Seyfarth Synopsis: A recent Second Circuit decision holds that a plaintiff's encounter with an alleged legal violation on a website, without more, does not give that plaintiff standing to sue under Title III of the ADA.
New York federal courts have been inundated with website accessibility lawsuits in recent years and continued to lead the country with 2,074 cases filed in 2021. By comparison, California came in at a distant second with only 359 filings for the same period. Most of these 2,000+ New York lawsuits have been filed by a relatively small number of firms on behalf of blind plaintiffs who make vague and conclusory allegations about how they could not access the goods and services on dozens, if not hundreds of websites. Usually, these boilerplate complaints contain no information about what goods and services the plaintiffs actually wanted to access or why they needed these goods and services.
Thanks to a recent ruling by the U.S. Court of Appeals for the Second Circuit in Harty v. West Point Realty, defendants in these lawsuits should now have a stronger basis for getting the cases dismissed for lack of standing. To have standing to bring a federal lawsuit, a plaintiff has to show that he or she has suffered a harm that is “concrete” and “particularized”. In West Point, the Second Circuit made clear that simply encountering a barrier to access on a website is not a concrete and particularized injury. In that case, the plaintiff sued a hotel located in West Point, Florida under the ADA for having a website with allegedly insufficient accessibility information (ADA regulations require that certain information be provided on the websites of hotels regarding their accessible features for people with mobility, vision, and hearing disabilities). The Second Circuit upheld the district court's dismissal of the lawsuit for lack of standing, finding that “[b]ecause [the plaintiff] asserted no plans to visit West Point or the surrounding area, he cannot allege that his ability to travel was hampered by West Point Realty's website in a way that caused him concrete harm.”
The Second Circuit also made clear that the plaintiff's inability to obtain information from the website alone was not a sufficient injury to confer standing. On this point, the Court stated:
“[e]ven assuming that Harty can allege that he was deprived of information to which he is entitled by the ADA, he must also allege downstream consequences from failing to receive the required information in order to have an Article III injury in fact. In other words, Harty must show that he has an “interest in using the information … beyond bringing [his] lawsuit. That he has not done. Harty, therefore, has not alleged an informational injury sufficient for Article III standing.”
In short, to bring a lawsuit about a website's compliance with the ADA, a plaintiff has to show that he or she had a need for the information, goods and services offered by the website and that there were “downstream consequences” resulting from the alleged inability to use the website.
The Second Circuit is not the first Court of Appeals to reach this conclusion. The Tenth Circuit and Fifth Circuit have all adopted this principle in the past year. The Eleventh Circuit, on the other hand, recently decided that simply encountering a violation on a website could result in a concrete and particularized injury needed for standing. Could there be a Petition for Certiorari to the Supreme Court forthcoming?
For the time being, West Point is binding on district courts in the Second Circuit, including those in New York where the vast majority of website accessibility lawsuits have been filed. West Point's usefulness for businesses defending website accessibility lawsuits will depend on the nature of the website at issue in a lawsuit and, of course, how well a complaint is drafted. At a minimum, it will be more difficult for a plaintiff to claim that he or she was harmed by the inaccessibility of a website that offers unique goods, services, and information for which he or she does not have a need.
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