Fernandez v. Vanilla Chip, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JACQUELINE FERNANDEZ, on behalf of herself

and all others similarly situated,

Plaintiffs,

Case No. 1:24-cv-05639 (JLR)

-against-

OPINION AND ORDER

VANILLA CHIP, LLC,

Defendant.

JENNIFER L. ROCHON, United States District Judge:

Jacqueline Fernandez (“Plaintiff”) brings this putative class action alleging that she

was denied full and equal access to a website operated by Vanilla Chip, LLC (“Defendant”) in

violation of the Americans with Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101 et seq.,

and state law. See Dkt. 1 (“Complaint” or “Compl.”). Defendant now moves to dismiss the

claims brought against it for lack of standing pursuant to Federal Rule of Civil Procedure

(“Rule”) 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to

Rule 12(b)(6). See Dkt. 10 (“Mot.”). For the reasons stated below, the motion to dismiss is

DENIED.

BACKGROUND

I. Factual Background

The following facts are drawn from Plaintiff’s Complaint and accepted as true for

purposes of this motion. See Cardinal Motors, Inc. v. H&H Sports Prot. USA Inc., 128 F.4th

112, 120 (2d Cir. 2025). Plaintiff is a visually impaired and legally blind person who uses

screen-reading software to read website content. Compl. ¶ 2. Defendant owns, operates, and

controls www.truheightvitamins.com (the “Website”), which is an online store that “offer[s]

height growth supplements designed to support and promote natural growth in children and

teenagers through a combination of vitamins, minerals, and other essential nutrients.” Id.

¶ 23; see id. ¶¶ 4, 18. “In addition to researching and purchasing Defendant’s products and

services, consumers may also use Defendant’s Website to sign up to receive product updates,

product news, and receive special promotions not available elsewhere,” id. ¶ 19, including “a

discount on a first purchase and larger discounts on subscriptions,” id. ¶ 23.

Plaintiff sought to purchase a tub of “Kids Protein Shake” from the Website, id. ¶ 21,

because “she was looking for healthy and easy to prepare protein shakes” and “wanted to find

supplements that offer a convenient and quick option for ensuring her children receive

balanced nutrition,” id. ¶ 22. Plaintiff attempted to purchase this product from the Website

“multiple times, most recently on June 14, 2024,” id. ¶ 20, but “was unable to complete the

purchase due to the inaccessibility of Defendant’s Website,” id. ¶ 24. Specifically, Plaintiff

alleges that “[t]he Website contains access barriers that prevent free and full use by the

Plaintiff using keyboards and screen-reading software,” including but not limited to “missing

alt-text, hidden elements on web pages, incorrectly formatted lists, unannounced pop ups,

unclear labels for interactive elements, and the requirement that some events be performed

solely with a mouse.” Id. ¶ 44. Plaintiff further alleges that the Website “contained a host of

broken links, which is a hyperlink to a non-existent or empty webpage.” Id. ¶ 45. “For the

visually impaired this is especially paralyzing due to the inability to navigate or otherwise

determine where one is on the website once a broken link is encountered.” Id. If these

barriers are remedied, “Plaintiff intends to attempt to access the Website in the future to

purchase products and services the Website offers,” particularly the “Kids Protein Shake.”

Id. ¶ 29.

Plaintiff alleges that Defendant has violated Title III of the ADA, 42 U.S.C. § 12182 et

seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code

§ 8-107(4), by denying Plaintiff and other similarly situated individuals with visual disabilities

“access to Defendant’s website” and thus “the goods and services that are offered to the

general public” on the Website. Compl. ¶ 48; see also id. ¶¶ 66-73, 74-86. Plaintiff seeks,

among other things, damages, injunctive relief, and declaratory relief. Id. at 21-22.

II. Procedural History

On July 25, 2024, Plaintiff filed her Complaint, see Compl., which Defendant moved

to dismiss on October 14, 2024, see Mot.; Dkt. 11 (“Br.”). On October 29, 2024, Plaintiff

filed her memorandum of law in opposition to the motion to dismiss, see Dkt. 12 (“Opp.”),

and on November 4, 2024, Defendant filed its reply memorandum of law in support of its

motion, see Dkt. 13 (“Reply”).

