Key Takeaways: 

  • Address website accessibility issues now.
  • Be familiar with WCAG 2.0 standards for website accessibility.
  • Undertake immediate remedial efforts to address identified accessibility issues as a potential defense to a website accessibility lawsuit. 

Read the full decision: Diaz v. Kroger Co.

A district court in the Southern District of New York dismissed a website accessibility lawsuit against Kroger, Co. both as moot based on Kroger’s remediation of accessibility barriers to its website, and for lack of personal jurisdiction.

The plaintiff, a visually-impaired individual, filed suit against the defendant, Kroger Company, a supermarket chain, alleging that Kroger’s website was inaccessible in violation of Title III of the Americans with Disabilities Act (“ADA”) and New York State law. Title III of the ADA requires that places of public accommodation be accessible to individuals with disabilities, and existing architectural and communication barriers be removed. Here, the plaintiff alleged that he encountered accessibility barriers when his screen reading software was unable to interact with Kroger’s website, Kroger.com, which provides consumers access to promotions, coupons, food-related information, and the ability to order goods for delivery.

Kroger moved to dismiss the case based on lack of subject matter jurisdiction. In support of its motion, Kroger argued that the accessibility modifications it made to its website both before, and after, the lawsuit rendered the claims moot. As the court noted, the plaintiff’s request for injunctive relief may only be mooted when the defendant meets the “formidable burden” of demonstrating that they had already voluntarily complied with the allegedly violated statute prior to the filing of the lawsuit and that it is “absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.” Here, Kroger submitted an affidavit that Kroger: 1) is in compliance with WCAG 2.0 standards; 2) ensured that all alleged deficiencies in the complaint were remedied; and 3) is committed to the continued accessibility of its website. Notably, Kroger’s affidavit did not detail the steps taken by the company to ensure that its website complies with WGAC 2.0 or state whether the company had implemented written policies or procedures regarding website accessibility. However, the court found the affidavit sufficient to moot the Plaintiff’s claims. Ultimately, the court held that “ADA cases involving websites are subject to the same mootness standard as their ‘structural’ counterparts”, and rejected the notion that ADA website cases can never be mooted because websites are “constantly revised, updated and edited, with new pages being added and others being replaced or deleted.”

The court also granted Kroger’s motion to dismiss based on lack of personal jurisdiction. In determining whether the court had personal jurisdiction based on Kroger’s operation of its website, the court considered the “degree of interactivity and commercial nature of the exchange of information that occurs on the site.” It is not enough that the plaintiff may access the website to confer personal jurisdiction - the plaintiff must demonstrate a reasonable probability that the website was used to effect a commercial transaction with a New York State consumer. Here, the plaintiff not only failed to demonstrate that he ever had any goods shipped to him in New York, but the delivery of goods within New York State was unavailable through Kroger’s website. Therefore, the court granted Kroger’s motion to dismiss for lack of personal jurisdiction.

Diaz v. Kroger Co., No. 18 CIV. 7953 (KPF), 2019 WL 2357531, (S.D.N.Y. June 4, 2019)

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