Seyfarth Synopsis:  Plaintiffs secure a second judgment in a federal website accessibility lawsuit while most of the others successfully fended off motions to dismiss. 

2018 has been a bad year for most businesses that have chosen to fight website accessibility cases filed under Title III of the ADA.  Plaintiffs filing in federal court secured their second judgment on the merits in a website accessibility lawsuit, bringing the federal court judgment score to 2-0 in their favor.  Additionally, in twenty-one cases where defendants filed early motions to dismiss, judges have allowed eleven to move forward.  While a forty percent dismissal rate doesn’t seem bad, most of the cases that were dismissed had a common set of unique facts that most defendants don’t have. Below is a rundown of the most noteworthy 2018 cases and trends.

At the end of August, Southern District of Florida Judge Marcia Cooke issued the second judgment on the merits in a federal court website accessibility lawsuit and it was in favor of the plaintiff.  (The first judgment was in the Winn Dixie case after a bench trial.)  Judge Cooke held on summary judgment that retailer GNC’s website violated the ADA because the evidence in the record “suggests that the Website is inaccessible.”  The court cited to the plaintiff’s expert’s testimony and automated test results to reach this conclusion, and excluded the testimony of the GNC’s expert based on his lack of qualifications.  Judge Cooke refused to order a remedy at the summary judgment phase, but said that she found “highly persuasive the number of cases adopting WCAG 2.0 Success Level AA as the appropriate standard to measure accessibility.”

In June, the U.S. Court of Appeals for the Eleventh Circuit held that a prior private settlement of a website accessibility lawsuit in which the defendant had made a commitment to make its website more accessible did not moot a subsequent lawsuit brought by another plaintiff against the same defendant.  The Court reasoned that the website remediation work was not yet complete, and the second plaintiff had sought other relief that was not addressed by the settlement.  The Court also noted that if the defendant failed to comply with its settlement obligations, the second plaintiff would have no recourse since it was not a party to the prior settlement agreement.

In July, the Eleventh Circuit became the second federal appellate court to explicitly address whether the ADA covers websites.  The Court found that the plaintiff had stated an ADA claim against the defendant because the alleged barriers on its website prevented him from accessing the goods and services of its stores.  Specifically, the blind plaintiff alleged that he could not access the store locator function or purchase a gift card online using his screen reader software.  This case does have a silver-lining for defendants with web-only businesses though:  The Eleventh Circuit’s analysis followed prior precedent holding that a public accommodation is a physical place, and plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.  This puts the Eleventh Circuit mostly in line with the Ninth Circuit which has held that websites with no nexus to a physical place are not covered by the ADA, and is the only other federal appellate court to have ruled on the issue.

In eleven other decisions, district court judges in Ohio, Pennsylvania, New York, Florida and Michigan allowed website accessibility cases to move forward into discovery, rejecting defendants’ requests for early dismissal.  In most of these cases, the judges rejected the arguments that requiring businesses to make their websites accessible to people with disabilities in the absence of legal standards or regulations is a denial of due process, and that courts should not address website accessibility claims until the Department of Justice issues regulations.

In August, Judge Schwab of the Western District of Pennsylvania issued a pointed decision against a retailer because he found the aggressive tactics of its defense lawyer to constitute bad faith.  Specifically, after receiving a demand letter from the plaintiffs who later filed in Pennsylvania, the retailer filed a pre-emptive lawsuit in Utah against the plaintiffs seeking declaratory relief concerning their website-related obligations under the ADA, and asserting state law claims of negligent representation, fraud, fraudulent non-disclosure, and civil conspiracy.  When the plaintiffs then filed their lawsuit in Pennsylvania, the retailer filed a motion to dismiss based on, among other things, the “first filed” rule which gives the court in the later filed action discretion to dismiss the latter case to avoid duplicative litigation and promote judicial comity.  Judge Schwab said he did not have to apply the “first filed” rule where there was evidence of bad faith by defense counsel, and also said he would consider sanctions if defense counsel tried this forum-shopping tactic again in future cases.  Judge Schwab further held that the ADA covers websites and allowed the case to move forward in Pennsylvania.  Meanwhile, the lawsuit in Utah is still pending after the defense attorney in question withdrew from the case and the retailer filed a First Amended Complaint.

The positive decisions for defendants this year have come from judges in Virginia, Florida, and Ohio.   Judges in Virginia and Ohio dismissed six lawsuits against credit unions about their allegedly inaccessible websites because the plaintiff was not eligible to join the defendant credit unions.  These are fairly unique facts that most defendants defending website accessibility suits will not have, however.