LEGAL STANDARD

“A district court must dismiss a claim under Rule 12(b)(1) if a plaintiff fails to allege

facts sufficient to establish standing under Article III of the Constitution.” Sookul v. Fresh

Clean Threads, Inc., 754 F. Supp. 3d 395, 400 (S.D.N.Y. 2024) (citing Cortlandt St. Recovery

Corp. v. Hellas Telecomm., S.à.r.l., 790 F.3d 411, 416-17 (2d Cir. 2015)). “‘The standard of

review for 12(b)(1) motions is “substantively identical” to Rule 12(b)(6) motions,’ but with

the critical difference that the burden is on the plaintiff asserting subject matter jurisdiction to

‘prov[e] by a preponderance of the evidence that [subject matter jurisdiction] exists.’” Thorne

v. Bos. Mkt. Corp., 469 F. Supp. 3d 130, 134 (S.D.N.Y. 2020) (alterations in original) (first

quoting Alphas v. City of N.Y. Bus. Integrity Comm’n, No. 15-cv-03424 (ALC), 2017 WL

1929544, at *2 (S.D.N.Y. May 9, 2017); and then quoting Makarova v. United States, 201

F.3d 110, 113 (2d Cir. 2000)). “When a defendant moves to dismiss under Rule 12(b)(1) for

lack of subject matter jurisdiction, and also moves to dismiss on other grounds, the Court must

consider the Rule 12(b)(1) motion first.” Feliz v. IHealth Labs Inc., No. 23-cv-00354 (JLR),

2024 WL 342701, at *2 (S.D.N.Y. Jan. 30, 2024) (quoting Davis v. Wild Friends Foods, Inc.,

No. 22-cv-04244 (LJL), 2023 WL 4364465, at *3 (S.D.N.Y. July 5, 2023)).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “In general, ‘a complaint does not need to contain detailed or

elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief

above the speculative level.’” Tavarez v. Moo Organic Chocolates, LLC, 623 F. Supp. 3d

365, 367 (S.D.N.Y. 2022) (quoting Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 70 (2d Cir.

2014)). “[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) ‘is to test, in a

streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for relief

without resolving a contest regarding its substantive merits’” or “weigh[ing] the evidence that

might be offered to support it.” Chalas v. Pork King Good, 673 F. Supp. 3d 339, 342

(S.D.N.Y. 2023) (alterations in original) (quoting Halebian v. Berv, 644 F.3d 122, 130 (2d

Cir. 2011)).

DISCUSSION

Defendant argues that Plaintiff lacks standing because she has not demonstrated an

injury in fact, Br. at 10-15, and that she has not stated a claim under the ADA because the

Website is not a place of public accommodation, id. at 3-10. The Court addresses each

argument in turn and finds that Plaintiff has both established standing and stated a claim.1

1 Because “NYCHRL claims involving disability discrimination ‘are governed by the same

standing requirements as the ADA,’” Plaintiff has also established standing on her state law

claim. Fernandez v. Katie May, LLC, No. 24-cv-01592 (VEC), 2025 WL 872114, at *1

(S.D.N.Y. Mar. 20, 2025) (quoting Mendez v. Apple Inc., No. 18-cv-07550, 2019 WL

2611168, at *4 (S.D.N.Y. Mar. 28, 2019)).

I. Plaintiff Has Established Standing Under the ADA

“[T]o establish standing [under the ADA], a plaintiff must show (i) that he suffered an

injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was

likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial

relief.” Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 74 (2d Cir. 2022) (first alteration in

original) (quoting TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021)). In the context

of an ADA website case, “a plaintiff has alleged an injury in fact if ‘(1) the plaintiff alleged

past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment

would continue;’” and (3) “it [was] reasonable to infer, based on the past frequency of visits

and the plaintiff’s articulated interest in the products or services available on the particular

website, that the plaintiff intends to return to the website.” Feliz, 2024 WL 342701, at *3

(first quoting Calcano, 36 F.4th at 74; and then quoting Loadholt v. Dungarees, Inc., No. 22-

cv-04699 (VEC), 2023 WL 2024792, at *2 (S.D.N.Y. Feb. 15, 2023)).

“Following Calcano, some courts in this district have required even more detail in

complaints submitted by prolific ADA-website plaintiffs.” Sookul, 754 F. Supp. 3d at 402

(collecting cases). Accordingly, Defendant contends that the Court should treat Plaintiff’s

allegations with more skepticism because of the number of similar ADA-website complaints

she has filed in this District in recent years. See Br. at 14-16. “But while ‘[f]iling serial,

formulaic complaints may, in practice, sometimes mean the final product does not contain

sufficient non-conclusory allegations to survive a motion to dismiss . . . that fact does not

entitle Plaintiff to a weaker presumption that the non-conclusory allegations in the FAC are

true.’” Sookul, 754 F. Supp. 3d at 402-03 (alteration and omission in original) (quoting

Guerrero v. Ogawa USA Inc., No. 22-cv-02583 (LGS), 2023 WL 4187561, at *3 (S.D.N.Y.

June 26, 2023)). Accepting Plaintiff’s factual allegations as true, as this Court must, the Court

finds that the Complaint alleges sufficient factual matter to establish standing, even in the

wake of Calcano.

Defendant does not dispute that the Complaint satisfies the first two ADA standing

requirements, and the Court finds that they have been met. As to the first requirement,

Plaintiff has established a past injury in fact by alleging that she visited the Website on

multiple occasions and was unable to purchase the product she desired due to specifically

identified accessibility barriers. Compl. ¶¶ 20, 28, 44-45. As to the second, Plaintiff has

plausibly alleged that this discriminatory treatment is reasonably likely to continue because

Defendant has failed to remove those barriers, id. ¶¶ 48-49, and “lacks a corporate policy that

is reasonably calculated to cause the Website to become and remain accessible,” id. ¶ 55. Cf.

Sookul, 754 F. Supp. 3d at 403-04 (first two requirements satisfied where plaintiff allegedly

visited defendant’s website multiple times to buy product but could not do so due to

accessibility barriers that defendant subsequently did not fix); Davis, 2023 WL 4364465, at

*5-6 (same); Guerrero, 2023 WL 4187561, at *2-3 (same); Weekes v. Outdoor Gear Exch.,

Inc., No. 22-cv-01283 (ER), 2023 WL 2368989, at *3 (S.D.N.Y. Mar. 6, 2023) (same); Slade

v. Life Spectacular, Inc., No. 22-cv-00037 (ALC), 2022 WL 17542029, at *3 (S.D.N.Y. Dec.

5, 2022) (same); Chalas v. Barlean’s Organic Oils, LLC, No. 22-cv-04178 (CM), 2022 WL

17156838, at *2-3 (S.D.N.Y. Nov. 22, 2022) (same).

Defendant largely hangs its hat on the third requirement, arguing that Plaintiff has not

plausibly alleged an intent to return to the Website. Br. at 11. The Court disagrees. Here,

Plaintiff has “alleged specific, non-conclusory facts from which the Court can reasonably

infer that she is likely to return to Defendant’s website if it becomes accessible,” Fernandez v.

Katie May, LLC, No. 24-cv-01592 (VEC), 2025 WL 872114, at *2 (S.D.N.Y. Mar. 20, 2025),

with sufficient detail regarding “her past visits to [Defendant’s] website, the reasoning behind

her desire for [Defendant’s product], and an explanation of her need to purchase [that product]

from Defendant’s website,” Feliz, 2024 WL 342701, at *4 (collecting cases). In particular,

Plaintiff “cites a specific date on which she attempted to access the site and notes that she

made ‘multiple’ other attempts.” Katie May, 2025 WL 872114, at *2. She further explains

that she “wished to purchase [Defendant]’s product because she was looking for healthy and

easy to prepare protein shakes” and “wanted to find supplements that offer a convenient and

quick option for ensuring her children receive balanced nutrition.” Compl. ¶ 22. Moreover,

the Complaint alleges that Plaintiff “desired to buy products from the Website” because it is

“renowned for offering height growth supplements designed to support and promote natural

growth in children and teenagers through a combination of vitamins, minerals, and other

essential nutrients” and “offers a discount on a first purchase and larger discounts on

subscriptions.” Id. ¶ 23. The Court finds that these allegations are sufficient to support

Plaintiff’s claim that she intends to return to the Website to purchase a specific product that

she desires, and the Court will not question the sincerity of that desire merely because

Plaintiff has brought other similar cases in this District. See Feliz, 2024 WL 342701, at *4

(collecting cases where intent-to-return requirement was satisfied based on similar

allegations); Davis, 2023 WL 4364465, at *6 (same); see also Sanchez v. NutCo, Inc.,

No. 20-cv-10107 (JPO), 2022 WL 846896, at *3 (S.D.N.Y. Mar. 22, 2022) (“As websites are

already easily accessible at any moment, [the plaintiff’s] claim that he will return to the

website to make a purchase once the issues are remedied is sufficient to satisfy this prong of

standing.” (quoting Quezada v. U.S. Wings, Inc., No. 20-cv-10707 (ER), 2021 WL 5827437,

at *4 (S.D.N.Y. Dec. 7, 2021))).

