By Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.
Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.
Does Title III of the ADA apply to web-only businesses? Continue Reading
By Minh N. Vu and Kristina M. Launey
Seyfarth’s ADA Title III Team — along with many businesses and disability advocates — has closely monitored the status of the Justice Department’s (DOJ) proposed website regulations since the DOJ started its process in September 2010. We were surprised to hear NPR’s March 7 report by Todd Bookman that the DOJ is “scheduled to release regulations this month”. Bookman did not provide any further specificity as to which regulations are expected to issue, or reveal the source of this information, leaving all who have been closely following the regulations perplexed.
As we have reported, DOJ has been working on two sets of website regulations: One applicable to state and local governments and another for public accommodations (i.e., private entities that do business with the public). The proposed website regulations for state and local governments were slated to issue in December 2014, but did not. Those proposed regulations have been under review at the Office of Management and Budget (OMB) since July 2014. OMB is the last stop for all regulations before they are published. Thus, we have to assume that the NPR report is referring to these state and local government website proposed regulations, which could come out of OMB review for publication any day.
We seriously doubt that the NPR story was referring to proposed regulations for public accommodations websites for two reasons: First, DOJ’s last official projected date for these proposed regulations is June 2015. Second, DOJ has not yet even submitted any proposed regulations for public accommodations websites to OMB for its mandatory review and approval. Before publication, OMB must review the proposed rule to ensure it is consistent with applicable law, the President’s priorities, and the principles set forth in Executive Order 12866. The review also ensures that decisions made by one agency do not conflict with the policies or actions taken or planned by another agency. Executive Order 12866 also requires agencies to calculate the cost and benefit of the every proposed and final regulation. For example, if the proposed rule prohibits businesses from posting content on their websites that is not accessible to individuals with disabilities (e.g., videos that do not have captioning for the deaf or audio descriptions for the blind), OMB would have to consider whether such a rule would cause businesses to limit the amount of content that they decide to make available on the Internet.
Our take on the timing of the proposed regulation for public accommodations websites is consistent with what we heard last week at CSUN’s 30th Annual International Technology and Persons with Disabilities Conference. The Chief of the DOJ Disability Rights Section, Rebecca Bond, would not state when any website regulations would issue. Attorney Lainey Feingold, who was quoted in the NPR story, also said in her presentation that she did not know when any proposed regulations would come out. However, in both the NPR story and a previous story, Bookman made his March regulation-issuance prediction without naming a source for the information.
When issued, the proposed regulations for state and local government websites will likely provide some insight into the content of the proposed regulations for public accommodations websites that are due out in June. However, DOJ will have to address a host of issues in the latter set of regulations that will not be as relevant for state and local government websites.
As always, follow our blog for the latest on DOJ’s proposed website regulations.
Please join Seyfarth Shaw’s ADA Title III team members Minh Vu and Kristina Launey, along with SSB Bart CEO Tim Springer, for a preview of the Defending Digital Accessibility Lawsuits presentation they’ll give at this year’s California State University Northridge Annual International Technology and Persons with Disabilities Conference. This 45-minute webinar will provide a brief overview of applicable laws and recent settlements, and practical tips for proactive preparation and avoidance, or remedial defense, against digital accessibility complaints and litigation.
Click here to register for the webinar.
By Minh N. Vu and Kristina M. Launey
On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (“Access Board”) issued a proposed rule (“NPRM”) which would, among other things, adopt the WCAG 2.0 Level AA Guidelines (“WCAG 2.0 Level AA”) as the standard for federal government websites. Section 508 of the Rehabilitation Act requires federal government websites and off-line documents and software to be accessible, but the Section 508 standard for accessible websites has been, since it issued in 2000, a list of 16 requirements that are less rigorous than the WCAG 2.0 Level AA Guidelines. The issuance of this NPRM underscores that — even while the Justice Department (“DOJ”) has been demanding that public accommodations make their websites conform to WCAG 2.0 Level AA — neither it nor any other federal agency is presently required to meet this standard. As we have reported, the DOJ has entered into a number of settlements and a consent decree with public accommodations which reference WCAG 2.0 Level AA as the accessibility standard. DOJ has done so even though it still has not issued a proposed rule that adopts a legal standard for accessible public accommodations websites. DOJ started this rulemaking process more than four years ago and has stated that it will issue a rule in June of this year. Whether this projected deadline will be pushed back again remains to be seen.
