Hi, my name is Jorge Pacheco, with Kulture Konnect branding and digital marketing, and today the big question today is whether the tide is turning for restaurants struck by the wave of website accessibility lawsuits?
Over the past few years, we’ve seen a lot of plaintiff-friendly decisions and thousands of ADA filings, but a handful of federal courts across the country recently provided some hope to restaurants by granting motions to dismiss based on lack of subject matter jurisdiction, lack of personal jurisdiction, and lack of standing.
There are a few examples, that, even though they are not restaurant related, it gives hope to all:
- In Ohio, a federal court granted a credit union’s motion to dismiss for lack of standing because the plaintiff did not articulate any reason to revisit the website or state an intention to visit the website if the alleged barriers are remedied.
- In July, a New York federal court dismissed claims against a franchisor of in-home care businesses because the franchisor does not make any revenue from its website and the website has no transactional functionality.
- In June, a New York federal court granted a supermarket chain’s motion to dismiss because it remediated the alleged barriers to access its website and committed to ensuring access in the future.
- In May, a New York federal court dismissed claims against a construction company because it is a Washington State corporation and only performs general contracting services in Washington, Idaho, and Oregon.
- In April, a Florida federal court ruled that a plaintiff failed to adequately plead his standing to sue a golf club since he lived more than 100 miles from the golf club and never visited it before.
- In March, a New York federal court found that a plaintiff lacked standing to proceed with her website accessibility claims because she failed to assert any concrete injury. The court warned: “[T]hose who live by the photocopier shall die by the photocopier.”
- In January, the Fourth Circuit upheld the dismissal of website accessibility claims against a credit union based on lack of standing because the plaintiff was not eligible for membership in the credit union. In so ruling, the Fourth Circuit suggested that the information a plaintiff claims he or she is unable to obtain must have some relevance to that plaintiff.
While these decisions are highly fact-specific and, to some extent, jurisdiction-specific, they offer a glimmer of hope to restaurants faced with website accessibility claims and potentially provide three roadmaps for defending against such claims.
1. If, for example, your website is accessible by an objective measure and you are committed to maintaining accessibility, then the plaintiff’s claims may not have any grounds.
2. If you have no connection to the state, then the court may not have personal jurisdiction over you.
3. If the plaintiff is sloppy and “cuts and pastes” his or her allegations (without appropriate editing and level of detail) or fails to allege a credible desire to obtain goods and services from your website or an intent to return to your website, then the plaintiff may lack standing.
Again, this give us hope as business owners and allows us to figure out ways to keep our ground and, for a lot of us, stay in business.
As always, if you want to take a quick scan of your website to find out whether it is compliant, go to ada.kulturekonnect.com.