United States: "Can They Sue Me If We're Already Fixing The Problem?" How To Build A Successful Defense Against Website Accessibility Lawsuits

Last Updated: October 11 2018
Article by Nicholas M. Reiter and Karel Mazanec

Website accessibility lawsuits are now legion. As we have previously reported, website accessibility plaintiffs have secured a series of victories in recent years, including a landmark verdict in the first-ever website accessibility trial in June 2017. Companies that face such lawsuits, or threats of such lawsuits, often have limited options for a legal defense. One potential option is a mootness argument. Under that defense, the company may assert it has removed or is removing the barriers to accessibility at issue in the lawsuit. Four recent cases show four different judicial responses to that argument.

Moot After Complete Removal of Barriers

This past April, in Carroll v. New People's Bank, Inc., a website accessibility defendant prevailed on a motion to dismiss in part because the defendant's own voluntary revisions to its website rendered the lawsuit moot. When the bank received a demand letter threatening litigation because its website was inaccessible, it hired an accessibility consultant to revise its website, and promptly implemented the suggested changes. When the parties still could not reach a resolution, the plaintiff sued. The bank moved to dismiss, arguing (among other things) that the lawsuit was moot because the bank had removed the barriers to accessibility identified in the complaint.

A Virginia federal court agreed. Judge James P. Jones ruled that the case was moot because the bank had completely removed the barriers to accessibility. There was no reason to believe the bank would re-implement those barriers. The judge explained that the plaintiff's allegations were "premised upon a website that no longer exists," replaced with a new website that boasted "substantially expanded accessibility options." Additionally, Judge Jones noted that because the plaintiff did not allege that he intended to use the bank's services, he did not establish an "injury." Therefore, he lacked standing to bring the claim.

Not Moot Because Remediation was Ongoing

A New York federal court reached an entirely different conclusion in Marett v. Five Guys Enterprises. The judge in that case rejected the defendant's mootness argument because the defendant was merely "in the process of updating the accessibility of its website," the process was not yet complete, and the defendant failed to establish that the allegedly wrongful behavior "could not reasonably be expected to recur."

Not Moot Based on Combination of Factors

Similarly, in Haynes v. Hooters of America, LLC, the plaintiff asked the court to order a restaurant franchise to undertake remedial measures that the franchise had already agreed to undertake pursuant to a settlement agreement reached in a prior website accessibility lawsuit. The plaintiff argued that the website was not yet accessible and that the defendant's mere plan to revise the website could not moot his claims. The district court judge granted the defendant's motion to dismiss, ruling that the claims were moot because the defendant had already agreed to remove all of the website accessibility barriers of which the plaintiff complained. According to the district court in that case, merely ordering the defendant to do something it had already promised to do did not afford the plaintiff any meaningful relief.

On appeal, the Court of Appeals, Eleventh Circuit reversed. The appeals court held the case was not moot because (1) the record did not establish that the defendant had successfully completed its remediation efforts; (2) the remedial measures in the prior settlement agreement adequately addressed most, but not all, of the relief requested by the plaintiff (e.g., the plaintiff sought an injunction requiring the defendant to continually maintain its website's accessibility); and (3) the plaintiff would have no way to enforce the third-party settlement agreement should the defendant fail to appropriately remediate its website. Whether a mootness argument would work in the Eleventh Circuit if remediation efforts were successfully completed, or if the prior settlement agreement did address all relief requested by the new complaint, remains to be seen.

Stayed Pending Removal of Barriers

Finally, the Southern District of Florida recently stayed a website accessibility case where the defendant simply promised to remove the barriers to access. The plaintiff objected to the stay request and demanded discovery, but the court noted: "Where a defendant, after notice, voluntarily agrees to remove the barriers identified in a plaintiff's complaint, there is no proportional need for costly and inefficient discovery for which the only purpose is to generate attorney's fees."

Depending on the circumstances, unilateral remedial measures may be an effective strategy to deter a plaintiff from filing an accessibility lawsuit, or for obtaining a stay or outright dismissal after filing. You should consult counsel with experience in this area before proceeding with this type of legal strategy, to ensure that you derive maximum legal benefit from undertaking such a course of action.

Join us on September 25, 2018 for a complimentary webinar discussing website accessibility issues. We will address these and other defense strategies, the state of website accessibility law, as well as practical guidance to minimize your organization's risk of website accessibility litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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