Search results for: new york

patrick-tomasso-SVVTZtTGyaU-unsplash
New York City skyline.

By John W. Egan and Minh N. Vu

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.  

(citation omitted).

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.

pexels-quintin-gellar-313782
Picture of New York City at sunset

By Lotus Cannon and Minh Vu

Seyfarth synopsis:  Leading the country with 3,173 federal ADA Title III lawsuits in 2022, plaintiff-friendly court decisions will likely keep New York in the top spot.

It is no surprise that New York has become the nation’s leader in ADA Title III and website accessibility litigation, bypassing California by a substantial margin in 2022. District Court judges in New York – especially in the Southern District – have been increasingly reluctant to dismiss website accessibility lawsuits before discovery.

Cases in point: 

In Loadholt v Shirtspace, the blind plaintiff alleged that he attempted to access the defendant’s website with his screen reader to buy a T-Shirt and encountered various barriers to access.  Joining the “vast majority of courts” in the Southern District and consistent with his prior opinion in Slade v. Life Spectacular, Inc., U.S. District Judge Andrew Carter held that the defendant’s online-only business is a public accommodation covered by the ADA.  (This question has not been addressed by the Second Circuit Court of Appeals, which decides appeals from New York federal courts).  Judge Carter also found that plaintiff’s allegations regarding the barriers allegedly encountered on the website, such as multiple dead links, were sufficient to state a claim and that plaintiff’s allegations regarding the T-shirt he intended to purchase, as well as his to return to the website to purchase several T-shirts once the website is made accessible, were sufficient to confer standing. Lastly, the judge denied defendant’s request to dismiss and/or strike plaintiff’s demand for civil penalties, fines, and punitive damages under the NYCHRL as premature.

In Weekes v The Outdoor Gear Exchange, Inc., the blind plaintiff alleged he encountered various barriers on defendant’s website, which offers a variety of products for outdoor activity, that prevented him from purchasing a carry-on bag. Defendant’s website offers a live telephone customer service representative during store hours whom customers can interact with to learn about defendant’s products and facilitate purchases. U.S. District Judge Ramos found that the availability of customer service representatives as an alternative auxiliary aid had no impact on whether plaintiff had suffered an injury in-fact for standing purposes, and noted that it is unclear whether customer service representatives would even serve as an effective alternative auxiliary aid if they cannot read plaintiff’s screen and are unavailable outside of business hours. Other courts have issued similar rulings, particularly at the motion to dismiss stage.  Judge Ramos also denied Defendant’s request to transfer venue to Vermont. Notably, while the defendant did not argue that its website was an online-only business exempt from ADA requirements, the Judge cited a holding in another decision issued by a Southern District of New York judge that a website with no nexus to a physical location where goods and services are offered is a place of public accommodation under Title III of the ADA.

These decisions suggest that New York, and particularly the Southern District, will continue to lead the nation as a hotbed of Title III and website accessibility litigation.

Edited by Kristina Launey

Judge gavel or auction hammer icon with long shadow.

By Minh N. Vu

Seyfarth Synopsis:  A recent Second Circuit decision holds that a plaintiff’s encounter with an alleged legal violation on a website, without more, does not give that plaintiff standing to sue under Title III of the ADA.

New York federal courts have been inundated with website accessibility lawsuits in recent years and continued to lead the country with 2,074 cases filed in 2021.  By comparison, California came in at a distant second with only 359 filings for the same period.  Most of these 2,000+ New York lawsuits have been filed by a relatively small number of firms on behalf of blind plaintiffs who make vague and conclusory allegations about how they could not access the goods and services on dozens, if not hundreds of websites. Usually, these boilerplate complaints contain no information about what goods and services the plaintiffs actually wanted to access or why they needed these goods and services.

