Seyfarth Synopsis: Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff.  Two days later, a California federal judge held that a blind plaintiff’s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery.  Now two federal judges in New York have weighed in, denying restaurant Five Guys’ and retailer Blick’s motions to dismiss lawsuits alleging that the defendants’ inaccessible websites violate the ADA and New York State and City civil rights laws. Both judges found that: (1) websites are subject to the ADA, regardless of whether the goods and services are offered online and in physical locations; and (2) courts don’t need agency regulations setting a standard for website accessibility to decide whether a website violates the ADA. The court in Five Guys additionally held that being in the process of improving a website’s accessibility is very different from having successfully completed that process to meet the mootness standard of being “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” It summarily rejected the restaurant’s mootness argument on that basis.

In the Blick putative class action, Eastern District Court Judge Weinstein issued a lengthy 38-page order on August 1 that addressed the issue of whether a nexus to a physical place of business is required to subject a website to the ADA. The opinion expressed sympathy for blind individuals who are unable to use some websites with their screen reader software and marshalled every possible argument in favor of finding that all websites that fall within the twelve types of businesses classified as “places of public accommodation” are covered by the ADA.  Judge Weinstein first surveyed relevant decisions from federal courts in other circuits.  Although the Ninth Circuit is the only appellate court that has actually addressed the coverage of a website under Title III of the ADA (all other Court of Appeals decisions have concerned other matters, mostly insurance products), he found that the Third, Sixth, and Eleventh Circuits have held that only businesses with a “nexus” to a physical location are subject to the ADA.  He characterized this interpretation of the law as “narrow” because it would mean that “a business that operates solely through the Internet and has no customer-facing physical location is under no obligation to make [its] website accessible.” The court then considered First and Seventh Circuit decisions which have held that a business does not need a physical place of business where customers go to be considered public accommodations under the ADA.

Finally, looking to its own Court of Appeals (which has not squarely addressed the question of whether a business with no physical location can be covered by Title III of the ADA or considered a website accessibility case), the Blick court relied upon an extended interpretation of the Second Circuit’s holding in Pallozzi – an insurance policy case – to hold that a business that has no physical place of business can be a covered public accommodation under the ADA.  Notably, the defendant in Pallozzi had a physical place of business where the plaintiff had purchased the allegedly discriminatory insurance product.  The Second Circuit held in Pallozzi that Title III of the ADA reaches beyond access barriers at a physical location and extends to the terms of the products sold from that physical location. It did not hold, nor even state in dicta, that a business with no physical location is covered by the ADA in the first place, or that a business’ website is covered by the ADA.

In holding that a website does not need a nexus to a physical location to be covered by the ADA, Judge Weinstein aligned himself with two other District Court judges in the Second Circuit (District of Vermont Judge William K. Sessions III and New York Southern District Judge Katherine Forrest) who reached the same conclusion in cases brought against Scribd and Five Guys, respectively.   

The Blick decision also rejects the recent Bang & Olufsen decision out of the Southern District of Florida, which followed the Target case in holding an ADA website access claim can only survive a motion to dismiss if the website’s inaccessibility has an actual nexus to the business’ physical location. The Bang & Olufsen court held that the plaintiff had not stated an ADA Title III claim because his complaint did not allege that the alleged website barriers in any way impeded his ability to shop at the physical store. The Blick court found this interpretation of the ADA “absurd,” as it would require that only select aspects of Blick’s website and online presence be accessible to the blind, such as allowing disabled individuals “a right to ‘pre-shop’ in their home, but no right to actually make a purchase in their home,” and provide disabled individuals “no right whatsoever to purchase goods or services from companies whose business models (e.g. television shopping channels, catalogs, online-only) are premised on having customers shop only from home.”

The court concluded its 22-page discussion of the issue by stating the plaintiff “has a substantive right to obtain effective access to Blick’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges the defendant’s website provides to the general public.” It also found that the plaintiff might be able to enforce his rights through a class action, but that issue would wait until after the parties’ motion(s) for summary judgment. The court also stated that it would convene a “Science Day” where experts would demonstrate web access technology to the court “to explore how burdensome it would be for the defendant to make its website compatible with available technology.”

Both the Blick and Five Guys decisions rejected the argument that Justice Department regulations setting website accessibility requirements are necessary for a finding that a defendant has violated the ADA by having an inaccessible website. Like the District of Massachusetts in denying MIT and Harvard’s motions to dismiss, and the Central District of California in denying Hobby Lobby’s motion (contrary to a different decision out of that same district) the Blick court rejected the primary jurisdiction argument on the basis that it is the court’s job to interpret and apply statutes and regulations and the risk of inconsistent rulings is outweighed by plaintiff’s right to prompt adjudication of his claim. The court discussed the long history of the Justice Department’s website accessibility rulemaking efforts before concluding that “t[]he court will not delay in adjudicating [plaintiff’s] claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Both courts rejected the defendants’ due process arguments, stating no standard set by statute or regulation for is needed for the ADA’s requirements of “reasonable modifications,” “auxiliary aids and services,” and “full and equal enjoyment” to apply to website accessibility. In rejecting Five Guys’ argument that there are no regulations setting forth accessibility standards for websites, the Five Guys court noted that there are steps defendant could take, such as using the Web Content Accessibility Guidelines.

Finally, the Blick decision addressed the coverage of website accessibility claims under the New York State Human Rights Law, New York State Civil Rights Law, and New York City Human Rights Law, and found that such claims were covered to the same extent as they are under Title III of the ADA.

While there is no way of knowing whether other federal judges in New York will agree with the holdings of District Judges Weinstein and Forrest, more lawsuits will likely be filed in New York after these decisions.

