The rate of ADA website and mobile app accessibility lawsuits filed in federal courts is approaching one every working hour. And in 2019, about 25% of these lawsuits were against defendants that had been sued previously. What can companies do to prevent getting sued (or re-sued)? A recent decision from the Southern District of New York (SDNY) supports the advice we have been giving our clients—bring your website into WCAG 2.0 compliance as quickly as possible.
In that case, Diaz v. Kroger Co., a legally-blind plaintiff sued Kroger – an Ohio-based supermarket chain – alleging that its website was not fully accessible to blind or visually-impaired individuals. In support of its motion to dismiss, Kroger submitted an affidavit stating that after receiving plaintiff's complaint, Kroger reviewed and remedied all of the alleged deficiencies in its website. The court found that Kroger's remediation efforts and commitment to "monitoring technological developments in the future to ensure that visually-impaired individuals have equal access to the website" mooted plaintiff's claims. The court noted that dismissal was warranted for the additional reason that it lacked personal jurisdiction over Kroger, as Kroger has no retail presence in NY, and does not sell, through its website, goods or services to NY residents.
This decision stands in contrast to other recent SDNY decisions rejecting mootness arguments where the defendants' website remediation efforts were not complete and/or fully documented. See Sullivan v. Study.com LLC, No. 18 Civ. 1939 (JPO), 2019 WL 1299966, at *5 (S.D.N.Y. Mar. 21, 2019) (rejecting mootness argument where plaintiff identified continued barriers to accessing certain videos on defendant's website); Wu v. Jensen-Lewis Co., 345 F. Supp. 3d 438, 442 (S.D.N.Y. 2018) (same, where defendant did "not provide any affirmative showing that its current website is ADA-compliant, and will remain that way, beyond asserting so and citing to the website itself"); Del-Orden v. Bonobos, Inc., No. 17 Civ. 2744 (PAE), 2017 WL 6547902, at *11-12 (S.D.N.Y. Dec. 20, 2017) (same, where complaint alleged, and court's review of website confirmed, at least one continued barrier to access).
The key take-away is that companies should work toward achieving WCAG 2.0 compliance as quickly as possible, and should document their efforts, to moot any pending or threatened claims concerning the accessibility of their websites and mobile apps.
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