For these reasons, the Court finds that Plaintiff has satisfied all three requirements to

establish standing under the ADA. Accordingly, the Court denies Defendant’s motion to

dismiss the Complaint pursuant to Rule 12(b)(1) for lack of standing.

II. Plaintiff Has Stated a Claim Under the ADA

To state a claim under Title III of the ADA, “a plaintiff must allege that ‘(1) she is

disabled within the meaning of the ADA; (2) defendants own, lease, or operate a place of

public accommodation; and (3) defendants discriminated against her by denying her a full and

equal opportunity to enjoy the services defendants provide.’” Thorne, 469 F. Supp. 3d at 139

(quoting Wu v. Jensen-Lewis Co., 345 F. Supp. 3d 438, 442 (S.D.N.Y. 2018)). Defendant

disputes only the second prong, arguing that the Complaint should be dismissed for failure to

state a claim pursuant to Rule 12(b)(6) because the Website lacks a nexus to a brick-and-

mortar location and is thus not a “place of public accommodation” covered by the ADA. Br.

at 3. The Court declines to adopt this position and joins “the vast majority of courts in this

circuit [that] have held that commercial websites qualify as places of public accommodation

independent of a nexus to a physical space.” Chalas, 673 F. Supp. 3d at 343 (quoting

Monegro v. I-Blades, Inc., No. 21-cv-03093 (GBD) (SN), 2023 WL 2499718, at *3 (S.D.N.Y.

Mar. 14, 2023)); see, e.g., Del-Orden v. Bonobos, Inc., No. 17-cv-02744 (PAE), 2017 WL

6547902, at *7 (S.D.N.Y. Dec. 20, 2017) (“A commercial website itself qualifies as a place of

‘public accommodation’ to which Title III of the ADA affords a right of equal access.”); see

also Tavarez, 623 F. Supp. 3d at 367 n.2 (“The Court notes that at least seven of its

colleagues, one of whom has since ascended to the Second Circuit, have found that Title III of

the ADA applies to websites.”) (collecting cases).

“Neither the U.S. Supreme Court nor the Second Circuit has reached this question, and

district courts are split on the issue.” Tavarez, 623 F. Supp. 3d at 367. “The Circuit Courts of

Appeals that have decided whether a website is a place of ‘public accommodation’ have

reached differing results.” Romero v. 88 Acres Foods, Inc., 580 F. Supp. 3d 9, 18 (S.D.N.Y.

2022). On one side of the split, the First and Seventh Circuits “have read Title III as

extending to remote businesses, including websites.” Sookul, 754 F. Supp. 3d at 406; see

Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994) (“[T]he

phrase [‘public accommodation’] is not limited to actual physical structures.”); Doe v. Mut. of

Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (Posner, C.J.) (“[Under Title III,] the

owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web

site, or other facility (whether in physical space or in electronic space) that is open to the

public cannot exclude disabled persons from entering the facility and, once in, from using the

facility in the same way that the nondisabled do.” (citation omitted)). On the other side, the

Third, Sixth, Ninth, and Eleventh Circuits have held that “a place of public accommodation”

refers only to “a physical establishment,” Sookul, 754 F. Supp. 3d at 406, “but that goods and

services provided by a public accommodation . . . could conceivably fall within the ADA’s

protections if they have a sufficient nexus to the public accommodation’s physical location,”

Martinez v. Gutsy LLC., No. 22-cv-00409 (NGG) (RLM), 2022 WL 17303830, at *2

(E.D.N.Y. Nov. 29, 2022); see Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir.

1998) (“[W]e do not find the term ‘public accommodation’ . . . to refer to non-physical

access . . . .”); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (en banc)

(“[A] public accommodation is a physical place.”); Weyer v. Twentieth Cent. Fox Film Corp.,

198 F.3d 1104, 1114 (9th Cir. 2000) (“[S]ome connection between the good or service

complained of and an actual physical place is required.”); Gil v. Winn-Dixie Stores, Inc., 993

F.3d 1266, 1277 (11th Cir. 2021) (“[P]ublic accommodations are limited to actual, physical

places.”), vacated on reh’g as moot, 21 F.4th 775 (11th Cir. 2021) (per curiam).2 In 2019, the

Supreme Court denied certiorari in a case from the Ninth Circuit that could have resolved this

split. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir.), cert. denied, 140 S. Ct.

122 (2019).

