In a decision that may open the door for serial website accessibility lawsuits under the Americans with Disabilities Act (ADA), on June 19, 2018, the US Court of Appeals for the Eleventh Circuit ruled that the private settlement of an ADA website accessibility suit and ongoing remediation efforts by the defendant pursuant to that settlement, do not bar an ADA accessibility action filed later with respect to the same website. The decision in Haynes v. Hooters of America, LLC, 17-13170 (11th Cir. June 19, 2018), creates uncertainty for businesses seeking to resolve ADA website accessibility lawsuits, and may embolden plaintiffs to file multiple lawsuits against a single defendant.
As covered in previous Eversheds Sutherland legal alerts, Title III of the ADA prohibits discrimination against the disabled, including blind and visually impaired individuals, in places of public accommodation. Although not explicitly covered by the terms of Title III, over time various courts have interpreted websites to be places of public accommodation falling under Title III. A tidal wave of lawsuits have followed, alleging violations of the ADA as a result of websites that are alleged to be inaccessible to blind and visually impaired individuals. Because the cost to defend these lawsuits frequently outstrip settlement demands put forth by plaintiffs, the majority of these suits have settled on an individual basis.
In August 2016, a class action lawsuit was filed against Hooters of America, LLC (Hooters) alleging that Hooters’ website, www.hooters.com, contained barriers that rendered it inaccessible to blind and visually impaired individuals in violation of Title III of the ADA. The lawsuit settled on an individual basis shortly after filing. As part of the settlement, Hooters agreed to place an accessibility notice on its website within six months, and agreed to improve accessibility on its website within 12 months to conform to Web Content Accessibility Guidelines (WCAG) 2.0.
On April 4, 2017, less than six months after resolution of the earlier ADA action, the Haynes action was filed alleging nearly identical claims against Hooters for declaratory and injunctive relief, as well as costs and attorneys’ fees, pursuant to Title III for the alleged inaccessibility of Hooters’ website. Of note, the action Haynes requested was that (1) the district court enter an order directing Hooters to alter its website to make it accessible to, and usable by, individuals with disabilities to the full extent required by Title III of the ADA, and (2) the district court enter an order directing Hooters to continually update and maintain its website to ensure that it remains fully accessible to, and usable by, visually impaired individuals.
Hooters moved to dismiss the Haynes action pointing to the settlement agreement in the earlier action. Hooters noted that it was in the process of remediating its website, that its website had been substantially updated, and that it complied with the first aspect of its remediation plan by placing an accessibility notice on its website. The district court dismissed the action, finding that Hooters’ agreement to remediate all of the accessibility issues on the website mooted plaintiff’s claims, and that plaintiff did not request any relief distinct from the relief provided by the earlier settlement agreement. Plaintiff appealed to the Eleventh Circuit.
In its decision reversing the district court’s dismissal, the Eleventh Circuit found that “Hooters’ assurance to an unrelated third party to remediate its website [did] not alone moot [plaintiff’s] claims for relief.” Haynes v. Hooters of America, LLC, 17-13170 (11th Cir. June 19, 2018). Of particular significance to the court was that no evidence was introduced to show that the website was actually remediated such that plaintiff’s claims of inaccessibility were mooted. See id.
Moreover, the court noted that the Haynes action sought an order directing Hooters to “continually update and maintain its website to ensure that it remains fully accessible,” an obligation that Hooters did not undertake as part of the earlier settlement agreement. See id. Finally, because the previous settlement agreement was private, the court said that plaintiff had no means to enforce the remediation plan called for in the agreement should Hooters’ website remain inaccessible. See id. The court remanded the case to the district court for further proceedings.
It is unclear at this juncture what, if any, impact the Haynes decision will have on the ongoing deluge of website accessibility lawsuits. The timing of the Haynes suit (while remediation was ongoing) and the distinct relief requested in the action create factual distinctions that may not apply in all cases. The decision does, however, open the door for plaintiffs to file lawsuits against companies that have resolved previous ADA lawsuits on an individual basis, and are otherwise working towards making their websites accessible. As this issue continues to evolve, businesses facing ADA website accessibility lawsuits may wish to assess the finality that private settlements provide.