Thanks to a recent ruling by the U.S. Court of Appeals for the Second Circuit in Harty v. West Point Realty, defendants in these lawsuits should now have a stronger basis for getting the cases dismissed for lack of standing.  To have standing to bring a federal lawsuit, a plaintiff has to show that he or she has suffered a harm that is “concrete” and “particularized”.  In West Point, the Second Circuit made clear that simply encountering a barrier to access on a website is not a concrete and particularized injury.  In that case, the plaintiff sued a hotel located in West Point, Florida under the ADA for having a website with allegedly insufficient accessibility information (ADA regulations require that certain information be provided on the websites of hotels regarding their accessible features for people with mobility, vision, and hearing disabilities).  The Second Circuit upheld the district court’s dismissal of the lawsuit for lack of standing, finding that “[b]ecause [the plaintiff] asserted no plans to visit West Point or the surrounding area, he cannot allege that his ability to travel was hampered by West Point Realty’s website in a way that caused him concrete harm.”

The Second Circuit also made clear that the plaintiff’s inability to obtain information from the website alone was not a sufficient injury to confer standing.  On this point, the Court stated:

“[e]ven assuming that Harty can allege that he was deprived of information to which he is entitled by the ADA, he must also allege downstream consequences from failing to receive the required information in order to have an Article III injury in fact. In other words, Harty must show that he has an “interest in using the information … beyond bringing [his] lawsuit.  That he has not done. Harty, therefore, has not alleged an informational injury sufficient for Article III standing.”

In short, to bring a lawsuit about a website’s compliance with the ADA, a plaintiff has to show that he or she had a need for the information, goods and services offered by the website and that there were “downstream consequences” resulting from the alleged inability to use the website.

The Second Circuit is not the first Court of Appeals to reach this conclusion.  The Tenth Circuit and Fifth Circuit have all adopted this principle in the past year.  The Eleventh Circuit, on the other hand, recently decided that simply encountering a violation on a website could result in a concrete and particularized injury needed for standing.  Could there be a Petition for Certiorari to the Supreme Court forthcoming?

For the time being, West Point is binding on district courts in the Second Circuit, including those in New York where the vast majority of website accessibility lawsuits have been filed.  West Point’s usefulness for businesses defending website accessibility lawsuits will depend on the nature of the website at issue in a lawsuit and, of course, how well a complaint is drafted.  At a minimum, it will be more difficult for a plaintiff to claim that he or she was harmed by the inaccessibility of a website that offers unique goods, services, and information for which he or she does not have a need.

Edited by Kristina Launey & John Egan

gavel

By Kevin Fritz

Seyfarth Synopsis:The Northern District of New York sees far fewer ADA Title III lawsuits than its Eastern and Southern counterparts and apparently has no patience for serial plaintiffs with flimsy boilerplate filings. 

Judge Brenda Sannes of the Northern District of New York is apparently not going to let serial plaintiffs and their lawyers get judgments in their ADA Title III cases without doing some work.  Case in point:  Serial plaintiff Deborah Laufer filed at least 250 lawsuits since May 2019, 114 of which are in New York.  In a number of recent cases filed in the Northern District of New York, Laufer alleges that places of lodging have reservation websites that do not comply with the Americans with Disabilities Act or state law.

To bring any type of lawsuit in federal court, a plaintiff must establish that she has suffered an injury which gives her standing to assert a claim.  Because Title III of the ADA only allows private plaintiffs to seek forward-looking injunctive relief, plaintiffs must also establish that they face an imminent injury in the future.

In one recent decision, Judge Sannes sua sponte questioned whether Laufer had established standing to bring her lawsuit when Laufer requested a default judgment against the defendant hotel.  The court ordered Laufer to submit a brief addressing the specific question of whether Laufer has standing to sue.

One day later — Judge Sannes issued another order for Laufer to establish that she has standing in 27 other virtually identical cases before Judge Sannes.  Judge Sanne’s proactive and efficient handling of these many filings with a single sweeping order suggests that at least one judge in the Northern District of New York is not going to let serial ADA Title III plaintiffs overwhelm the court’s docket with boilerplate filings and will require plaintiffs’ attorneys to do some work on their cases.

Edited by Minh N. Vu and Kristina M. Launey

Photo-Keyboard-wheelchair-button-300x171.jpg

By Minh Vu

Seyfarth Synopsis:  Businesses get another win in a lawsuit demanding gift cards with Braille.

