I’ve been busy in the last few months putting what I learn from reading new decisions about the ADA and FHA to use for my clients; hence this delayed blog. A number of interesting decisions concerning ADA website litigation came out while I was busy on my day job, and I hope you don’t mind the delay in getting them to you.
Let’s just review the website as public accommodation issue.
It has now been more than 20 years since the Department of Justice first announced that in its view every business website was a public accommodation, even if the business was entirely on line. After all that time DOJ has still not been able to adopt regulations supporting its opinion and the courts remain deeply divided. A thorough discussion of the issue has been very helpfully provided by Judge Garaufis from the Eastern District of New York. I recommend reading the entire discussion, which is too long to repeat here, but his most useful observation occurs at the beginning of the discussion:
The sheer number of judges who, when presented with this statute, have diverged in their interpretations, tells this court that the plain language of Title III of the ADA is ambiguous as to whether standalone websites are covered entities under the statute.
My 2022 update on website accessibility litigation, which will be available here in a few weeks, has a complete summary of the agreements and disagreements, but the simple takeaway is that if you are defending a website accessibility lawsuit outside the Ninth Circuit you need to review the assigned judge’s opinions to know which way they are likely to rule. Know your judge before you make any strategic decisions on settlement or litigation.
And the Circuits remain split on tester standing in hotel website cases.
In Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 271 (1st Cir. 2022) the First Circuit has given us the most thorough discussion of tester standing since the Supreme Court’s decision in Transunion.(4) The Court recognized what I pointed out in my blog about Transunion; that is, that Transunion at least implicitly limits or even overrules Havens Realty. Unfortunatley, the First Circuit declined to go beyond recognizing the possibility, instead claiming that it was bound by Havens Realty as it interpreted it. The Court interpreted Havens Realty an holding that a denial of information to which one had a statutory right was sufficient to create Article III standing. Here is the Court’s summary of its thinking:
Under Laufer’s theory, she had a right to the information that she alleges Acheson didn’t give her. And the statute makes that denial of information discrimination against disabled persons and gives Laufer the right to sue in response. That Laufer had no intent to use the information for anything but a lawsuit doesn’t change things — she was still injured in precisely the way the statute was designed to protect.
(emphasis added) The First Circuit’s mistake is in the highlighted words above. Havens Realty was not a case about a right to information; it was a case about discrimination in the form of giving false information to someone based on race. In Havens Realty a black tester was given false information about the availability of an apartment. That violated the very specific provision in 42 U.S.C. §3604(d), which makes it unlawful:
(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
Being lied to because of race is different from simply not finding information on the internet that DOJ regulations require to be present. It is discrimination based on race, the kind of discrimination the Fair Housing Act was intended to make illegal. Not finding information on a website is not discriminatory because everyone, disabled or not, has a right to the same information. Ms. Laufer happens to be disabled, but there is nothing she claims that could not equally be claimed by a person who has no disability, and allowing non-disabled individuals to sue because they cannot find information about disability access to which they have no need is absurd. The ADA is not a statute that requires information, it is a statute that forbids discrimination. The black tester in Havens Realty was discriminated against because of his race. Ms. Laufer was not discriminated against at all, for she was treated the same as every other website use. Because the ADA forbids discrimination rather than requiring information she was not “injured in precisely the way the statute was designed to protect.”
The case will be taken to the Supreme Court, which can resolve what is now a split between the First and Eleventh Circuits on the pro-tester side and the Fifth and Tenth Circuits on the strict interpretation of standing side. It will almost certainly agree that testers like Laufer do not have standing while preserving its holding in Havens Realty that suffering from discrimination is in fact a concrete injury sufficient to satisfy Article III.
Franchise operations and the “nexus” requirement
Courts holding that Title III of the ADA does not apply to internet only businesses nonetheless recognize that Title III may apply to a website that has a “nexus” to a physical place of business. The nature of the required nexus isn’t perfectly clear, especially in the Eleventh Circuit, where the recent dismissal of the Winn-Dixie case as moot took away the most complete explanation of the doctrine. In Ariza v. Coffee Beanery, Ltd., 2022 WL 17333106 (S.D. Fla. Nov. 29, 2022) Judge Dimitrouleas considered the issue in the context of a franchisor operating a website that served a variety of functions for the chain of physical stores operated by its franchisees. The Court first noted that unlike other franchise cases this one did not consider whether the franchisor might be liable for ADA violations of its franchisees. Control of physical places of business was not the issue, “nexus” was. The Court then considered both why Winn-Dixie, considered as persuasive if not authoritative, and the Eleventh Circuit’s decision in Haynes v. Dunkin’ Donuts LLC, 741 F. App’x 752 (11th Cir. 2018) indicated the website might create “intangible barriers” to accessing the physical stores.
Because the case was decided on a Motion to Dismiss and the discussion does not go item by item through the plaintiff’s allegations it isn’t clear whether this decision will stand up to an exploration of the facts. The allegations discussed in the opinion all concern on-line shopping, and while the website offers the same goods as on-line stores it isn’t clear that overlapping inventory is the kind of nexus that creates an intangible barrier to access to a physical store. There did not seem to be any claim that features allowing a customer to find a local store or with information about local stores was missing. If the case does not settle it may provide some additional insight into when a franchisor website has the necessary nexus to franchisee physical stores.
