As we have written about on multiple occasions, public access lawsuits relating to website accessibility under Title III of the Americans with Disabilities Act (“ADA”) have been increasing at a rapid pace.  In fact, 2019 is on pace to have more than 2,000 website accessibility lawsuits, which will be by far the highest number on record (and this number does not include the hundreds of “brick and mortar” lawsuits filed against places of public accommodations).  Thus, regardless of whether you own or manage a retail store, a large hotel chain, a small bed & breakfast, or any other place of public accommodation, you are at serious risk of getting hit with an ADA lawsuit relating to your company’s website, especially if your website does not comply with the Web Content Accessibility Guidelines (“WCAG”), a series of web accessibility guidelines published by the Web Accessibility Initiative of the World Wide Web Consortium, the main international standards organization for the Internet.

Nonetheless, there are two recent rulings that at least provide a sliver of hope for business owners, although both cases arise out of the Southern District of New York and therefore are limited to that jurisdiction.  Most recently, on June 4, 2019, a judge in the Southern District of New York ruled that a website accessibility case could be mooted by a defendant fixing their website.  (See Diaz v. The Kroger Company, 1:18-cv-07953).  In that case, Diaz, a legally blind individual, brought a lawsuit against Kroger, a large supermarket chain, alleging that Kroger’s website was not compatible with screen reader software and thus failed to comply with Title III of the Americans with Disabilities Act because it denied equal access to visually impaired customers.  In response, Kroger filed a motion to dismiss, claiming that among other things: (i) it had undertaken to make its website comply with WCAG 2.0 before the lawsuit was even filed; (ii) its website was now fully compliant with WCAG 2.0; (iii) that each barrier to access identified by the plaintiff had been fixed and/or no longer existed; and (iv) it was committed to keeping the website in compliance with WCAG 2.0 in the future.  By taking those actions, the court found that the plaintiff’s ADA claim was moot and thus granted Kroger’s motion to dismiss.

This decision follows another decision two months earlier in which a judge in the Southern District of New York dismissed a class action lawsuit brought by a blind woman against Apple for discrimination based on website accessibility.  (See Mendez v. Apple, Inc. 1:18-cv-077550).  In that case, the plaintiff claimed that she attempted to use the Apple website with her Job Access With Speech (JAWS) screen reader, and encountered several other barriers that kept her from getting full and equal access to the website in violation of the ADA, the New York State Human Rights Law and the New York City Human Rights Law.  In response, Apple filed a motion to dismiss for lack of subject matter jurisdiction, claiming that the plaintiff had failed to allege that she sustained any concrete or particularized injuries.  Apple also noted that Mendez was a serial plaintiff who recently had filed over 40 nearly identical lawsuits.

In granting Apple’s motion to dismiss, the court noted that the plaintiff failed to identify which sections of the website she tried to access or the date on which she visited the website or the physical store.  In its decision, the court agreed with Apple’s arguments that Mendez failed to sufficiently allege that she sustained any concrete or particularized injuries.  In particular, the court noted that she failed to identify which sections of the website she tried to access, the date on which she visited the website or the physical store, and what goods or services she was unable to purchase.  As a result, the court granted Apple’s motion to dismiss the plaintiff’s complaint for lack of subject matter jurisdiction.

At the end of the day, these cases do not change the ADA landscape as it currently exists. They do, however, slightly increase the bar for plaintiffs who tend to file cookie-cutter website accessibility lawsuits in the Southern District of New York.  Specifically, in order to avoid dismissal, a plaintiff’s complaint will need to allege specific details relating to how he or she was harmed, including which sections of the website were purportedly inaccessible, and the dates on which the plaintiff tried, but failed to utilize the website.  And, even if a plaintiff does meet the standards set forth in Mendez, it still may be able to avoid liability if it can demonstrate mootness by showing that its website is already compliant with WCAG 2.0.