For ADA Title III cases mootness devours or destroys, or choose your word the claims of the plaintiff because under Title III the only relief available to the plaintiff is an injunction requiring the defendant to remove whatever architectural or communication barriers might exist. If there are no barriers then there is nothing useful the court can do. That means there is no longer a “case or controversy” and the court loses jurisdiction.¹ As a rule, the first thing any defendant will want to do is remove barriers to access and make the case moot.
Unfortunately, courts do not easily find a case is moot. Instead:
“a request for injunctive relief … under the ADA[ ] will only be deemed moot by a defendant’s voluntary compliance with the statute 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.’²
For cases involving physical barriers like ramps and doors this formidable burden isn’t that hard to meet because physical changes are not likely to be undone. Websites are a different matter. Business websites are constantly changing with new products, new prices, and new advertising or promotions. Mootness is possible, but you have to be careful as the cases I’m looking at today demonstrate.³
We’ll start with Velazquez v. The Spice and Tea Exchange LLC, 2024 WL 3928613 (S.D.N.Y August 22, 2024). The defendant failed to establish mootness despite having two accessibility reviews because, as the Court found, details were lacking. With respect to future accessibility, for example, the Court found that:
The two affidavits submitted by Spice & Tea’s CEO merely state that Defendant has “undertaken to comply with the [WCAG]” and “been committed to continuing to keep its website up to date and compliant with all applicable standards,” without specifying what kinds of measures it has taken to ensure compliance.
When it came to the expert reports, the Court observed about the first that:
Other than naming the individual who prepared the report and stating that the Website meets WCAG 2.1 standards, the Crimson Agility audit report is vague about the methodologies used. . . For instance, when describing the tool used for the assessment, the report merely claims “[t]his tool’s report is very strict,” without further elaboration.
Other reports were just as vague:
Similarly, Freeman states that Spice & Tea retained AudioEye to conduct an audit but does not provide any background information on AudioEye, does not delineate the processes used, does not identify any specific findings, and does not attach any audit report. (See Second Freeman Aff. ¶ 10.) Spice & Tea fares no better with its accessiBe report, dated September 19, 2023. The report states that the Website is compliant but does not identify the qualifications of the auditor, does not explain the methodology used, and does not explain the basis for its conclusion.
The Court also notes that Accessibe reports have been found to be questionable in other cases.
The defendant also failed with a mootness defense in Wahab v. White’s Boots, Inc., 2024 WL 3909083 (S.D.N.Y. August 16, 2024). In this case the defendant relied on an affidavit that seems to have been pretty specific:
Mr. Kingett asserts that on December 5, 2023, he reviewed the Website using an NVDA screen reader and was able to locate the Lace-to-Toe boots, learn about the product, select a color and size, and complete the purchasing process “without issue.” (Kingett Decl. ¶ 6). He avers that the Website “is accessible and a visually impaired individual should be able to use the website if they actually know how to use a screen reader.”
The Court was not impressed, and gave the parties – as well as anyone reading this blog, a clear description of what a mootness defense requires:
First, the defendant needs: “a sworn statement by a company official with direct knowledge of the allegations describing the steps taken to remedy the violations and the measures in place going forward to prevent future violations.” The company official does not have to be a website accessibility expert, but he needs to describe what was done. More important, the statement must describe in some detail why there will not be problems in the future. Proof of steps to insure future accessibility was missing in Wahab and not described in sufficient detail in Velazquez.
Second, proof that the website is now accessible must include details about what was fixed (or why it was not fixed). The Court observed in Wahab that: “Mr. Kingett . . . does not describe what steps, if any, White’s Boots undertook to address or remediate the Website’s supposed access barriers since Plaintiff filed her Complaint.”
Third, the defendant must show compliance with WCAG in some version or the other, and most likely 2.1 AA. “Mr. Kingett does not assert that the Website is compliant with the generally accepted industry standard Web Content Accessibility Guidelines (“WCAG”).”
These are the negatives, and from these and other cases it is clear what a defendant must do to prove a website accessibility claim is moot.
- The defendant must have in a place a written policy that describes in detail what the defendant will do to make sure the website remains accessible. The minimum elements appear to be a budget for accessibility, regular audits or reviews and a process for correcting problems as they are found. A statement of good intentions is not enough.
- The defendant must show with appropriate expert testimony that every supposed accessibility problem identified by the plaintiff either never existed or has been remediated. While the Wahab decision suggests the claim of remediation can be global a prudent defendant will have its expert specify on an item by item basis that the accessibility problem never existed or has been remediated.
- The defendant must also show with appropriate expert testimony that the website conforms to WCAG 2.1 AA and explain in some detail what kind of testing supports this conclusion, including information on why any tools used are reliable. WCAG 2.1 is for all practical purposes the standard adopted by DOJ in its Title II website regulations and by the Access Board in its Rehabilitation Act regulations, so although it has no official status in Title III cases courts are willing to treat it as a legal standard which, if met, means the website meets the requirements of Title III.
- Finally, no defendant should rely exclusively on an Accessibe report. It does not matter whether these reports are really reliable or not; the name is tainted and a defendant cannot meet a “formidable” burden with something other courts have rejected.(4)
None of this is really news and these recent cases are only a reminder that there is no easy way out of an ADA website lawsuit. If a defendant decides to spend money trying to win instead of settle then it must be committed to the kind of thorough approach that was missing in Velazquez and Wahab.
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¹ Under Article III of the Constitution federal courts only have jurisdiction over cases and controversies. Title III cases raise a host of Article III issues; just search for “standing” in my earlier blog posts.
² Friends of Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190 (2000)
³ You may also be interested in my earlier blogs Accessibility moots a website claim, which discusses the first case finding a website accessibility case was moot and Can a website accessibility claim be mooted? discussing how a plaintiff failed to defeat a mootness claim.
(4) Many experts are skeptical about claims that software tools alone can completely identify accessibility issues and more skeptical that what is found can be automatically fixed. I wrote about this in 2020 (Is there a silver bullet) and while the technology has certainly improved I have not found any expert who believes automated software can find and fix all the accessibility problems a website might include. A careful reading of the terms and conditions associated with the various software tools available will show that none of them guarantee either finding and fixing all accessibility problems.