ADA Website Compliance Cases Create Additional Guidance
Two cases from the U.S. District Court of the Southern District of New York (SDNY) provide some guidance to website owners handling federal court complaints brought under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (the “ADA“). In one case, defendant (a) initiated its ADA compliant revisions of its website prior to suit, (b) completed its website revisions by time it responded to the complaint (in a motion to dismiss), and (c) confirmed in an affidavit that it would maintain website ADA compliance in the future. The District Court dismissed the complaint. Diaz v. The Kroger Co., Case No. 18-civ-7953 (SDNY June 4, 2019) (Copy of full opinion available here). In a second case, the website owner failed to specify any injuries, such as what stores she tried to visit or what good or service she was prevented from purchasing. The Court then dismissed her ADA complaint against the website owner. Mendez v. Apple Inc., Case No. 1:18-cv-7550 (SDNY, March 28, 2109) (Copy of full opinion available here).
In Diaz v. Kroger Co., Plaintiff Diaz claimed that the website of Defendant grocery store Kroger Co. was not compliant with Title III of the Americans with the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (the “ADA”). Kroger moved to dismiss claiming that it remedied the barriers to access in its website, and that it does not conduct business in New York State.
Plaintiff is a visually-impaired and legally blind individual. Kroger has a website from which consumers may purchase goods for delivery. The website also provides information on Kroger promotions and coupons, as well as the calorie content and optimal cook time for certain food items. Plaintiff visited the website on several occasions and encountered accessibility barriers, including the inability of information to be rendered into text.
Kroger argued that the court lacks subject matter jurisdiction over this case because Kroger made modification to the website before and after plaintiff initiated this lawsuit. Kroger submitted an affidavit submitted by Defendant’s Group Product Design Manager stating that Kroger remedied all of the alleged ADA violations; it has ensured that no additional barriers to accessing the website exist; and it has committed to ensuring access on a going-forward basis.
Several courts in the SDNY have found, on the facts of those cases, that the defendants failed to establish mootness of the ADA claims. See, e.g., Sullivan v. Study.com LLC, No. 18 Civ. 1939 (JPO), 2019 WL 1299966, at *5 (S.D.N.Y. Mar. 21, 2019). Wu v. Jensen-Lewis Co., 345 F. Supp. 3d 438, 442 (S.D.N.Y. 2018); Del-Orden v. Bonobos, Inc., No. 17 Civ. 2744 (PAE), 2017 WL 6547902, at *11-12 (S.D.N.Y. Dec. 20, 2017); Feltenstein v. City of New Rochelle, 254 F. Supp. 3d 647 (S.D.N.Y. 2017).
However, Mr. Diaz’s case was different. Kroger’s affidavit did not present some future plan for remediation of the website, or some conclusory assertions that the website is now compliant with the ADA. Instead, Kroger’s affidavit specifically stated that (i) Defendant undertook compliance with the WCAG standards before the lawsuit was filed; (ii) the website is today compliant with those standards; (iii) he personally confirmed that the specific barriers to access identified in Plaintiff’s initial and amended complaints “have been remedied and that no such barriers to access, as alleged, still exist with the website”; (iv) Defendant has no intention of undoing those changes or regressing to non-compliance with the ADA; and (v) Defendant commits “to keep its website up to date and compliant with all applicable standards to make the website as accessible to all as possible.”
The Court stated: “This is a level of detail that the Court has not observed in the other cases it has reviewed.”
In the second case, Mendez v. Apple Inc., Mendez brought a class action against Apple Inc. alleging violations of the Americans with Disabilities Act (“ADA”) and other state laws. Plaintiff is legally blind and alleged that Apple has denied her full and equal access to its website, and as a result, its physical stores. Apple moved to dismiss the claims under Rules 12(b) (1) and 12(b) (6).
To survive a defendant’s Rule 12(b) (1) motion to dismiss, a plaintiff must allege facts that affirmatively and plausibly suggest that he or she has standing to sue. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). The Court stated: “The Complaint boils down to Plaintiff’s allegation that general and systemic barriers on Defendant’s website prevented her both from accessing goods and services on the website, as well as accessing goods and services in Defendant’s physical stores.”
There are no injuries in fact pleaded because the purported injuries described lack all the requisite specificity. Cf. Lawrence Feltzin v. Triangle Properties #1, LLC, 14-CV-5131 at 10 (E.D.N.Y. Dec. 15, 2016) (finding that plaintiff provided “no details at all concerning any instance in which he allegedly encountered a violation,” relying on plaintiff’s failure to list any particular businesses he frequented or in which he encountered a violation). Plaintiff did not give a date that she tried to access the physical store or what good or service she was prevented from purchasing. She does not identify sections of the website she tried to access but could not. Finally, while general barriers are listed, she does not allege which one of them prevented her from accessing the store.
The Court dismissed the complaint.