Nexus is a real requirement
There are more ordinary standing issues that arise in ADA litigation as well.
Credible standing is a problem in litigation over accessible websites. Most commercial websites are in the online commerce business, and so anyone anywhere might plausibly be interested in their goods and services even if that person claims to be interested in an implausible variety of goods sold by other websites. If the allegations of standing survive a motion to dismiss most defendants will be compelled by economics to settle because the cost of litigating website accessibility is high. One solution is to stay all discovery except standing discovery as Judge Caproni did in Tavarez v. Moo Organic Chocolates, LLC, 2022 WL 17094631, (S.D.N.Y. Nov. 21, 2022). She wrote:
Granting Plaintiff leave to amend would not necessarily be futile because the facts contained in the PSAC, if accurate, establish standing. That said, the Court finds Plaintiff’s allegations, while not quite the “mad-lib” allegations that were present in Calcano, not to be particularly plausible. Accordingly, the Court will grant Plaintiff’s motion to amend the Complaint but will also stay all discovery other than jurisdictional discovery directed to whether Plaintiff has Article III standing.
Litigating the hell out of a website accessibility case.
Valerie Brooks is a serial filer of website accessibility lawsuits. Boiling Crab Franchise Co. LLC is a defendant that apparently decided enough is enough and is putting Ms. Brooks to the test rather than paying what was probably a relatively modest amount to settle. Their disputes concerning discovery are discussed in Brooks v. Boiling Crab Fran. Co., LLC, 2022 WL 16856257 (E.D. Cal. Nov. 10, 2022). Defendants with the will and financial resources to fight will find in the decision a useful outline of the discovery that might help defend this kind of suit:
- A demand to examine the computer and software allegedly used to access the website in order to test the claim that the software could not read the website
- A demand to depose the plaintiff’s expert to determine what is supposedly wrong with the website
- Early retention of defense experts both to consult and ultimately testify for the defense.
It is notable that the Court was not willing to force Ms. Brooks to respond to interrogatories detailing the specific problems she supposedly encountered on the ground that she lacked the necessary technical expertise. She will presumably be deposed on these issues and may ultimately be found not to be credible, but the underlying problem is signficant. A plaintiff who is not a serial filer isn’t likely to take notes about each accessibility problem they encounter and be able to explain it months or years later. On the other hand, it appears some serial filers visit websites only briefly and then let their lawyers commission a report on supposed WCAG 2.x deficiencies that then form the basis for the complaint. Until credibility is a real issue; that is, until trial, the legitimacy of the complaint is unlikely to be resolved. That means that winning will always be far more expensive than settlement.
A sensible analysis of a nonsensical lawsuit.
Andres Gomez is a serial ADA litigant who files suits claiming that websites are not accessible to him because he uses a screen reader. In Gomez v. Trinitas Cellars, LLC, 2022 WL 2194658, at *1 (N.D. Cal. June 17, 2022) the Court granted a summary judgment in favor of the Defendant that should provide a guide for any defendant willing to spend the time and money required to win this kind of lawsuit.
The court began with a very sensible question – when does the inability for a screen reader to identify an image really matter? The defendant’s website had a logo that was not identified in a useful way for a screen reader. The court found that this was not a violation of the ADA because Gomez could not explain why not having a useful description denied him the equal use and enjoyment of the website or deterred him from visiting again. The same analysis applied to social media logos because not knowing where those links lead had nothing to do with Gomez’ ability to access the winery and its goods and services.
Gomez’ complaints about low contrast text in the website presented a similar problem. Screen reader software does not care about contrast – it only looks at the code for the text, not its color. As a user of screen reader software Mr. Gomez was unaffected by low contrast text.
There were more substantive issues concerning menus that Gomez claimed could not be read by a screen reader. Here the defendant adopted the kind of approach necessary to defeat technical claims. The defendant’s expert not only opined that the supposed defects did not exist, they also produced a video showing how screen reading software could in fact identify and make the menus usable.
I’m confident the defendant could have settled this lawsuit for far less than it cost to win it, but the only way the end abusive serial litigation is for defendants like this one to invest in victory. Those who are tired of paying off plaintiffs and lawyers who abuse the ADA will find in this decision an excellent guide to how these cases can be won.
Personal jurisdiction over website operators.
¹ For more information about the pending legislation that will certainly be re-introduced in the next session of Congress as it has been for the last three see https://www.duckworth.senate.gov/news/press-releases/duckworth-sarbanes-introduce-bicameral-legislation-to-help-make-websites-and-software-applications-accessible-for-americans-with-disabilities
² See, Martinez v Cot’n Wash, Inc., 297 Cal. Rptr. 3d 712, 715 (Cal. App. 2d Dist. 2022), review denied (Nov. 9, 2022)
³ For an example of an even more skeptical judge see Velazquez v. Everlast Worldwide, Inc., 2022 WL 16745767 (S.D.N.Y. Nov. 7, 2022) in which the Court raised the standing issue sua sponte before the defendant had even answered. Finding the allegations deficient the Court ordered the plaintiff to file an amended complaint curing the defects to avoid dismissal.
(4) Those interested in an analysis of the relevant cases can review my blogs: