December 13, 2018

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December 12, 2018

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December 11, 2018

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The 11th Circuit Holds Prior Settlement in Website Access Case Does Not Moot Identical Second Lawsuit Seeking the Same Injunctive Relief

Retailers and other companies have been besieged by lawsuits alleging that their websites are not accessible to visually impaired users in violation of the Americans with Disabilities Act (“ADA”) and similar state laws. Some companies have been sued multiple times by different plaintiffs represented by different lawyers, even though the companies had previously agreed in earlier settlements to ensure that their websites are accessible to the visually impaired.

In Haynes v. Hooters of America, a district court in Florida ruled that plaintiff’s lawsuit was moot since Hooters had already agreed in connection with the settlement of an earlier lawsuit, Gomez v. Hooters, to conform its website to the Web Content Accessibility Guidelines (WCAG) 2.0. Since monetary damages were not available, the court found there was no further or additional remedy for plaintiff to pursue. On June 19, 2018, the Eleventh Circuit Court of Appeals reversed, holding that plaintiff’s claims were not moot even though Hooters had already agreed to update its website to conform its website to WCAG 2.0. The Eleventh Circuit stated that Hooters’ assurance to an unrelated third party to remediate its website does not alone moot plaintiff’s claims for relief and that “there is still a live controversy about whether [plaintiff] can receive an injunction to force Hooters to make its website ADA compliant.”

The Court noted that the prior settlement did not provide for the Gomez court to retain jurisdiction over the settlement. The Court also recognized that the earlier deal expired in September 2018. Further, the Court emphasized that the only person who could enforce the agreement was the Gomez plaintiff. Finally, the Court observed that the prior settlement agreement did not require Hooters to update its website on a going forward basis as the website is changed and new content is added.

There nevertheless may be some good news in the Hooters opinion for companies that face serial individual lawsuits. The Court did not rule out the possibility that an individual settlement agreement, with appropriate terms, might bar future copycat lawsuits from a different party. For example, the outcome of Haynes may have been different if the Gomez settlement agreement allowed the court to retain jurisdiction to enforce it, provided for ongoing remedial relief and monitoring, or had a sufficiently extended expiration date. Companies faced with an individual ADA website accessibility lawsuit should carefully consider what provisions to include in the settlement agreement that would put the company in the best position to argue that future lawsuits are barred.

To bar serial plaintiffs and their attorneys, companies may consider including settlement terms that provide an opportunity for notice and cure in the event that later non-compliance is alleged to exist. Another alternative to cut off future claims by different plaintiffs would be to settle the claim on a class-wide basis. This route poses its own challenges and risks, however; including the need for court approval of the settlement, potentially higher attorneys’ fees for class counsel, and increased expenses if the court directs notice to the class. Companies should consult with counsel not only on how to bring their websites into compliance, but how best to resolve individual claims for alleged non-compliance.

©2018 Drinker Biddle & Reath LLP. All Rights Reserved

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About this Author

Thomas Barton, Drinker Biddle Law Firm, Philadelphia, Labor and Employment Litigation Attorney
Partner

Tom Barton is a partner and co-chair of the firm's national Labor & Employment Practice Group. For the last 25 years, Tom has represented employers in all aspects of labor and employment law, including employment discrimination and wrongful termination litigation, preventive advice and counseling, manager and employee training and internal employee investigations and audits.

Tom represents a broad range of clients including Fortune 500 employers in the retail and services, financial services, insurance, pharmaceutical, health care,...

215-988-2834
Matthew Fedor, Commercial Lawyer, Drinker Biddle
Partner

Matthew J. Fedor defends clients in consumer class actions and complex commercial disputes. Matt also conducts internal investigations, and counsels clients on sales and marketing practices, and compliance with consumer protection statutes and regulations. He is a partner in the firm’s Litigation Group and a member of the Class Actions Team.

Matt defends companies in class actions and consumer disputes involving sales and marketing practices, product defects, and federal and state consumer protection statutes and regulations, such as the Telephone Consumer Protection Act (TCPA), New Jersey Consumer Fraud Act (CFA), New Jersey Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA), California Anti-Spam Act (CASA), the New Jersey Gift Card Act and the Americans with Disabilities Act (ADA).

973-549-7329
Kate Gold, Labor and Employment Attorney, Drinker Biddle
Partner

Kate S. Gold defends clients in employment and other business disputes in state and federal courts, arbitrations, and before agencies. She is Co-Chair of the Labor and Employment Group's Fair Pay Act Obligations Team.

Kate’s practice includes defense of individual, collective and class actions and focuses on business and employment litigation and counseling. She handles matters involving wrongful termination, retaliation, whistle blower, sexual harassment, race, age, family leave, pregnancy and disability discrimination; defends actions for...

310-203-4029