Hooters in downtown Atlanta. Hooters in downtown Atlanta. Photo Caption: John Disney/ ALM

The U.S. Court of Appeals for the Eleventh Circuit has revived a lawsuit filed under the Americans with Disabilities Act demanding that the Hooters restaurant chain make its website accessible for those with vision impairment, holding that a plan to come into ADA compliance does not render moot a related lawsuit.

A panel of three judges in a precedential decision Tuesday in Haynes v. Hooters reversed a ruling from U.S. District Judge Robert Scola Jr. of the Southern District of Florida dismissing the lawsuit. The action was filed by Dennis Haynes, who is blind and uses screen-reader software. Haynes asked the restaurant to make its website compatible with the software and to pay his legal fees, according to the court.

Scola ruled that the complaint was moot because the restaurant had already entered into a remediation plan as part of a resolution for a similar lawsuit, which the court referred to as the “Gomez Settlement Agreement.”

“The court disagrees and finds that this case is not moot. Hooters’ assurance to an unrelated third party to remediate its website does not alone moot Haynes’ claims for relief,” U.S. District Judge Eleanor Ross of the Northern District of Georgia, sitting by designation, wrote for a panel, which included Chief Circuit Judge Ed Carnes and Judge Stanley Marcus.

“First, the court notes that while Hooters may be in the process of updating the accessibility of its website, there is nothing in the record demonstrating that Hooters has successfully done so. Accordingly, it cannot be said that the issues are no longer ‘live’ or that the parties lack a legally cognizable interest in the outcome,” Ross said.

“Second, some of the relief requested by Haynes remains outstanding and could be granted by a court. Specifically, Haynes requested an injunction, one that he may enforce against Hooters if Hooters does not bring its website into compliance with the ADA. Relatedly, Haynes requested in his complaint that the district court direct Hooters to continually update and maintain its website to ensure that it remains fully accessible,” Ross said.

“Accordingly, even if Hooters’ website becomes ADA compliant, Haynes seeks injunctive relief requiring Hooters to maintain the website in a compliant condition,” Ross said. “Thus, notwithstanding the fact … that the Gomez Settlement Agreement supplies Haynes with much of the relief he requested, there is still a live controversy about whether Haynes can receive an injunction to force Hooters to make its website ADA compliant or to maintain it as such.”

Thomas Bacon of Mount Dora and Aaron Finesilver of Miami represented Haynes.

“We are pleased with the circuit court’s decision. While the ruling primarily stands for the proposition that a defendant cannot settle with one plaintiff and use that as a shield against other lawsuits, the most significant part of the ruling is actually its holding that defendants cannot moot ADA website cases,” Bacon said Wednesday by email.

“This means that defendants can no longer ignore the law and instead wait until they are sued, then use the delay of litigation to fix their discriminatory website and thereby avoid liability. That litigation strategy is no longer available,” Bacon added. “Rather, they must now proactively make their websites accessible prior to getting sued.”

Mendy Halberstam of Jackson Lewis in Miami represented Hooters, along with Joseph Lynett from the Jackson Lewis office in White Plains, New York.

“We find it notable that the Eleventh Circuit did not say that Hooters failed to comply with its prior settlement agreement in any way or that its website, as now modified, creates a barrier to access. The court simply held that, at the motion to dismiss stage, the complaint should not have been dismissed for lack of jurisdiction,” Halbertstam said Wednesday by email.

“It is also notable that the court did not say that website cases cannot be mooted, as the plaintiff had argued,” Halberstam added. “To the contrary, the Eleventh Circuit suggested that, had remediation been completed at the time the motion to dismiss was filed, the case would, in fact, have been moot.”