In ADA website litigation failure  can teach us as much as success, and the plaintiff’s failure in Tavarez v. Extract Labs, Inc., 2023 WL 2712537, at *2 (S.D.N.Y. Mar. 30, 2023) is no exception.¹ Before getting into the details, here’s a primer on the doctrine of “mootness.”

Article III of the Constitution gives federal courts jurisdiction over “cases and controversies.” Just what this means has been the subject of many cases in the last two hundred years, but one thing it certainly means in the context of an accessibility lawsuit under Title III of the ADA is that if there is no accessibility problem to fix there is no case or controversy and the lawsuit is “moot.”  This kind of mootness is almost unique to ADA Title III lawsuits and comes from the fact that that the only thing a federal court can do in an accessibility lawsuit under Title III is order that the problem be fixed. I call this the “if it ain’t broke you can’t fix it” defense.

Mootness is a great defense because it concerns the power of the court to hear the case and it can therefore be raised at any time, even while the case is on appeal. If the case is moot the only thing the court can do is dismiss the case. And even if the lawsuit was the reason the accessibility problem got fixed the plaintiff and the plaintiff’s lawyers get nothing. This is obviously a very gratifying result for those of us who don’t think serial litigation does anything but make lawyers rich.

Mootness is a great defense, but it is not an easy defense to establish. As the court observes in Extract Labs, a case can be found to be moot only if the defendant meets the:

This is not easy with website cases because websites are complicated and dynamic. Because they are complicated it can be hard to show that there is literally nothing wrong that interferes with meaningful access, and because they are dynamic it is hard to prove something won’t go wrong in the future. Nonetheless, mootness has been successful as a defense. Diaz v. Kroger was the first case to find for a defendant on mootness and shows just how hard it can be.² The defendant in that case succeeded because it proved that its website conformed to WCAG 2.0 AA, the best available standard at the time, and that none of the barriers to access specifically alleged in the Complaint existed. It dealt with the possibility of future inaccessibility by proving that even before it was sued it had a policy of keeping the website in conformance to WCAG 2.0 AA, a policy that the plaintiff had no proof would not work.

For a trial lawyer it isn’t hard to see how a plaintiff can avoid a mootness defense. You need one of two things. First, you need to find a defect in the website that wasn’t fixed. The Diaz decision cites several cases where this was the problem. As an alternative, you can provide some evidence that the policy of keeping the website accessible is not trustworthy. Courts are suspicious of policies that are enacted only after a lawsuit is filed. In addition, if the policy has already failed that is pretty good evidence it doesn’t work.

At first glance it would seem the plaintiff in Extract Labs did what he needed to do. The defendant had a declaration that was modeled on the successful declaration in Diaz v Kroger, but unlike the plaintiff in Diaz v Kroger, the plaintiff in Extract Labs had an expert with a declaration that said there were problems with accessibility. Despite this, the defendant won and the case was dismissed. Why?

The problem was not in what the plaintiff’s expert said, it was that he didn’t say it in a way the court believed. Courts are not technical experts in website accessibility so they rely on experts who tell them what the expert found. This comes in the form of an opinion that summarizes a lot of facts – something like “in my expert opinion the website is not accessible.” Facts are also needed as examples to support the opinion, and the rules about balancing opinions and supporting facts are complicated, but one thing about this process is not. Only experts get to give this kind of opinion and so they have to prove they really are experts. That requires some facts as well, like what training they had, or what experience they bring to the table.³

In this case the plaintiff’s expert and the plaintiff’s lawyers appear to have just messed up. The expert did not include his resume, so there wasn’t specific evidence he was an expert. He also left out his “audit report” that would have provided fact to back up his opinion. Finally, and perhaps worst, he failed to fix these problems even though he had eight months to do so. The net result:

With no competent evidence of website problems from the plaintiff the defendant was bound to win.(5)

The takeaway for businesses concerned with website accessibility is simple: Hope you get sued by a plaintiff whose lawyers are not on the ball. But even if the opposition isn’t up to snuff you need to give yourself the best chance to establish mootness by:

• Adopting and  implementing a policy to have an accessible website now, before you’ve been sued.  That will fit you into the winning model found in Diaz v Kroger.
• If you get sued, make sure you both meet WCAG 2.1 and take care of every specific problem listed in the Complaint. Remember that because WCAG 2.1 has subjective elements just saying you meet WCAG 2.1 does not mean you will have fixed everything in the Complaint. You have to do both.

I’ll add my opinion of one more strategic decision. Don’t fire until you see the whites of their eyes.(4) A defendant can win a case at three times; at the beginning with a Motion to Dismiss, in the middle with a Motion for Summary Judgment, and at the end by proving the truth at trial. Winning based on the truth gets easier at each step, though at the cost of spending more money to get there. I think legal fees for a mootness defense are best spent at the Motion for Summary Judgment stage where the odds are better. This defendant won on a Motion to Dismiss that was treated like a Motion for Summary Judgment, but only because the plaintiff’s lawyers made a mistake. The odds are better later in the case.

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¹ My friend Bill Goren (https://www.understandingtheada.com/) called this case to my attention, along with the blog post from Jeff Singleton at Converge Accessibility (https://convergeaccessibility.com/2023/04/19/can-using-an-overlay-win-a-lawsuit/)

² See my blog: Accessibility moots a website accessibility claim – a surprising decision that shouldn’t surprise anyone. As for the Battle of Bunker’s Hill, the subject of the painting at the left, just keep reading.

³ This is all based on Federal Rule of Evidence 702 and 703 and some important cases from the Supreme Court saying what they mean.

(4) See https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/dont-fire-until-you-see-white-their-eyes if you are interested in the history of this saying.

(5) it is worth emphasizing that this opinion doesn’t tell us much about what it means to have an accessible website because there was, in effect, only one side of the story being told.