The Benefits of Using Consent Decrees When Settling ADA Website Accessibility Cases

New York, N.Y. (April 17, 2023) – For several years, Lewis Brisbois’ ADA Compliance & Defense attorneys have used consent decrees when settling New York federal court putative class action lawsuits in which the vision disabled plaintiffs allege that the defendants’ websites and mobile apps are not accessible in violation of the Americans with Disabilities Act (ADA) and, in some cases, state and local laws. The consent decrees have been utilized to help avoid or defend subsequent lawsuits by different plaintiffs asserting essentially the same claims.

In the typical case, the settling defendant commits to remediating its website to make it more accessible, but a period of at least several months is typically provided, given the difficulty of the undertaking. Under the consent decree, the federal judge approves the plan for remediation to take place over a period of time and retains jurisdiction over any issues concerning the website’s accessibility for a period of 36 months.

Lewis Brisbois’ attorneys have used such consent decrees as a means to combat copycat plaintiffs who seek to assert claims against clients who have previously been sued, have settled, and have committed to remediation. However, doing so has been a challenge, in part due to the lack of any authority holding squarely that a consent decree in a case without a certified class has any preclusive effect as to subsequent challenges while the decree remains in effect. That problem is now seemingly resolved by virtue of a recent Lewis Brisbois victory in a case pending in the United States District Court for the Southern District of New York.

In Hanyziewicz v. Allegiance Retail Services, the plaintiff filed a putative class action lawsuit, alleging that the company’s website was not accessible to persons with vision disabilities. On behalf of the defendant, New York Partner Peter T. Shapiro, Associate Colby Berman, and Summer Associate Edward Friedman pushed back, pointing to a previous consent decree that resolved a similar claim involving the defendant’s mobile app. The consent decree in that case – in effect until April 1, 2024 – made clear that it applied to both the mobile app and the website, and provided that both would be modified as needed to substantially conform to the web content accessibility guidelines.

When the plaintiff would not voluntarily dismiss the action, Mr. Shapiro and his team filed a motion to dismiss or enjoin the prosecution of the case. District Judge Andrew L. Carter, Jr. granted the motion and enjoined the prosecution of the case in a decision dated March 31, 2023. Judge Carter ruled that the consent decree mooted the lawsuit, notwithstanding the plaintiff’s allegation that the website was not fully accessible.

The court had authority to issue that ruling under the All Writs Act, which empowers district courts to enjoin actions by non-parties when necessary to protect the court’s jurisdiction over a previously entered decree. Allowing the case to move forward would have been improper as the suit “could frustrate” the decree. Judge Carter noted the well-settled principle that “consent decrees serve a valuable role in preventing duplicative, harassing, and perhaps frivolous litigation.” The decision pointed out that the plaintiff is not without recourse: she can file a motion to enforce the consent decree under Federal Rule of Civil Procedure 71, asserting that the defendant is violating the decree’s remediation obligations. The plaintiff has not filed such a motion and the time to do so has elapsed.

Takeaway

Based on this ruling, we are optimistic that would-be plaintiffs who perform due diligence will refrain from filing suit against companies that have already committed to website remediation via a consent decree. If the plaintiff files suit notwithstanding the decree, the Hanyziewicz decision provides a strong basis to seek dismissal. Given the alarming frequency with which website accessibility lawsuits continue to be filed – including suits filed against companies that were sued and settled previously – the decision may serve a salutary goal of somewhat reducing the number of filings going forward. Of course, any company that enters into a consent decree must be cognizant of the burdens that are imposed. The decree has the effect of a court order, and a defendant that settles but then fails to remediate its website, despite having committed to do so, risks being held in contempt of the order.

For more information on this case, contact the authors of this post. Visit our ADA Compliance & Defense Practice page to learn more about our capabilities in this area.

Authors:

Peter Shapiro, Partner

Colby Berman, Associate