Seyfarth Synopsis: The U.S. Supreme Court’s recent Spokeo decision may lead to more careful scrutiny of whether ADA Title III plaintiffs have a sufficiently “concrete” injury to confer jurisdiction in federal court.

As reported in previous posts, some courts have, in recent years, bent over backwards to find that plaintiffs with no legitimate reason to visit a business, or intent to do so in the future, have standing to sue under Title III of the Americans with Disabilities Act (ADA).  A sharp increase in the number of ADA Title III lawsuits has followed these decisions.

The U.S. Supreme Court’s May 16, 2016 decision in Spokeo, Inc. v. Robins may impact how courts across the country interpret standing requirements for these cases in the future.  Although not an ADA case, lower courts may apply Spokeo to reign in the recent growth of Title III litigation.

In Spokeo, the plaintiff filed a putative class action against a company that operated an online background search service.  In the complaint, the plaintiff alleged that information provided about him in a background report, such as his marital status, age, and education, was inaccurate.  The plaintiff, on behalf of himself and a class of similarly situated individuals, charged the company with willfully violating the Fair Credit Reporting Act (FCRA) by failing to adopt procedures to ensure the accuracy of its reports.

The Ninth Circuit held that the complaint in Spokeo sufficiently alleged an injury-in-fact as required for standing, but the Supreme Court vacated the Ninth Circuit’s decision, and remanded the case.

In a majority opinion by Justice Alito, the Court held that the Ninth Circuit’s standing analysis was incomplete because it failed to consider whether the alleged injury was sufficiently “concrete.”  To qualify as a “case or controversy” over which a federal court has jurisdiction, according to the Court, there must be a concrete injury, meaning it must “actually exist”, and be “real” rather than “abstract.”  The problem with the complaint in Spokeo, the Court reasoned, was that a violation of the FCRA’s procedural requirements may result in no harm.  The Court directed the Ninth Circuit to consider on remand “whether the particular procedural violations alleged . . . entail a degree of risk sufficient to meet the concreteness requirement.”

This case raises interesting questions for ADA Title III matters where standing can be a hotly contested issue:

  • Does an ADA “tester” who travels to businesses, not to purchase goods or services, but instead solely to evaluate compliance, suffer “concrete” injury as clarified in Spokeo?
  • Do ADA plaintiffs have standing to challenge all barriers at a business related to their disability, or only those that they actually encountered during their visit?
  • Does a serial ADA plaintiff’s litigation history have any bearing on whether he or she suffered “concrete” injury in a given case?

Although the implications of Spokeo for ADA Title III cases are not entirely clear at this point, the decision is good news for businesses.  Some ADA Title III plaintiffs have only the most tenuous connection to the businesses they sue, and the alleged barriers that they challenge.  Spokeo may prompt lower courts to more carefully scrutinize whether their alleged injuries are sufficiently “concrete” to confer jurisdiction in federal court.

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.

By Minh N. Vu

They are sprouting up everywhere:  Kiosks that allow customers to buy tickets, rent DVDs, get boarding passes, check-in at a hotel, count change, and even rent cars without ever having to interact with a human being.  These self-service kiosks can be a boon for customers and businesses, but they also create lawsuit exposure for businesses that fail to consider how they will be used by individuals who are blind or have limited mobility.     

Redbox’s recent settlement of a class action lawsuit brought by advocates for the blind highlights this thorny issue and the uncertain legal landscape surrounding self-service equipment designed for customer use.  Several blind individuals and an advocacy group sued Redbox because its DVD rental kiosks could not be independently used by non-sighted individuals.  After two years of litigation and mediation, the parties entered into a class settlement under which Redbox agreed to take the following steps for all Redbox locations in California:

  • incorporate audio guidance technology, a tactile keypad, and other accessibility features into its DVD rental kiosks so that blind customers can use them independently at one kiosk at every location within 18 months and at all California kiosks within 30 months;
  • provide 24-hour telephone assistance at each kiosk;
  • pay $1.2 M in damages to the class of aggrieved persons in California;
  • pay Lighthouse for the Blind $85K to test kiosks;
  • pay $10K to each named plaintiff in damages; and
  • pay $800K in plaintiffs’ attorneys’ fees and costs.

Redbox also agreed to make certain accessibility improvements to its website but notably did not commit to meeting the Web Content Accessibility Guidelines. Continue Reading Accessible Technology: Redbox DVD Rental Kiosk Class Action Settlement Highlights Litigation Risk Presented by Self-Service Equipment

By Virginia E. Robinson

The U.S. Department of Justice (DOJ) moved this week to intervene in a class action lawsuit brought against the administrators of the Law School Admission Test (LSAT), alleging “widespread and systemic deficiencies” in the way that testing accommodation requests are processed.

The underlying suit, which was initiated in April by the California Department of Fair Employment and Housing, alleges that the Law School Admission Council (LSAC) violated the Americans with Disabilities Act and California state civil rights laws by failing to provide testing accommodations to disabled individuals, subjecting applicants requesting accommodations to burdensome documentation requirements, and “flagging” disabled individuals’ test scores when transmitting those scores to schools.  DOJ’s proposed complaint identifies additional class members and alleges that LSAC routinely denied well-supported accommodation requests and unnecessarily flagged test scores from individuals who had received accommodations.  DOJ seeks declaratory and injunctive relief, compensatory damages, and a civil penalty.

LSAC moved to dismiss the original complaint before the motion to intervene was filed, but that motion has not been ruled on by the court.

The case is Department of Fair Employment & Housing v. Law School Admission Council Inc., Case No. 3:12-cv-1830 in the U.S. District Court for the Northern District of California.