Although the Second Circuit has not yet taken a position, it reached a related issue in

Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999), amended on denial of

reh’g, 204 F.3d 392 (2d Cir. 2000). In that case, the Second Circuit “started with the text of

Title III, and noted that the statute named an ‘insurance office’ as a ‘public accommodation,’

and that the statute bars a ‘place of public accommodation’ from ‘discriminat[ing] against [an

individual] on the basis of disability in the full and equal enjoyment of [its] goods [and]

services.’” Romero, 580 F. Supp. 3d at 18-19 (footnote omitted) (alterations in original)

(quoting Pallozzi, 198 F.3d at 31). The court reasoned that “[t]he most conspicuous ‘goods’

and ‘services’ provided by an ‘insurance office’ are insurance policies,” and “[t]hus, the

prohibition imposed on a place of public accommodation from discriminating against a

disabled customer in the enjoyment of its goods and services appears to prohibit an insurance

office from discriminatorily refusing to offer its policies to disabled persons.” Pallozzi, 198

F.3d at 31 (citing Mut. of Omaha, 179 F.3d at 559). In concluding that Title III does not

simply address physical access to a place of public accommodation, the Second Circuit cited

approvingly to the First and Seventh Circuit’s opinions:

Title III’s mandate that the disabled be accorded “full and equal enjoyment of

the goods, [and] services . . . of any place of public accommodation,” suggests

to us that the statute was meant to guarantee them more than mere physical

2 While the Gil decision was vacated, prior to that decision, district courts in the Eleventh

Circuit interpreted Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002),

as having endorsed the nexus standard. See, e.g., Price v. City of Ocala, 375 F. Supp. 3d

1264, 1269 (M.D. Fla. 2019); Haynes v. Kohl’s Dep’t Stores, Inc., 391 F. Supp. 3d 1128, 1134

(S.D. Fla. 2018).

access. We believe an entity covered by Title III is not only obligated by the

statute to provide disabled persons with physical access, but is also prohibited

from refusing to sell them its merchandise by reason of discrimination against

their disability. . . .

We find no merit in Allstate’s contention that, because insurance policies are not

used in places of public accommodation, they do not qualify as goods or services

“of a place of public accommodation.” The term “of” generally does not mean

“in,” and there is no indication that Congress intended to employ the term in

such an unorthodox manner in . . . Title III.

Pallozzi, 198 F.3d at 32-33 (alteration and first omission in original) (citations omitted)

(quoting 42 U.S.C. § 12182(a)) (first citing Carparts, 37 F.3d at 20; and then citing Mut. of

Omaha, 179 F.3d at 564).

While recognizing that it is not directly on point, many district courts in this Circuit

have looked to Pallozzi for guidance in holding that “Title III applies to websites that offer

goods and services,” regardless of whether “the website serves as an adjunct to a brick-and-

mortar business.” Romero, 580 F. Supp. 3d at 19 (collecting cases); see Del-Orden, 2017 WL

6547902, at *8 (collecting cases). Some district courts disagree and point out that Pallozzi

centrally evaluated accessibility to the goods and services provided by an “insurance office,”

an undisputed physical place of accommodation. See, e.g., Sookul, 754 F. Supp. 3d at 407

(“Those cases overread Pallozzi. Pallozzi is a case about the ‘“goods” and “services”

provided by’ a place of public accommodation under Title III. It is not a case about the

antecedent question of whether a place of accommodation can be a business without physical

premises.” (quoting Pallozzi, 198 F.3d at 31)); Winegard v. Newsday LLC, 556 F. Supp. 3d

173, 180-181 (E.D.N.Y. 2021) (“There was no dispute [in Pallozzi] that an ‘insurance office’

qualifies as [a place of public accommodation] . . . . The physical place, per Pallozzi, is a

condition precedent; once that condition is satisfied, the goods and services sold by that place

of public accommodation are swept within the ADA’s remit.” (citing Pallozzi, 198 F.3d

at 32-33)).

The Court agrees with the courts in this Circuit that have found websites that sell

goods to the public are places of public accommodation for purposes of Title III. “Because

the issue is undecided in this Circuit, the Court turns to the statute.” Tavarez, 623 F. Supp. 3d

at 368. “If the words of a statute are clear, [courts] are to construe the statute according to the

plain meaning of its words.” Soliman v. Subway Franchisee Advert. Fund Tr., LTD., 101

F.4th 176, 181 (2d Cir. 2024) (citing Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)). “If,

however, the terms are ambiguous or unclear, we may consider legislative history and other

tools of statutory construction.” Id. (citing Greenery Rehab. Grp., Inc. v. Hammon, 150 F.3d