Yesterday, Magistrate Judge Stewart Aaron in the Southern District of New York issued a Report and Recommendation recommending that District Judge Gardephe grant Foot Locker’s motion to dismiss a boilerplate complaint in which the blind plaintiff alleged that the retailer had violated the Americans with Disabilities Act and New York State and New York City laws by failing to issue gift cards with Braille or some other accessibility feature.  If Judge Gardephe adopts the decision, he will be the second district judge in the nation to find that the ADA does not require gift cards to be accessible.  District Judge Gregory Woods of the Southern District of New York was the first to decide this issue, as we reported several weeks ago.  We hear that one or more of the Woods decisions will be appealed to the Second Circuit.

bank-banking-blue-50987

By Minh N. Vu and John W. Egan

Seyfarth Synopsis:  Enterprising plaintiffs in New York are suing more than 100 businesses under a new theory – – that ADA Title III requires Braille gift cards.

Between Thursday, October 24 and as recently as last Friday, over 100 putative class action lawsuits (and counting) have been filed against businesses for violations of ADA Title III, as well as the New York State and City Human Rights Laws in the United States District Courts for the Southern and Eastern Districts of New York.  The complaints are nearly identical and assert the same theory: A business that provides a gift card for purchase, but does not offer a Braille version, is committing discrimination against individuals who are blind or have visual impairments.

There are 11 plaintiffs and 4 law firms that have filed these cases.  Coincidentally, these are the same litigants and attorneys who have filed hundreds of lawsuits against businesses (including some of the same business targeted in these gift card cases) for allegedly inaccessible websites over the past several years.  In fact, based on our research, these plaintiffs and their attorneys, taken together, were responsible for approximately one-third of all federal website accessibility lawsuits filed in New York last year.

Businesses facing a barrage of website accessibility lawsuits and demand letters must now deal with this new threat based on what certainly appears to be a coordinated and wide-ranging legal challenge.

The gift card complaints allege that the plaintiff is blind and contacted the defendant earlier this month to inquire as to whether its gift cards are provided in Braille.  When each defendant allegedly responded that a Braille gift card was not available, the plaintiff commenced a lawsuit shortly thereafter.  The complaints cite at least one retailer that sells a gift card with its name in Braille, recites the ubiquity and importance of gift cards in the retail industry, and relies on the provision of Braille materials as an example of an auxiliary aid or service in ADA regulations.

Without “giving away the store,” we believe that there are compelling defenses to these cases and look forward to how the judges in the SDNY and EDNY will respond.  Stay tuned to the Blog for further updates on this developing story.

Edited by Kristina M. Launey

By John W. Egan

Seyfarth Synopsis: Businesses are defending record numbers of ADA Title III cases every year.  A recent decision in New York underscores the challenges business face when ADA plaintiffs are more interested in protracted litigation than settlement. 

The number of ADA Title III lawsuits filed annually has increased more than 300 percent in the last five years.  Government officials and a few judges dealing with burgeoning caseloads have taken steps to reign in abuses.  Judges have disciplined attorneys for filing indiscriminate claims without a sufficient basis, state attorneys general have stepped in to curb high volume filers of these cases, and members of Congress have urged DOJ to resolve regulatory uncertainty that has sent the number of website accessibility claims soaring to new heights.

There are hundreds, if not thousands, of requirements for physical accessibility with which businesses must comply.  Unlike local building code enforcement, non-compliance with ADA design standards is not simply redressed by a fine.  Violation of these standards can give rise to a lawsuit in which a prevailing plaintiff can recover reasonable attorneys’ fees under the ADA’s fee-shifting provisions and, in some jurisdictions, an award of damages under state and municipal disability access laws.

In addition to fending off an increasing barrage of ADA lawsuits, businesses face the prospect of expending even more resources when the other side resists settlement in favor of litigation.  A New York federal judge recently issued a decision criticizing a plaintiffs-side ADA firm that reportedly had no interest in settling an ADA case, even where the businesses were willing to remediate (and did remediate) ADA violations identified in the Complaint.