There were four pro-defendant rulings in Florida, but one has been reopened because of the Eleventh Circuit’s holding that a prior settlement does not moot a subsequent lawsuit, discussed supra.  In the second Florida case, Judge Gayles of the Southern District of Florida dismissed an ADA lawsuit because the plaintiff had not alleged that barriers on the website impeded his access to a physical place of public accommodation.   In the third case, Judge Presnell of the Middle District of Florida dismissed a case  because the plaintiff had not alleged that he really intended to return to the location and lacked standing.  In the fourth case, Judge Presnell said that “alleging the mere existence of some connection or link between the website and the physical location is not sufficient.”  Judge Presnell distinguished “an inability to use a website to gain information about a physical location” versus “an ability to use a website that impedes access to enjoy a physical location” and said the former is not sufficient to state a claim.  The judge dismissed the case because the plaintiff’s allegations were about obtaining information, not impeding access.

The takeaway from these recent decisions is that — while the defense strategy for every website accessibility lawsuit must be evaluated on its own set of facts — most courts are not willing to dismiss these cases early except in limited circumstances.  Thus, defendants looking to fight must be prepared to go through discovery and at least summary judgment, if not trial.

Edited by Kristina Launey.

Seyfarth Synopsis: A state court has granted the Arizona Attorney General’s Motion To Dismiss approximately 1,700 Arizona access lawsuits on grounds that the organizational and individual plaintiffs lacked standing to sue.

As we previously reported here, the Arizona Attorney General responded to a surge of approximately 1,700 access suits filed in that state’s courts by moving to consolidate, to intervene in, and to dismiss all of such actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler.  According to a recent communication from the Arizona AG’s office describing his court appearance on February 17, 2017,  the Arizona trial court judge on that date orally granted the AG’s motion to dismiss virtually all of the consolidated cases with prejudice and directed the AG to submit a proposed form of judgment.

There currently is no written decision laying out the Court’s reasoning for its decision, so it is not clear which of the AG’s arguments persuaded the court to issue this decision.  The AG’s Motion to Dismiss challenged both the individual’s (Ritzenthaler’s) and AIDF’s standing to bring claims under what the AG described as the “rigorous” standing requirements of Arizona law. The AG presented several arguments about how the Plaintiffs failed to meet these requirements.  First, the AG argued that the Plaintiffs failed to allege that they patronized the businesses that they sued.  Second, the AG asserted that the Plaintiffs failed to allege an actual barrier to their access.  The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’”  The AG then stated that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.”  Third, the AG  asserted that Plaintiffs’ claims were insufficient because they failed to sufficiently allege denial of access based upon their particular, identified disability.  Fourth, the AG argued that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint.  Fifth, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief:  That the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

If the court issues a written opinion explaining the basis for his ruling, we will update you.

In an interesting peripheral note, the Arizona Attorney General’s office has notified affected parties that the Court also stated that it would consider applications for attorneys’ fees and costs following its ruling, and noted that, should any affected party be interested in filing a fee petition, it should keep in mind that any fee request “must be in sufficient detail to enable the court to assess the reasonableness of the time incurred.”  Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188 (App. 1983).  Based upon the AG’s comments, this portion of the ruling apparently extends beyond the AG’s own attorneys’ fees and costs, potentially including any defendant who hired counsel to defend against Plaintiffs’ 1,700 dismissed actions prior to entry of the stay.

Edited by Minh Vu.

Seyfarth Synopsis: A disability advocacy group behind approximately 1,700 Arizona access lawsuits breaks new ground by filing suit against the Arizona Attorney General, in an unusual counter-attack to the AG’s motion to dismiss those cases for lack of standing. 

As we previously reported here, the Arizona Attorney General (“AG”) responded to a surge of access suits filed in that state’s courts by moving to consolidate and to intervene in all actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler.  The state court granted the AG’s motions on September 23.  Soon thereafter the AG filed a Motion to Dismiss and For Judgment on the Pleadings.

In a further twist on this story, AIDF and Ritzenthaler have now sued AG Mark Brnovich in his official capacity for mandamus relief against the AG and for attorneys’ fees and costs.  Specifically, the Plaintiffs seek an order that the AG must initiate an investigation into the violations that have been alleged in approximately 9,000 complaints allegedly filed with the AG’s office.  Plaintiffs argue that the AG is required to investigate such complaints under state law, and has failed to do so. Plaintiff further alleges that non-compliance with the state’s accessibility statute is widespread, apparently citing an AIDF press release.

Whether or not this tactic is an effective litigation strategy remains to be seen.  The AG’s pending Motion to Dismiss challenges both the individual’s (Ritzenthaler’s) and the organizations’ standing to bring their claims under Arizona law.  According to the AG, Arizona has a “rigorous” standing requirement, which the plaintiffs in the consolidated matters fail to meet for several reasons.  First, they fail to allege that they patronized or attempted to patronize the defendants’ businesses.  Second, the AG argues that the plaintiffs fail to allege an actual barrier to their access.  The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’”  The AG then states that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.”  Third, the AG asserts that plaintiffs fail to sufficiently allege standing because they did not allege denial of access based upon an identified disability.  In other words, the plaintiffs do not link an identified instance of non-compliance to their particular disability.  Fourth, the AG argues that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint.  Finally, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief, i.e., that the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

The AG argues that the various Plaintiffs in these consolidated actions should not be given leave to amend such deficiencies in the pleadings, due to a “documented history of bad faith, abusive tactics, and dilatory motives.”   To support this assertion, the AG notes that plaintiffs have filed over 1,700 deficient complaints in 2016, and have “extracted” about $1.2 million from those lawsuits.  The AG also contends that the plaintiffs’ proposed “Universal Amended Complaint” still fails to adequately plead standing, further demonstrating undue delay.  It also, perhaps, demonstrates futility of amendment under these circumstances.

