By Minh N. Vu

Seyfarth Synopsis:  The California Court of Appeals decision that put an end to lawsuits against online only businesses in California and called out DOJ and Congress for inaction stays put after California Supreme Court denied plaintiff’s review request.

Update: On November 9, 2022, the California Supreme Court denied plaintiff’s request that the Court review the California Court of Appeals precedent setting, 35-page opinion, that closed the door on California lawsuits brought against online only businesses, agreeing with the U.S. Court of Appeals for the Ninth Circuit that websites are not “public accommodations” covered by Title III of the ADA.  It also held that creating and maintaining an inaccessible website cannot constitute intentional discrimination under the Unruh Act.

The blind plaintiff in Martinez v. Cot’n Wash, Inc. alleged that the online only retailer had engaged in disability discrimination in violation of California’s Unruh Act by having a website that he could not use with his screen reader software.  There are two ways to establish a violation of the Unruh Act: prove (1) intentional discrimination; or (2) a violation of Title III of the ADA.  Martinez claimed that he had alleged sufficient facts to establish a violation under both theories.

Martinez struck out on both counts.

With regard to the intentional discrimination theory, Martinez argued that the retailer’s failure to take action in response to his demand letters complaining about the website’s accessibility barriers constituted intentional discrimination.  The Court disagreed, reiterating that “[a] claimant may not “rel[y] on the effects of a facially neutral policy on a particular group… to infer… a discriminatory intent.” The Court also said that “a failure to address known discriminatory effects of a policy” is not sufficient to establish intentional discrimination under the Unruh Act.

As for Martinez’s claim that the online-only retailer had violated Title III of the ADA, the Court opined that “even after examining the language of the statute and considering maxims of statutory interpretation and legislative history pre-dating passage of the law, we remain without a clear answer as to whether a purely digital retail website can constitute a ‘place of public accommodation’ in the context of Title III.”  The Court thus turned to what it called “the third and final step in the interpretive process.”   The Court explained:

In this phase of the process, we apply reason, practicality, and common sense to the language at hand.  Where an uncertainty exists, we must consider the consequences that will flow from a particular interpretation.  Based on such an analysis, we ultimately find dispositive that adopting Martinez’s proposed interpretation of “place of public accommodation” would mean embracing a view that Congress (through its inaction since the enactment of the ADA) and the DOJ (through its unwillingness to draft regulations) have both tacitly rejected.

The Court observed that since 2010, Congress and the DOJ recognized the need to address through legislation or regulations whether and under what circumstances a website constitutes a “place of public accommodation” but chose to do nothing, suggesting that neither the DOJ nor Congress “officially endorses” the coverage of websites by the ADA.  The Court stated that:

Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification.  To the contrary, it is a reason for us not to do so.  This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislative fact-finding.

In short, the Court said it was not its place to “adopt an interpretation of the statute that is not dictated by its language, especially in the face of… legislative and agency inaction.”

Martinez will likely file a petition for review by the California Supreme Court, but that court’s review is entirely discretionary and less than five percent of petitions are granted.  Thus, this decision will likely stand as binding precedent on all California trial courts.

The significance of this decision for online only businesses cannot be overstated.  It means that plaintiffs cannot successfully sue them for having inaccessible websites in California state or federal courts.  As discussed, the U.S. Court of Appeals for the Ninth Circuit has long held that a website is not a place of public accommodation covered by Title III of the ADA.  This decision will certainly reduce the number of lawsuits brought in California state and federal courts by plaintiffs enticed by under the Unruh Act’s $4,000 minimum statutory damages provision.

The data underscores the importance of this decision.  Relatively few website accessibility lawsuits have been filed in California federal court – most likely because of the Ninth’s Circuit’s position on online only businesses.  California plaintiffs have favored state court where a few judges, until now, were willing to allow suits against online only businesses and even found that having an inaccessible website could constitute intentional discrimination under Unruh.

