Virginia Lawyers Weekly VA Lawyers Weekly
A blind plaintiff lacked standing to sue a Virginia bank for maintaining a website without reasonable accommodations for individuals with disabilities, as he lived 300 miles from the nearest branch. Further, the bank’s voluntary upgrades – made prior to the suit – mooted his claim.
Background
Plaintiff Keith Carroll is permanently blind, using a screen reader to access the internet and read website content. Defendant New People’s Bank Inc. owns and operates banking locations in this judicial district, which constitute places of public accommodation. The Bank utilizes a public website to provide information, including a locator for Bank branches and descriptions of its services.
Carroll alleges that the Bank’s website contains accessibility barriers that prevent him from using screen-reading software to freely navigate the site. Specifically, the website has the following barriers that prevent its full and free use by blind users: (1) linked image missing alternative text; (2) redundant links; and (3) empty or missing form labels.
Carroll asserts that these barriers violate the Americans with Disabilities Act of 1990 by making the website not fully accessible to visually-impaired users and failing to make reasonable modifications to correct the barriers. The Bank has moved to dismiss his Complaint for lack of standing, pursuant to Federal Rule of Civil Procedure 12(b)(1).
Standing
Carroll has failed to show that he has suffered an injury in fact or that there is a real threat of future harm. Unlike the plaintiff in Daniels v. Arcade LP, 477 Fed. App’x 125 (4th Cir. 2012), Carroll doesn’t live near the Bank. His county of residence is Fairfax, Virginia, nearly 300 miles from the closest Bank branch. Although Carroll could certainly visit the Bank’s website at any time, it seems implausible that he would travel hundreds of miles now or in the future to visit the Bank’s physical locations.
Moreover, Carroll alleges only that in “recent months” he made several attempts to use the Bank’s website but was deterred from accessing it and visiting the Bank’s physical locations. He claims he could not browse the site, look for branch locations, check out the Bank’s amenities, or determine which location to visit due to the alleged accessibility barriers. But he doesn’t allege that he actually uses or plans to use the Bank’s services. Accordingly, he fails to allege an injury in fact or a plausible likelihood of future harm.
In his responsive brief, Carroll argues that his injury in fact was dignitary harm. Although intangible harm can confer standing, it doesn’t do so in this case. First, he didn’t allege such injury in his complaint. Furthermore, if dignitary harm under such circumstances was sufficient to confer standing, then any disabled person who learned of any barrier to access of a public accommodation would automatically have standing to challenge the barrier, thereby essentially eliminating the injury-in-fact requirement.
Indeed, this is precisely what Carroll argues that the law should permit him to do – sue each and every website of a public accommodation that has a barrier to accessibility. The court does not agree. Allowing Carroll’s claim to proceed based on dignitary harm alone would undermine the notion that standing requires a concrete injury even in the context of a statutory violation.
Finally, Carroll cannot claim standing as a “tester,” because this theory still requires him to establish standing. Carroll essentially argues that traditional notions of standing should not apply to lawsuits involving online services offered by places of public accommodation, and that any accessibility barrier contained within such online services automatically establishes injury in fact. The court declines to broaden the standing requirements under Article III in such a manner.
In any event, Carroll’s claim is also now moot, based on the Bank’s voluntary website upgrades made after this action was filed. Carroll does not dispute these upgrades, and therefore, his allegations are premised upon a website that no longer exists. While Carroll argues that there is no guarantee the Bank will not revert to its former inaccessible website, the court finds it unlikely that the Bank would return to a website that is less functional and contains the alleged accessibility barriers.
Motion to dismiss granted.
Carroll v. New People’s Bank Inc., Case No. 1:17cv44, Apr. 5, 2018. WDVA at Abingdon (Jones). Thomas E. Strelka and L. Leigh Strelka for Plaintiff; Eric Daniel Chapman and James K. Cowan Jr. for Defendant. VLW No. 018-3-138, 11 pp.
