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Reprieve of Cookie-Cutter ADA Web Accessibility Cases in NY’s Southern District?

David Gibson

To be clear. I am an ADA/508 WCAG web accessibility consultant. I am not a lawyer.

Since the DOJ continues to abdicate its responsibility to establish clear rules regarding ADA website accessibility compliance to the courts, I pay particular attention to the evolving case law. And when it comes to New York, there has been plenty of web-related ADA compliance lawsuit activity. In fact, in 2018 NY saw the highest number of federal ADA cases (1564) - almost 3 times the next most active state, Florida, according to Seyfarth Shaw’s end of year report.  The New York Times brought light to this activity in its article covering how two lawyers went after art galleries in NYC. And the overall surge of web-related ADA lawsuits across the country made the Wall Street Journal the same week.

Why New York and particularly NY’s Southern District?

Up until recently, New York’s Southern Court has been consistently pro-plaintiff - thus making it a preferred district to file ADA web accessibility claims. Two recent cases, may have changed that perception, but is that perception reality?

Taking the first - the class action suit against Apple. In Mendez v. Apple, Inc in March the NYSD agreed with the defense who claimed that Mendez had failed to show an actual injury. The defense also noted that this complaint was identical to over 400 previous complaints made by this one plaintiff. The court agreed, adding “those who live by the photocopier shall die by the photocopier.” Great quote! But of course there is no law to stop duplicative lawsuits, so the court pointed out the lack of specificity by, for example, by failing to indicate which goods or services she was unable to purchase, or even what sections of the website she was blocked from. 

The takeaway here is that cookie-cutter complaints don’t cut muster any more in this district. However, the bar is still set pretty low.  Plaintiffs just need to put in a bit of  effort to provide more details, which in most cases certainly exist. 

In the second case, Diaz v Kroger, the same NY Southern District Court dismissed based on two points. First that plaintiff lacked “personal jurisdiction” since the Kroger doesn’t have any grocery stores in NY. More interesting is that the court also cited “mootness” as the company had completed remediation of the website by the time of the hearing. 

The takeaway here is to move quickly to audit and remediate your website to conform to WCAG 2.0 (if not WCAG 2.1) A, AA levels at the first sign of a potential legal action. The wisest course would of course be to avoid the threat in the first place by proactively remediating the website as soon as possible, or building a fresh ADA compliant website that meets current WCAG 2.1 A, AA standards. 

Can State Lawmakers Do Anything?

Likely not, but that isn’t stopping them from trying. According to the New York Law Journal, state lawmakers plan to create a legal standard for web accessibility. The problem is that these cases are being filed in Federal Court, and Federal Law trumps state.

Are Website Owners Out Of The Woods In NYSD?

Unless you’re already remediating your website, the answer is heck no. While the district can expect to see a decline in serial cookie-cutter lawsuits, the bar is still very low. All plaintiffs need to do is put a basic level of effort to demonstrate a specific and practical use-case for the website’s failure and subsequent harm.