226, 231 (2d Cir. 1998))); see Garcia v. Garland, 64 F.4th 62, 72 (2d Cir. 2023) (“[T]he

language in a statute . . . is ambiguous if it is ‘reasonably susceptible’ to two or more

readings.” (quoting In re Med Diversified, Inc., 461 F.3d 251, 255 (2d Cir. 2006))). To assess

ambiguity, the Court refers to “the language itself, the specific context in which that language

is used, and the broader context of the statute as a whole,” and “consider[s] not only the bare

meaning of the critical word or phrase but also its placement and purpose in the statutory

scheme.” Zepeda-Lopez v. Garland, 38 F.4th 315, 320 (2d Cir. 2022) (quoting Kar Onn Lee

v. Holder, 701 F.3d 931, 936 (2d Cir. 2012)).

Title III provides that “[n]o individual shall be discriminated against on the basis of

disability in the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public accommodation by any person who

owns . . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a). “The phrase

‘public accommodation’ is defined in terms of 12 extensive categories” of private entities that

affect commerce, PGA Tour, Inc. v. Martin, 532 U.S. 661, 676 (2001) (citing 42 U.S.C.

§ 12181(7)), “but is silent as to cyberspace,” Del-Orden, 2017 WL 6547902, at *8 (“That is,

of course, because the ADA, enacted in 1990, preceded the popular adoption of the World

Wide Web and the advent of cyber commerce.”). The entities that “are considered public

accommodations” include, in relevant part:

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or

other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service,

shoe repair service, funeral parlor, gas station, office of an accountant or lawyer,

pharmacy, insurance office, professional office of a health care provider,

hospital, or other service establishment; . . . .

42 U.S.C. § 12181(7).

To be sure, “Title III defines ‘public accommodation’ to include many different types

of entities, some of which are clearly tied to physical locations (such as ‘theater[s]’ and

‘park[s]’).” Katie May, 2025 WL 872114, at *4 (alterations in original) (quoting 42 U.S.C.

§ 12181(7)(C), (I)). But the statute also identifies various entities that could plausibly

“provide services by way of telephone or other modes of communication,” either partially or

exclusively, which “indicates that [Congress] ‘clearly contemplated that the ADA would

apply to service providers that do not require a person to physically enter an actual physical

structure.’” Tavarez, 623 F. Supp. 3d at 369 (internal quotation marks omitted) (quoting

Romero, 580 F. Supp. 3d at 18). As the First Circuit reasoned just a few years after the

ADA’s passage:

The plain meaning of the terms do not require “public accommodations” to have

physical structures for persons to enter. Even if the meaning of “public

accommodation” is not plain, it is, at worst, ambiguous. . . . Many travel services

conduct business by telephone or correspondence without requiring their

customers to enter an office in order to obtain their services.

Carparts, 37 F.3d at 19; see also Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381,

395 (E.D.N.Y. 2017) (“The Act could have easily cabined the prohibition on discrimination to

the goods, services, etc. of a ‘facility’ of a ‘place of public accommodation,’ or used the word

‘facility’ instead of ‘place,’ but it did not.”).

Along these lines, consumers today can avail themselves of the goods and services of

mail-order pharmacies, virtual healthcare practices, internet- and hotline-based legal services,

app-based laundry pickup services, and online-only banks, insurance providers, grocery

stores, and marketplaces. The Court sees no grounding in the statute’s plain text to exclude

from Title III’s reach these virtual spaces that provide sales of goods to the public just because

they lack physical storefronts. “The catchall language of ‘other sales or rental

establishment[s],’ as distinct from ‘store[s],’ suggests that the statute covers all businesses

engaged in the sale and rental of goods” — such as Defendant’s website — “regardless of

whether they maintain storefronts.” Katie May, 2025 WL 872114, at *5 (alterations in

original) (quoting 42 U.S.C. § 12181(7)(E)) (citing United States v. Mason, 692 F.3d 178, 182

(2d Cir. 2012)); see Mason, 692 F.3d at 182 (“As a general matter, the use of different words

within the same statutory context strongly suggests that different meanings were intended.”

