Today’s blog entry deals with two different cases and both of them deal with standing. The first case, Smith v. Golden China of Redwing, Inc., decided by the Eighth Circuit on February 17, 2021, which can be found here185186201204204, is the appeal of a case that we blogged on previously, here186187202205205. We won’t spend a lot of time on Smith. Suffice to say, that the Eighth Circuit dismisses the case without prejudice because they found that the plaintiff’s allegations of intent to return were not shown with sufficient specificity even after discovery occurred. For standing to be had, specificity is needed and not general and conclusory statements, especially after discovery has occurred.

The second case is Langer v. Manny Moe and Jack decided by the Northern District of California on January 15, 2021, which can be found here187188203206206. Richard Hunt previously wrote a summary of this case on his blog. As readers of my blog know, it isn’t unusual for me to blog on something that Richard has already blogged on if I feel like I can offer a different perspective. This is one of those situations. The facts of Langer are pretty straightforward. What you have here is a hard of hearing individual who went to the Pep Boys website. The website had videos but no captioning. The hard of hearing individual sues because he is not able to access the videos and thereby obtain the full use and enjoyment offered by Pep Boys with respect to its facilities, goods, and services. Pep Boys defends on the grounds that plaintiff’s claims were mooted by the launch of an entirely new website. They also defended on the grounds that the plaintiff lacked standing. The court finds that the claims were not moot but that the plaintiff lacked standing for the reasons to be explored below. As usual, the blog entry is divided into categories and they are: case is not moot; standing; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Case Is Not Moot

 

  1. Courts are more reluctant to find that in ADA plaintiff’s claims are mooted where the alleged barriers are not structural in nature v. when they are structural in nature because nonstructural barriers are more likely to recur.
  2. The Supreme Court has carved out an exception to mootness for acts that are capable of repetition yet evading review.
  3. In the case of a website lacking closed captioning for their videos, a defendant could easily remove any particular video immediately after a lawsuit is filed in order to moot the plaintiff’s claim. Then, the same defendant could also continue to upload such videos with impunity or fail to implement adequate safeguards to prevent future violations.
  4. When considering whether a violation is likely to recur, courts need to consider the bona fides of the express intent to comply, the effectiveness of the discontinuance, and the character of past violations.
  5. While it is true that testimony from Pep Boys indicated that Pep Boys has been developing an updated website for 18 months prior to beginning this litigation and that Pep Boys undertook extensive effort to ensure its website complied with WCAG, that testimony lacked some key information, such as: 1) the testimony was that the previous website was WCAG compliant and yet Pep Boys conceded that the video the plaintiff viewed on the old website did not have closed captioning; 2) the testimony did not explain whether uploading that video was a one time lapse in an otherwise compliant policy and if so, why Pep Boys failed to identify it; 3) the testimony did not say whether or how many other videos lacked closed captioning prior to September 2020, so there is no evidence regarding Pep Boys history of violations or lack thereof; 4) Pep Boys did not present any argument or evidence regarding WCAG standards, such as a declaration from an ADA consultant with expertise in WCAG standards; 5) it is unclear what specialized knowledge the person testifying had with ‘WCAG compliance, particularly since Pep Boys did not explain the relevant WCAG standards; and 6) website compliance with WCAG standards is informative but not dispositive of whether it violates the ADA.

 

II

Standing

 

  1. Ninth Circuit case law establishes that an ADA plaintiff may establish standing either by demonstrating deterrence or by demonstrating an injury in fact coupled with an intent to return to a noncompliant facility.
  2. On their own, websites are not places of public accommodations in the Ninth Circuit per Cullen188189204207207, which was affirmed on appeal here189190205208208. We discussed the Cullen oral argument at the Ninth Circuit in this blog entry190191206209209.
  3. Robles191192207210210, which we discussed here and is the famous Domino’s pizza case that United States Supreme Court denied cert. for, held that websites and applications are covered by the ADA to the extent there is a nexus between the website and the physical location. That is so long as there is a nexus between independent physical locations and its website or web based mobile app, discriminatory barriers impeding access to goods and services can give rise to an injury under the ADA.
  4. A plaintiff who fails to allege any connection between the website barriers and a physical location does not have an ADA claim. See this blog entry192193208211211.
  5. Plaintiff does not explain how the alleged violations have a nexus to Pep Boys physical locations. For example, plaintiff does not allege that he intended to visit a Pep Boys location and could not because the website was not accessible. He also did not represent that he was trying to use the website to order goods or services from Pep Boys physical locations. Rather, he merely suggested that the website’s videos are themselves a service that he was prevented from accessing. The claim doesn’t fly because case law makes clear that websites and the services offered on them are not public accommodations absent a nexus to a physical location. So, plaintiff’s allegations that he has difficulty watching a video on Pep Boys website is not sufficient by itself to allege injury under the ADA.

 

III

Thoughts/Takeaways

 

  1. Courts are beginning to fight back against the serial plaintiff, whether architectural drive-by or those who surf websites.
  2. General statements and conclusory statements dealing with a plaintiff’s intent to return are not cutting it in these two cases. In Red Wing, plaintiff testified that he didn’t even like Chinese food and wasn’t planning on going back unless the lawyer he works with directed him to do so.
  3. Just what is a gateway is a bit of a mess. The courts are all over the place as to when a sufficient nexus exist or not. In Langer, you had a hard of hearing individual but without specific allegations about how that hard of hearing individual wanted to use Pep Boys himself, his claim failed.
  4. As I have mentioned here193194209212212 and here194195210213213, I don’t believe the gateway theory for website accessibility will prove to be the ultimate rule in the end. Instead, I believe you are going to be looking at whether it is the of the type of business listed in 42 U.S.C. §12181(7), the ScribD approach, discussed here195196211214214, because of the some 23 different statements made by the United States Supreme Court in South Dakota v. Wayfair, which we discussed here196197212215215.
  5. Mootness in the absence of an expert that can testify as to how the website is complying with WCAG standards may be very difficult to pull off with respect to websites.
  6. WCAG standards continues to be the gold standard. The legal standard is meaningful accessibility. There are times when the WCAG standards still may not result in meaningful accessibility. You may need expert testimony here.
  7. The court puts it well when it says that website compliance with WCAG standards is informative but not dispositive of whether it violates the ADA. On this question, we are still waiting to see what the 11th Circuit will say in the Winn-Dixie case, which has been under review for quite some time now and no one knows how much longer they will take.
  8. If you have videos, make sure they are captioned. Otherwise, you are a sitting duck for litigation.

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