In Range v. 535 Broadway Group, LLC, Plaintiff asserted ADA, state and city law claims against a clothing store that occupied two stories in a multi-story, mixed use Manhattan building.  While the case was pending, Defendant remediated nearly all alleged barriers and attempted, unsuccessfully, to obtain a settlement demand from Plaintiff.  The court ultimately dismissed the ADA claim, and heavily criticized Plaintiff’s firm in doing so in its opinion.

The court stated that the firm was “impeding the progress of the case” by refusing to provide a global settlement demand and expressing “little interest” in resolving claims over barriers that Defendant had already remediated.  The court cited other reported decisions critical of the firm’s “litigation gamesmanship,” which was reportedly part of its “repertoire” in ADA cases.

After reviewing Defendant’s motion for dismissal based on the pleadings, Plaintiff’s firm requested to amend the Complaint to withdraw the federal claim and assert only state and city law claims for damages.  The court “rejected . . . . that maneuver as a thinly veiled attempt . . . to forum shop and seek a do-over in state court.”  Plaintiff then opposed dismissal of the very same ADA claim he previously agreed to withdraw, and advanced an interpretation of the applicable regulation relating to accessible route requirements for multi-story buildings that was, the court noted, inconsistent with his attorney’s position in another case in the same jurisdiction.  The court went so far as to describe the argument as one Plaintiff’s attorneys “kn[ew] is a loser.”

According to the court, “[s]uch freewheeling advocacy is of no use to a judge, . . . flirts with violating Rule 11 . . . .[,]” and “waste’s everyone’s time.”  The court dismissed the ADA claim, but exercised supplemental jurisdiction over Plaintiff’s New York City Human Rights Law claim, which the court held could not be dismissed on a motion for judgment on the pleadings.

Businesses are defending a record number of ADA lawsuits annually.  As a remedial statute that awards attorneys’ fees to a prevailing plaintiff, businesses are often incentivized to reach a settlement before expending significant resources in litigation.  The emergence of plaintiffs-side attorneys interested in pursuing protracted litigation, despite a business’s interest in an early resolution, represents an additional concern for businesses seeking to limit their exposure from predatory ADA lawsuits.

Edited by Minh N. Vu

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: A Committee in the New York State Senate aims to develop a legal standard for the accessibility of business websites under New York law, in response to the exponential increase in website accessibility litigation in the state. Whether state legislation could stem this tide, or instead make matters worse for businesses, remains to be seen.

According to a recent article published in the New York Law Journal, a committee of state legislators in New York plan to develop a legal standard for website accessibility, in the wake of years of regulatory inactivity by the federal government.

As we have previously written about, various state and municipal jurisdictions have laws on the books requiring that government agencies and contractors provide accessible websites. New York, however, would be the first state in the country to directly hold business websites to an accessibility standard.

Ironically, this legislative effort appears, from the NYLJ article at least, to be motivated by a concern over the surge of website accessibility filings and their impact on businesses.

A State Website Accessibility Standard To Reign In Federal Lawsuits?

The NYLJ article cites statistics published on our blog that ADA plaintiffs filed an astounding 1,564 website accessibility lawsuits in New York federal courts in 2018, which amounted to more than two-thirds of all federal website cases filed throughout the country last year.

The representative leading this initiative, State Sen. Diane Savino, referred to plaintiffs-side attorneys commencing these lawsuits as “ambulance-chaser[s]” who are “exploiting loopholes in the law” to look for quick settlements, and described the cases as having the potential to “bankrupt a small business.”

Senator Savino attributed the surge in website accessibility filings to “a real lack of regulation from the federal level down to the states.” Accordingly, the Internet and Technology Committee that she chairs will “try to develop a set of standards [for website accessibility] recognizing . . . that there are not four walls of the internet.”

It is laudable that Senator Savino and her Committee are attempting to tackle the surge in “surf by” ADA lawsuits. That said, we are not sure how developing a legal standard for business websites at the state level will mitigate the surge in federal lawsuits.

In our experience, most website accessibility lawsuits in New York are filed in federal court. Since Title III of the ADA does not provide for damages, New York plaintiffs typically add “tag-along” claims under state (and municipal) law for damages. However, as demonstrated from states’ attempts to reign in physical barrier cases, no state law can affect the remedies and procedures available under the federal ADA.

