Businesses scored a win in a recent California Court of Appeal decision affirming a defense jury verdict in a website accessibility lawsuit. In Cheryl Thurston v. Omni Hotels Management Corp., the court held that for a plaintiff to prevail in such a claim, she must show a “bona fide intent” to actually use the defendant’s website. 2021 Cal. App. LEXIS 787, *11, 2021 WL 4315811 (September 23, 2021).
Thurston sued Omni, an operator of hotels and resorts, alleging that its website is not fully accessible by the blind and the visually-impaired in violation of the California Unruh Act and Americans with Disabilities Act (ADA). At trial, the evidence showed that Thurston went to Omni’s website on multiple occasions in search of a hotel room and encountered issues involving the reservation function. However, Thurston never tried to contact Omni directly by phone or e-mail or book a reservation using a third party website (e.g., Expedia, Orbitz, etc.), and she did not look at any other hotel websites. She never actually made any hotel reservations during the occasions she was searching for a room.
The court instructed the jury that in order to establish a violation of the Unruh Act based on a violation of the ADA, Thurston had to prove that she attempted to use Omni’s website for the purpose of making a hotel reservation (or to ascertain Omni’s prices and accommodations for the purpose of considering whether to make a hotel reservation). The jury was unconvinced by Thurston, and a judgment was entered in favor of Omni. Thurston appealed, contending that the trial court erred in instructing the jury that her claim requires a finding that she “intended” to book a reservation.
The Court of Appeal found that at the pleading stage, and for purposes of standing, the Unruh Act requires the plaintiff to allege that she visited the business’s website, encountered discriminatory terms, and intended to make use of the business’s service. But beyond the pleading stage, a plaintiff must actually “present sufficient evidence to overcome the online defendant’s argument that he or she ‘did not actually possess a bona fide intent to sign up for or use its service.’” In affirming, the Court of Appeal also found no other error in the trial court’s instructions to the jury.
In our experience, the reality is that serial plaintiffs, who never intend to actually use a business’s website or services, bring most website accessibility claims. But proving this may be arduous and, perhaps most importantly, expensive with diminishing returns. As this case shows, Omni had to go all the way to trial, meaning that it did not dispose of this issue at the initial pleading stage or through summary judgment. The issue of “intent” is most likely going to be a fact question for the jury or judge late in the proceedings, and it is almost always cheaper (by a landslide) to settle than go to trial. But for businesses who want to fight website accessibility claims, this decision serves as another arrow in the quiver.