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Del-Orden v. Bonobos, Inc.

United States District Court, S.D. New York

December 20, 2017

JOSE DEL-ORDEN, on behalf of himself and all others similarly situated, Plaintiff,
BONOBOS, INC., Defendant.

          OPINION & ORDER


         This 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.

         For the 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 discovery.

         I. Background[1]

         A. The Parties

         Del-Orden, 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.

         Bonobos is a retailer of clothing, shoes, golf gear, and accessories. Id. ¶ 19. Bonobos operates through the website, as well as through 38 brick-and-mortar stores in the United States. Id.

         B. The Initial Complaint and Bonobos' Motion to Dismiss

         On 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, 98-109.

         On June 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. at 24.

         C. The FAC

         On July 20, 2017, Del-Orden filed the FAC.[2] 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" 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 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.

         D. The Motion to Dismiss

         On July 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. Br.").[3]

         II. Discussion

         Bonobos' 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 website itself-allege an ongoing violation of the ADA.[4] 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.

         The Court addresses these arguments in sequence, after first reviewing the standards governing motions under Rules 12(b)(1) and 12(b)(6).

         A. Applicable Legal Standards

         1. Rule 12(b)(1)

         A claim 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 omitted).

         "A 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.

         Where a 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. 1996)).

         2. Rule 12(b)(6)

         To 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.

         B. Does the ADA Cover Private Commercial Websites Like

         The Court begins its analysis by addressing the overarching threshold issue: Does Title III of the ADA, which prohibits discrimination by "public accommodations, "[5] extend to a private commercial website like 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.

         1. The Second Circuit's Pallozzi Decision

         The 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)).

         Significant 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 that:

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 accommodation. Id.

         2. District Court Decisions Applying

         Pallozzi 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,, 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.

         3. Decisions From Other Circuit Courts

         Outside the Second Circuit, the circuit courts of appeals are divided over whether the ADA's Title III protections extend to Internet websites.

         The 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).[6] 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 ...

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