The government has faced scrutiny and even been sued for its own inaccessible websites. As we previously reported, last year an advocacy group sued the United States General Services Administration, alleging GSA’s own website, SAM.gov, is inaccessible and does not comply with Section 504, leaving certain blind and visually impaired government contractors unable to register or timely renew their government contracts. The NPRM even notes that some federal agencies have had trouble complying with the less demanding existing Section 508 standards.
In announcing the NPRM, the Access Board noted that adoption of WCAG 2.0 Level AA for federal agency websites would promote consistency with the Department of Transportation’s recent final rule which adopted the same standard for air carrier and ticket agent websites, and accelerates the spread of web accessibility.
The Access Board will provide a 90 day public comment period and will hold a public hearing on March 5 at the CSUN conference in San Diego, and on March 11, at the Access Board in Washington, D.C. After the public comment period closes, the Access Board will consider the comments and issue a Final Rule. We will be watching with great interest to see whether federal agencies, including DOJ, will support the adoption WCAG 2.0 Level AA for their own websites and how much time they will give themselves to remediate and conform their websites to this new standard.
By Kristina M. Launey
On Monday, the National Association of the Deaf (NAD) announced a settlement agreement between it and VUDU, Inc., a wholly owned streaming entertainment subsidiary of Walmart, in which VUDU has agreed to caption 100% of movies and television programs streamed online through VUDU’s Video on Demand Service. NAD is a non-profit civil rights advocacy group of, by, and for deaf and hard of hearing individuals. In the agreement, VUDU agreed to, by January 16, 2015, ensure every title in its online catalog is closed-captioned or subtitled, and to caption all newly-acquired content as soon as that content is made available to the public.
The agreement does not address whether Vudu or the providers of the videos and other content Vudu streams on its service is responsible for providing the captioning; Vudu simply commits to provide the content with captioning or subtitles. The only exception to this general commitment is in cases where a video programming owner provides Vudu with non-English-language-based content containing English language subtitles. In that case, the agreement allows Vudu to use that English-subtitled version in lieu of Closed Captioning as long as Vudu has used diligent efforts to obtain Closed Captions or subtitles that describe the audio content of programming, such as speaker identification, sound effects and music description. The agreement prohibits subtitles from being used for programming required to be captioned under the Communications and Video Accessibility Act or when Closed Captions or Subtitles for the Deaf and Hard of Hearing are available.
The agreement also requires Vudu to provide customer service representatives with documentation and training regarding handling questions about captioning issues.
The agreement remains in effect until May 31, 2018.
Captioning of videos and other online content has been a hot topic recently in the ADA Title III space in various forms. In 2011, NAD sued Netflix over its streaming service and received mixed results due to a conflict in the courts as to whether a web-only video streaming business is a place of public accommodation covered by Title III of the ADA, as we reported here and here. Ultimately, NAD and Netflix entered into a consent decree that, similar to the Vudu agreement, required closed captions in 100% of Netflix’s streaming content. In a different context, the Department of Justice is working on rules that would govern the obligation of movie theaters to show movies with closed captioning and audio description, but has only issued proposed regulations. In yet another slightly different context, a Court rejected a deaf plaintiff’s claims that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks and that Redbox Digital failed to closed-caption all of its online videos that were available for streaming. The Court reasoned that a public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities in the form of captioned videos at its kiosks. The Court also found, following Ninth Circuit precedent, that Redbox Digital did not have to caption its library of web-based videos for deaf or hard-of-hearing consumers because a website is not a place of public accommodation under Title III.
This is a new frontier, and clearly a high priority for deaf advocates.
Edited by Minh N. Vu
By Minh N. Vu
Serial ADA Title III lawsuit filer Howard Cohan made local television news last week in a story CBS Action News 47 reported after Mr. Cohan filed 24 new lawsuits against various north Florida hotels. Seyfarth Shaw’s Title III Team has handled a number of cases filed by Mr. Cohan. Our search of the federal court docket shows that he has filed 606 lawsuits since the beginning of 2013.
