NEW YORK (Legal Newsline) – One of the thousands of companies facing litigation from blind plaintiffs tried using a visually impaired expert of its own to show its website was accessible, but that strategy was rejected by a New York federal judge.
Plaintiffs lawyers have teamed with blind individuals to file piles of Americans with Disabilities Act lawsuits that claim websites aren’t compliant with standards (that are so far unknown) for visually impaired users.
Their biggest victory was struck down in April by the U.S. Court of Appeals for the 11th Circuit, which found Winn-Dixie’s website is not a “place of public accommodation” under the ADA. It overturned a Florida federal judge’s ruling that it was and that plaintiffs lawyers were owed about $100,000 for their work on the case.
In a lawsuit against Adagio Teas, an importer and retailer of specialty teas, New York federal judge Jesse Furman in June denied the company’s motion to dismiss.
The company’s strategy was to employ a blind accessibility expert to show the alleged barriers to its site do not prevent blind people from using it.
“After receiving notice of the complaint, Adagio reviewed the accessibility functions of the website and confirmed that none of the alleged programming errors could have impeded Plaintiff’s access to the website,” a February motion to dismiss said.
“Among other items, Adagio confirmed that a pop-up coupon that displays to certain website users was screen reader accessible.”
Still, plaintiff Josue Romero and his lawyers at Cohen & Mizrahi alleged a link embedded in the company’s logo was not properly labeled as such, some text is skipped over by screen reader software and the pop-up coupon was inaccessible.
Adagio CEO Michael Cramer reviewed Romero’s time on the site, which lasted eight minutes in August 2020. It took Romero only two weeks to file suit after visiting the site.
Cramer said a review of log files showed Romero accessed multiple pages and added three items to his shopping cart, which he abandoned without purchasing. Files do not show any error messages or that he attempted to access the “help” link that appears on every webpage.
Cramer approached Pina D’Intino to review his site. She’s the founder of a consulting company, Aequum Global, that provides website accessibility services to businesses.
She also has complete vision impairment. She reviewed Adagio’s site using JAWS versions 2017 and 2019 and the current version of NVDA, and on three different browsers – Internet Explorer, Chromium and Microsoft Edge.
“It is… my opinion as an experienced screen-reader user, accessibility professional and evaluator that the website is accessible with a screen reader and keyboard when the user wants to select a product, add the product to the shopping cart/bag, review the order and successfully check out,” she wrote in an affidavit in support of the motion to dismiss.
But Judge Furman refused to throw out the lawsuit, giving weight to the plaintiff’s expert – who, Cramer says, visited Adagio’s site before Romero.
If a trial were to occur, jurors would have to decide which expert they believe.
“Plaintiff’s attempts to invoke summary judgment standards and a ‘battle of the experts’ are a transparent effort to subject Adagio to costly litigation in the face of conclusive evidence that the website is accessible via screen reader,” the company wrote.
Trials in this field of litigation are extremely rare, with quick payoffs to plaintiffs lawyers the preferred route for defendants unwilling to pay to mount a defense.
If trials were the norm, Romero would be a busy man. He’s the plaintiff in more than 100 lawsuits.