United States District Court, S.D. New York
JOSE DEL-ORDEN, on behalf of himself and all others similarly situated, Plaintiff,
BONOBOS, INC., Defendant.
OPINION & ORDER
A. ENGELMAYER, DISTRICT JUDGE.
case is a putative class action by a legally blind plaintiff
claiming that the website of Bonobos, Inc.
("Bonobos"), an establishment that sells clothing
and accessories, including through its website, is not
compliant with the Americans with Disabilities Act (the
"ADA"), because the website denies equal access to
blind customers. Bonobos now moves to dismiss the first
amended complaint ("FAC") of named plaintiff Jose
Del-Orden ("Del-Orden"). Bonobos argues that the
ADA does not apply to commercial websites. And, Bonobos
argues, even if the ADA does apply, the FAC fails to state a
live ADA claim, because that claim seeks only injunctive
relief, and Bonobos contends that, by the time the FAC was
filed, it had remedied its website to cure the access
barriers of which the FAC complains, leaving no unlawful
conduct to enjoin.
reasons that follow, the Court denies Bonobos' motion.
The Court today joins the growing number of courts to hold
that commercial websites qualify as "public
accommodations" within the meaning of the ADA, such that
the ADA's protections extend to blind persons who claim
discriminatory access to such websites. And, as explained
below, the Court cannot hold, on Bonobos' motion to
dismiss, that the Bonobos website is today compliant with the
ADA- i.e., that all material deficiencies cited in
the FAC have been cured so as to moot Del-Orden's bid for
injunctive relief under the ADA. The Court therefore denies
Bonobos' motion to dismiss. The case will now proceed to
who is legally blind, cannot use a computer without the
assistance of a screen-reader, a piece of software that
allows the visually impaired to access information on a
computer screen. FAC ¶¶ 17, 38. Such software
"vocalizes visual information on a computer
screen." Id. ¶ 38.
is a retailer of clothing, shoes, golf gear, and accessories.
Id. ¶ 19. Bonobos operates through the website
Bonobos.com, as well as through 38 brick-and-mortar stores in
the United States. Id.
The Initial Complaint and Bonobos' Motion to
April 17, 2017, Del-Orden filed a Complaint in this Court
against Bonobos. It alleged that Del-Orden had attempted on
various occasions-most recently earlier in April 2017-to
complete a transaction on Bonobos' website, but that he
had been prevented from doing so by various features of the
website that presented access barriers to blind consumers.
Dkt. 1 ("Compl") ¶¶ 48-49. The Complaint
alleged that Bonobos had willfully put these barriers in
place and that they violated the ADA. Id. ¶ 52.
As relief under the ADA, the Complaint sought injunctive
relief and reasonable attorneys' fees. Id.
¶¶ 67-68. In separate claims under the New York
State and City Human Rights Laws, the Complaint also sought
compensatory damages. Id. ¶¶ 70-84, 85-97,
30, 2017, Bonobos moved to dismiss on various grounds.
See Dkt. 11 (motion to dismiss); Dkt. 12 (memorandum
of law) ("Bonobos Mem."). These included that
Bonobos' website was not covered by the ADA because
privately owned commercial websites do not qualify as places
of "public accommodation" within the statute's
meaning. Bonobos further argued that even if the ADA applies
to such websites, Bonobos' website is today
"compliant with most commercially available
screen-reading software" and therefore can be used by
blind customers. Bonobos Mem. at 2-3. Therefore, Bonobos
argued, Del-Orden's claim for injunctive relief-the sole
relief available under his federal claim, under the ADA-was
both moot and substantively deficient, and the case should
therefore be dismissed for lack of subject matter
jurisdiction and for failure to state a claim. Id.
20, 2017, Del-Orden filed the FAC. Dkt. 17. Again bringing a
claim under the ADA and claims under state and city law, the
FAC added the allegation that in July 2017, Del-Orden had
again visited the Bonobos website, and, as in April 2017, had
been unable, due to his blindness, to make an online
purchase. FAC ¶ 17. Del-Orden, the FAC alleged, remained
unable to "select the desired fit and type of
clothes" and to "mak[e] purchases on
Bonobos.com." Id. ¶ 43. In particular, it
alleged, Del-Orden was unable to specify a collar type when
attempting to purchase a customizable shirt. Id.