Businesses must keep in mind, however, that this decision has little impact on claims relating to websites that have a nexus to a physical facility where goods and services are offered to the public.  Such websites would likely be considered a benefit or service of a brick and mortar place of public accommodation, and be covered by Title III’s non-discrimination mandate.

MARCH 2023 UPDATE:  The Martinez decision has already had an impact on website accessibility lawsuits pending in California Superior Court against online only businesses.  For example, in Licea v. PTC Therapeutics, the court dismissed the lawsuit based on Martinez.  The court held that the defendant pharmaceutical company is not a public accommodation covered under Title III of the ADA because it has no physical location where goods and services are provided.  Accordingly, the plaintiff could not establish an Unruh Act violation by proving a violation of the ADA. The court also concluded, relying again on Martinez, that having an inaccessible website is not intentional discrimination under the Unruh Act, even where the defendant has been advised of accessibility barriers on the website.

Edited by Kristina M. Launey

By Kristina Launey and Julia Sarnoff

Seyfarth Synopsis:  The Department of Health and Human Services and Department of Justice recently issued Guidance for telehealth accessibility with specific examples.

During the COVID-19 pandemic, many health care providers and patients turned to telehealth as a way to provide and receive health care services while in lockdown.  Telehealth allows providers to see patients via videoconference (or telephone) and exchange written materials electronically.  While telehealth has many advantages, it can also present challenges to those with visual, hearing, cognitive, or other disabilities.  Telehealth websites may not be fully compatible with screen reader technologies relied on by individuals who are blind or have low vision, for example.

Recognizing these challenges, on July 29, 2022, the Department of Health and Human Services (HHS) and Department of Justice (DOJ) issued a joint Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons.

The Guidance states that all entities subject to Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, Title VI of the Civil Rights Act of 1964, and Section 1557 of the Affordable Care Act should review their telehealth systems, policies, and processes to ensure accessibility for telehealth programs for all persons with disabilities.  The Guidance also provides specific examples of actions that health care providers may need to take to ensure that health care offered via telehealth is accessible, as well as resources for providers and patients about telehealth and civil rights protections.

Some examples provided in the Guidance for how health care providers can provide accessible telehealth services include:

  • Ensuring that the telehealth electronic platform is coded to support screen reader software used by blind individuals (which is in alignment with the accessible technology requirements under Section 1557 of the ACA and Medicare rules).
  • Providing instructions or allowing extra time for a patient to become familiar with the telehealth platform in advance of a remote appointment.
  • Ensuring that health care providers communicate effectively with people who have communication disabilities, including about provider availability, records access, and during appointments.

These are just a few of the examples provided in the Guidance.  Health care providers subject to the laws covered by the Guidance should review the Guidance closely to ensure that their telehealth services meet HHS and DOJ’s expectations for accessible telehealth services, and seek counsel experienced in accessibility for assistance.

Edited by John W. Egan

By Kristina Launey and John W. Egan

Seyfarth Synopsis: Department of Justice (DOJ) announced its intent to begin the rulemaking process to enact website accessibility regulations applicable to state and local governments under Title II.

This week the Department of Justice (DOJ) announced its intent to begin the rulemaking process to enact website accessibility regulations applicable to state and local governments under Title II of the Americans with Disabilities Act (ADA).

The rulemaking effort is a “long-term action”, with a Notice of Proposed Rulemaking (NPRM) (essentially, a draft regulation) scheduled to issue in April 2023 and DOJ to receive public comment by no later than June 2023. According to the DOJ announcement, because “many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online,” the DOJ intends “to amend its Title II ADA regulation to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities.”

This is very big news for a few reasons.

First, regulations providing guidance regarding entities’ obligations with respect to websites under the ADA have been long-desired by all interested parties—the disabled community, advocates, governmental entities, and private businesses.  The last effort to do this, begun by the Obama DOJ in 2010, drew on for years before it was unceremoniously withdrawn by the Trump DOJ at the end of 2017.  Just a few months ago, in March 2022, the Biden DOJ issued Guidance regarding website accessibility, in what many thought was the DOJ’s alternative to any regulatory effort.  Apparently rather than being an alternative, it was a warm-up for the main event.

