Seyfarth Synopsis: New York federal courts have generally been friendly to plaintiffs in website accessibility lawsuits, but a few recent decisions are demanding more of plaintiffs to establish standing.
While federal New York courts (particularly the Southern District) have historically been a friendly jurisdiction for ADA website plaintiffs, there have been a string of recent decisions dismissing website accessibility cases for lack of standing that signal judicial frustration with the plaintiff’s bar and serial filers.
Case in point: EDNY Judge Cogan’s opinion in Winegard v. Golftec Intellectual Property LLC. The plaintiff in that case had a hearing disability and sued over non-captioned video content on the business’s website. In granting the motion to dismiss, the Court applied the standing requirements from the Second Circuit’s decision in Calcano v. Swarovski North Am. Ltd. dismissing a consolidated case alleging that the defendants failed to provide gift cards in Braille in violation of the ADA. Judge Cogan found that the allegations that the plaintiff visited the defendant’s website on a specific date and “on subsequent days” to attempt to watch golf-related videos was not enough to establish an intent to return to the website in the future, and further stated:
To find standing on the paltry allegations here would allow any sensory-impaired person to sit down at their computer, visit 50 websites (possibly after being referred to them by their non-sensory-impaired lawyer), and bring 50 lawsuits. Standing requires more.
Judge Cogan also determined that “the fact that plaintiff is a serial filer” made it less plausible that his stated intent to return to the website was genuine:
With 49 cases and counting, the range of . . . [plaintiff’s] interests would have to be unusually substantial, ranging from industrial supplies to etiquette classes to robotics to freediving and spearfishing to instructions for assembling a “Nashville Hot Chicken” kit
. . . .
While “the ADA serves the important function of facilitating full participation in American life for those with disabilities,” Judge Cogan noted, mass litigation that “allows for a quick recovery of attorney’s fees [through a settlement] with relatively minimal difficulty:”
. . . saps judicial resources, wastes attorneys’ and litigants’ time, and ultimately mock[s] the statutes mission. . . . The limited resources of the federal courts need to be marshalled for resolving genuine disputes, not to provide a platform for extracting nuisance settlements that do little, if anything, to further the important goals of the ADA.
In Rendon v. Berry Global Inc., the blind plaintiff sued a business-to-business website for having investor relations-related content that he could not access using his screen reader. SDNY Judge Colleen McMahon dismissed the case, observing that the Second Circuit ruling in Calcano “raised the bar appreciably for adequately pleading standing to seek injunctive relief in ADA cases” (quotation omitted). The Rendon complaint failed to allege details regarding past visits to the website or the frequency of past visits, what they were hoping to learn, why they became interested in investing, or why they planned to return. While the Court did allow the plaintiff to file an amended complaint, it did so with the following admonishment:
If Plaintiffs can figure out a way to assert a concrete and particularized injury they are welcome to try; however I would suggest that they think about where to bring suit, as well as whether to bring suit.
In Suris v. Crutchfield New Media, LLC, EDNY Judge Nina Morrison held that the plaintiff lacked standing because he failed to offer any factual context for his alleged intent to return to the website, as distinguished from a number of referenced cases where New York district courts found that the intent to return element was adequately pled. The Court also determined that plaintiff’s claims were moot in any event, relying on declarations attesting that the businesses manually reviewed and remediated 4,000 videos on the website, instituted new processes to ensure that future content would be captioned, and was in the process of hiring a digital accessibility vendor.
While it remains to be seen whether these decisions indicate a shift in the legal landscape in this jurisdiction, it appears that more New York judges are getting tired of being the most favored venue for serial website accessibility plaintiffs.