By: Marque N. Staneluis, Esq.
This is the second installment in this series that addresses the ADA website complaints that have a significant cybersecurity and cybercrime dimension. In this installment we look at a case through the lens of the Robles claim. You can find the first part here.
If you are up to speed on part one, then proceed and look at a case that is an extreme illustration, but one that was filed in the U.S. District Court, Southern District of New York and requires the business and therefore website owner to expend time and money to address.
Primitivo Robles v. The Other Side Dispensary, LLC
The nascent legal cannabis industry in New York and New Jersey has faced a number of challenges, from a slower-than-expected roll-out of dispensaries to a plethora of unlicensed dispensaries, which created unfair competition as well as confusion. Now they face a new problem, ADA Title III lawsuits against their internet presence, i.e. their website. One such example is Primitivo Robles v. The Other Side Dispensary, LLC.
A plaintiff, Primitivo Robles, who is a citizen of Bronx Country in New York, and his representation Joseph & Norisberg, LLC, have filed, at the time of this writing, twenty separate class action lawsuits against cannabis dispensaries claiming that he, and others like him, have been “denied the full use and enjoyment of the facilities, goods and services offered to the general public, on Defendant’s Website in Bronx County.” These claims have been filed in the Federal Court of the Southern District of New York seeking both injunctive relief and compensation for “himself and all others similarly situated, seeks to certify a nationwide class.” Of the businesses targeted, four are based and sell cannabis in New Jersey.
This case exemplifies the abuse of ADA litigation. Filed on October 11, 2024 (24-cv-7729), the complaint alleges that the defendant’s website is inaccessible to individuals with visual impairments, violating Title III of the ADA. However, closer scrutiny reveals serious legal deficiencies:
The Claims
On behalf of Mr. Robles, Joseph & Norinsberg, LLC have filed 20 nearly identical claims, with only slight variations for the defendant’s name and website, a few of the product names, the date of first access, and the particular accessibility audit tool used to validate the website. The claim that jumped out at me was the one filed on Friday, October 10, 2024, 1:24-cv-07729-VSB, Robles v. The Other Side Dispensary, LLC.
As is standard in an ADA Title III claim, there is an assertion of subject-matter jurisdiction, venue, and personal jurisdiction over the Defendant. It asserts that venue is proper since “Defendant conducts and continues to conduct a substantial and significant amount of business in [the] District via the Internet and a substantiation portion of the conduct complained [of] …because Plaintiff attempted to utilizes, on a number of occasion, the subject Website within this judicial District.” For personal jurisdiction, it claims the SDNY is proper since “Defendant purposefully targets and otherwise solicits business from New York State residents through its website.
It states the Nature of the Action and then addresses Standing. During the argument for standing the claim asserts that Mr. Robles suffers from Retinitis Pigmentosa that resulted in his loss of vision. His blindness was diagnosed legally blind on March 10, 2024. Because he was worried about the dangers of dependency on his prescription medication, he discovered that a particular strain of marijuana provided particular pain relief. According to the claim, the “specific strains of marijuana (and related products) could also provide significant pain relief and is 100% legal and can be shipped anywhere in the United States, including New York.” and that “Plaintiff intends to utilize the services of Defendant and their Website, www.tosdispensary.com, because he has in the past utilized similar websites that took advantage of his physical condition by failing to send the ordered products…”
The claim then makes a very interesting assertion about how Mr. Robles has had to shop from “numerous providers, many of which operate in the legal gray area, operating without regard for the law or well-being of their customers.” A few paragraphs later he indicates he accessed the website and felt the “user reviews and rating on the website further added to their credibility, offering real-world experiences of other customers.” As the Standing assertion continues, there is an itemized list of issues that the auditing tool revealed. This includes “Broken Links,” “Empty Aria Elements Absent Accessible Names,” “Links without Accessible Names,” “Empty Buttons,” “Redundant Alternative text,” and “Skipped Heading Levels.” The claim continues explaining how WCAG 2.1 Guidelines would provide equal access and that the Defendant is engaging “in acts of intentional discrimination.” The claim provides the appropriate language for why the federal court has subject matter jurisdiction over a federal case; it also has the appropriate language to explain how the court also has supplemental jurisdiction under the New York State Human Rights Law, New York City Human Rights Law, and New York City Civil Rights Law; it also provides the appropriate argument for why venue is proper. The claim then argues that “Defendant purposefully targets and otherwise solicits business from New York State residents through its highly interactive Website,” as well as “Plaintiff has been denied the full use and enjoyment of the facilities, goods and services offered to the general public, on Defendant’s Website in Bronx County” as justification for why this court has personal jurisdiction over the defendant.
When you compare the language between this claim and the 20 other submitted by Mr. Robles and his counsel, there is a striking similarity. The Defendant names, products, and method used to verify, and a few other elements, all of which are bolded, are changed but everything else remains the same.