(quoting United States v. Maria, 186 F.3d 65, 71 (2d Cir. 1999))). Websites are also defined

as “a service or business that operates via a particular website.” See Website, Merriam-

Webster, https://www.merriam-webster.com/dictionary/website [https://perma.cc/4RKA-

XHFD] (“a group of World Wide Web pages” or “a service or business that operates via a

particular website” (emphasis added)). As other courts have held, an insurance office is still a

“service establishment” even if it conducts all its business by phone or online and consumers

never set foot through its doors. See Carparts, 37 F.3d at 19 (“It would be irrational to

conclude that persons who enter an office to purchase services are protected by the ADA, but

persons who purchase the same services over the telephone or by mail are not.”); cf. Nat’l

Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 572-73 (D. Vt. 2015) (“[I]t would make

little sense if a customer who bought insurance from someone selling policies door to door

was not covered but someone buying the same policy in the parent company’s office was

covered.”); Romero, 580 F. Supp. 3d at 20 (“Although items in this list could be interpreted to

be limited to brick-and-mortar locations, that interpretation would lead to the absurd result

that people with disabilities are protected if they shop in-store at Whole Foods, but not if they

shop online at Whole Foods.”).

While the Second Circuit has not opined directly on this issue, this interpretation of

Title III is consistent with Pallozzi, which declined to “limit the application of Title III to

physical structures.” 198 F.3d at 32 (quoting Carparts, 37 F.3d at 20). In reaching this

conclusion, the Second Circuit flatly rejected the argument that goods and services “not

actually used in places of public accommodation, . . . do not qualify as goods and services ‘of

[a] place of public accommodation,’” id. (alteration in original) (quoting 42 U.S.C.

§ 12182(a)), and cautioned that a contrary reading would mean that “a [sales establishment]’s

refusal to sell [goods] to a blind person would fall outside the scope of the statute,” simply

because those goods are used outside the premises, id. at 33 (“We see no basis for reading the

statute so narrowly.” (citing 42 U.S.C. § 12101(b))). The Second Circuit focused not on the

fact that the consumer was being denied goods and services in, or access to, a place of

accommodation, but rather that the place of public accommodation was denying someone

with a disability the goods “of” that place of public accommodation. The same logic applies

here, where Plaintiff alleges Defendant’s website has denied her “full and equal access to and

enjoyment of the goods, benefits, and services” of Defendant’s vitamin company on the basis

of her visual impairment. Compl. ¶ 28; see id. ¶ 52. Exempting Defendant from the ADA by

reading an atextual “physical structure[]” limitation into Title III would thus contravene

Pallozzi and “severely frustrate Congress’s intent that individuals with disabilities fully enjoy

the goods, services, privileges and advantages, available indiscriminately to other members of

the general public.” Pallozzi, 198 F.3d at 32 (quoting Carparts, 37 F.3d at 20). In any case,

“[i]t goes without saying that, wherever Defendant’s employees did the work that went into

selling its products, they did so within four walls. What matters for purposes of Title III is not

where those walls were located, but whether Defendant provided disabled customers ‘full and

equal enjoyment’ of its services.” Katie May, 2025 WL 872114, at *5 (quoting Pallozzi, 198

F.3d at 31).

In addition, “the statute’s purpose, legislative history, and context . . . strongly support

construing the term ‘public accommodation’ to apply to commercial marketplaces, including

on the Internet, whether or not these marketplaces take a conventional physical form.” Del-

Orden, 2017 WL 6547902, at *8-9; see In re Bernard L. Madoff Inv. Sec. LLC, 12 F.4th 171,

188 (2d Cir. 2021) (“[E]ven if we found the statute to be ambiguous, the legislative history

supports our conclusion.”). The ADA’s “stated purpose is to ‘provide a clear and

comprehensive national mandate’ to eliminate discrimination against disabled individuals,”

Tavarez, 623 F. Supp. 3d at 369 (quoting 42 U.S.C. § 12101(b)(1)), and “to invoke the sweep

of congressional authority . . . to address the major areas of discrimination faced day-to-day

by people with disabilities,” 42 U.S.C. § 12101(b)(4). Specifically, “Congress found that

‘historically, society has tended to isolate and segregate individuals with disabilities, and,

despite some improvements, such forms of discrimination against individuals with disabilities

continue to be a serious and pervasive social problem’” in “many areas of society.” Del-

Orden, 2017 WL 6547902, at *9 (quoting PGA Tour, 532 U.S. at 675). “[A]fter thoroughly

investigating the problem” Congress passed the ADA “to eliminate discrimination against

disabled individuals, and to integrate them ‘into the economic and social mainstream of

American life.’” Id. (quoting PGA Tour, 532 U.S. at 675).

