Overview
Retailers and other companies have been increasingly caught up in an explosion of boilerplate claims under the Americans with Disabilities Act (ADA), focusing on both websites and physical stores (see our previous coverage here, here, here, and here). While the plaintiffs' bar has had a strong run with these claims in recent years, recent decisions in the Southern District of New York, as well as a new complaint filed by the Riverside District Attorney, have given hope to companies defending against the (unfortunately common) frivolous claims in this space that the tide may be finally turning.
On the ADA website front, on June 4, 2019 the Southern District of New York issued a decision in Diaz v. The Kroger Company, which potentially creates a "safe harbor" for companies that have started remediation efforts, but have not yet completed them by the time a new complaint is filed (so long as the remediation is completed by the time the motion to dismiss is filed). In Diaz, Judge Failla held that an ADA web access claim is rendered moot where: (1) a defendant undertook compliance with the WCAG standards before the lawsuit was filed; (2) the website is presently compliant; (3) an affidavit confirmed that the specific barriers encountered by the plaintiff had been addressed; and (4) the defendant had no intention of un-doing the changes and planned to keep their website compliant. Specifically, Judge Failla noted that, while mere plans to remediate the website would not render the claims moot, the fact that the alleged website issues in the complaint had already been addressed was sufficient. Judge Failla also held that a website not directed at New York consumers (here, a grocery store chain whose nearest store was 275 miles from New York) could not be subject to personal jurisdiction in a New York court.
In another important website decision on March 28, also out of the Southern District of New York, Mendez v. Apple Inc., Judge Preska dismissed the case, finding that the plaintiff's purported injuries lacked the requisite specificity. While plaintiff there claimed that she could not access Apple's website, she gave no dates for the purported visit, did not describe what parts of the site she tried to visit, and did not allege what barriers prevented her from accessing the site. All plaintiffs alleged were "general barriers" that could apply to any website on the internet.
As to the boilerplate allegations that are frequently repeated from suit to suit in these cases, Judge Preska concluded:
There is nothing inherently wrong with filing duplicative lawsuits against multiple defendants if the harms to be remedied do exist and are indeed identical. But those who live by the photocopier shall die by the photocopier. By failing specifically to assert any concrete injury, Plaintiff’s claims fail as a matter of law.
In California on April 24, the District Attorney for Riverside County brought California v. Rutherford against a particularly litigious ADA plaintiff and the plaintiffs' firms that filed his boilerplate complaints. According to the complaint, Rutherford had served as the plaintiff in more than 120 complaints alleging access barriers for various physical establishments that contained identical vague allegations of the barriers encountered at each location. The District Attorney alleged that Rutherford had no intention to return to any of these businesses and conspired with his lawyers to bring meritless complaints in violation of California's unfair competition statutes.
Boilerplate claims, whether for physical stores or customer-facing websites, often follow the same playbook: indeed, one of the plaintiff's firms named as a co-conspirator in the Rutherford action for frivolous physical barrier cases has also brought a host of ADA website over the past few years. While the cases above will not immediately stem the tide of frivolous lawsuits, they send a clear message that ADA complaints must contain bona fide claims—which would benefit both disabled consumers and the companies trying to make their products accessible to all of their customers.