Second, while the regulations would apply only to state and local governments subject to Title II, as in prior rulemaking efforts, regulations applicable to private businesses subject to Title III may well follow in similar form and substance.  We accordingly encourage public accommodations to submit comments on this rulemaking as this rule will have implications for them as well.

Some of the questions that we believe the Title II regulations (and/or any subsequent Title III regulations applicable to private businesses) should answer include:

  • At what point a website or app is considered accessible in compliance with the law and how is that measured?
  • What is the safe harbor period for websites to be brought into compliance with a standard for website accessibility without fear of lawsuits?
  • Will there be any special provisions for small covered entities to the extent compliance results in an undue burden or hardship?
  • What will be the treatment of third party content and/or crowdsourced material as it relates to compliance?
  • Will the regulations permit alternative access or “equivalent facilitation” for complex content such as detailed charts and graphs?

Businesses that want to prepare for the coming changes should continue to take cues from case law, the Guidance, and the prior DOJ rulemaking effort—that is, look to the Web Content Accessibility Guidelines 2.1 Level AA toward making and maintaining web content and apps that are accessible to individuals with disabilities.

Edited by Minh N. Vu

By Minh Vu, Kristina Launey, and Susan Ryan

The year 2021 was a blockbuster for ADA Title III lawsuits filed in federal court, with over 11,452 filings. At the end of June 2021, the lawsuit count was 6,304. This year, the number of lawsuits filed by the end of June 2022 has dropped to 4,914 – a stunning 22 percent reduction.

Mid-year numbers in prior years were as follows:

[Mid-Year ADA Title III Federal Lawsuit Filings 2017-2022: 2017: 4,127; 2018: 4,965; 2019: 5,592; 2020: 4,751; 2021: 6,304; 2022: 4,914]

As you can see, we’re back at 2018 numbers.  Yes, 2020 was lower, but that was the year of COVID-19 lockdowns. The 2021 count was so low, in fact, that we had to double-check our figures.

We couldn’t help but notice that the California numbers took a similar dive. Here’s a little history of the Golden State’s mid-year count:

[California Mid-Year ADA Title III Federal Lawsuit Filings 2017-2022: 2017: 1,440; 2018: 2,155; 2019: 2,444; 2020: 2,702; 2021: 3,340; 2022: 1,587]

In 2022, there were 1,753 fewer federal filings in California compared to 2021, for a whopping 52 percent drop. What’s behind this radical change? One law firm which calls itself the Center for Disability Access (a/k/a Potter Handy) only filed 397 federal lawsuits in the first six months of 2022 as compared to 1,729 such suits for the same period in 2021. We have seen less activity from other California firms as well. One reason for the decrease could be the increased scrutiny on these accessibility lawsuits by law enforcement officials. For example, in April 2022, the Los Angeles and San Francisco District Attorneys filed a civil lawsuit against the Center for Disability Access alleging fraudulent conduct in connection with its lawsuit activities.  And in May 2022, the San Francisco District Attorney lodged 18 felony charges against attorney Kousha Berokim who allegedly filed fraudulent accessibility lawsuits against San Francisco businesses. These actions may have had a chilling effect on the plaintiffs’ bar in California and elsewhere.

A close examination of the 2022 mid-year figures also reveals that – although California’s numbers were down by more than 52 percent – the national figures only fell by 22 percent.  So which state is picking up the slack?  Start spreading the news, it’s New York.

