Seyfarth synopsis: Leading the country with 3,173 federal ADA Title III lawsuits in 2022, plaintiff-friendly court decisions will likely keep New York in the top spot.
It is no surprise that New York has become the nation's leader in ADA Title III and website accessibility litigation, bypassing California by a substantial margin in 2022. District Court judges in New York – especially in the Southern District – have been increasingly reluctant to dismiss website accessibility lawsuits before discovery.
Cases in point:
In Loadholt v Shirtspace, the blind plaintiff alleged that he attempted to access the defendant's website with his screen reader to buy a T-Shirt and encountered various barriers to access. Joining the "vast majority of courts" in the Southern District and consistent with his prior opinion in Slade v. Life Spectacular, Inc., U.S. District Judge Andrew Carter held that the defendant's online-only business is a public accommodation covered by the ADA. (This question has not been addressed by the Second Circuit Court of Appeals, which decides appeals from New York federal courts). Judge Carter also found that plaintiff's allegations regarding the barriers allegedly encountered on the website, such as multiple dead links, were sufficient to state a claim and that plaintiff's allegations regarding the T-shirt he intended to purchase, as well as his to return to the website to purchase several T-shirts once the website is made accessible, were sufficient to confer standing. Lastly, the judge denied defendant's request to dismiss and/or strike plaintiff's demand for civil penalties, fines, and punitive damages under the NYCHRL as premature.
In Weekes v The Outdoor Gear Exchange, Inc., the blind plaintiff alleged he encountered various barriers on defendant's website, which offers a variety of products for outdoor activity, that prevented him from purchasing a carry-on bag. Defendant's website offers a live telephone customer service representative during store hours whom customers can interact with to learn about defendant's products and facilitate purchases. U.S. District Judge Ramos found that the availability of customer service representatives as an alternative auxiliary aid had no impact on whether plaintiff had suffered an injury in-fact for standing purposes, and noted that it is unclear whether customer service representatives would even serve as an effective alternative auxiliary aid if they cannot read plaintiff's screen and are unavailable outside of business hours. Other courts have issued similar rulings, particularly at the motion to dismiss stage. Judge Ramos also denied Defendant's request to transfer venue to Vermont. Notably, while the defendant did not argue that its website was an online-only business exempt from ADA requirements, the Judge cited a holding in another decision issued by a Southern District of New York judge that a website with no nexus to a physical location where goods and services are offered is a place of public accommodation under Title III of the ADA.
These decisions suggest that New York, and particularly the Southern District, will continue to lead the nation as a hotbed of Title III and website accessibility litigation.
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