This week, the District Court of the Western District of Washington rejected an online retailer’s argument that an Americans with Disabilities Act (ADA) claim was moot based on remedial action taken to improve the retailer's website after the complaint was filed. This follows on the heels of a similar decision last month from the Eleventh Circuit Court of Appeals, which ruled that a website remediation plan resulting from a settlement in an almost identical earlier-filed suit is not enough to moot a new lawsuit’s demand for injunctive relief under Title III of the ADA.
Mootness is one of the primary defenses that retailers use to combat the ever-increasing numbers of website accessibility lawsuits. It is particularly important to retailers that have already agreed to make their websites accessible pursuant to a prior settlement agreement, but are nevertheless facing copycat lawsuits from additional plaintiffs. To the extent these decisions may curtail the circumstances in which mootness can be invoked as a defense to copycat claims, retailers should expect to see more of them.
Long v. Live Nation Worldwide, Inc., Case No. 2:16-cv-01961 (W.D. Wash. July 23, 2018)
Plaintiff Barry Long uses a wheelchair to attend Seahawks football games at CenturyLink Field in Seattle. The defendants operate websites that sell or facilitate the sale of tickets to those games. Long alleged that he was unable to find wheelchair accessible tickets that met his needs because of various deficiencies in the defendants' websites, such as failing to identify which tickets were wheelchair accessible. Long alleged that these deficiencies violated the ADA and the Washington Law Against Discrimination (WLAD).
It is interesting to note that this is not a typical "website accessibility" case. Here, Long complained that deficiencies in defendants' websites prevented him from accessing "goods, services, facilities, privileges, advantages, and/or accommodations ... afforded to non-disabled individuals." But unlike other cases, the deficiencies in the defendants' websites did not prevent Long from accessing the websites themselves.'
After the complaint was filed, the defendants changed the way their websites operated to address the concerns in Long’s complaint. The defendants then moved for summary judgment on two grounds: (1) that the relevant website was not a place of public accommodation within the purview of the ADA and (2) in any event, Long's claims were now moot because all wheelchair accessible tickets were now sold in the same course and manner as all other tickets. The court denied the defendants’ motion on both grounds.
With respect to the defendants' mootness argument, the court appeared to take issue with the timing and extent of the defendants' changes, finding that "notwithstanding the most recent changes, [the website] still provides options for non-accessible seats that it does not provide for accessible seats." More problematic, however, was the court's finding that the defendants had "not put forth sufficient evidence suggesting that the challenged conduct will not recur." In pertinent part, the court wrote:
"This evidence showing that Defendants voluntarily modified the Exchange Website throughout the pendency of this litigation is, without more, insufficient to moot Plaintiff’s claims. [ ] If anything, Defendants' numerous changes to the Exchange Website since this lawsuit started showcases just how easy it is for Defendants to change their websites. Defendants could just as easily abandon the Exchange Website at any point in the future and revert back to one of the earlier versions. Indeed, Defendants have made no attempt to put forth any evidence to the contrary. For these reasons, the case is not moot and Defendants are not entitled to summary judgment on this basis."
In other words, the defendants' act of remediating their website after the filing of the complaint was the same evidence that precluded the court from finding "it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur" and thus that the claim was moot. The court faulted the defendants for making "no attempt to put forth any evidence to the contrary," but the court also provided no indication as to what that evidence might have been or that it would have been sufficient.
Haynes v. Hooters of America, LLC, --- F.3d ---, 2018 WL 3030840 (11th Cir. 2018)
Plaintiff Dennis Haynes is blind and a disabled person within the meaning of the ADA. He and his attorney, Thomas Bacon, are some of the most prolific litigants of website accessibility cases in the country.
On April 4, 2017, Haynes sued Hooters of America, LLC (Hooters) in the Southern District of Florida seeking declaratory and injunctive relief under the ADA. In pertinent part, Haynes requested that:
- the district court enter an order directing Hooters to alter its website to make it accessible to, and usable by, individuals with disabilities to the full extent required by the ADA; and
- the district court enter an order directing Hooters to continually update and maintain its website to ensure that it remains fully accessible to, and usable by, visually impaired individuals.
Prior to the initiation of Haynes' suit, a different plaintiff filed a separate and nearly identical website accessibility lawsuit against Hooters. The parties settled their dispute on September 29, 2016 (the Gomez Settlement Agreement). As part of that agreement, Hooters agreed to place an accessibility notice on its website within six months and to improve accessibility on its website within 12 months to conform to the WCAG 2.0 standard, the industry standard for website accessibility.
Hooters moved to dismiss Haynes' suit. The district court granted Hooters' motion, holding that Haynes' claims were moot given that Hooters had already agreed to remedy, pursuant to the Gomez Settlement Agreement, all of the website accessibility issues identified by Haynes. The court also found that there were no allegations that the relief requested by Haynes differed from the relief addressed by the Gomez Settlement Agreement, and, thus, there was no live controversy warranting the court’s intervention.
The Eleventh Circuit disagreed and vacated the district court's decision for a number of reasons. First, while Hooters was in the process of updating the accessibility of its website, there was nothing in the record demonstrating that it had successfully done so. Second, some of the relief requested by Haynes was not covered by the Gomez Settlement Agreement. Specifically, Haynes requested an injunction (a) that he could enforce against Hooters and (b) that obligated Hooters to continually update and maintain its website to ensure that it remains fully accessible. The Gomez Settlement Agreement only required the site to become compliant. Third, Haynes was not a party to the Gomez Settlement Agreement. Consequently, if, for whatever reason, Hooters did not remediate its website in accordance with the Gomez Settlement Agreement, Haynes would have had no way of enforcing the remediation plan.
Impact to Retailers
For the retail industry, these two decisions are discouraging to the extent they potentially curtail one of the primary defenses used to combat ever-increasing numbers of copycat website accessibility lawsuits. This will be particularly frustrating for retailers that already have accessible websites or are actively remediating their websites as they may face the prospect of more lawsuits seeking relief that the retailer has already undertaken or is underway.