New York has had a substantial number of filings ever since we first started keeping these statistics in 2013. From 2013 to 2017, New York held third place, behind California and Florida. Then, in 2018, New York surged into second place thanks to several New York attorneys who filed hundreds of lawsuits a year about allegedly inaccessible websites and the lack of Braille gift cards. Now, for the very first time, New York has taken the number one spot for federal ADA Title III federal filings – at least for the first half of 2022. Here are the mid-year numbers of the five states with the highest number of filings:

[2022 Mid-Year Federal ADA Title III Filings for Top 5 States: PA: 152; TX: 191; FL: 659; CA: 1,587; NY: 1,819]

Will New York be the hottest jurisdiction for ADA Title III federal lawsuits at the end of the year?  Or will California manage to regain its dominance? Stay tuned….

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those cases from the count.

By Michael Steinberg

Seyfarth Synopsis: For the second time in four years, the Third Circuit has reversed a trial court’s certification of a nationwide Title III class on numerosity grounds, applying a demanding standard that will be hard for plaintiffs to meet in future cases.

The nationwide, corporate-wide class action under Rule 23 has long been a popular tool of the Title III plaintiffs’ bar.  It’s not hard to see why: defendants who find themselves on the wrong end of a class certification order in such cases face the prospect of incurring the costs of investigating and remediating accessibility barriers in dozens, hundreds, or even thousands of store locations across all fifty states.  Over the last several years, though, the Third Circuit has shown increasing skepticism of nationwide Title III class actions.  In a 2018 case involving alleged excessive slopes in a restaurant chain’s parking lots, Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018), the Third Circuit warned that Rule 23’s numerosity requirement has “real teeth.”  On June 24, 2022, the court in Allen v. Ollie’s Bargain Outlet, Inc. made clear that those “teeth” have real bite.

In Allen, the two named plaintiffs — both wheelchair users — alleged they encountered obstacles blocking the paths of travel through two different Ollie’s stores in Pennsylvania they had visited.  After their hired investigators found aisle width issues in several more stores, they filed suit seeking certification of a nationwide class of all persons with qualified mobility disabilities who had experienced access barriers in interior paths of travel at any Ollie’s store in the United States in violation of Title III.

Rule 23(a) of the Federal Rules of Civil Procedure required the plaintiffs to show, among other things, numerosity – which requirement is presumptively met if plaintiffs could show there are 40 or more class members.  But according to the Third Circuit, none of plaintiffs’ evidence added up.

To show numerosity, the plaintiffs in Allen introduced three kinds of evidence.  First, they presented data from the U.S. Census Bureau’s 2018 American Community Survey estimating the number of people with serious difficulty walking or climbing stairs for each zip code with an Ollie’s store.  The Third Circuit rejected the use of this statistical evidence as a valid basis to prove numerosity, concluding that population estimates “prove little” about the number of wheelchair users, and in any event provided no information about how many disabled individuals had actually patronized an Ollie’s store or encountered accessibility barriers there.

Second, the plaintiffs presented evidence of video footage at two Ollie’s locations over a seven-day period that captured 16 wheelchair or scooter users.  The Third Circuit found this, too, to be insufficient, observing that it would be “speculation” to assume that all wheelchair or scooter users were disabled under the ADA.  Moreover, even if that were not so, there was no evidence that the video depicted anyone who had suffered an injury.  The court made clear that, for numerosity, a plaintiff’s evidence must relate to the “subset of injured customers,” not the broader population of disabled persons.

Finally, the plaintiffs introduced evidence purporting to show twelve written accessibility-related customer complaints.  Twelve were too few, the court found, either in isolation or when taken in conjunction with the American Community Survey estimates from the Census Bureau.  The Third Circuit explained that courts cannot be left to speculate about the size of a potential nationwide class.

Allen’s demanding approach to numerosity will place significant obstacles in the path of plaintiffs seeking nationwide class certification under Title III going forward, at least for cases brought in the Third Circuit.  We’ll be watching to see whether courts in other circuits follow.

Edited by Minh Vu

By Minh N. Vu

Seyfarth synopsis:  The Spring 2022 Unified Regulatory Agenda is out with rulemakings on medical equipment, EV charging stations and fixed self-service transaction machines on the list of items to be addressed.