Would Legislation Provide Relief To Businesses, Or Create More Uncertainty?

Website accessibility lawsuits are usually based on the ADA’s general mandate that public accommodations provide people with disabilities equal access to their goods, services, and accommodations, specifically through auxiliary aids and services to ensure that their communication with individuals with disabilities is “effective.”

These regulations expressly state that a business can choose which auxiliary aid or service to provide, however, as long as the method is effective, free of charge, and safeguards the privacy and independence of the individual with a disability. Requiring New York businesses to conform their websites to a set of accessibility standards such as the Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1, without more, would reduce the flexibility that businesses currently have in how they provide “effective communication” as to the content and services available on websites and other digital assets.

In addition, federal courts are addressing website accessibility issues on a case-by-case basis. A body of case law is thus developing in this area, albeit with distinctions across jurisdictions. A state law standard that is inconsistent with these rulings may add to the confusion for businesses.

An Opportunity For Governmental Direction?

In her remarks, Senator Savino described states as “the incubators of ideas,” which is particularly opportune in the area of website accessibility, where federal regulators “have dragged their feet.” The prospect of legislation in this area presents, in our view, an opportunity for a governmental body to provide reasoned and balanced direction on this issue, which has been lacking at the federal level.

Nevertheless, the devil is in the details. The task of regulating this area effectively and fairly will involve the consideration of a number of issues. For example:

  • A standard that accounts for user experience. We know that compliance with every WCAG 2.1 AA requirement is challenging and requires extensive resources and expertise that most businesses do not have. Should the legislation prioritize frequent user journeys (e.g., browsing and searching for products, placing orders, and searching for brick and mortar business locations) over less traveled areas of a website?
  • Legacy content. Should any technical standard apply only to new content or new websites? Should it apply only to existing content that has been updated or modified within a specified period of time?
  • Safe harbor. Businesses modify their digital properties much more frequently than their physical, “brick and mortar” spaces. Updates and new content can inadvertently impact the accessibility of a website or other digital asset. Website “bugs” do not equate to intentional discrimination. Regulations should contain a safe harbor or cure period for accessibility issues introduced by an update or change to a website or digital asset.
  • An implementation period. Businesses must be given sufficient time to comply with the standard, and should be afforded a “safe harbor” from private claims during this period. There are simply not enough accessibility experts out there to assist businesses to make their websites accessible. Small businesses in particular must have a longer time period for compliance.
  • Third party website developers. Most businesses know little about website development and hire third party vendors to create and/or update their websites. From our experience, most of these third party vendors do not have the expertise to create and maintain accessible websites and other digital assets. Any legislation must recognize and address the difficult position that businesses are in because they are the ones in the lawsuit crosshairs, not the website developers.
  • Third party content. Many businesses have embedded third party content (e.g., maps) on their websites, over which they frequently have little or no means to change (other than removing the content entirely). Legislation over the accessibility of business websites should recognize these practical limitations on accessibility efforts.
  • Alternative access for complex content. Detailed charts and graphics with embedded text, and other complex content, can present challenges for screen reader users. These features can be very burdensome and expensive for businesses to address. Should legislation exempt complex content, or permit businesses to provide an alternative means of providing the information?
  • Small business considerations. Any legislation must acknowledge that small businesses generally cannot afford to hire expensive accessibility consultants and have little leverage to make their website development vendors conform their websites to accessibility guidelines. Strict adherence to these criteria, as Senator Savino alluded to in the NYLJ article, could bankrupt many small businesses.
  • Future technology. One of the challenges of regulating this area is the fast-paced nature of technological change. Any legislation needs to promote, rather than discourage, businesses in exploring new technologies that could reduce the costs of compliance and provide enhanced access to digital content for individuals with disabilities.

It is positive that elected leaders are taking note that the litigation environment over the accessibility of websites is becoming increasingly untenable for businesses. Should new legislation limit damages for website access violations, or require some procedure or process before a litigant can file a claim?

