Seyfarth Synopsis: SDNY Judge Mary Kay Vyskocil dismisses with prejudice a website accessibility lawsuit with vague allegations about plaintiffs' standing.
The U.S. District Court for the Southern District of New York (SDNY) has been a highly favored venue for serial plaintiffs bringing website accessibility lawsuits for years – at least in part because many judges have refused, at the outset of a case, to dismiss complaints with boilerplate allegations about a plaintiff's standing to sue. However, last year, we saw one decision from SDNY Judge Colleen McMahon that conducted a more rigorous standing analysis in website accessibility cases, and last week another SDNY Judge Mary Kay Vyskocil took a similar approach. Judge Vyskocil dismissed with prejudice a website accessibility complaint for lack of standing after a meaningful analysis of the plaintiffs' boilerplate complaint.
The plaintiffs – two self-described testers who are blind – sued an online retailer, claiming that the retailer's website violated the ADA and the New York State Human Rights Law because of various technical barriers that the plaintiffs allegedly encountered. The plaintiffs had previously filed multiple lawsuits against operators of various commercial websites.
The Complaint allegations were vague but similar to those that some other SDNY judges have considered sufficient to establish standing at the outset of a lawsuit. The plaintiffs alleged that they visited the website for the purpose of purchasing products, goods, and/or services and that each encountered various technical barriers, such as "redundant links" and "improperly labeled headings." As to their intent to return to the website, the plaintiffs alleged that they were "highly interested" in purchasing Defendant's products and intended to purchase certain goods and services in the future, and intended to return to the website once the alleged accessibility barriers were removed.
The Court held that Plaintiffs' conclusory allegations failed to establish an injury in fact to confer standing. The Court noted that Plaintiffs each alleged only a single visit to the website and alleged no facts supporting their interest in the products or services on the website, such as how they learned of the website, what piqued their interest in the website, what particular products they viewed or were interested in purchasing, and whether they searched for comparable products elsewhere.
The Court pointed to the plaintiffs' other "carbon-copy complaints," nine of which were filed on the same day as the Complaint at issue, as further evidence that Plaintiffs did not suffer an injury in fact, referencing the Second Circuit's Calcano decision blasting "Mad-Libs-style" complaints.
Notably, while dismissals based on lack of standing are typically without prejudice, the Court issued the decision with prejudice and denied Plaintiffs' leave to amend. The Court justified its decision with Plaintiffs' refusal to amend the Complaint even after the defendant pointed out all the pleading deficiencies in its pre-motion letter to the Court.
The Court also dismissed Plaintiffs' NYSHRL claim based on lack of standing, rather than following the usual course of declining to exercise subject matter jurisdiction over state law claims.
This decision suggests that some SDNY judges may be fed up with the volume of "cut and paste" complaints in their courts and actually requiring Plaintiffs to plead facts, as opposed to boilerplate conclusions, to establish standing. Let's see if this becomes a trend.
Edited by John W. Egan
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