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I Just Got Sued Again After I Settled An Accessibility Case and Was Already Fixing My Website!

From the desk of Ken...

Your company runs a website that attracts a lot of customers. One day, your company gets sued by a blind plaintiff and, after several months of negotiations, you agree to pay their attorney’s fees and make your website accessible. You hire a web developer and agree on the changes that are needed. Now you’re several months into making the changes to make your site conform to WCAG 2.0. Then, the next day, you get sued again by a different blind plaintiff for not meeting WCAG 2.0 accessibility compliance!

This scenario has come up several times in web accessibility litigation, where litigators have tried to use a defense called “mootness,” which basically says that you shouldn’t be sued for something after you’ve been sued for it already and fixed the problem. As much as you would love to tell the second plaintiff and her attorney to go jump in a lake because you’re already making the necessary changes, the law is on the plaintiff’s side. In several recent cases, this scenario has played out—and each time, mootness has not worked to make the second lawsuit go away.

Markett v Five Guys Enterprises, LLC

In Markett v Five Guys Enterprises, LLC ,2017U.S. Dist. LEXIS 115212 (S.D.N.Y. 2017), a popular New York restaurant with about 30 restaurants was nearing completion of overhauling its website when they were sued by a blind individual as part of a class action lawsuit. The court rejected the restaurant’s assertion that the claim was moot because, “While defendant may be in the process of updating the accessibility of its website, they have yet to successfully do so. Defendant has not established that ‘it [is]absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’”

Haynes v. Hooters of AmericaLLC

The lead case in this area, however, the Eleventh Circuit case of Haynes v. Hooters of AmericaLLC,893 F.3d 781(11th Cir. 2018). In this case, the well-known Hooters restaurant chain was sued by two plaintiffs and they settled with one of them. The settlement agreement required that Hooters make their website comply with WCAG 2.0 A/AA and to monitor compliance with WCAG 2.0. This was exactly the same two remedy that the second plaintiff also requested in his complaint. As expected, Hooters then moved to have the second case dismissed, claiming that it was mooted by the settlement in the first case. This argument worked at the lower district court level but it was reversed on appeal. The 11th Circuit noted that the only person who could enforce the settlement agreement was the first plaintiff. This factor, combined with the fact that the defendant could not show that it was already in compliance with WCAG 2.0 was enough to allow the court to allow the second plaintiff’s case to proceed. Haynes is important to keep in mind because it is an appellate case and it is binding precedent in Florida (where most web accessibility cases originate).

Diaz v. Lobel’s of New York

Because I work at a company that sells an excellent automated scanning tool, there is one other case that I need to point out. In Diaz v. Lobel’s of New York, 2019 U.S. Dist. LEXIS 127126(E.D.N.Y. 2019), a New York chain of meat products. Diaz v. Lobel's was sued by a blind plaintiff because their website was inaccessible. For years, the company had relied on an automated scanning tool (NOT Compliance Sheriff!!) and had assumed that their website, based on these test results, was fully in compliance with WCAG 2.0 A/AA. The defendant also included a feedback form where users with disabilities could point out inaccessible content for correction. Based on these efforts, the defendant moved for summary judgment asserting that the lawsuit was moot. This argument didn’t work as the plaintiff testified that she could not access the site because it was inaccessible. Worse yet, she also could not access the page where feedback was requested. The Diazcase is a good reminder too that automated testing does NOT fully test accessibility—no matter what a salesman may tell you. So what can we learn from looking at these cases?

One lesson is simple: simply settling and starting to fix a site is no guarantee that you won’t get sued. Unless you have fully made your site accessible—and ensure that new content will also be accessible—you’re always in danger of litigation. I can understand why that may feel like extortion from the plaintiff’s bar—especially after you have agreed to do the hard work of fixing inaccessible web content. But an inaccessible website can really be a barrier to users with disabilities just as much as a set of stairs at your front door is to a wheelchair user. I think it’s important to put frustration aside and just focus on the job at hand—make your website accessible quickly and stay on top of it to make sure it stays that way.

For more information, please reach out to info@compliancesheriff.com

Ken Nakata is the one of the most well-known attorneys in the area of IT accessibility and is the Director of Compliance Sheriff's Accessibility Consulting practice. He has worked for twelve years as a Senior Trial Attorney with the U.S. Department of Justice. He has argued on behalf of the United States government many times before the federal courts and has helped shape the government’s policies for the Americans with Disabilities Act and Section 508 of the Rehabilitation.


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