Gathers et al v. 1-800-FLOWERS.com, Inc.
Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER DENYING 26 Motion to Dismiss. (DaSilva, Carolina)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
LISA GATHERS, R. DAVID NEW, et al., *
Civil Action No. 17-cv-10273-IT
MEMORANDUM AND ORDER
Plaintiffs allege that Defendant 1-800-Flowers.com, Inc., violates Title III of the
Americans with Disabilities Act (“ADA”) by not making its websites sufficiently accessible to
blind and visually-impaired consumers. Plaintiffs seek a permanent injunction compelling
Defendant to bring its websites into compliance with the requirements of the ADA, by, among
others things, requiring Defendant to comply with Version 2.0 of the Web Content Accessibility
Guidelines developed by the Worldwide Web Consortium. Compl. 8; 18-19 [#20]. Plaintiffs
also seek a declaratory judgment that at the time of the commencement of the action, Defendant
was in violation of the ADA, and payment of costs and reasonable attorney’s fees. Defendant
has moved to dismiss the Amended Complaint (“Complaint”) [#20] pursuant to both Federal
Rules of Civil Procedure 12(b)(6) and 12(b)(1), arguing, among other things, that Plaintiff
improperly seeks to impose liability for Defendant’s failure to follow voluntary standards for
web accessibility that do not have the force of law. Mot to Dismiss Pls. Am. Compl. [#26]. For
the reasons that follow, the motion is DENIED.
In ruling on a motion to dismiss, whether for failure to state a claim or lack of standing,
the court must accept the plaintiffs’ well-pleaded factual allegations and draw all reasonable
inferences in the plaintiffs’ favor. See Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d
315, 320 (1st Cir. 2008) (Rule 12(b)(6)); Blum v. Holder, 744 F.3d 790, 795 (1st Cir. 2014)
(Rule 12(b)(1)). To survive a motion to dismiss for failure to state a claim, a complaint must
contain sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The court “draw[s] the facts primarily from the complaint,”
and “may supplement those factual allegations by examining ‘documents incorporated by
reference into the complaint, matters of public record, and facts susceptible to judicial notice.’”
Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013) (quoting Haley v. City of Bos., 657 F.3d 39,
46 (1st Cir. 2011)).
Title III prohibits discrimination on the basis of disability in the full and equal
enjoyment of the goods and services of any place of public accommodation. 1 The ADA
specifically requires Title III entities to “take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services, segregated, or otherwise treated
differently than other individuals because of the absence of auxiliary aids and services.”
42 U.S.C. § 12182(b)(2)(A)(iii). 2
Plaintiff Access Now, Inc. is a national disability rights organization. Am. Compl.
Defendant does not dispute that its websites are places of public accommodation subject to
regulation by Title III of the ADA.
The ADA provides an exception where Title III requirements would fundamentally alter the
(“Compl.”) ¶¶ 14-18. Individual Plaintiffs Lisa Gathers, R. David New, and Stephen Theberge
allege that they are all legally blind individuals who access the Internet using auxiliary aids
known as screen readers, which convert a website’s text, buttons, and links to audio. Id. ¶¶ 5,
19-21, 30, 32, 34 [#20]. Defendant owns and operates sixteen websites, including 1-800Flowers.com, which sell various products and offer services to consumers. Id. ¶¶ 2-3.
Individual plaintiffs allege that they have tried to access websites run by Defendant
using screen readers but have discovered myriad barriers that prevent them access. Id. ¶¶ 2934. For example, plaintiffs allege that, among other things, the following problems arose when
navigating one or more of the websites owned and operated by Defendant:
Buttons are missing labels describing their action to a screen reader user;
Error messages generated during the placement of orders are difficult for a
screen reader to locate and read;
Multiple audio streams automatically begin playing simultaneously on the
customer support page, making it impossible to determine what any feed is
Images of items for sale on many of Defendant’s websites do not provide any
written description that a screen reader program can read aloud to describe the
The screen reader is unable to “go back”
nature of the goods and services being offered or would result in an undue burden, but Defendant
raises no argument based on either of these circumstances.
The screen reader is unable to locate the correct field in which to type payment
Id. ¶¶ 30-34; see also id. ¶ 35 (alleging a number of additional barriers to access).
