By: John W. Egan and Minh N. Vu

Seyfarth Synopsis:  Two recent New York district court decisions underscore how serial website accessibility plaintiffs are encountering greater challenges to demonstrate their standing to pursue ADA claims in federal court.

SDNY Judge Orders Jurisdictional Discovery

In Fernandez v. Buffalo Jackson Trading Co., LLC, U.S. District Judge John P. Cronan granted the defendant’s request for jurisdictional discovery to be followed by an evidentiary hearing in connection with its motion to dismiss the complaint for lack of standing.  The hearing is set for May 28.

“Article III standing is not merely a pleading hurdle,” the Court observed in its decision, but instead “a core constitutional guardrail meant to ensure that federal courts decide only the rights of individuals, and that the federal courts exercise their proper function in a limited and separated government.” The Court further opined that “Article III does not permit plaintiffs to roam the country in search of … wrongdoing and to reveal their discoveries in federal court absent a genuine, personal stake in the outcome of the case.”

There were a number of factors that led the Court to question the “sincerity” of plaintiff’s allegations that he suffered an “injury in fact” while browsing the website and intended to return to the website at issue to make a purchase. 

First, the plaintiff filed dozens of “cookie-cutter, fill-in-the-blanks” complaints where he alleged that he went to a website to purchase some product, described a desire or need for the product, summarized some combination of features on the website that prevented his purchase, and asserted that he would return to make the purchase once the issue was corrected.  The Court also observed that the plaintiff’s firm used the same template pleading in cases filed by eight other plaintiffs.

Second, according to his numerous lawsuits, plaintiff allegedly attempted to purchase 40 products from dozens of websites in a single week.  The Court noted that these included the “Thompson leather moto jacket” at issue in the case, an “African Serpentine Necklace”, a “Bisonette Buffalo Leather Purse”, a “Synthetic Filled Puffy Comforter” and a “ProForce Combination Fist/Forearm Guard” from an online martial arts store, among many others.

Third, the Court noted inconsistences within the amended complaint itself.  The document alleged that the plaintiff wanted to buy the leather jacket in question because of its craftsmanship, functionality, and durability, along with the 10 percent discount offered for a first purchase.  The Court found it odd that the plaintiff was able to gather this information while claiming that the website was largely inaccessible in the first instance.

The Court was careful to note that the basis for its ruling was not whether the plaintiff could serve as a “tester” per se, as such litigants may have standing, but rather because the above issues warranted a more searching jurisdictional inquiry.  Accordingly, the Court declined to dismiss the action based on standing, but instead ordered limited discovery.  It suggested that plaintiff’s deposition and a forensic examination of the device or devices he used to access the website would be appropriate.  If plaintiff does not dismiss the case before then, we will report on the May 28 hearing.  

EDNY Judge Dismisses Website Case Based on Standing Sue Sponte

The day after the Buffalo Jackson Trading ruling, Eastern District of New York Judge Natasha Merle issued another defendant-friendly dismissal based on lack of standing. In Black v. 3 Times 90, Inc., the plaintiff alleged that he visited the website advertising Chinese restaurant locations because he enjoyed this type of cuisine, wanted to visit one of defendant’s locations “immediately” based on the recommendation of a friend, and often visits the neighborhoods where the restaurants are located.  

The restaurant owner moved to dismiss based on mootness.  The defendant argued it engaged a third-party vendor to remediate the barriers and thus there was no injunctive relief for the Court to award.

Rather than dismiss based on mootness, the Court ruled that the amended complaint failed to create a plausible inference that the plaintiff intended to return to the website, as required for a plaintiff to have standing to pursue an ADA Title III lawsuit. 

The Court found that the plaintiff failed to allege why the website barriers prevented or impeded him from visiting a restaurant location.  The Court also questioned plaintiff’s alleged desire to try food options “immediately” since, as alleged, the plaintiff often frequented neighborhoods where the restaurants were located, but never actually visited any to try the food.  It was also curious to the Court that the plaintiff did not attempt to find the menu or location information through any alternative means (other than attempting to access the defendant’s website) given the professed urgency.  Additionally, the Court pointed out that there are countless options for dumplings and unique dining experiences in New York City (both reasons cited by plaintiff to support plaintiff’s interest in the defendant’s business), but the amended complaint contained no explanation as to why there were no other options with these offerings.  Finally, though not cited as a factor in the standing analysis, the Court did mention in a footnote that the plaintiff had filed 27 lawsuits in the previous year.

Finding that the plaintiff had failed to allege facts establishing an intent to return to the website, the Court dismissed the Complaint.  The Court did so without granting leave to amend. 

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The upshot of these decisions (and others on which we have reported) is that federal courts in New York City — after being barraged for a number of years with thousands of ADA website cases — are demanding more from serial plaintiffs to establish standing to sue.  This may be the reason why several plaintiff-side firms in New York have shifted most, if not all of their website accessibility lawsuits to New York State courts, where the standing requirements are less rigorous.  As we recently reported, the number of federal court filings in New York have decreased by almost a third since 2022, and the number of website accessibility lawsuits filed in New York federal court decreased by 39 percent.

Edited by: Kristina M. Launey