These, first-of-their-kind, cross actions between an enforcement agency and a serial plaintiff may continue to provide additional data and insight into assertions of lawsuit abuse in the disability access context.   We will continue to monitor these actions and keep posting on developments.

Edited by Kristina Launey and Minh Vu.

Seyfarth Synopsis: The U.S. Supreme Court’s recent Spokeo decision may lead to more careful scrutiny of whether ADA Title III plaintiffs have a sufficiently “concrete” injury to confer jurisdiction in federal court.

As reported in previous posts, some courts have, in recent years, bent over backwards to find that plaintiffs with no legitimate reason to visit a business, or intent to do so in the future, have standing to sue under Title III of the Americans with Disabilities Act (ADA).  A sharp increase in the number of ADA Title III lawsuits has followed these decisions.

The U.S. Supreme Court’s May 16, 2016 decision in Spokeo, Inc. v. Robins may impact how courts across the country interpret standing requirements for these cases in the future.  Although not an ADA case, lower courts may apply Spokeo to reign in the recent growth of Title III litigation.

In Spokeo, the plaintiff filed a putative class action against a company that operated an online background search service.  In the complaint, the plaintiff alleged that information provided about him in a background report, such as his marital status, age, and education, was inaccurate.  The plaintiff, on behalf of himself and a class of similarly situated individuals, charged the company with willfully violating the Fair Credit Reporting Act (FCRA) by failing to adopt procedures to ensure the accuracy of its reports.

The Ninth Circuit held that the complaint in Spokeo sufficiently alleged an injury-in-fact as required for standing, but the Supreme Court vacated the Ninth Circuit’s decision, and remanded the case.

In a majority opinion by Justice Alito, the Court held that the Ninth Circuit’s standing analysis was incomplete because it failed to consider whether the alleged injury was sufficiently “concrete.”  To qualify as a “case or controversy” over which a federal court has jurisdiction, according to the Court, there must be a concrete injury, meaning it must “actually exist”, and be “real” rather than “abstract.”  The problem with the complaint in Spokeo, the Court reasoned, was that a violation of the FCRA’s procedural requirements may result in no harm.  The Court directed the Ninth Circuit to consider on remand “whether the particular procedural violations alleged . . . entail a degree of risk sufficient to meet the concreteness requirement.”

This case raises interesting questions for ADA Title III matters where standing can be a hotly contested issue:

  • Does an ADA “tester” who travels to businesses, not to purchase goods or services, but instead solely to evaluate compliance, suffer “concrete” injury as clarified in Spokeo?
  • Do ADA plaintiffs have standing to challenge all barriers at a business related to their disability, or only those that they actually encountered during their visit?
  • Does a serial ADA plaintiff’s litigation history have any bearing on whether he or she suffered “concrete” injury in a given case?

Although the implications of Spokeo for ADA Title III cases are not entirely clear at this point, the decision is good news for businesses.  Some ADA Title III plaintiffs have only the most tenuous connection to the businesses they sue, and the alleged barriers that they challenge.  Spokeo may prompt lower courts to more carefully scrutinize whether their alleged injuries are sufficiently “concrete” to confer jurisdiction in federal court.

Edited by Kristina Launey.

By Minh N. Vu

The Florida federal courts may be getting tired of the boilerplate complaints filed by serial plaintiffs with dubious standing.  In Palo v. GM Esplanade, LLC et al. (Case No. 2:12-cv-00103-JES-SPC), United States District Judge John Steele dismissed a lawsuit filed by an allegedly disabled plaintiff who claimed to have visited a shopping mall, said he intended to visit the facilty again in the  near future, and listed 19 general violations at the facility.  Although the shopping mall answered the complaint and did not move to dismiss, the Court did so on its own finding that the plaintiff had failed to state “when and why” the plaintiff would visit in the future, what parts of the “facility” the plaintiff had visited, what barriers he personally encountered or will encounter in the near future, or how the barriers affected his ability to enjoy the facility.  The court ordered the case be closed if the plaintiff did not promptly file an amended complaint with this information.   

United States District Judge Roy Dalton Jr. had taken a similar approach in June in a case brought by the same plaintiff, De Palo v. CMC/Village Market Place Ltd. (Case No. 2:11-cv-683-UA-SPC).  Judge Dalton dismissed the case for lack of standing with no motion pending, commenting on the “extreme generality” of plaintiff’s “boilerplate” complaint and the lack of facts indicating the date of the plaintiff’s visit to the facility, the areas that he investigated, and when and why he would visit the facility again in the future.