mootness

Can an ADA website accessibility claim be mooted?

April 21, 2023 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet Web, ADA Mootness Tags: ADA defense, Diaz v Kroger, mootness, Tavarez v Extract Labs, website accessibility

painting of the battle of bunker hill 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:

‘formidable burden’ of demonstrating that it is ‘absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.’

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:

Evidentiary deficiencies with Plaintiff’s submission of Moody’s declarations compel the Court to grant Defendant’s request to strike the Moody statements as unreliable and lacking foundation.

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.

++++++++++++++++++++++++++++++++++++

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.

Quick Hits – Vernal Equinox edition

March 18, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA FHA General, ADA FHA Litigation General, ADA Internet, ADA Internet Web, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA default judgment, ADA defense, FHA Defense, hotel website, Informational injury, mootness, serial litigation, Strojnik, supplemental jurisdiction, tester standing

three bottles of madeira wine Madeira was traditionally aged in barrels that crossed the equator twice, the heat and time fortifying and sweetening the wine. Like a cask of Madeira the sun will cross the equatorial plane of the earth in a few days, but you won’t have to wait for the next crossing in the fall for a quick hits blog. Here’s the news.

What if someday never comes?

The classic Creedence Clearwater Revival song asks what will have if someday never comes. The Eighth Circuit had the same question in Smith v. Golden China of Red Wing, Inc., 987 F.3d 1205, 1209 (8th Cir. 2021). Following its earlier decisions involving the same lawyers and plaintiff the Eighth Circuit had little trouble concluding that the plaintiff, who visited the defendant only as a “tester” driven by his attorney and whose return would be as directed by his attorney did not have sufficiently concrete plans to return for there to be a likely future injury that would support standing for injunctive relief. Since the ADA only provides for injunctive relief that was fatal to this claim as it had been to others in the past. The Eighth Circuit has seen dozens, rather than tens of thousands, of ADA lawsuits because the Court takes Article III standing seriously. If the Ninth Circuit ever does the same my blogs will start getting much shorter. More

Quick Hits – Now is the summer of our discontent edition

June 22, 2020 By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA Litigation Procedure, ADA Mootness Tags: ADA defense, Braille gift cards, COVID-19, mootness, negligence and ADA, Readily Achievable, Service Counters, Strojnik, Voting Rights Alabama

Here’s a very unhappy looking King Richard III contemplating the murder of his nephews and possible rivals for the throne, or perhaps the latest headlines. While the latest cases on accessibility law don’t usually look like light reading, right now they are a cheery diversion from the rest of world events. Here we go:

Voting Rights and the ADA

People First of Alabama v. Merrill, 2020 WL 3207824 (N.D. Ala. June 15, 2020) deserves its own blog, but illustrates how the reach of the ADA is sufficient to touch every aspect of public life. In People First the plaintiffs were elderly and disabled, suffering as a result from an enhanced risk of significant illness or death from Covid-19. They claimed that Alabama’s restrictive absentee voting laws violated Title II of the ADA by depriving them of access to voting, which is for ADA purposes a state program for which the ADA requires equality of access. The Court agreed in most respects and entered a preliminary injunction requiring the state to make absentee voting easier in several respects. The case is on appeal, so the outcome remains uncertain, but it illustrates how the provisions of Title II of the ADA can affect every state and local government program, including those usually thought of as purely political.

ADA and FHA Quick Hits – Labor Day edition.

August 31, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Mootness, Animals, FHA Emotional Support Animals Tags: ADA defense, ADA Internet, ADA website, FHA Defense, FHA Guidelines, Glueck v National Conference of Bar Examiners, Hillesheim v Holiday Stationstores, mootness, service animals, Wetzel v Glen St. Andrew

Summer is almost over, but before I put away my flip flops and seer sucker suit here’s a last look at what has been a very busy summer in the field of ADA and FHA litigation.