We predicted that there would be more regulatory activity in the ADA Title III universe under the Biden Administration and the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) confirms our forecast.  However, the Agenda does not include any proposed rulemaking concerning website or mobile app accessibility, an area where businesses continue to be barraged with private lawsuits in the absence of regulations.

Medical Diagnostic Equipment.  Back in 2017, the U.S. Access Board — the federal agency tasked under Title III of the ADA with drafting accessibility guidelines which must then be adopted by the Department of Justice (DOJ) before they become law — issued a final guidance containing standards for accessible medical diagnostic equipment.  The Agenda states that the DOJ will be issuing an Advanced Notice of Proposed Rulemaking (ANPRM) about these guidelines in September 2022 with a public comment period to close in November 2022.  The Agenda previews that “[a]mong the public input that the Department is seeking in this ANPRM is whether there are any issues relating to the potential adoption of the . . . [Access Board’s] Standards for Medical Diagnostic Equipment in the ADA regulation.”  Manufacturers of medical diagnostic equipment, as well as health care facilities that purchase and use such equipment, should actively participate in the ANPRM process.

EV Charging Stations.  According to the Agenda, the Access Board will be issuing a Notice of Proposed Rulemaking (NPRM) in September 2022 to set standards for accessible EV charging stations with the intent that the DOJ will eventually incorporate those guidelines in the current ADA Standards for Accessible Design. The rulemaking responds to the Infrastructure Investment and Jobs Act’s allocation of $7.5 billion to construct a national network of 500,000 EV charging stations nationwide.

Fixed Self-service Transaction Machines.  With the proliferation of self-service machines at public accommodations in the past few years, it is no surprise that the Access Board will be working on standards for accessible self-service kiosks, information transaction machines, and point-of-sale devices.  The Agenda states that an ANPRM will be issued in August 2022.  It is very important for manufacturers of these machines, as well as the businesses that use them (e.g. retailers, rental car companies, lodging facilities, health care providers, banks, parking facilities, restaurants) to file comments on the Access Board’s forthcoming proposed guidelines because, once finalized, they are not likely to change in DOJ’s rulemaking process to make them enforceable standards.


While the rulemaking process can take years, we predict the DOJ will work hard to get all of these new standards finalized before the end of the Biden Administration because a regime change will most certainly halt all regulatory activity, yet again.

Edited by John W. Egan

By Minh N. Vu

Seyfarth Synopsis:  One of the most famous accessibility lawsuits of all time finally settles before trial under terms that may never be known.

After six hard-fought years in litigation at every level of the federal judicial system — including the Supreme Court — the parties in what may be the most famous website accessibility lawsuit of all time have reached a settlement, according to a Notice of Settlement filed with the district court on June 6, 2022.  We do not know, and may never know, the terms of that resolution. The  Notice does not indicate what form the resolution will take, or whether it will be confidential.

What were the highlights and takeaways from six years of litigation, in our opinion?

  1. The Ninth Circuit issued a decision reversing the district court’s dismissal of the lawsuit in a decision that we analyzed in a prior post. That decision is binding precedent in the Ninth Circuit.
  2. The Supreme Court declined review of the Ninth Circuit’s decision. Our blog post on this decision is here.
  3. On remand from the Ninth Circuit, the district court granted Robles’ motion for summary judgment about Domino’s website, finding that it was not fully accessible. In that decision, the court also concluded that a telephone line that requires a 45 minute wait is not a substitute for an accessible website.  Our analysis of that decision is here.
  4. The parties undoubtedly racked up substantial fees for six years of litigation at three different courts for a case that likely could have been settled at the outset for a modest amount of money.  This is the conundrum that every business faces when dealing with a website accessibility lawsuit.

From our perspective, legal guidance from the courts, especially at the appellate level, is always a good thing and this case certainly added to the ever growing body of law on website accessibility.

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: Second Circuit issues scathing decision directed at “mad lib”-style serial ADA Title III complaints, and affirms-on the basis of standing-the dismissal of four lawsuits alleging that retailers violated the ADA by not providing gift cards containing Braille.

