While Far from a Knockout, the Southern District of New York Strikes a Blow for Businesses Facing Website Accessibility Lawsuits
It is no secret that businesses have long been awaiting a court decision that would help stem the surging tide of website accessibility cases – over a thousand of which have been filed in the Southern District of New York over the last two years. While the S.D.N.Y.’s recent decision dismissing a website accessibility complaint in Himelda Diaz v. Apple, Inc., 18-cv-07550 (LAP) (S.D.N.Y. March 28, 2019) may not have gone as far as businesses would have hoped, it is nonetheless an important victory. Ideally, by requiring greater effort from the plaintiff’s bar to successfully maintain a website accessibility lawsuit, perhaps the court will finally see a reduction in the number of such claims being filed every week.
In Diaz, plaintiff, who asserted that she is visually impaired and legally blind, alleged that Apple’s website is inaccessible to individuals who are blind, and accordingly, denied her full and equal access to its website, and as a result, its physical stores. In support of her claims, plaintiff asserted generally that when she visited Apple’s website, she encountered multiple, but unspecific access barriers. Apple moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that plaintiff had failed to allege that she had sustained any particularized injury, and additionally, noting that the complaint was identical to over four hundred other complaints that had been filed over the last two years (of which plaintiff had been a party to over forty).
The court agreed and granted Apple’s motion to dismiss. While the court acknowledged that the law permits plaintiffs to file duplicative lawsuits where the same harm exists, it added that, “those who live by the photocopier shall die by the photocopier.” In short, the court held that plaintiff’s failure to assert any concrete or particularized injury was fatal to her claims, and warranted the dismissal of the complaint. Specifically, the court was troubled by the plaintiff’s failure to provide a date that she attempted to access the physical store or to specify what good or service she was unable to purchase. Plaintiff similarly failed to identify the sections of the website that she tried, but allegedly could not, access. While plaintiff asserted that general barriers to the website existed, the court noted that she did not allege which of those barriers prevented her from accessing the store.
The court similarly rejected plaintiff’s argument that she was unable to plead the requisite injury with specificity because she was unable to determine what information was contained on the website because of its alleged inaccessibility. Relying on the “futile gesture” language of the ADA – which provides that an individual with a disability does not have to engage in a futile gesture where that person has notice that the company does not intend to comply with the ADA – plaintiff argued that the standard for futility should be even more lenient in the website accessibility context than in the brick and mortar context. Plaintiff contended that, in the digital world, a plaintiff who is blind cannot know what they are unable to access. While the court acknowledged that this doctrine may apply at some level in this context, it refused to accept that a lower threshold exists for website accessibility cases.
While this decision does not preclude serial plaintiffs from continuing to file significant numbers of similar website accessibility matters against multiple businesses, by requiring greater time and effort from plaintiff’s counsel to successfully maintain website accessibility actions, businesses can hope that the S.D.N.Y. will now be considered a less hospitable jurisdiction to file “cut and paste” style complaints. Of course, in light of Ninth Circuit’s decision in Robles, and the Eleventh Circuit’s reversal of Hooters (which, in practice, allowed plaintiffs to file website accessibility actions even where the business already has a prior website accessibility settlement agreement from a previous lawsuit), businesses should expect to continue to face website accessibility demand letters and lawsuits and, therefore, should continue their efforts to achieve substantial conformance with the Web Content Accessibility Guidelines (WCAG) 2.1 at Levels A and AA as quickly as possible.
We continue to await the Eleventh Circuit’s decision in Winn-Dixie and will have our assessment of its impact on this ever-evolving body of law shortly after it is decided.