[blindLaw] Legal Update - August 2024 - Converge Accessibility - September 3, 2024

[Nightingale, Noel]

https://convergeaccessibility.com/2024/09/03/legal-update-august-2024/
Legal Update - August 2024
By Ken Nakata
Converge Accessibility
September 3, 2024

Up here in Seattle, summer starts and ends late. Even though it's the end of August, we can expect to see warm, sunny days through early October, but there will also be occasional days that forebode the dark times ahead.
Familiar Concepts in This Month's Cases
As far as judicial opinions go, August wasn't very exciting. Nonetheless, I think briefly reviewing what happened this month is helpful.
Two Nexus Cases From Across the Country
In Salazar v. Victoria's Secret & Company, 2024 U.S. Dist. LEXIS 142433 (N.D. Cal. Aug. 9, 2024), Vivian Salazar sued Victoria's Secret because she was unable to order products from the company's website for in-store pickup. The company moved to dismiss the complaint on several grounds, including the lack of an alleged nexus. The court held that the barriers on Victoria's Secret website allegedly "prohibited her from using the website to order goods for in-store pickup, which the Court finds sufficient to state an ADA claim." Id., at *9-10.
On the other side of the country, in Herrera v. Humana, Inc., 2024 U.S. Dist. LEXIS 146411 (D.N.J. Aug. 15, 2024), the court held that an insurance company could not be sued when the plaintiff's only alleged nexus was that denial of insurance coverage affected his ability to access services at a doctor's office. That outcome shouldn't come as a surprise because the doctor's offices (a physical place of public accommodation) has no connection to the insurance company.
Boilerplate Complaints Are Not Specific Enough
Wahab v. White's Boots, 2024 U.S. Dist. LEXIS 146892 (S.D.N.Y. Aug. 16, 2024) involved a plaintiff named Angela Wahab who was trying to buy a pair of lace-to-toe workman boots for winter. She was unable to buy her boots from the defendant's company because of seven specific barriers: (1) missing alt-text; (2) hidden elements on web pages; (3) incorrectly formatted lists; (4) unannounced pop ups; (5) unclear labels for interactive elements; (6) the requirement that some events be performed solely with a mouse; and (7) broken hyperlinks. The court noted that, viewed in isolation, this probably would have been fine to allege an injury. The problem? Angela Wahab alleged those same seven barriers in 67 other complaints! When the court examined further, it then found that Ms. Wahab's attorney (Stein Saks) had used the same seven barriers in over 500 web accessibility complaints in the last 14 months in the Southern and Eastern Districts of New York. The court explained that, given her reliance on repeating the same types of general allegations, "at the very least, Plaintiff must allege some facts explaining which barriers impeded her ability to purchase the Lace-to-Toe boots and how they did so." Id., at *27. Accordingly, the court dismissed her complaint.
Getting Picky about Personal Jurisdiction
Plaintiffs suing an out-of-state company because its website is inaccessible need to establish that the defendant does business in the district in which they are being sued. This requirement is called, "personal jurisdiction" and refers to whether a court can exercise jurisdiction over a "person" (in this case, a company). But what if the plaintiff couldn't complete an online transaction and has no idea if the company has transacted any other business in the district? In that case, it makes sense for the court to allow the parties to engage in limited discovery to see how much business the defendant does in the district before ruling on whether the case should be dismissed. That's basically the summary of what happened this month in  Zelvin v. H. Heritage, Inc., 2024 U.S. Dist. LEXIS 143959 (S.D.N.Y. Aug. 9, 2024).
Okay, but what if the defendant never responds and you get a default judgment? In that case, how can a plaintiff allege personal jurisdiction if the defendant just refuses to appear? In that case, can you simply allege that the defendant does business in the district without actually showing business in the district? This is the situation facing serial plaintiff Windy Lucius in Lucius v. Untuckit Florida, LLC, 2024 U.S. Dist. LEXIS 153706 (Aug. 26, 2024). In this case, the magistrate judge took an even more pedantic position because Ms. Lucius had identified exactly where Untuckit had a physical store in the district. Nonetheless, the magistrate judge recommended dismissing the default judgment because she failed to identify when she encountered the online barrier and whether the store existed at the time of the alleged discrimination. So the case may get dismissed, Windy gets to try again and spruce up her complaint, and everyone wastes their time going through the same exercise again with a different result.
Good Luck Getting an Attorney to Pay Attorney's Fees
Section 12205 of the ADA authorizes the court to award reasonable attorney fees to the prevailing party. Oddly, defendants are held to a higher standard and can only recover attorney fees if the plaintiff's case is found frivolous. Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412 (1978). In Morgan v. Zarco Hotels, 2024 Cal. App. Unpub. LEXIS 5218 (Aug. 21, 2024), the plaintiff filed a complaint but it was soon kicked out because the defendant was able to show that it had no merit. Then the defendant sought attorney fees from the plaintiff's counsel and not the named plaintiff. Surely, they should get them, right? Well, no, the court held in this unpublished opinion, because fee shifting provisions like this don't work as a sanction against counsel unless the statute specifically says so.