¶ 46. To do so, the FAC alleged, required use of a
computer mouse, which Del-Orden is unable to use.
Id. Because Bonobos.com is inaccessible to him, the
FAC alleged, Del-Orden may access Bonobos only at one of its
brick-and-mortar locations. Id. ¶ 47. But, the
FAC alleged, because of access barriers on the website,
Del-Orden "was unable to find the location of a physical
store location on [Bonobos'] website, preventing him from
going into a physical store to complete a purchase with the
help of Bonobos' employees." Id. ¶ 49.
The Motion to Dismiss
25, 2017, the Court held an initial pre-trial conference, set
a briefing schedule for Bonobos' anticipated motion to
dismiss the FAC, and stayed discovery pending resolution of
the motion to dismiss. See Dkt. 20. On August 11,
2017, Bonobos filed its motion to dismiss. Dkts. 21-23
("Def. Br.")- On September 1, 2017, Del-Orden filed
a brief in opposition, Dkt. 24 ("Pi. Br."), and on
September 15, Bonobos filed a reply, Dkt. 25 ("Def. R.
motion to dismiss principally raises two issues. The first is
whether the ADA applies to private commercial websites,
i.e., whether such websites are "public
accommodations" within the meaning of the statute.
Bonobos argues that the ADA does not so apply, and therefore
that the FAC cannot state a federal claim. The second is
whether, even if the ADA can apply in principle to such
websites, the FAC-and the materials cognizable on this
motion, including the Bonobos.com website itself-allege an
ongoing violation of the ADA. Bonobos argues that it does not:
It represents that, after the filing of Del-Orden's
initial complaint, it made modifications improving the
accessibility of its website and that a review of the website
reveals that it is today accessible to blind users by the
standards commonly used to assess such accessibility. Bonobos
argues that injunctive relief is thus not available and that,
because the ADA does not provide for compensatory damages,
Del-Orden's sole federal claim for relief is moot.
Bonobos therefore contends that the ADA claim must be
dismissed, either for want of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), or for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Further, Bonobos argues, the FAC's
remaining claims under state and city law, which are before
the Court only as pendent to the ADA claim, must be dismissed
for lack of federal jurisdiction.
Court addresses these arguments in sequence, after first
reviewing the standards governing motions under Rules
12(b)(1) and 12(b)(6).
Applicable Legal Standards
is "properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it." Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). Because "Article III, § 2, of
the Constitution limits the jurisdiction of federal courts to
'Cases' and 'Controversies, '" "an
actual controversy must be extant at all stages of
review." Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 71 (2013) (citation omitted). "If an
intervening circumstance deprives the plaintiff of a personal
stake in the outcome of the lawsuit, at any point during
litigation, the action can no longer proceed and must be
dismissed as moot." Id. at 72. (citation
plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that
jurisdiction exists." Giammatteo v. Newton, 452
Fed.App'x. 24, 27 (2d Cir. 2011) (citing
Makarova, 201 F.3d at 113). In resolving a motion to
dismiss for lack of subject matter jurisdiction, "the
court must take all facts alleged in the complaint as true
and draw all reasonable inferences in favor of plaintiff,
" Natural Res. Def. Council v. Johnson, 461
F.3d 164, 171 (2d Cir. 2006) (internal quotation omitted),
but "jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences
favorable to the party asserting it, " Shipping Fin.
Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.
1998); see also APWU v. Potter, 343 F.3d 619, 623
(2d Cir. 2003); Amidax Trading Group v. S. W.I.F.T.
