[Athen] FW: Spokeo decision and standing to file a digital access complaint

Gaeir Dietrich gdietrich at htctu.net
Thu Jun 2 14:11:54 PDT 2016

Hello all,

A colleague recently shared a very interesting court case that has
implications for the web complaints many of your campuses have received. To
put this court decision in context:

Many campuses across the country have received letters from a law firm
alleging that an individual with a disability has been harmed due to lack of
compliance with WCAG standards for accessibility on campus webpages. What
the case discussed below makes clear is that the individual filing the
complaint must actually suffer "concrete harm."

In other words, in the case of these letter threatening litigation, the
issue is not just whether or not your webpages pass an automated
accessibility check; the issue is whether the inaccessible areas of the
website actually had a concrete (as opposed to theoretical) negative impact
on the user's ability to navigate the site and interact with all the
required elements.

I recommend sharing this case with the legal counsel representing you if you
have received one of these letters. This decision gives your legal counsel
another line of argument, as well as case law to which to refer.

Just to be clear, you still need to do your due diligence to ensure website
compliance with accessibility standards. The letters threatening legal
action are a wake-up call that all campuses assume potential risk by not
making all of the content on their webpages (especially those pages, forms,
and learning objects that students and staff must interact with) fully
accessible. This court decision may take a bit of the pressure off, however,
for those of you dealing with the fear of litigation.

Please feel free to share with your colleagues, but please do not make any
changes to the sections below my signature line as we need to give proper
attribution to the originating source. (This part above my signature you may
delete if you wish.) Thank you!


Gaeir (rhymes with "fire") Dietrich
HTCTU Director


Subject: Spokeo decision and standing to file a digital access complaint

Dear Digital Access Colleagues,

I thought you would be interested in the attached Seyfarth Shaw summary of
the Supreme Court's recent Spokeo decision which concerns the requirements
for "standing." Standing "focuses on whether a prospective plaintiff can
show that some personal legal interest has been invaded" by a named
defendant such that there is a claim eligible for consideration by a court
of law. Seyfarth, an employer's law firm, suggests that Spokeo may be
pertinent to what circumstances are required for an individual to file an
ADA access complaint. This seems particularly germane to the so called
"drive by" "serial" digital access complaints received recently by a number
of colleges and universities.

Paul Grossman

Spokeo May Raise the Bar for Standing in ADA Title III Cases

Spokeo May Raise the Bar for Standing in ADA Title III Cases

By John W. Egan <http://www.seyfarth.com/johnegan> on June 1, 2016

Posted in Lawsuits, Investigations
<http://www.adatitleiii.com/lawsuits-investigations-settlements/> &
Settlements, Title III Access <http://www.adatitleiii.com/title-iii-access/>

Seyfarth Synopsis: The U.S. Supreme Court's recent Spokeo decision may lead
to more careful scrutiny of whether ADA Title III plaintiffs have a
sufficiently "concrete" injury to confer jurisdiction in federal court.

8311870_Large-300x200.jpgAs reported in previous posts
a-title-iii-lawsuits/> , some courts have, in recent years, bent over
backwards to find that plaintiffs with no legitimate reason to visit a
business, or intent to do so in the future, have standing to sue under Title
III of the Americans with Disabilities Act (ADA). A sharp increase
8-increase-in-2015/> in the number of ADA Title III lawsuits has followed
these decisions.

The U.S. Supreme Court's May 16, 2016 decision in
<http://www.supremecourt.gov/opinions/15pdf/13-1339_f2q3.pdf> Spokeo, Inc.
v. Robins may impact how courts across the country interpret standing
requirements for these cases in the future. Although not an ADA case, lower
courts may apply Spokeo to reign in the recent growth of Title III

In Spokeo, the plaintiff filed a putative class action against a company
that operated an online background search service. In the complaint, the
plaintiff alleged that information provided about him in a background
report, such as his marital status, age, and education, was inaccurate. The
plaintiff, on behalf of himself and a class of similarly situated
individuals, charged the company with willfully violating the Fair Credit
Reporting Act (FCRA) by failing to adopt procedures to ensure the accuracy
of its reports.

The Ninth Circuit held that the complaint in Spokeo sufficiently alleged an
injury-in-fact as required for standing, but the Supreme Court vacated the
Ninth Circuit's decision, and remanded the case.

In a majority opinion by Justice Alito, the Court held that the Ninth
Circuit's standing analysis was incomplete because it failed to consider
whether the alleged injury was sufficiently "concrete." To qualify as a
"case or controversy" over which a federal court has jurisdiction, according
to the Court, there must be a concrete injury, meaning it must "actually
exist", and be "real" rather than "abstract." The problem with the
complaint in Spokeo, the Court reasoned, was that a violation of the FCRA's
procedural requirements may result in no harm. The Court directed the Ninth
Circuit to consider on remand "whether the particular procedural violations
alleged . . . entail a degree of risk sufficient to meet the concreteness

This case raises interesting questions for ADA Title III matters where
standing can be a hotly contested issue:

* Does an ADA "tester" who travels to businesses, not to purchase
goods or services, but instead solely to evaluate compliance, suffer
"concrete" injury as clarified in Spokeo?
* Do ADA plaintiffs have standing to challenge all barriers at a
business related to their disability, or only those that they actually
encountered during their visit?
* Does a serial ADA plaintiff's litigation history have any bearing on
whether he or she suffered "concrete" injury in a given case?

Although the implications of Spokeo for ADA Title III cases are not entirely
clear at this point, the decision is good news for businesses. Some ADA
Title III plaintiffs have only the most tenuous connection to the businesses
they sue, and the alleged barriers that they challenge. Spokeo may prompt
lower courts to more carefully scrutinize whether their alleged injuries are
sufficiently "concrete" to confer jurisdiction in federal court.

Edited by Kristina Launey <http://www.seyfarth.com/KristinaLauney> .

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