Last week, a federal district court in the Commonwealth of Massachusetts denied a motion to dismiss based on personal jurisdiction in a website accessibility lawsuit brought under Title III of the Americans with Disabilities Act (“ADA”). This website ADA lawsuit was filed by Massachusetts resident, Stephen Théberge (“Théberge”), who is legally blind, along with Access Now and R. David New (collectively “Plaintiffs”), against defendant Sportswear, Inc. (“Sportswear”) in the United States District Court for the District of Massachusetts (1:17-cv-11211-NMG).
What Amount of Contacts is Sufficient to Survive a Personal Jurisdiction Motion to Dismiss?
Plaintiffs’ ADA Lawsuit Allegations and Sportswear’s Defenses
As we have previously blogged, website ADA lawsuits are exploding throughout the country. In some jurisdictions, such as the United States Court of Appeals for the First Circuit (which includes the federal district court in Massachusetts), websites alone can be considered places of public accommodation under the ADA without a connection to a physical space. In the instant website ADA lawsuit, Plaintiffs alleged that Sportswear’s website had denied equal access to the blind and visually impaired because the website was incompatible with certain screen reader programs (e.g., programs that convert text to audio to assist the visually impaired in accessing content on websites). In particular, Plaintiffs alleged that certain barriers to access existed with respect to the subject website, including the fact that: (1) buttons on Sportswear’s website lacked descriptions necessary for certain screen reader software to analyze; and (2) error messages provided insufficient information.
Sportswear, a Seattle-based e-commerce retailer, with a manufacturing facility located in Kentucky, moved to dismiss the website ADA lawsuit based on its lack of contacts with, or presence in, Massachusetts. Sportswear claimed that it has no offices, employees, or property in Massachusetts and derived only 3.78% of its revenue from online sales to Massachusetts residents. Therefore, according to Sportswear, it does not transact sufficient business in Massachusetts to be forced to defend a lawsuit there.
Court Rules that Sportswear Targeted Massachusetts
In refusing to dismiss this website ADA lawsuit as against Théberge, the Court found that Sportswear transacted business in the Commonwealth based on its online revenue of 3.78% from Massachusetts and offering products bearing the names of schools, universities, and athletic teams located in Massachusetts. In particular, the Court found that Sportswear “deliberately target[ed]” Massachusetts by offering said products that feature universities, schools, and athletic teams located in the Commonwealth and that “[s]uch targeting evinces a voluntary attempt to appeal to the customer base in the [Commonwealth].” The Court reasoned that because Théberge encountered access barriers to Sportswear’s website in Massachusetts, his claims arose out of Sportswear’s business activities in Massachusetts. Notably, the Court dismissed the lawsuit with respect to Access Now and R. David New (a resident of the State of Florida) because they are not located in Massachusetts.
What this Means for E-Commerce Businesses?
Any company that offers goods in the online space, could be forced to defend a website ADA lawsuit in a foreign jurisdiction. As such, if you market products or services via the Internet, you should review your online operations to ensure accessibility to persons with disabilities in order to reduce and/or eliminate the risk of legal or regulatory liability.