SCRL, 671 F.3d 140, 145 (2d Cir. 2011). On such a
motion, a court may consider evidence outside the pleadings,
such as affidavits and exhibits. See Makarova, 201
F.3d at 113.
defendant moves to dismiss a claim for injunctive relief
claiming mootness due to its post-litigation corrective
measures, '"factual changes made by a defendant
after litigation has commenced cannot render a case moot
unless it is absolutely clear the defendant cannot resume the
allegedly offending conduct."' Clear Channel
Outdoor, Inc. v. City of New York, 594 F.3d 94, 110 (2d
Cir. 2010) (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 189 (2000)). But,
"[t]he voluntary cessation of allegedly illegal activity
may render a case moot 'if the defendant can demonstrate
that (1) there is no reasonable expectation that the alleged
violation will recur and (2) interim relief or events have
completely and irrevocably eradicated the effects of the
alleged violation.'" Id. (quoting
Campbell v. Greisberger, 80 F.3d 703, 706 (2d Cir.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must plead "enough facts to state a claim to relief that
is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 5445 570 (2007). A claim
will only have "facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009). A complaint is properly dismissed,
where, as a matter of law, "the allegations in a
complaint, however true, could not raise a claim of
entitlement to relief." Twombly, 550 U.S. at
558. Accordingly, a district court must accept as true all
well-pleaded factual allegations in the complaint, and draw
all inferences in the plaintiffs favor. ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir. 2007). However, that tenet "is inapplicable to
legal conclusions." Iqbal, 556 U.S. at 678. A
pleading that offers only "labels and conclusions"
or "a formulaic recitation of the elements of a cause of
action will not do." Twombly, 550 U.S. at 555.
Does the ADA Cover Private Commercial Websites Like
Court begins its analysis by addressing the overarching
threshold issue: Does Title III of the ADA, which prohibits
discrimination by "public accommodations,
" extend to a private commercial website
like Bonobos.com? The Court agrees with Bonobos that whether
the ADA applies to such a website is an open question in the
Second Circuit. However, the Court is persuaded by various
authorities-including an instructive Second Circuit decision
applying the ADA to insurance services, decisions of district
courts in this Circuit, and the decisions of other circuit
courts of appeal-that the ADA applies to commercial websites
in general. The Court is further persuaded that, even if this
were not so, the ADA clearly applies to private commercial
websites which (as here) operate in tandem with the
merchant's conventional (i.e., brick and mortar)
places of public accommodation.
The Second Circuit's Pallozzi Decision
Second Circuit has not addressed whether the ADA's
prohibition on discrimination in places of "public
accommodation" extends to "places" on the
Internet or to the online services of real-world public
accommodations. A closely analogous Second Circuit decision,
however, strongly suggests that it does. In Pallozzi v.
Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999),
opinion amended on denial of reh 'g, 204 F.3d
392 (2d Cir. 2000), the Circuit held that Title III of the
ADA regulates insurance underwriting practices, regardless of
where that underwriting takes place. The Court began
"with the fact that Title III specifies an
'insurance office' as a 'public
accommodation.'" Id. at 31. Title III, the
Court noted, prohibits such a place from
"discriminat[ing] against [an individual] on the basis
of disability in the full and equal enjoyment of [its]
goods [and] services." Id. (emphasis
and alterations in original) (quoting 42 U.S.C. §§
12181 (7)(F), 12182(a)). The Circuit wrote: "The most
conspicuous 'goods' and 'services' provided
by an 'insurance office' are insurance policies.
Thus, the prohibition imposed on a place of public
accommodation from discriminating against a disabled customer
in the enjoyment of its goods and services appears to
prohibit an insurance office from discriminatorily refusing
to offer its policies to disabled persons." Id.
(citing Doe v. Mutual of Omaha Ins. Co.,
179 F.3d 557, 559 (7th Cir. 1999)).
here, the Second Circuit in Pallozzi rejected the
insurer's contention that the ADA applies only to
"insurance offices" i.e., the claim that
Title III guarantees only "physical access to the
facilities of insurance providers, " but does not
"prohibit discrimination against the disabled in
insurance underwriting." Id. at 32. The Circuit
found that argument "unpersuasive, " explaining
Title Ill's mandate that the disabled be accorded
"full and equal enjoyment of the goods, [and] services
... of any place of public accommodation, " suggests to
us that the statute was meant to guarantee them more than
mere physical access.
