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    New ADA Ruling Gives Hope for New York companies

    by Jason Taylor
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    A new ruling out of the Southern District of New York may bring hope to companies in website remediation who fear additional litigation from would-be plaintiff while they bring their website into ADA compliance.

    The Case 

    In the recent case of Diaz v. The Kroger Co., 18-cv-7953 (KPF), the judge ruled the plaintiff’s ADA claim as moot. In this case the plaintiff had identified several barriers on the website, and the defendant remediated them. By fixing those errors, bringing the website into compliance with the WCAG, and stating its intention to remain in compliance going forward, it rendered the plaintiff’s ADA claim as Moot, according to the judge's ruling in this case.

    This case is the second in 2019  to be dismissed in New York in favor of defense. On March 28th, Judge Preska dismissed the class action suit brought by a legally blind woman against Apple Inc for discrimination based on Website accessibility in Himelda Diaz v. Apple, Inc., 18-cv-07550 (LAP) (S.D.N.Y. March 28, 2019). 

    In this new case, Diaz v. The Kroger Co., 18-cv-7953 (KPF) the Defendant’s performed and communicated to the court the following actions resulting in the judge ruling the plaintiff’s complaint moot. 
    • Defendant had undertaken to comply with the WCAG before this lawsuit was filed;
    • The website now complies with the WCAG 2.0 standards;
    • Confirmed that all of the deficiencies identified in the complaint had been remedied;
    • Verified the barriers to access which were identified in the complaint no longer exist;
    • Defendant was committed to keeping the website in compliance with the WCAG so that it would remain accessible;
    • Defendant had no intention of undoing those changes or regressing to non-compliance with the WCAG and ADA (both due to the time/cost involves in achieving compliance and due to a desire to avoid future similar lawsuits); and
    • Defendant intended to keep the website up to date with any new website accessibility standards that are issued/promulgated.

    A great summary of takeaways from this case was outlined by Joshua A. Stein and Shira M. Blank of Epstein Becker & Green, P.C. in the National Law Review. We've included the excerpt here: 

    "This decision is clearly another positive development for businesses facing website accessibility lawsuits in the SDNY (particularly of a repeat nature). However, notwithstanding the court’s thorough, multi-faceted, analysis, the precedential value of this decision should not be overstated. As the Court acknowledged, its holding diverges from those in other circuits, and, in some ways, other courts in this district. Accordingly, while this decision undoubtedly provides businesses – particularly those frustrated by multiple lawsuits notwithstanding their attempts to modify their websites to comply with the WCAG – with additional grounds through which to fight back, it remains unclear whether other district court judges will engage in the same analysis or reach the same conclusion. Moreover, while this court accepted the representations made by the defendant’s employee in his affidavit, we would strongly recommend that any company that seeks to file a similar motion to dismiss for mootness include support from an outside website accessibility expert (containing considerably greater details about how the company achieved compliance and its plans to maintain compliance going forward) as well as that of a qualified employee.

    Like the Mendez v. Apple decision earlier this spring, this decision does not preclude serial plaintiffs from filing multiple, identical, lawsuits against various defendants. Nevertheless, there has been a marked decline in the number of website accessibility lawsuits filed in the SDNY following the Mendez decision. We expect that this decision will further ebb the flow of these lawsuits in the SDNY.  That said, given recent decisions in other jurisdictions (e.g., California state court), this will most likely simply result in more lawsuits being filed elsewhere. In the meantime, as we’ve repeatedly noted for years, the best way to avoid falling prey to such a suit is to achieve substantial conformance with WCAG 2.1 Levels A and AA (as confirmed via human-based auditing from both the code and user perspectives)."

    Our take

    While the path to a fully accessible, ADA-compliance website may seem overwhelming, it doesn't need to be and it is still the best way defend and mitigate risk of ADA claims in the current litigious landscape.   If you're ready to take the first steps toward accessibility for all users and ADA compliance, request a consultation with our experts. We'd love to talk and see how we can help.

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