June 22, 2018

The 11th Circuit Holds Prior Settlement in Website Access Case Does Not Moot Identical Second Lawsuit Seeking the Same Injunctive Relief

By Thomas J. Barton, Matthew J. Fedor and Kate S. Gold

Retailers and other companies have been besieged by lawsuits alleging that their websites are not accessible to visually impaired users in violation of the Americans with Disabilities Act (“ADA”) and similar state laws. Some companies have been sued multiple times by different plaintiffs represented by different lawyers, even though the companies had previously agreed in earlier settlements to ensure that their websites are accessible to the visually impaired.

In Haynes v. Hooters of America, a district court in Florida ruled that plaintiff’s lawsuit was moot since Hooters had already agreed in connection with the settlement of an earlier lawsuit, Gomez v. Hooters, to conform its website to the Web Content Accessibility Guidelines (WCAG) 2.0. Since monetary damages were not available, the court found there was no further or additional remedy for plaintiff to pursue. On June 19, 2018, the Eleventh Circuit Court of Appeals reversed, holding that plaintiff’s claims were not moot even though Hooters had already agreed to update its website to conform its website to WCAG 2.0. The Eleventh Circuit stated that Hooters’ assurance to an unrelated third party to remediate its website does not alone moot plaintiff’s claims for relief and that “there is still a live controversy about whether [plaintiff] can receive an injunction to force Hooters to make its website ADA compliant.”

The Court noted that the prior settlement did not provide for the Gomez court to retain jurisdiction over the settlement. The Court also recognized that the earlier deal expired in September 2018. Further, the Court emphasized that the only person who could enforce the agreement was the Gomez plaintiff. Finally, the Court observed that the prior settlement agreement did not require Hooters to update its website on a going forward basis as the website is changed and new content is added.

There nevertheless may be some good news in the Hooters opinion for companies that face serial individual lawsuits. The Court did not rule out the possibility that an individual settlement agreement, with appropriate terms, might bar future copycat lawsuits from a different party. For example, the outcome of Haynes may have been different if the Gomez settlement agreement allowed the court to retain jurisdiction to enforce it, provided for ongoing remedial relief and monitoring, or had a sufficiently extended expiration date. Companies faced with an individual ADA website accessibility lawsuit should carefully consider what provisions to include in the settlement agreement that would put the company in the best position to argue that future lawsuits are barred.

To bar serial plaintiffs and their attorneys, companies may consider including settlement terms that provide an opportunity for notice and cure in the event that later non-compliance is alleged to exist. Another alternative to cut off future claims by different plaintiffs would be to settle the claim on a class-wide basis. This route poses its own challenges and risks, however; including the need for court approval of the settlement, potentially higher attorneys’ fees for class counsel, and increased expenses if the court directs notice to the class. Companies should consult with counsel not only on how to bring their websites into compliance, but how best to resolve individual claims for alleged non-compliance.

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