Id. The Circuit also drew significance from that
statutory text, noting that Congress had chosen to guarantee
access to goods and services "of my place of
public accommodation, " rather than
"/'«" such a place. It explained:
"The term 'of generally does not mean 'in, '
and there is no indication that Congress intended to employ
the term in such an unorthodox manner in Section 302(a) of
Title III." Id. at 33. The Circuit also noted
that "many of the private entities that Title Ill.
defines as 'public accommodations'-such as a
'bakery, grocery store, clothing store, hardware store,
[or] shopping center, ' as well as a 'travel service,
... gas station, office of an accountant or lawyer, [or]
pharmacy, ' sell goods and services that are ordinarily
used outside the premises." Id. It would make
little sense, the Circuit reasoned, to limit Title Ill's
scope to discrimination in the provision of goods or services
literally consumed in a place of public
District Court Decisions Applying
to Websites Since Pallozzi, the four district courts
in this Circuit to address the issue have each held, drawing
on that decision, that Title III extends to online fora
offering goods and services. In National Federation of
the Blind v. Scribd Inc., 97 F.Supp.3d 565 (D. Vt.
2015), the court held that Title III applied to a digital
library subscription service, Scribd, accessible only via the
Internet. Id. at 567. In Markett v. Five Guys
Enterprises LLC, No. 17-CV-788 (KBF), 2017 WL 5054568
(S.D.N.Y. July 21, 2017), Judge Forrest held that a fast food
restaurant's website, Fiveguys.com, was "covered
under the ADA, either as its own place of public
accommodation or as a result of its close relationship as a
service of defendant's restaurants, which indisputably
are public accommodations under the statute."
Id. at *2. More recently and comprehensively, in
Andrews v. Blick Art Materials, LLC, No. 17-CV-767,
2017 WL 3278898 (E.D.N.Y.Aug. 1, 2017), Judge Weinstein held
that Title III applied to a website run by a company, Blick
Art Materials, even absent a connection to Blick's
brick-and-mortar stores. Id. at *8. After carefully
canvassing the applicable authorities, Judge Weinstein held
that Title III prohibited Blick "from discriminating
against the blind by failing to take the steps necessary to
ensure that the blind have 'full and equal enjoyment'
of the goods, services, privileges, advantages, facilities,
or accommodations of its website-provided that taking such
steps would not impose an undue burden on Blick or
fundamentally alter the website." Id. Finally,
in Suvino v. Time Warner Cable, Inc., No. 16 CV
7046-LTS-BCM, 2017 WL 3834777 (S.D.N.Y. Aug. 31, 2017), Judge
Swain held that Title III applies to the website of Time
Warner Cable as a good or service of the physical stores
through which Time Warner Cable offered its services.
Id. at *2.
Decisions From Other Circuit Courts
the Second Circuit, the circuit courts of appeals are divided
over whether the ADA's Title III protections extend to
Third, Sixth, and Ninth Circuits have held that the term
"public accommodations" "is limited to
physical accommodations." Peoples v. Discover Fin.
Servs., Inc., 387 Fed.Appx. 179, 183 (3d Cir. 2010);
see Weyer v. Twentieth Century Fox Film Corp., 198
F.3d 1104, 1114-15 (9th Cir. 2000); Parker v. Metro. Life
Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997)
("As is evident by § 12187(7), a public
accommodation is a physical place and this Court has
previously so held."). Those circuits have generally
relied on the ADA's enumeration of particular
"public accommodations" covered by Title III as
including, inter alia, inns and hotels, restaurants
and bars, movie theaters, stadiums, stores, banks,
barbershops, law offices, train stations, museums, parks,
schools, day cares, and gymnasiums. 42 U.S.C. §
12181(7). The reasoning of the Ninth Circuit in
Weyer is representative. "Places of public
accommodation, " the Ninth Circuit explained,
are actual, physical places where goods or services are open
to the public, and places where the public gets those goods
or services. The principle of noscitur a sociis
requires that the term, "place of public accommodation,
" be interpreted within the context of the accompanying
words, and this context suggests that some connection between