One of the ways you can get a ADA website lawsuit dismissed in federal court is through mootness. This basically means that if we fix all of the accessibility issues on our website, then there is no matter in controversy and so the case is “moot.”
Stated another way, if a plaintiff brings a claim but the basis of their claim no longer exists, then there’s no reason for the case to keep going forward. At which point, the court will be inclined to dismiss the case.
Mootness is one of the ADA website defenses that has worked so let’s cover what is necessary.
Let’s use Richard Hunt’s Access Defense blog post, Can an ADA website accessibility claim be mooted? as a companion guide to walk us through the process of mooting an ADA website claim. Richard’s writing will be in block quotes.
Table of Contents
Mootness Conditions
The following conditions for getting a case dismissed based on mootness are applied to the context of website accessibility.
Wrongful Behavior Won’t Happen Again
…a case can be found to be moot only if the defendant meets the:
‘formidable burden’ of demonstrating that it is ‘absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.’
So one requirement to get a case dismissed based on mootness is you have to demonstrate that your website is not only accessible now, but will continue to provide meaningful access. The accessibility policy section below will tie directly into this.
Diaz v. Kroger… The defendant in that case succeeded because it proved that its website conformed to WCAG 2.0 AA, the best available standard at the time, and that none of the barriers to access specifically alleged in the Complaint existed.
This section contains two key elements that we need to extract for our defense:
- Prove WCAG conformance
- Show the barriers claimed no longer exist
WCAG Conformance
In the present, WCAG 2.0 AA conformance might not be enough (but it could be). However, WCAG 2.1 AA would very likely be enough, especially given the Department of Justice (DOJ) just choose WCAG 2.1 AA as the technical standard for the new ADA Title II web rule.
But the point here is, your website needs to be accessible and you need to be able to provide accessibility. Alongside credible expert testimony, our accessibility certification documentation including a recorded user testing session would be one of the best complements of demonstrating accessibility.
No Barriers
If you’ve made your website fully WCAG 2.1 AA conformant, there should be no outstanding accessibility issues remaining unless the plaintiff claimed 2.2 issues. If there are any claimed issues outside of the 50 WCAG 2.1 AA success criteria, fix them.
To be successful in dismissing your case, you want to cover every possible out, even if it means going above and beyond.
The defendant… dealt with the possibility of future inaccessibility by proving that even before it was sued it had a policy of keeping the website in conformance to WCAG 2.0 AA, a policy that the plaintiff had no proof would not work.
This section highlights how having an accessibility policy in place can provide the proof needed to show that the problem is unlikely to happen again in the future.
Accessibility Policy
An accessibility policy isn’t per se required, but it becomes extremely valuable when it comes to proving that you, the defendant, will not have a relapse where accessibility issues reappear and you potentially fall out of compliance again.
And keep in mind that an accessibility statement is not an accessibility policy.
One important note is that it’s much more compelling if an accessibility policy is in place before you’re sued vs. after. As Richard writes:
Courts are suspicious of policies that are enacted only after a lawsuit is filed.
Of course, you may be able to convince the court that your website will remain accessible in other ways. For example, if you’re contracted with a service provider for interval services on an ongoing basis.
But Richard’s point is a good one: it’s much more compelling if you have a policy and investment in place before getting sued.
You can download our accessibility policy template for free by subscribing to Accessible.org.
Summary
To summarize, the keys to getting an ADA website lawsuit dismissed based on mootness are:
- WCAG conformance
- All claimed issues fixed
- Prove website will remain accessible (policy and/or other ways)
Don’t stop at mootness, read about the potentially best way to get an ADA website case dismissed: standing.
Services
Accessible.org provides all of the services necessary to support a motion to dismiss based on mootness. Our services include:
- audit
- remediation
- user testing
- consultation
As mentioned, we also have thorough documentation that is only available through our services and successful conformance (you cannot purchase our certification documents).
Visit our services page or contact us to find out how we can help you defend your case and prevent a second lawsuit.