Landlord liability for tenant discrimination

Wetzel v. Glen St. Andrew Living Community, LLC, 2018 WL 4057365 (7th Cir. Aug. 27, 2018) is a critically important decision for landlords because it holds a landlord may be liable for its failure to restrain discriminatory conduct by tenants. The plaintiff is a lesbian who found herself the subject of a “torrent” of abuse from fellow tenants based on her sexual orientation that included both verbal and physical assaults. The rules of the apartment complex were similar to those of most apartments and permitted the landlord to take action against any tenant whose conduct was a threat to the health and safety of others or interfered with the peaceful use and enjoyment of the apartments. The plaintiff reported the abuse to management, who did nothing about it. In fact, they engaged in various kinds of conduct that essentially punished the plaintiff for complaining. When the plaintiff finally sued under the Fair Housing Act the landlord’s defense was that it could not be held liable for discrimination by other tenants. More

Get it right the first time – the problem with “temporary” obstructions

May 2, 2017 By Richard Hunt in Accessibility Litigation Trends, ADA Mootness, ADA Policies Tags: ADA, ADA Policies, ADA remediation, mootness, Starbucks

Billy Joel had a major pop hit in 1977 with “Get it Right the First Time” from “The Stranger.” Forty years later Starbucks has proven just how true this is. In Crandall v. Starbucks Corp., 2017 WL 1246749 (N.D. Cal. Apr. 5, 2017) the Court reminded Starbucks and every other public accommodation that “get it right the next time” is not the same thing as getting it right the first time. In fact, it is the difference between winning and losing.

The issue of interest in Crandall v. Starbucks concerned access to a counter that was blocked by a point of sale display. This is not a first for Starbucks as we described a couple of years ago in POS Marketing and ADA Compliance – you can’t have it both ways. In the earlier Kalani v. Starbucks case the defense was that POS sales items were only temporary barriers because they could be easily removed. The Court disagreed because, in its view, the POS displays were intended to be permanent even though they could be moved.The displays at issue in Crandall were a standing display placed so close to the counter that it intruded into the required 36 inches of clearance as well as displays on the counter itself. Some time after the lawsuit was filed the standing display was moved out of the way and the counter displays were removed. This, according to Starbucks, eliminated the need for any relief and required a defense summary judgment.

The Court disagreed, noting that the changes were not structural or permanent because the displays at issue were easily movable. Equally important, there was no evidence that Starbucks had adopted any policy against on-counter displays or concerning the placement of merchandise displays. Because Starbucks could re-create the barriers to access at any time the case was not moot.

So far, so bad, but worse was coming. The Court found the existence of a violation at the time the plaintiff visited and on two later occasions was established as a matter of law, refused to credit Starbucks’ argument that its employees would always move the displays to a correct position, and granted summary judgment for the plaintiff. “Get it right the first time” and there’s no lawsuit at all. “Get it right the next time” and you’ll be paying the plaintiff’s attorneys fees while contemplating a permanent injunction. In cases involving things like displays that employees place and move, getting it right the first time means having a policy in place before there is a lawsuit that requires employees to maintain an accessible premises.*

As a final note, the court mentions in passing a theory of accessibility that isn’t mentioned anywhere in the ADA Standards but creates a significant stumbling block for businesses that trying to make their premises accessible. As a rule, accessibility means a 36 inch wide route to all the relevant parts of a store or restaurant. There is even a picture in the DOJ’s primer for small business:

Crandall v Starbucks includes a complaint that the required route was not 36 inches wide, but it seems the Court granted summary judgment for the plaintiffs because it was undisputed “that when there are customers in the store the displays make the path of travel too narrow.” Id. at *14. The Court also found that accessible routes might be blocked in the future based on the “absence of any policy preventing customers from moving chairs around to other tables in a manner that might block the path of travel.” In both cases the problem identified by the Court is not any structural feature of the restaurant, or even a problem with where the furniture was placed by the staff, but rather a problem with the conduct of other customers.

It isn’t difficult to imagine that in an informal space like a coffee house or bar customers will feel free to move chairs and even tables, and may congregate in areas that are part of an accessible route. The ADA prohibition on “discrimination” applies to the design and construction of public accommodations and the removal of “architectural barriers and communication barriers that are structural in nature.” It doesn’t say anything about regulating the behavior of other customers. Starbucks has not been afraid in the past to take cases to the Ninth Circuit, and it would be nice in this case to get a definitive rejection of the notion that businesses are required to regulate customer behavior in order to comply with the ADA. In the meantime, businesses that are crowded or are pushing the limits of accessibility should be be careful.

*In a ruling this week a Magistrate Judge in the Western District of Pennsylvania approved class certification for a lawsuit against Steak & Shake that appears to rest primarily on a failure to properly maintain its parking lots. Last year this time we blogged about a similar lawsuit against Cracker Barrel restaurants brought by the same law firm. Does the ADA Require a Compliance Policy? Every temporary barrier caused by a lack of maintenance can turn into a permanent injunction if the right policies are not in place before a lawsuit is filed.