How to Successfully Plead "Intent to Return" in SDNY
In Velazquez v. The Spice and Tea Exchange, 2024 U.S. Dist. LEXIS 154162 (S.D.N.Y. Aug. 22, 2024), serial plaintiff Bryan Velaszquez filed over a hundred lawsuits against different companies. In his lawsuit against The Spice and Tea Exchange, the defendants moved to dismiss and the magistrate judge held that he had satisfied the "intent to return" requirement that has doomed so many other plaintiffs in the Southern District of New York. What magical incantations did Mr. Velazquez use to avoid getting his lawsuit kicked out?  He simply pointed out how unique the defendant's products were for his specific needs. Mr. Velazquez claimed that his medical condition required him to reduce his sugar intake-and that the defendant's products were sugar-free and tasted good without requiring the addition of sugar. According to the magistrate judge, a serial plaintiff needs to allege something unique about the defendant's products that appeal to the plaintiff to meet the Calcano intent-to-return requirement.
Section 508 Refresh Act
Last month, I mentioned the Section 508 Refresh Act that Senators Bob Casey (D-Pa.), Ron Wyden (D-Ore.), John Fetterman (D-Pa.), and Tammy Duckworth (D-Ill.) had introduced, but I couldn't find it. Well, it finally showed up on Congress.gov as the Section 508 Refresh Act of 2024, S. 4766.
I think this bill is going nowhere. Even Lexis reports that it has a low chance of making it to the next stage. The problem is that it adds controversial requirements such as,
Vendors would have to pay a penalty of at least 3% of the contract value if their products or services did not fully meet the Section 508 requirements. Section 7(a)(2)(D).
Vendors would be given an incentive of 3% of the contract value to tattle on federal agencies that fail to include Section 508 fully into their procurements. Section 7(b).
Only products that are fully compliant would be allowed to be included in the Federal Risk and Authorization Management Program (FedRAMP). Section 7(d).
Software that doesn't comply with the Section 508 standards would need to be remediated or removed within 90 days that it was found to be non-compliant. Section 8(c).
I might agree (reluctantly) that some of these ideas were sound if ICT products could easily be made accessible. The reality, however, is that ICT evolves too quickly for a confusing set of guidelines like WCAG to keep up in product design and development.
California AB 1757-Is it Alive or Dead?
Remember California AB 1757? We've blogged about it several times-most recently just two months ago. Earlier this month, there were rumors floating around that it was dead. But then in the middle of the month, it was amended. The latest changes appear to lay less emphasis on having an IAAP-certified CPWA evaluator for websites. It also makes it clear that hosting companies that do not design or develop websites are not liable under the law. Otherwise, it still keeps website designers and developers on the hook for liability. Of course, it's hard to say where the bill is going to go.
World Senior Citizen's Day and Digital Accessibility
August 21st was World Senior Citizen's Day and my Lexis feed lit up with articles from smaller newspapers explaining that the need to increase digital accessibility to meet the needs of our aging populations. For instance, the Hamilton Spectator discussed the issue in one of its articles. While I wouldn't classify my opinions as a "legal update," I felt compelled to offer a few thoughts about this topic.
Do I think that making websites comply with WCAG will help older users? Yes, but only marginally. Instead, I think the needs of older users and the needs of people with disabilities are overlapping circles in a Venn diagram. Why is that? Older users are unlikely to swarm to using assistive technologies commonly used by people with disabilities like screen readers. This means that things like using aria-expanded on accordion controls to meet WCAG 4.1.3 won't affect older users one bit. Instead, I think that older users most need a simpler user interface. I base this opinion on my worldwide survey of n=1 but, if this is true, then older users are most similar to users with cognitive impairments-a group with needs that WCAG hasn't addressed.
Can Overlays be the Answer?
I know I will raise a few hackles with the next statement, but here goes: Until we get effective, workable guidelines for addressing the needs of people with cognitive disabilities, (well-designed) overlays could be the most effective solution. Heresy? Perhaps... but hear me out. If a website were designed to WCAG 2.1 A/AA, then it would have a proper programmatic structure (WCAG 1.3.1). A popup widget would then be able to easily create an outline of the page using elements tagged at headers-and create an easy-to-use outline of those headers for the user. Plus, large language model AI systems are quite good at taking blocks of text and simplifying the content. That means even a web page with complex content (e.g. this legal blog) could be easily reduced to plain English. Of course, the overlay would have to be well-designed, not interfere with assistive technology, be able to be easily dismissed-and, of course, not marketed as a web accessibility solution.
If you want to start throwing garbage and rotten eggs at me now, go ahead. I'm from Seattle so I've got lots of rainwear.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.