Last month, Hallyu Korean BBQ (“Defendant”) was named as a defendant in an internet accessibility lawsuit in the United States District Court for the Southern District of Florida. Plaintiff, who is blind, alleged that Defendant violated the Americans with Disabilities Act (“ADA”) because its website contained barriers to access for visually impaired individuals.
As our readers are aware, Title III of the ADA prohibits discrimination on the basis of a disability “in the full and equal enjoyment of the goods [and] services . . . of any place of public accommodation.” Self-declared “testers,” such as Plaintiff, typically claim a lack of accommodation after browsing the Internet for website accessibility issues. With no intent of ever setting foot in the physical premises of businesses or purchasing from their online stores, “testers” will demand monetary and/or injunctive relief from businesses operating these websites. With internet accessibility lawsuits on the rise, it is imperative that businesses ensure that their ADA compliance measures are up to date.
The Hallyu Korean BBQ Internet Accessibility Lawsuit
In Campbell v. Hallyu Korean BBQ, the subject Plaintiffis a visually impaired woman that relies on a screen reader to browse websites. Screen readers use auditory cues to relay information to the visually impaired as they progress through Internet websites. According to Plaintiff, the design of Defendant’s website resulted in her screen reader failing to effectively relay auditory cues. Plaintiff alleged that she became significantly disoriented, and thus, was unable to learn about Defendant’s goods and services. As a result, Plaintiff claimed, she suffered discrimination under the ADA.
Important Considerations When Facing Website Accessibility Claims
In internet accessibility lawsuits, a plaintiff typically suffers an injury in fact when, among other things, “it [is] reasonable to infer, based on the past frequency of plaintiff’s visits and the proximity of defendants’ [businesses] to plaintiff’s home, that [the] plaintiff intended to return to the subject location.” A plaintiff’s risk of future harm must be “material” and “sufficiently imminent and substantial.”
Plaintiffs frequently use conclusory allegations of intent to return to meet this standard. Oftentimes, these allegations are boilerplate and mirror language found in numerous website accessibility lawsuits filed by “testers” across jurisdictions. Accordingly, businesses must conduct a fact-intensive inquiry to scrutinize every aspect of website accessibility claims for validity. Certain courts have made clear that threadbare recitals and conclusory allegations parroting statutory language do not allow plaintiffs to proceed beyond the pleading stage.
Use Preventative Measures to Curtail Accessibility Lawsuits
Many businesses are all too familiar with receiving demand letters that allege violations of the ADA. Some “testers” send out hundreds of boilerplate letters after quick visits to websites, demanding money and remedial accessibility-related website changes. Frequently, these demand letters turn into full-blown lawsuits if left unaddressed.
Website operators should remain aware of developing ADA requirements and implement accessibility compliance measures. To ensure compliance and prevent ADA liability, it is essential to consult with experienced attorneys. The attorneys at Klein Moynihan Turco regularly defend businesses whose websites have been targeted for alleged lack of disability accommodation.
If you are interested in learning more about this topic or require representation in connection with issues involving website accessibility, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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