Hunton Retail Law Resource

As website accessibility lawsuits continue to surge, places of public accommodation oftentimes battle multiple lawsuits filed by different plaintiffs represented by different attorneys. Even after entering into private settlements, which include detailed website remediation plans, defendants may continue to be the target of these lawsuits by copycat plaintiffs. The Eleventh Circuit recently addressed this dynamic head-on, and held that a private settlement entered into by Hooters and a first-filed plaintiff did not moot a nearly identical, later-filed website accessibility lawsuit by a different plaintiff. This case underscores the importance of quickly remediating website accessibility issues, as well as taking care to draft settlement agreements to maximize arguments that future lawsuits are barred.

In Haynes v. Hooters of America, LLC, Case No. 17-13170, 2018 WL 3030840 (11th Cir. Jun. 19, 2018), the plaintiff sued the restaurant chain under the ADA alleging that its website was inaccessible to visually impaired individuals because it was incompatible with screen reader software. The United States District Court for the Southern District of Florida dismissed the case as moot, reasoning the restaurant chain already agreed to remedy all website accessibility issues as part of a settlement agreement in a previously filed, almost identical lawsuit filed by another plaintiff. Because there were no allegations that the relief requested by Haynes differed from the relief addressed by the previously entered settlement agreement, the district court found no live controversy warranting the court’s intervention. On appeal however, the Eleventh Circuit vacated the ruling and remanded the case, holding the plaintiff’s claims presented a live case or controversy that was not rendered moot on three separate grounds:

• While the restaurant chain may be in the process of updating the accessibility of its website, there was nothing in the record indicating that the owner had successfully done so, and thus, it could not be said that the issues are no longer “live” or that the parties in the later-filed Haynes lawsuit lack a legally cognizable interest in the outcome.
• The prior settlement agreement, which expired in September 2018, did not grant the precise relief sought by Haynes in his case, and thus, some of the relief remained outstanding and could be granted by a court. Specifically, Haynes also sought an injunction directing the restaurant chain to continually update and maintain its website to remain fully accessible–relief which would still be outstanding even if the restaurant chain’s website became fully compliant with the ADA.
• Haynes was not a party to the prior settlement agreement, and would thus have no way of enforcing the remediation plan in the prior settlement agreement.

It is unclear whether the outcome of this case would have been different had the prior settlement agreement allowed the court to retain jurisdiction to enforce it, provided for ongoing remedial relief and monitoring, or had an extended expiration date. Retailers facing serial individual website accessibility lawsuits under the ADA should consult with counsel and qualified third-party consultants not only on how to comply with the ADA, but how to resolve cases to maximize protections against future copycat lawsuits.