Hunton Retail Law Resource

A recent decision from the Southern District of New York offers useful guidance for retailers defending website accessibility claims under Title III of the Americans with Disabilities Act. In Jones v. Moscot.com, LLC, the court dismissed the plaintiff’s ADA claim as moot after concluding that the retailer’s remediation efforts and ongoing accessibility measures eliminated any live controversy. As background, Title III of the ADA provides a narrow remedial framework for private plaintiffs, only authorizing civil actions for preventative relief via injunctions and restraining orders. Monetary damages are not available to private plaintiffs for a past violation, so the success of a plaintiff’s ADA accessibility claim depends on a showing that the violation will continue.

The plaintiff, who is legally blind and uses screen-reading software, brought a complaint seeking relief under the ADA and the New York City Human Rights Law (“NYCHRL”). He alleged that he attempted to purchase sunglasses on the defendant’s website but encountered barriers that prevented his screen-reading software and keyboard from navigating the site, so he was unable to complete the transaction.   He pointed to a range of alleged accessibility issues, including missing alt text, hidden elements, incorrectly formatted lists, unannounced pop-ups, unclear labels, mouse-dependent functions, and broken links. 

In determining that the defendant’s conduct both prior to and after the filing of the case mooted the claims and warranted dismissal, the court applied the voluntary-cessation standard: a defendant must show both that the alleged violation has ceased and that it cannot reasonably be expected to recur.  The court emphasized that this is a “formidable” burden, and that defendants generally cannot moot a case simply by promising to stop the challenged conduct. 

Because mootness challenges the court’s subject matter jurisdiction, the court explained that it could consider materials outside the pleadings.   The defendant submitted a declaration from its director of e-commerce and supporting materials showing that it had been working with a digital accessibility vendor since May 2023 before the lawsuit was filed, had already taken commercially reasonable steps toward Web Content Accessibility Guidelines compliance before the lawsuit, and continued to test and enhance the website’s accessibility. 

The defendant also investigated the specific barriers alleged in the complaint after service of the lawsuit.  According to that investigation, users employing the same screen reader and operating system as the plaintiff were not prevented from purchasing the sunglasses that plaintiff identified in his complaint, and the review located only one low-severity issue involving hidden elements, which the defendant then remediated. 

The evidentiary record that the defendant presented ultimately carried the day. The court found that the defendant had offered more than a conclusory assertion of compliance and had shown that it invested time and resources in improving accessibility, remedied the alleged violations, and intended to keep accessibility central to its website operations.  Just as important, the plaintiff did not submit declarations or exhibits to rebut the defendant’s evidence, instead arguing primarily that the standard was strict and that extrinsic evidence should not be considered.  The court rejected those arguments, distinguished cases involving competing evidence, and held on the unrebutted record that it was “absolutely clear” the website had been brought into compliance and would remain in compliance.  The court also declined to exercise supplemental jurisdiction over the NYCHRL claim and dismissed the case without prejudice, so plaintiff could theoretically refile in state court to allege New York city or state law claims. However, he will likely have to overcome a mootness defense in that forum as well.

For retail clients, this decision is a reminder that mootness can be a meaningful defense in website accessibility litigation when supported by a credible factual record. Retailers are in a stronger position at the outset of website accessibility litigation when they can show documented pre-suit accessibility efforts and test against the barriers actually alleged, and then promptly remediate identified issues. Unlike one-time fixes or promises to remediate, evidence similar to that presented by the defendant in this case can help retailers demonstrate an ongoing compliance process that can render a plaintiff’s claims moot.