Jurisdiction
Personal Jurisdiction is the court’s authority to adjudicate the rights and liability of the defendant. According to interpretations of the U.S. Constitution it requires that the defendant has certain minimum contacts with the forum in which the court sits. Minimum contacts are a nonresident civil defendant’s connections with the forum state (i.e., the state where the lawsuit is brought) that are sufficient for the forum state to assert personal jurisdiction over that defendant. Lack of minimum contacts violates the nonresident defendant’s constitutional right to due process and “offends traditional notions of fair play and substantial justice” (International Shoe Co. v. Washington, 326 U.S. 310 (1945)). Defendants’ minimum contacts can take the form of general jurisdiction or specific jurisdiction. Some examples of minimum contacts include conducting business within the state, incorporating in the state, and visiting the state. The courts will even find that a business has contact if the defendant must make an effort to market in the forum state or otherwise purposefully avail himself of the resources of that state. In New York state, the courts have ruled that the contacts must be the defendant’s own choice and not ‘random, isolated, or fortuitous’ In order for the Federal Court in the Southern District of New York, which would then not only allow it to adjudicate the federal ADA claims, but it would also have supplemental jurisdiction for the city and state specific claims. It is a ruling under these claims that would result in significant monetary damages.
Mr. Robles filed the claim on behalf of him and others seeking to certify a New York City Subclass of legally blind individuals who have attempted to access The Other Side Dispensary’s website and are denied equal enjoyment of goods and services from Defendant’s website. The claim asserts that this dispensary purposefully targets and otherwise solicits business from New York State residents through its highly interactive Website, www.tosdispensary.com. So, the jurisdictional argument is made because a cannabis dispensary, which operates legally in New Jersey under New Jersey’s CREAMMA law, which permits it to only sell cannabis products to people who visit its store in New Jersey, has contacts in New York.
This is a farcical argument. Despite his claims that “specific strains of marijuana (and related products) … is 100% legal and can be shipped anywhere in the United States, including New York,” even a first year associate would be aware that this would constitute a deferral crime. The Other Side Dispensary does not reside in New York state nor will it engage in a federal crime by shipping cannabis products across state lines to Mr. Robles in the Bronx. The argument may be made that Mr. Robles was planning on visiting the dispensary and engaging in adult-use in New Jersey, but this does not mean that the dispensary itself had significant contacts in New York. There is no advertising on billboards, radio, or television. In fact, by his own claim, Mr. Robles found the website as “a result of a recommendation by a close friend.” This defendant, and the three others defendant;s that Mr. Robles has filed claims against, that operate solely in New Jersey, cannot and should not be subject to or have to defend in the Second Circuit or against New York specific laws.
Standing
Standing, or locus standi, is the capacity of a party to bring a lawsuit in court. To have standing, a party must demonstrate a sufficient connection to and harm from the law or action being challenged. At the federal level, legal actions cannot be brought simply because an individual or group is displeased with a government action or law. In Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992), the Supreme Court created a three-part test to determine whether a party has standing to sue:
- Injury in Fact: The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent.
- Causal Connection: There must be a causal connection between the injury and the conduct brought before the court.
- Redressability: It must be likely, rather than speculative, that a favorable decision by the court will redress the injury.
More recently, the Supreme Court’s decision in TransUnion LLC v. Ramirez (2021) noted that the injury-in-fact prong of Article III could be reduced to “no concrete harm, no standing.” Of note, the Transunion court also noted that “Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.”
Mr. Robles attempted to access the The Other Side Dispensary’s website on October 4, 2024 and October 5, 2024 He was looking for a “specific strains of marijuana” that could be “shipped” to him. No where in his claim is there any indication that he was planning on traveling to another state to both purchase and consume this cannabis. As stated earlier, The Other Side Dispensary will allow customers to reserve products and schedule a time to pay for it with cash or debit cards and pick it up; it is not, however, prepared to violate federal drug-trafficking laws.
In addition, since the most recent ruling in New York Federal court requires there be a nexus to a place of public accommodation and not just a website. Although Mr. Robles was persuaded by “the real-world experiences of other customers,” that would have been very hard to do considering that The Other Side Dispensary had not even opened its doors. When he claimed to visit the website as well as when he filed his claim on October 10, 2024, the website at the time clearly indicated on the front page that opening would be on October 14, 2024. Mr. Robles did not suffer any harm and therefore has no standing. First, nothing in his claim indicates that he was planning on traveling to New Jersey and remaining there. What he was apparently willing to do, and admitted to doing, was participating in the illegal interstate trafficking of a Schedule I drug. Therefore, he suffered no harm to be redressed. Secondly, since The Other Side Dispensary was not even operational at the time the suit was filed, it cannot be a place of public accommodation, and, therefore, ADA Title III does not apply.
Interesting, isn’t it? These are not just nit-picks at minor procedural points, these are grievous errors that call into question the validity of the entire claim. I have one more, very interesting question to pose and some recommendations in the next, and last section coming soon. Stay Tuned!