By: Kristina M . Launey and Samuel Sverdlov

Seyfarth Synopsis: A SDNY judge dismissed a website accessibility lawsuit finding that the company mooted the allegations in the complaint by remediating the accessibility barriers and that the Court lacked personal jurisdiction since the company does not transact business in New York.

New York federal courts are a hotbed for ADA Title III litigation — of the over 10,000 ADA Title III lawsuits filed in 2018, at least 2,338 were filed in New York federal courts, including 1,564 ADA Title III website accessibility lawsuits, which are likely fueled in part by a few very plaintiff-friendly decisions out of the Southern District of New York (SDNY).

Last week, the business community received a favorable opinion from the SDNY.  On June 4, 2019, Judge Katherine Polk Failla of the SDNY granted The Kroger Company’s motion to dismiss an ADA Title III website accessibility lawsuit on two grounds: (1) the company mooted the plaintiff’s claims; and (2) the Court lacks personal jurisdiction over Kroger for this lawsuit.

This is the first decision that we’re aware of from a district court in the Second Circuit to grant a motion to dismiss a website accessibility lawsuit on mootness grounds.  Here, the Court was persuaded by an affidavit from a company representative which stated that:

  • Kroger has undertaken efforts to comply with WCAG 2.0 since before the lawsuit was filed;
  • The website currently complies with WCAG 2.0;
  • The company representative personally confirmed that the specific barriers the plaintiff alleged have been remedied;
  • Kroger has no plans of becoming non-compliant with WCAG 2.0; and
  • Kroger intends to maintain its website in compliance with WCAG 2.0.

Interestingly, the affidavit neither detailed the steps taken by the company to ensure that its website complies with WCAG 2.0, nor stated whether the company has adopted written policies or procedures regarding website accessibility.  Further, the affidavit did not detail the level of conformance with WCAG 2.0 the website has reached (A, AA, or AAA).  Nonetheless, the Court was persuaded that the company’s actions sufficiently mooted the plaintiff’s claims.  To that end, the Court rejected the notion that a website accessibility lawsuit can never be mooted (which the Court stated would amount to a “sweeping, technology-specific exception to the mootness doctrine”), and stated that “ADA cases involving websites are subject to the same mootness standard as their ‘structural’ counterparts.”  In contrast, other judges in the SDNY have denied motions to dismiss website accessibility lawsuits based on mootness.  See Sullivan v. Study.com LLC, 2019 WL 1299966 (S.D.N.Y. Mar. 21, 2019); Wu v. Jensen-Lewis Co., 345 F.Supp.3d 438 (S.D.N.Y. 2018); Del-Orden v. Bonobos, Inc., 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017).

The Court found dismissal appropriate for the independent reason that it does not have personal jurisdiction over Kroger to hear this lawsuit.  Although the plaintiff claimed that Kroger’s website provides a variety of services such as “the ability to … find information on promotions and coupons, discern the calories content of food, [as well as] preferred cook time and temperature,” the Court found that “[n]one of these factors, considered together or in isolation, is enough to confer personal jurisdiction.”  Rather, the Court held that the plaintiff had the burden to establish that he actually used the website to effect a commercial transaction in New York.  Here, the Court reviewed Kroger’s website, and found that Kroger, an Ohio-based corporation, has no retail presence in New York, and does not deliver goods and services to customers with a New York zip code.  Accordingly, the Court found that Kroger “[d]oes not sell, through the Website, goods or service to New York residents.”

As both mootness and personal jurisdiction defenses are highly fact-specific, this decision will not be useful in all website accessibility cases.  However, for businesses facing website accessibility lawsuits that either have already invested substantial resources on remediation or do not transact business in the jurisdiction where the lawsuit is brought, this case could prove useful.

Edited by Minh N. Vu