Defendant contends, first, that Plaintiffs’ Complaint must be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim because Plaintiffs allege
that Defendant is liable for failing to comply with the Web Content Accessibility Guidelines
despite these standards not having force of law under Title III of the ADA. Defs. Mem. 10-11
[#27]. Relatedly, Defendant argues that this court should not rule on whether compliance with
the Web Content Accessibility Guidelines is required by Title III because deference to the
Department of Justice’s (“DOJ”) rulemaking process 3 is appropriate under the primary
jurisdiction doctrine. See Pejepscot Indus. Park, Inc. v. Me. Cent. R.R. Co., 215 F.3d 195, 205
(1st Cir. 2000) (noting that courts should determine whether deference is appropriate under the
primary jurisdiction doctrine by considering (1) whether an agency determination lies at the
heart of a task assigned by Congress to the agency; (2) whether agency expertise is required to
In 2010, DOJ published an Advanced Notice of Proposed Rulemaking to revise the regulations
implementing Title III. 75 Fed. Reg. at 43460. In that Advanced Notice of Proposed
Rulemaking, DOJ solicited public comment on whether and how the agency should adopt the
Web Content Accessibility Guidelines as its standard for website accessibility for Title II and III
entities. 75 Fed. Reg. at 43465. No rule or regulation has been adopted as a result of the
Advanced Notice of Proposed Rulemaking, and in 2015, DOJ announced that it will pursue
separate rulemakings addressing Web accessibility for websites falling under Title II and Title
III, and that DOJ will move forward with rulemaking for Title II first. See Andrews v. Blick Art
Materials, LLC, No. 17-cv-767, 2017 WL 3278898, at *16 (E.D.N.Y. Aug. 1. 2017). In 2016,
DOJ withdrew the Advanced Notice of Proposed Rulemaking and issued a Supplemental
Advanced Notice of Proposed Rulemaking seeking input only related to the websites of entities
covered by Title II. Id.
unravel intricate, technical facts; and (3) whether the agency’s determination would materially
aid the court).
Both arguments rest on a mistaken premise. Plaintiffs’ Complaint does not allege that
Defendant is liable for failing to comply with the Web Content Accessibility Guidelines.
Instead, Plaintiffs allege that Defendant violates the ADA by “depriv[ing] blind . . . individuals
the benefits . . . it affords non-disabled individuals.” Compl. ¶ 7 [#20]. Plaintiffs request
compliance with the Web Content Accessibility Guidelines only as a remedy, and do not
contend that the failure to comply is a basis for liability in the first instance. Compl. ¶ 8 [#20].
Thus, the Complaint seeks to enforce the ADA’s statutory requirements, rather than the Web
Content Accessibility Guidelines.
Defendant also contends that Plaintiffs fail to state a claim under Rule 12(b)(6) for
three additional reasons. Defendant argues that (1) Plaintiffs allege only that the screen-reader
software does not work properly, not that the websites are incompatible with the software,
Defs. Mem. 10 [#27]; (2) Plaintiffs rely on facts alleging harm encountered by all website
users, not just blind website users, Defs. Mem. 10-11 [#27]; and (3) to the extent Plaintiffs do
allege that the websites are incompatible with the software, the websites’ issues are isolated
incidents of mechanical failure, Defs. Reply 2-2 [#33]. The first two of these arguments are
each contrary to the allegations contained in the Complaint. For example, Plaintiffs assert that
Defendant’s websites do not have text equivalents for every non-text element, Compl. ¶ 35(a)
[#20]; that the websites do not present audio-only or video-only presentations in a way that
sight impaired individuals can access, such as an audio or text description of video content;
Compl. ¶ 35(b)-(c); and that its web pages lack titles that describe their topic and purpose, id.
¶ 35(k). Such allegations are sufficient to support the reasonable inference that the websites
themselves – not the screen reader equipment – prevent blind and visually impaired individuals
from equal access to the websites, and that Defendant is therefore in violation of Title III. See
Blue Apron, 2017 WL 5186354, at *1 n.1 (denying a motion to dismiss where the “plaintiffs
allege[d] that blueapron.com contains various input fields, links, and buttons that are not
labeled or properly labeled—preventing the effective use of screen-reader software”).
