On The Case

A ray of hope for ADA website defendants? N.Y. judge tosses case for mootness

(Reuters) - In 2018, disabled plaintiffs filed more than 2,250 suits in federal court alleging that corporate websites were insufficiently accessible to them, in violation of the Americans with Disabilities Act. According to Seyfarth Shaw, which tallied the cases, the growth of ADA website accessibility litigation has been nothing short of staggering. Fewer than 240 federal court suits claiming website inaccessibility were filed in 2015 and 2016, according to a 2016 Wall Street Journal report. In 2017, the number of filings was up to 814 – and it increased by nearly 200% last year.

The phenomenon is particularly pronounced in New York, where, according to Seyfarth, nearly two-thirds of 2018’s cases were filed. But relief for defendants may be in sight: On Tuesday, in what she called a groundbreaking decision, U.S. District Judge Katherine Polk Failla of Manhattan dismissed an ADA website compliance suit against the Kroger grocery chain as moot. The judge found that because the grocer had revamped its website to address its alleged failings and had pledged to maintain its compliance with the Website Content Accessibility Guidelines (WCAG), there were no remaining issues for the suit to address.

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Judge Failla acknowledged that other judges have held that ADA website compliance suits can never be mooted because corporations are constantly updating their sites, citing 2017’s Brooke v. A-ventures. Similarly, in 2018’s Haynes v. Hooters, the 11th U.S. Circuit Court of Appeals reversed a trial court decision dismissing an ADA website compliance case as moot. The court held that even though Hooters was fixing its website under a settlement agreement in a previous ADA compliance case, there was still a live issue about the company’s future compliance.

But Judge Failla said she would not adopt the “sweeping, technology-specific exception to the mootness doctrine” that plaintiffs' lawyers from Cohen & Mizrahi proposed in their brief opposing dismissal. “It cannot be said that an ADA claim involving a website can never be mooted, solely because of the technological characteristics of websites,” the judge wrote. “Such limit is both unnecessary and would insert a brittle, technology-specific exception into the mootness doctrine that would itself become obsolete in an era of rapidly changing technology.”

The judge recognized that her mootness analysis “breaks new ground,” and that the 2nd Circuit “may ultimately disagree” with it. In case that happens, she also dismissed the case against Kroger, an Ohio company whose closest store is nearly 300 miles from Manhattan, on personal jurisdiction grounds. Judge Failla’s ruling was first reported by the SDNY Blog.

Plaintiffs’ lawyer Joseph Mizrahi told me that the judge “fished out facts that were not within the four corners” of his client’s complaint, effectively converting dismissal litigation into a summary judgment proceeding. He said his side is deciding whether to ask the judge to reconsider or to appeal.

His client, he said, maintains that the Kroger site is not fully accessible – and even if it were compliant on one day, he added, that’s no guarantee that it would be fully accessible the next, given that companies are constantly adding pages. Mizrahi, who said Judge Failla was also wrong on personal jurisdiction because New Yorkers can buy Kroger products online, declined to say how many ADA website compliance cases his firm has filed. Edward Diaz, the plaintiff in the Kroger case, has brought dozens of ADA cases since 2016, according to Pacer records.

Kroger lawyer Michael Glidden of Perez & Morris said Judge Failla’s reasoning finally offers companies a way to end ADA website compliance cases. Kroger, he said, had begun remedying compliance problems on its website before Diaz even sued. In an affidavit that was part of the company’s dismissal motion, its website design manager attested that the company fixed all of the failures Diaz had alleged and that he would personally monitor the site to make sure it remained compliant with WCAG standards. Such employees, Glidden said, are best positioned to make sure that companies’ websites are fully accessible to customers with disabilities.

Glidden told me he’s confident Judge Failla’s decision will hold up on appeal. “It’s very well thought out, and I’m not just saying that because I won,” he said. “She laid out a roadmap.”