A litigant can visit the websites of businesses much faster than he or she can visit (and encounter barriers to access) at “brick and mortar” locations. Should a few minutes of internet browsing give rise to dozens of class action lawsuits over accessibility? Accordingly, should the law provide for enhanced standing requirements in website accessibility cases to ensure that plaintiffs have a legitimate stake in the case? What can be done to reign in litigants who file lawsuits resulting in quick settlements en masse?

There are many issues for the Committee to consider, and it is critical to include practitioners who are “on the ground” working through these issues to develop sensible legislation that will advance the dual goals of accessibility and reducing the crushing number of lawsuits.

Edited by Kristina M. Launey

 

Seyfarth Shaw Synopsis: Effective December 18, 2017, New York became the latest state to enact a law cracking down on fake service animals.

New York recently joined an increasing number of states that have passed laws aimed at curbing abuse of laws and regulations designed to ensure that individuals with disabilities can be accompanied by their service animals in places of public accommodation and other settings. On December 18, 2017, New York State Governor Andrew Cuomo signed into law a bill that, among other things, makes it unlawful to knowingly apply a false or improper identification tag designating a service, emotional support, or therapy dog. In signing the bill, Gov. Cuomo noted an increasingly important role therapy dogs play in supporting individuals with conditions such as anxiety and PTSD, and also their role in assisting the ill and elderly. Authority to enforce the new law is vested with each municipality’s dog control officer. Violators will face a fine of up to $100, up to 15 days of jail time, or both.

Service animal registrations, vests, and any other means which identify service animals do not have any legal significance, according to the DOJ, and may be easily obtained online. And, as we have previously reported, businesses may only ask a handful of permitted questions to assess whether they must admit a purported service animal. Businesses should be aware of and train their employees to comply with the ADA’s, and any applicable state and local laws’, service animal requirements. Although it may be tempting to undertake more aggressive measures to ferret out cases of service animal fraud, new laws in places like New York do not relieve businesses of their federal obligations to adhere to a protocol for addressing service animal issues. Under DOJ guidance, businesses cannot, for example, ask about the nature of a person’s disability who is accompanied by a purported service animal, or ask for a demonstration of what tasks the animal performs. Therefore, businesses should nonetheless remain vigilant in complying with their obligations to ensure access for those individuals with a genuine need for these animals.

Other states such as Colorado, Maine, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Texas, Utah, and Virginia have similar laws or regulations prohibiting the misrepresentation of service animals. This trend has recently made national news. These state laws will hopefully discourage those who seek to take advantage of disability laws for an improper purpose, and empower authorities in dealing appropriately with cases of abuse.

Seyfarth Synopsis: Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff.  Two days later, a California federal judge held that a blind plaintiff’s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery.  Now two federal judges in New York have weighed in, denying restaurant Five Guys’ and retailer Blick’s motions to dismiss lawsuits alleging that the defendants’ inaccessible websites violate the ADA and New York State and City civil rights laws. Both judges found that: (1) websites are subject to the ADA, regardless of whether the goods and services are offered online and in physical locations; and (2) courts don’t need agency regulations setting a standard for website accessibility to decide whether a website violates the ADA. The court in Five Guys additionally held that being in the process of improving a website’s accessibility is very different from having successfully completed that process to meet the mootness standard of being “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” It summarily rejected the restaurant’s mootness argument on that basis.

In the Blick putative class action, Eastern District Court Judge Weinstein issued a lengthy 38-page order on August 1 that addressed the issue of whether a nexus to a physical place of business is required to subject a website to the ADA. The opinion expressed sympathy for blind individuals who are unable to use some websites with their screen reader software and marshalled every possible argument in favor of finding that all websites that fall within the twelve types of businesses classified as “places of public accommodation” are covered by the ADA.  Judge Weinstein first surveyed relevant decisions from federal courts in other circuits.  Although the Ninth Circuit is the only appellate court that has actually addressed the coverage of a website under Title III of the ADA (all other Court of Appeals decisions have concerned other matters, mostly insurance products), he found that the Third, Sixth, and Eleventh Circuits have held that only businesses with a “nexus” to a physical location are subject to the ADA.  He characterized this interpretation of the law as “narrow” because it would mean that “a business that operates solely through the Internet and has no customer-facing physical location is under no obligation to make [its] website accessible.” The court then considered First and Seventh Circuit decisions which have held that a business does not need a physical place of business where customers go to be considered public accommodations under the ADA.