Regarding the third argument, Defendant identifies nothing in the Complaint that supports its
assertion that the websites issues are isolated incidents of mechanical failure. Accepting
Plaintiffs’ well-pleaded factual allegations and drawing all reasonable inferences in Plaintiffs’
favor, as the court must at this stage, see Caterpillar, 524 F.3d at 320, does not permit the
conclusion that the numerous obstacles identified are isolated incidents of mechanical failure.
Separately, Defendant argues that Plaintiffs’ complaint must be dismissed for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), for absence of
both ripeness and standing. Defendant first contends that the claim is not ripe for review
because DOJ is in the midst of ongoing rulemaking proceedings to determine what standards
will apply to Title III entities. Defs. Mem. 9-10 [#27]; see supra note 3. But, again, this case
does not require the court to decide whether the ADA requires Title III entities to satisfy the
Web Content Accessibility Standards. The allegations in the Complaint, if true, could support a
finding that Defendant violated the ADA by failing to take the steps necessary to ensure that no
individual with a disability is excluded, denied services, segregated, or otherwise treated
differently than other individuals because of the absence of auxiliary aids and services from its
websites. DOJ’s rulemaking process has no impact on the fitness of this case for adjudication.
Next, Defendant contends that the individual Plaintiffs lack standing to bring this case
because they have failed to plead an injury in fact. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992) (to establish standing, plaintiffs must plead an injury in fact which is
concrete and particularized, and actual or imminent). Defendant contends that individual
Plaintiffs “have alleged no facts showing that any of the alleged access barriers resulted in
actual harm . . . or prevented them from accessing the [1-800-Flowers websites]” and “fail to
adequately plead a concrete, present plan to return to the [websites].” Defs. Mem. 8.
Once again, Defendant’s assertion is belied by the Complaint itself, which alleges
numerous specific facts showing that barriers in Defendant’s websites caused actual harm to the
individual Plaintiffs. For example, the Complaint alleges that Plaintiff New could not locate and
read error messages with his screen reader, Compl. ¶ 30 [#20], that Plaintiff Gathers
encountered pictures of items for sale without matching written descriptions that her screen
reader could read her, id. ¶ 32, and that Plaintiff Théberge was unable to locate where to type
his credit/debit card information to complete an online purchase, id. ¶ 34. Such allegations are
sufficient to establish the injury in fact required to survive a motion to dismiss. See
Gniewkowski v. Lettuce Entertain You Enterprises, Inc., 251 F. Supp. 3d 908, 913-14 (W.D.
Pa. 2017) (plaintiffs suffered an injury in fact under the ADA where “Defendant’s website
barred Plaintiffs’ screen reader software from reading the content of its website,” such that
“Plaintiffs were unable to conduct on-line research to compare financial services and
Finally, Defendant argues that Plaintiff Access Now lacks associational standing for two
reasons. See Defs. Mem. 8-9 [#27]. “[A]n association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
First, Defendant contends that Access Now lacks associational standing because its
members do not have standing to sue in their own right. This assertion fails because, as set forth
above, the individual Plaintiffs have standing. Defendant’s alternative argument that Access
Now lacks associational standing because the claim asserted or the relief requested require the
participation of individual members fairs no better. The question whether the alleged
deficiencies in Defendants’ websites constitute violations of Title III is a question of law, and
requires no review of any individuals’ particular circumstances. Moreover, both the declaratory
and injunctive relief sought will apply to all individual members equally and need not be
tailored to any particular member. See Camel Hair & Cashmere Inst. of Am., Inc., 799 F.2d 6,
12 (1st Cir. 1986) (“Actions for declaratory, injunctive and other forms of prospective relief
have generally been held particularly suited to group representation.”); see also Playboy Enters.
v. Pub. Serv. Comm’n of Puerto Rico, 906 F.2d 25, 35 (1st Cir. 1990) (“[J]ust because a claim
may require proof specific to individual members of an association does not mean the members
are required to participate as parties in the lawsuit.”).
For the foregoing reasons, Defendant’s Motion to Dismiss [#26] is DENIED.
Date: February 12, 2018
United States District Judge
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