Businesses often ask why the courts would allow a plaintiff with no apparent interest in doing business with the target of these lawsuits to pursue these matters. The reality is that challenging the legitimacy of these cases will almost always exceed the cost of settling the matter. As a result, most businesses choose the latter, seemingly more practical option, which simply encourages more lawsuits. On occasion, some businesses targeted by serial plaintiffs decide to fight and have obtained excellent results, as we reported here. However, these cases are the exception.
Edited by Kristina M. Launey
By Minh Vu and Kylie Byron
The Department of Justice (DOJ) is continuing to pressure businesses to make their websites accessible even while it is drafting proposed regulations for websites that are supposedly coming out this June. The latest business targeted by DOJ is the National Museum of Crime and Punishment, which entered into a settlement agreement that was announced on Tuesday, January 13, 2015.
The settlement agreement requires the Museum to redesign its website to conform to the World Wide Web Consortium (W3C)’s Web Content Accessibility Guidelines 2.0 (WCAG), Level AA. The DOJ has yet to adopt WCAG Level AA (or any other set of guidelines) as the legal standard for website accessibility in any of its regulations, but they are becoming the de facto standard. As we have previously reported, the DOJ has specified WCAG Level AA as the access standard in all of its recent website accessibility agreements, including those with tax return preparation company H&R Block and online grocer Peapod.
WCAG Level AA requires, among many other things, that websites provide text alternatives for all non-text content; captioning and audio descriptions for all pre-recorded and live video and audio media; and an adaptable layout with a minimum contrast and resizable text. Further, the website must provide multiple ways to access any individual page, and all pages must be organized and easily navigable by a screen reader. The settlement does not specify whether the Museum’s mobile site, if it exists, would also have to conform to the guidelines.
The settlement agreement gives the Museum only 120 days to make its website conform to WCAG Level AA. This is a very short timeframe considering that the process always requires an initial audit, remediation, and retesting to ensure compliance. On a more positive note, the Museum did not have to pay any civil penalties.
In addition to website remediation, the Museum will also have to provide audio descriptions of tours and exhibits as well as resources in braille and large print for individuals who are blind or who have low vision. It must also make modifications to the museum itself to remove physical access barriers.
Edited by Kristina Launey
On January 22, Seyfarth Shaw’s class action experts are presenting a webinar to discuss highlights from Seyfarth’s 11th Annual Workplace Class Action Litigation Report. While the Report primarily covers class actions in the employment context, many of the rules, strategies, and tactics are equally applicable and employed in ADA Title III class litigation, as demonstrated by the Report’s inclusion of some ADA Title III cases.
The Report and webinar should prove educational to anyone faced with class or complex litigation. To find out more about the webinar and to register, click here.
As we start 2015, the recent activity and interest surrounding the issue of service animals under Title III of the ADA show no signs of abating. Customers and patrons of retailers and other public accommodations continue to test the boundaries of the federal statute and the applicable regulations, as well as those of state statutes, by bringing service animals (some legitimate and some decidedly not) into places of public accommodation. There appears to be a great deal of ongoing misinformation and misunderstanding about the these issues, which continue to present legal and practical headaches and minefields for places of public accommodation, as well as for employers under Title I of the ADA and analogous state statutes. Generally, the service animals topic continues to resonate within not only the legal community, but also in popular culture.
In December, the Society for Human Resources Management, the leading national Human Resources professional organization, published an article about service animals under Titles III and Title I of the ADA after obtaining insights from various sources, including one of our own ADA Title III team partners in California, Andrew M. McNaught. That article also cited to a widely-read, and very amusing and informative piece on the topic published by the New Yorker Magazine in October 2014.
In this space, we have previously reported on the myriad of issues surrounding service animals in places of public accommodation under Title III of the ADA. You can be sure we will continue to keep our readers updated on relevant developments in this area as we move forward in 2015.
Edited by Minh N. Vu and Kristina M. Launey
By Minh Vu and Kristina Launey
Although we attorneys who specialize in ADA Title III matters have been dealing with and writing about website accessibility issues for years, most people, including lawyers, know very little about this topic. That status quo is about to change. Last week, the Wall Street Journal published its second piece on the this topic in two months. The first article to address the subject appeared in October and included commentary from our Team leader, Minh Vu. This second piece appeared in the WSJ’s Risk & Compliance Journal. Greater coverage of this topic is a positive trend considering its importance and significance for both businesses and individuals with disabilities.