Finally, looking to its own Court of Appeals (which has not squarely addressed the question of whether a business with no physical location can be covered by Title III of the ADA or considered a website accessibility case), the Blick court relied upon an extended interpretation of the Second Circuit’s holding in Pallozzi – an insurance policy case – to hold that a business that has no physical place of business can be a covered public accommodation under the ADA.  Notably, the defendant in Pallozzi had a physical place of business where the plaintiff had purchased the allegedly discriminatory insurance product.  The Second Circuit held in Pallozzi that Title III of the ADA reaches beyond access barriers at a physical location and extends to the terms of the products sold from that physical location. It did not hold, nor even state in dicta, that a business with no physical location is covered by the ADA in the first place, or that a business’ website is covered by the ADA.

In holding that a website does not need a nexus to a physical location to be covered by the ADA, Judge Weinstein aligned himself with two other District Court judges in the Second Circuit (District of Vermont Judge William K. Sessions III and New York Southern District Judge Katherine Forrest) who reached the same conclusion in cases brought against Scribd and Five Guys, respectively.   

The Blick decision also rejects the recent Bang & Olufsen decision out of the Southern District of Florida, which followed the Target case in holding an ADA website access claim can only survive a motion to dismiss if the website’s inaccessibility has an actual nexus to the business’ physical location. The Bang & Olufsen court held that the plaintiff had not stated an ADA Title III claim because his complaint did not allege that the alleged website barriers in any way impeded his ability to shop at the physical store. The Blick court found this interpretation of the ADA “absurd,” as it would require that only select aspects of Blick’s website and online presence be accessible to the blind, such as allowing disabled individuals “a right to ‘pre-shop’ in their home, but no right to actually make a purchase in their home,” and provide disabled individuals “no right whatsoever to purchase goods or services from companies whose business models (e.g. television shopping channels, catalogs, online-only) are premised on having customers shop only from home.”

The court concluded its 22-page discussion of the issue by stating the plaintiff “has a substantive right to obtain effective access to Blick’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges the defendant’s website provides to the general public.” It also found that the plaintiff might be able to enforce his rights through a class action, but that issue would wait until after the parties’ motion(s) for summary judgment. The court also stated that it would convene a “Science Day” where experts would demonstrate web access technology to the court “to explore how burdensome it would be for the defendant to make its website compatible with available technology.”

Both the Blick and Five Guys decisions rejected the argument that Justice Department regulations setting website accessibility requirements are necessary for a finding that a defendant has violated the ADA by having an inaccessible website. Like the District of Massachusetts in denying MIT and Harvard’s motions to dismiss, and the Central District of California in denying Hobby Lobby’s motion (contrary to a different decision out of that same district) the Blick court rejected the primary jurisdiction argument on the basis that it is the court’s job to interpret and apply statutes and regulations and the risk of inconsistent rulings is outweighed by plaintiff’s right to prompt adjudication of his claim. The court discussed the long history of the Justice Department’s website accessibility rulemaking efforts before concluding that “t[]he court will not delay in adjudicating [plaintiff’s] claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Both courts rejected the defendants’ due process arguments, stating no standard set by statute or regulation for is needed for the ADA’s requirements of “reasonable modifications,” “auxiliary aids and services,” and “full and equal enjoyment” to apply to website accessibility. In rejecting Five Guys’ argument that there are no regulations setting forth accessibility standards for websites, the Five Guys court noted that there are steps defendant could take, such as using the Web Content Accessibility Guidelines.

Finally, the Blick decision addressed the coverage of website accessibility claims under the New York State Human Rights Law, New York State Civil Rights Law, and New York City Human Rights Law, and found that such claims were covered to the same extent as they are under Title III of the ADA.

While there is no way of knowing whether other federal judges in New York will agree with the holdings of District Judges Weinstein and Forrest, more lawsuits will likely be filed in New York after these decisions.