Defenses Against ADA Website Lawsuits

Most ADA website lawsuits settle fairly quickly, but it’s definitely worth asking your defense attorney if your case has a fair chance of being dismissed. What makes potential defenses extra appealing is more and more courts are growing tired of the serial website accessibility litigation from plaintiffs’ law firms so they’re more receptive to dismissing ADA website cases.

What Are Defenses Against An ADA Website Lawsuit?

Standing and mootness are two potential defenses against ADA website lawsuits. Website owners with experienced defense attorneys have had a fair amount of success dismissing cases based on standing. And we have seen cases dismissed based on mootness as well.

Remember that every case is different. As just a starting point, defenses that are available in federal court may not be available in state court. The same can be said for a federal law such as the Americans with Disabilities Act (ADA) and a state law like the California Unruh Civil Rights Act.

For example, the California Unruh Act provides a claim for statutory damages for plaintiffs and statutory damages cannot be dismissed through mootness.

Let’s explore what’s necessary for each defense to be successful.

Standing

To establish standing in an ADA website lawsuit, plaintiff must allege an injury-in-fact and demonstrate that the injury is concrete, particularized, and actual or imminent. The injury must be directly caused by the defendant’s conduct and must be likely to be redressed by a favorable court ruling.

Intent to Purchase and Return

Here’s the corrected version with directness and no passivity:

Depending on the court’s interpretation of what is required to show injury-in-fact, a significant weak point for plaintiffs under the injury-in-fact requirement is proving they are likely to be harmed in the near future. The sheer volume of complaints filed by plaintiffs’ law firms raises doubt about whether the named plaintiff would have visited the website if not for the intention to sue the website owner.

In the case of ADA website lawsuits where the plaintiff is suing a Shopify ecommerce store owner, this means that the plaintiff must allege that they visited the Shopify website and actually intended to make an purchase (they can’t simply have been browsing). The plaintiff must also prove that they intend to return to the website.

In Martin vs. Second Story Promotions, Inc., the court held that the plaintiff alleged they visited the website once with and no facts that supported having a legitimate interest in the products, such as what piqued their interest in the website, and what products they were interested in purchasing and whether they had shopped other websites for similar products.

Similarly, in the case of Jaquez v. Aqua Carpatica USA, Inc., the court held that the plaintiff lacked standing because he failed to specify which product he intended to purchase from the defendant’s website. The court emphasized that merely browsing the website without identifying a specific product does not constitute an injury in fact.

In Tavarez v. Moo Organic Chocolates, the court dismissed the plaintiff’s case for lack of standing because the plaintiff did not adequately allege the frequency or timing of his visits to the website, or any specific interest in purchasing products.

There’s a very real theme in winning cases based on a lack of standing: the plaintiff doesn’t demonstrate a genuine interest in the website’s offerings. Given that a fair amount of ADA website lawsuits are templated claims and others may be customized merely for the sake of adding a vale of legitimacy, there’s a very real possibility that you may be able to raise the defense of standing and get your case dismissed.

Mootness

The mootness defense for ADA website lawsuits isn’t as easy, but it is certainly possible. A case becomes moot if there is no longer a matter in controversy. For example, if the claim is that a website is inaccessible and causing a barrier to access, but the website is now fully accessible, there is no longer a live claim so the case may very well be dismissed based on mootness.

Show WCAG Conformance

For a successful mootness defense, website owners must show that all accessibility issues have been fully remedied and that there is no reasonable expectation that the alleged violations will recur.

The full remediation takes some work and the best evidence here would be demonstrating full WCAG 2.1 AA conformance. Our certification documentation and recorded user testing session after successful remediation would be perfect evidence to show a website is now fully accessible.

Issues Unlikely to Recur

Next, defendants must not only provide compelling evidence that not only have the accessibility issues been resolved, but also that accessibility issues are unlikely to recur.

A great way to do this is by already having a pre-existing accessibility policy in place. Rushing to create a policy after you’ve been sued may be your only option, but the best situation is where you already have a policy in place and are actually executing on it.

Another possible substitution or ideally complement is by showing you’ve contracted with an accessibility service provider (like Accessible) for scheduled interval accessibility services to ensure your website remains WCAG 2.1 AA conformant.

In Kroger v. Diaz, the plaintiff alleged that Kroger’s website was not accessible. During the course of the litigation, Kroger remediated its website and removed accessibility barriers. Kroger filed a motion to dismiss based on mootness and supported its motion with an affidavit from its product design manager, which asserted that he personally evaluated all of the accessibility issues, confirmed their successful remediation, and stated Kroger’s website was now conformant with WCAG 2.0 AA standards and that the company intended to remain conformant.

The court, somewhat surprisingly, accepted the product design manager’s confirmation and statement and granted Kroger’s motion, rejecting the plaintiff’s contention that because website’s are constantly updating and changing that it can’t be expected that the website will remain accessible.

Although the court granted Kroger a fair amount of leeway in taking the company’s product design manager’s word for WCAG conformance and that no issues will occur again in the future, the point remains that by providing demonstrable evidence of accessibility and the likelihood that a website will remain accessible in the future, it is possible for defendants to dismiss a case based on a lack of subject matter jurisdiction due to mootness.

Other Possible Defenses

Although standing and mootness are the big-ticket items in the current ADA website litigation landscape, there are other potential defenses that may help the defense, even if they only lower plaintiffs’ attorney fees. These defenses include:

  • Request the court to declare a plaintiff as a “vexatious litigant.” This designation is applied to individuals who repeatedly file frivolous lawsuits. Once a plaintiff is declared vexatious, they may face restrictions including posting a bond to cover potential defense attorney fees, having their case dismissed outright, or requiring the court screen the complaint to determine if it has merit before allowing it to proceed.
  • File a motion to stay the case. A motion to stay can allow defendants to pause the case while the defendant remedies the alleged violations. The motion to stay can limit limit the defendant’s liability for attorneys’ fees and court costs while also providing them with the opportunity to remedy the alleged ADA violations and thereby render the plaintiff’s claims moot.
  • Defendants can also argue against the obligation to pay the plaintiff’s attorney’s fees if they can demonstrate that the accessibility issue could have been easily and inexpensively resolved without litigation. By showing that the defendant was willing and able to make the necessary changes once notified of the issue, they can argue that the lawsuit was unnecessary and therefore should not result in attorney’s fees being awarded.
Kris Rivenburgh

Kris Rivenburgh

Kris Rivenburgh is the founder of Accessible.org, LLC. Kris is an attorney and the author of The ADA Book, the first book on ADA compliance for digital assets. With seven years of experience in digital accessibility and ADA Compliance, Kris advises clients ranging from small businesses to public entities and Fortune 500 companies.