In an opinion today, Judge Failla dismissed as moot an ADA lawsuit accusing the supermarket chain Kroger of operating a website that isn’t accessible for the visually impaired. Kroger apparently addressed all the issues complained of. There is a huge body of litigation in this area (see this article and this article, for example), but Judge Failla found that this was one of the rare cases where a mootness defense was raised and was compelling:
The Court is aware that there are few cases in the federal courts, and none with precedential value, on this issue. It has reviewed the cases cited by the parties and others that were not cited. It recognizes that several sister courts in this District have found, on the facts of those cases, that the defendants had failed to establish mootness.
The instant case is different. Mr. Whiting’s affidavit [Kroger’s witness] addresses the deficiencies that courts have identified in defense showings made in support of mootness arguments.
Significantly, Mr. Whiting does not present some future plan for remediation of the Website, or some conclusory assertion that the Website is today compliant with the ADA. Instead, Mr. Whiting avers specifically that (i) Defendant undertook compliance with the WCAG standards before the lawsuit was filed; (ii) the Website is today compliant with those standards; (iii) he personally confirmed that the specific barriers to access identified in Plaintiff’s initial and amended complaints “have been remedied and that no such barriers to access, as alleged, still exist with the website”; (iv) Defendant has no intention of undoing those changes or regressing to non-compliance with the ADA; and (v) Defendant commits “to keep its website up to date and compliant with all applicable standards to make the website as accessible to all as possible.” This is a level of detail that the Court has not observed in the other cases it has reviewed.