As we previously reported, from the end of 2019 through the first few months of 2020, a group of serial ADA plaintiffs barraged New York federal courts with over 200 boilerplate lawsuits alleging that retailers and other businesses violated the ADA and New York state and city laws by failing to offer for sale gift cards in Braille.  In 2020, Judge Woods of the SDNY dismissed four of these cases, and plaintiffs appealed to the Second Circuit.

On June 2, 2022, the U.S. Court of Appeals for the Second Circuit affirmed the dismissals in a scathing decision that expresses the Court’s ire with the hundreds of boilerplate lawsuits that have inundated New York federal courts in recent years.  The decision further makes clear that plaintiffs who do not allege specific facts to establish their standing to sue will have their claims dismissed — a theme that continues from the Second Circuit’s recent decision in Harty v. West Point Realty.  In that case, the Court held that ADA plaintiffs must allege “downstream consequences” of being deprived information on a website to establish an Article III standing.

In the four cases that were consolidated into Calcano v. Swarovski North America Ltd., each plaintiff allegedly called the customer service offices at the respective businesses, asked whether the business sold gift cards in Braille, and was told that they did not.  Each plaintiff also alleged that they live near defendants’ stores, that they had been customers there “on prior occasions,” and that they would “immediately” purchase Braille gift cards once they became available.

The Second Circuit said these allegations were insufficient to show that plaintiffs faced a “material risk of future harm” that is “sufficiently imminent and substantial” to confer standing to sue under Title III of the ADA.  “[T]he central inquiry is not whether the complaint pleads the magic words that a plaintiff ‘intends to return,’” and therefore faces an imminent harm, but rather whether, under the “totality of all relevant facts,” plaintiff plausibly alleged a real and immediate threat of future injury (emphasis added).

In concluding that plaintiffs did not demonstrate a real and immediate threat of future injury, the Court noted the following:

  • Plaintiffs failed to allege any details about their past visits or the frequency of those visits, including what stores they visited, what they purchased, or even why they want to purchase Braille gift cards so urgently that they intend to do so “immediately;”
  • In only one out of the four cases did plaintiffs provide an accurate address for the defendant’s retail location (in one instance erroneously reciting a store address in Manhattan when defendant did not have a location anywhere in that borough). And in the one complaint where the business address was correctly stated, plaintiff alleged that his residence in the Bronx was “close” to the subject store near Columbus Circle in Midtown Manhattan, even though that trip that could be up to an hour away; and
  • Plaintiffs’ jurisdictional allegations simply “parrot[ed]” the Second Circuit’s language in a prior ADA Title III decision, which the court deemed “legal conclusion[s] couched as factual allegations.”

Most importantly, in evaluating the plausibility of plaintiffs’ allegations, the court refused to ignore the broader context of their litigation tsunami — citing that each of the four litigants were responsible for filing 81 out of the over 200 “essentially carbon copy complaints.”  In two of Calcano’s complaints, the court noted that only 26 of approximately 6,300 words, consisting of party names, dates, addresses and states of incorporation, were different, with both complaints including the very same typos.

Along the same vein, the court went further:

This backdrop of Plaintiffs’ Mad-Libs-style complaints further confirms the implausibility of their claims of injury. As noted above, Murphy asserts that he would return to a Kohl’s that doesn’t exist. Dominguez seeks to go back to Banana Republic for its food.  Thorne doesn’t even allege where he lives, making an assessment of proximity to a Jersey Mike’s impossible.  Calcano plans to travel from somewhere in the Bronx to Columbus Circle for a shaving supply gift card.  And all of these plans depend on the availability of braille gift cards even though Plaintiffs never explain why they want those cards in the first place. Although we might excuse a stray technical error or even credit an odd allegation standing alone as an idiosyncratic preference—to do so here in light of the cumulative implausibility of Plaintiffs’ allegations would be burying our heads in the sand. “[J]udicial experience and common sense” suggest that the errors, oddities, and omissions in the complaints are a result of their mass production, and they render each Plaintiff’s cookie-cutter assertion of standing implausible.

