Salazar v. Victoria's Secret & Co.

Background

Vivian Salazar brought a putative class action against Victoria's Secret & Co. Salazar alleged that she is visually impaired and legally blind, uses screen-reading software, and could not complete an online purchase for in-store pickup because the website's store-selection buttons did not communicate their status to her screen reader. Her First Amended Complaint asserted claims under Title III of the Americans with Disabilities Act and the Unruh Civil Rights Act.

Salazar moved under Rule 15(a)(2) of the Federal Rules of Civil Procedure for leave to file a Second Amended Complaint naming Juanita Herrera as the lead plaintiff. Counsel stated that Salazar could no longer serve as class representative because of unforeseen health concerns. Herrera's proposed complaint asserted the same legal claims and used the same proposed class definition. Herrera alleged that she is legally blind, uses screen-reading software, and had been unable to select a retail store for online merchandise pickup.

Arguments and Analysis

Victoria's Secret argued that Salazar's decision to stop serving as lead plaintiff eliminated the required legal dispute. The court disagreed because Salazar's claims had not been settled, withdrawn, dismissed, or otherwise resolved. The court therefore found that a live dispute continued and that substitution was not barred on that ground.

Victoria's Secret also argued that Rule 16(b) required Salazar to show good cause to modify the December 29, 2023 Scheduling Order. The court concluded that the relevant Rule 16 scheduling order had not yet been issued in connection with a pretrial conference. It also noted that the existing Scheduling Order did not set an expired deadline for amending the pleadings.

Applying the Rule 15(a)(2) factors, the court found no prejudice because discovery had not occurred apart from initial disclosures, and the factual bases of Salazar's and Herrera's claims were similar. The court rejected the argument that Salazar acted in bad faith to avoid the consequences of an unaccepted offer under Rule 68, noting that it remained uncertain whether Salazar could not obtain a better result than the offer and that Victoria's Secret could make an offer to Herrera. The court also found no undue delay because Salazar notified counsel and Victoria's Secret of the change in circumstances before filing the motion.

As to futility, the court agreed that Herrera's proposed allegations about the store or stores she intended to use for pickup and her intention to use the website in the future appeared conclusory. The court determined that this pleading deficiency could be addressed by conditioning leave to amend on adding factual allegations. The court found Victoria's Secret's argument that Herrera would be subject to a class-action waiver and arbitration requirement premature because it was unsupported by evidence.

Ruling and Schedule

The court GRANTED the motion for leave to amend on the condition that the Second Amended Complaint include facts identifying the store or stores Herrera intended to use for merchandise pickup and facts supporting a finding that she intends to use Victoria's Secret's website in the future to order merchandise for pickup at one or more Victoria's Secret locations.

The court ordered Herrera to file the Second Amended Complaint by July 11, 2025. It set August 1, 2025, as the deadline for initial disclosures; September 5, 2025, for the parties to meet in person to discuss settlement; October 10, 2025, for filing a mediation-related notice or a notice of settlement; and a later deadline for Herrera to request a case-management conference after the mediation process concluded.

The order addressed amendment of the pleadings and case scheduling. It did not decide the underlying accessibility claims.