To effectuate this purpose and ensure that the statute would withstand the test of time,

“Congress . . . passed the law with an expectation that it would encompass evolving

technology.” Tavarez, 623 F. Supp. 3d at 369 (citing H.R. Rep. No. 101-485, pt. 2, at 108

(1990), as reprinted in 1990 U.S.C.C.A.N. 303, 391); see 1990 U.S.C.C.A.N. at 391 (“[T]he

types of accommodation and services provided to individuals with disabilities, under all of the

titles of this bill, should keep pace with the rapidly changing technology of the times. This is

a period of tremendous change and growth involving technology assistance and the

Committee wishes to encourage this process.”). And as the Supreme Court has emphasized,

“the legislative history indicates” that the “12 extensive categories” of public accommodations

“‘should be construed liberally’ to afford people with disabilities ‘equal access’ to the wide

variety of establishments available to the nondisabled.” PGA Tour, 532 U.S. at 676-77; see

1990 U.S.C.C.A.N. at 383 (“[W]ithin each of these categories, the legislation only lists a few

examples and then, in most cases, adds the phrase ‘other similar’ entities. The Committee

intends that the ‘other similar’ terminology should be construed liberally, consistent with the

intent of the legislation that people with disabilities should have equal access to the array of

establishments that are available to others who do not currently have disabilities.”).

Here, the Court finds that the ADA’s sweeping remedial purpose and legislative

history require adopting the more expansive interpretation that Title III extends to businesses

that sell goods through commercial websites. “Today, few areas are more integral to ‘the

economic and social mainstream of American life,’ than the Internet’s websites,” Del-Orden,

2017 WL 6547902, at *9 (quoting PGA Tour, 532 U.S. at 675), and “[t]he ‘broad mandate’ of

the ADA and its ‘comprehensive character’ are resilient enough to keep pace with the fact that

the virtual reality of the Internet is almost as important now as physical reality alone was

when the statute was signed into law,” Andrews, 268 F. Supp. 3d at 395; cf. South Dakota v.

Wayfair, 138 S. Ct. 2080, 2095 (2018) (“The ‘dramatic technological and social changes’ of

our ‘increasingly interconnected economy’ mean that buyers are ‘closer to most major

retailers’ than ever before — ‘regardless of how close or far the nearest storefront.’” (quoting

Direct Mktg. Ass’n v. Brohl, 575 U.S. 1, 17, 18 (2015) (Kennedy, J., concurring))).

“Although websites are not specifically mentioned in the statute, the law’s explicit purpose

and the inclusion of providers that do not require physical entry into a location to access their

goods and services indicate that websites are within the broad reach Congress intended Title

III to have.” Tavarez, 623 F. Supp. 3d at 369. “Limiting Title III’s scope to brick-and-mortar

venues . . . would ‘render [Title III] effectively impotent’ in broad swaths of social and

economic life, ‘which would be contrary to the broad remedial purpose of the ADA — an act

that “has been described as a milestone on the path to a more decent, tolerant, progressive

society.”’” Del-Orden, 2017 WL 6547902, at *9 (alteration in original) (quoting Mary Jo C.

v. N.Y. State & Loc. Ret. Sys., 707 F.3d 144 (2d Cir. 2013)); see also Dominguez v. Banana

Republic, LLC, 613 F. Supp. 3d 759, 772 (S.D.N.Y. 2020) (“‘[A]s a remedial statute, the

ADA must be broadly construed to effectuate its purpose of providing a clear and

comprehensive national mandate for the elimination of discrimination against individuals with

disabilities.’ That is why courts in the Second Circuit have found that it would be absurd to

exclude cyberspace from the ADA’s mandate.” (quoting Noel v. N.Y.C. Taxi & Limousine

Comm’n, 687 F.3d 63, 68 (2d Cir. 2012))), aff’d sub nom. Calcano, 36 F.4th 68.

Accordingly, the Court finds that Title III extends to the Defendant’s sales through a

website, even if it does not have a physical storefront. The Complaint thus states a claim

under the ADA based on Defendant’s alleged denial of Plaintiff's equal access to the goods

and services sold on its website.°

CONCLUSION

For the foregoing reasons, the Court DENIES Defendant’s motion to dismiss the

Complaint. The Clerk of Court is respectfully directed to terminate the motion at Dkt. 10.

Dated: April 18, 2025

New York, New York

SO ORDERED.

dome L. ROCHON

United States District Judge

> Defendant argues that the Court should dismiss Plaintiff’s NYCHRL claim for the same

reasons it should dismiss Plaintiff's ADA claim. Br. at 10. Because the ADA serves “as a

floor below which the City’s Human Rights law cannot fall,” Andrews, 268 F. Supp. 3d at

401 (emphasis omitted) (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d

Cir. 2009)), Plaintiff has also stated a claim under the NYCHRL.

19