malleable, but modern web applications are both complex and expensive to create or modify. We have worked with a number of consultants who help businesses create accessible web sites, and the cost is almost always in the tens of thousands if not hundreds of thousands of dollars.

As website accessibility litigation continues to increase courts must become more familiar with the real problems and costs of website accessibility, particularly for small businesses like the defendant in this case. Otherwise we will see case law that puts intolerable burdens on business even apart from the money wasted on attorneys’ fees.

* Surrender as a strategy in ADA litigation, and Quick Hits – ADA news of note

** See, for example, Vogel v. Winchell’s Donut Houses Operating Co., LP, 252 F. Supp. 3d 977, 982 (C.D. Cal. 2017)