Hooters owl logoThis is not the owl of Athens, a symbol of wisdom associated with the goddess Athena. Nonetheless, there is some wisdom to be gained by taking a look at Haynes v. Hooters of Am., LLC, 17-13170, 2018 WL 3030840 (11th Cir. June 19, 2018). The case has already been the subject of many articles in the pay-to-play legal press and an excellent blog by William Goren.* The main lesson to be learned from Haynes v. Hooters is one that we’ve known a long time – a private settlement agreement will not moot a new claim by a new plaintiff. Only remediation will do that. There is, however, a deeper and more disturbing message. In website accessibility claims meaningful claims of mootness may well be impossible to achieve.

To understand why we start with the point of the mootness defense. Mootness as an abstract legal concept simply means that there is no case or controversy for the judge to decide because there is no meaningful relief that the plaintiff can be granted. The mootness defense failed in Haynes because the earlier settlement on which the defense was based had an expiration date and because even before it expired a new plaintiff could not enforce it.  Thus the new plaintiff could be awarded meaningful relief in the form of an injunction requiring Hooters to do what it promised in the earlier settlement.  Because that relief was meaningful the case was not moot. QED as the logicians say.

As a practical defense mootness means that a lawsuit can be dismissed at an early stage when legal fee expense is at a minimum. Remember that ADA website litigation, like ADA litigation generally, is driven by serial plaintiffs taking advantage of the asymetric rules concerning attorneys fees; that is, a winning plaintiff will always be awarded fees while a winning defendant almost never will. A defendant who cannot obtain an early victory might as well settle because victory after trial means the expenditure of tens or hundreds of thousands of dollars in legal fees that can never be recovered. To be meaningful a mootness defense has to work at the outset of a case, before discovery and other expenses are incurred.

Let’s imagine that a smart defendant, after reading Haynes and similar cases, decides to settle on the basis of the entry of a Consent Decree that requires compliance with whatever standard the parties agree on. That solves the problem of the agreement expiring, but would it moot a subsequent claim by a different plaintiff? Ordinarily a consent decree, like a private settlement, is enforceable only by the parties to it. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). A new plaintiff, unable to enforce the consent decree, would claim that he or she could still be awarded meaningful relief in the form of an injunction the new plaintiff could enforce. A Consent Decree alone doesn’t solve the mootness problem.

An even smarter defendant could draft a Consent Decree that states clearly it is intended to benefit all disabled individuals. This would allow any future plaintiff to enforce the Consent Decree in some circuits. See, U.S. v. FMC Corp., 531 F.3d 813, 819 (9th Cir. 2008). It might not work in others. See, Reynolds v. Butts, 312 F.3d 1247, 1249 (11th Cir. 2002) [“A well-settled line of authority from this Court establishes that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefitted by it.” quoting Blue Chip Stamps.] Even a Consent Decree may not moot claims by subsequent plaintiffs unless the case is brought as a class action, but that brings a level of complexity and expense that defeats the cost benefit of early settlement.

This legal conundrum is not the only problem with mootness in website accessibility litigation. The earlier settlement mentioned in the Haynes case required the website to be brought into compliance with WCAG 2.0, but did not require that it remain in compliance. Haynes sought an injunction requiring that the website be continuously updated and maintained to ensure its accessibility. We’ve discussed before how the difference between compliance at one point in time and a policy of compliance in the future can spell defeat or victory in physical accessibility cases.** Website cases present a similar but more difficult problem because modern websites, unlike accessible parking spaces and grab bars in a restroom, are frequently changed and include web applications that interact in complicated ways with the user. At the same time, technology is changing in ways that make websites more interesting and useful and competitive pressures make adoption of change a business necessity. No matter how good the policy, the continuous development problem means that at any given time a website may fail to meet an accessibility standard.

Maintenance failures do not automatically violate the ADA design and construction standards†, and the same principle should apply to websites. That doesn’t mean though that a defendant will be able to moot a website accessibility claim at a point in the litigation early enough for the victory to be meaningful. A typical website accessibility complaint will not identify the specific location of any alleged barrier to access. A reasonably complex website may involve millions of line of computer code, so finding an alleged problem with no more than a typical federal court pleading is like looking for a needle in a haystack. It is easy to moot a claim based on an allegation that accessible parking spaces do not comply with the ADA requirements. There are only a handful of requirements and not that many parking spaces in a typical facility. Finding and fixing a supposedly missing link or alt tag in a complex web site may be next to impossible.

There is a regulatory solution to this problem. DOJ must adopt website accessibility regulations that define what accessible means and define specifically what level of failure to meet the accessibility standards constitutes a violation of the law. The last proposed Title III regulations were very close to defining accessibility based on WCAG 2.0 success level AA but did not include standards for failure. Anyone who has used the internet knows that non-disabled users frequently encounter problems like non-functioning links, images that are missing entirely, and incompatibilities with specific browsers. Failure in a website is not discrimination; it is just a fact of life. New regulations should include standards for failure in terms of how long a failure must exist before it is no longer temporary and how serious or how numerous failures must be in order to constitute a real barrier to accessibility. A single missing alt tag should not be actionable. A regulatory definition of failure would make it possible for defendants to seek early dismissal based on the plaintiffs’ failure to adequately plead a failure as defined in the regulations.

Until we have a regulatory solution the hard lesson from Haynes v. Hooters is that website accessibility lawsuits will be a growing part of the legal landscape and that no silver bullet strategy can defeat even a meritless case. It’s a hard lesson, but one that business will continue to learn until we have regulatory or legislative relief.

*See, “Why you don’t want to be a test case

** “Does the ADA require a compliance policy?” and “ADA Policies and Procedures

† 28 CFR §36.211(b)