(Citation omitted.)

We note that in affirming the dismissal of these four cases on standing grounds, the Second Circuit majority did not reach the question of whether gift cards are covered by Title III of the ADA.  Judge Lohier, however, issued a concurring opinion that sharply disagreed with the majority’s reasoning on standing, as well as the lower court’s determination that a gift card is a “good” that is not required to be accessible under the ADA.

On this Blog, we have previously questioned whether the year-over-year increase in ADA Title III filings has been due to an uptick in discrimination, or more likely, because more lawyers elect to file more claims.  From the defense perspective, it is nice to see the Second Circuit majority in Calcano refusing to “bury . . . [their] heads in the sand.”

By Kristina Launey and Minh Vu

Seyfarth Synopsis: A California federal court decided after a trial that a blind plaintiff did not have standing to bring a lawsuit about an inaccessible website under Title III of the ADA, and California’s Unruh Act only protects people who try to access inaccessible websites while they are physically in California.   

We are seeing a trend in recent federal decisions in ADA Title III cases involving websites: Courts are finding that not being able to access information on a website, with no other adverse consequences, is not sufficient to establish the “concrete” harm required to have standing to sue.  In March, the Second Circuit issued a decision holding that a plaintiff had to allege “downstream consequences from failing to receive the required information [on a website] in order to have an Article III injury in fact.”  In that case, the plaintiff had failed to allege that his inability to obtain accessibility information about a hotel on its website actually impacted his ability to stay at that hotel or travel to the area of the hotel.

This week, District Judge Dale Fisher of the Central District of California held, after a bench trial, that plaintiff Andres Gomez did not have standing to bring a website accessibility lawsuit under Title III of the ADA because he had not shown any downstream consequences resulting from his encounter with the inaccessible website, nor a genuine intent to return to the website.  (Plaintiff Andres Gomez has filed well over 100 website accessibility lawsuits in California federal courts in the past three years alleging businesses have violated the ADA by having websites that are allegedly inaccessible to blind individuals.)

In the Court’s Findings of Fact and Conclusions of Law After Court Trial, the Court found that while Gomez had visited the inaccessible website to search for car rental companies in Los Angeles for a future trip, he did not credibly demonstrate that he would have a reason to return to defendant’s website.  Demonstrating a genuine intent to return to a business is critical to establishing standing to bring an ADA Title III claim because a plaintiff must show an imminent future harm for the prevention of which injunctive relief by the Court is necessary.  (The ADA only provides for injunctive relief to prevent future harm, not damages for past harm.)  The Court found that “defendant’s car rental locations would not be easy or even convenient choices for Gomez, and Gomez did not testify to any instance where he has actually rented a car in California or elsewhere.”  The Court observed that “there is no apparent reason to visit a website – certainly not for a second time – unless you intend to purchase or use the products or services described on the website.”

The Court also said a plaintiff must prove that the inability to access information on a website had consequences to have standing to sue:

Although the website’s inaccessibility allegedly initially prevented Plaintiff from learning the locations of Defendant’s rental cars, Plaintiff knew by the time he filed his Complaint that the locations were nowhere near El Monte and he did not demonstrate that they were close to any train or bus stations, or the airport that Plaintiff would have used to get to a California rental car agency in the first place. In short, Plaintiff did not demonstrate that this service was relevant to him, so the harm he suffered by being unable to access the website was merely “informational” and “dignitary.”

Judge Fisher thus held that “information” and “dignitary” harm is not sufficient to establish standing to sue and dismissed Gomez’s ADA claim.

The Court also dismissed Gomez’s California Unruh Act claim, finding that the statute does not apply to persons who were not physically in California (Gomez was in Florida when he visited the defendant’s website) when they experienced discrimination by a California-based business.

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