By Minh N. Vu and Kristina M. Launey

Domino’s filed its petition for writ of certiorari with the U.S. Supreme Court today, June 13, 2019, asking the Court to review and overturn the Ninth Circuit’s decision which allowed a website accessibility lawsuit to proceed against Domino’s.  Domino’s styled the question presented as “Whether Title III of the ADA requires a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.”  See here for our report on the Ninth’s Circuit decision, and here for a copy of the Petition.  The Court will generally act on a petition within 6 weeks – Robles now has 30 days to file a response, then Domino’s a reply, at which time the Justices will review and determine whether to entertain the appeal.

By: Kristina M . Launey and Samuel Sverdlov

Seyfarth Synopsis: A SDNY judge dismissed a website accessibility lawsuit finding that the company mooted the allegations in the complaint by remediating the accessibility barriers and that the Court lacked personal jurisdiction since the company does not transact business in New York.

New York federal courts are a hotbed for ADA Title III litigation — of the over 10,000 ADA Title III lawsuits filed in 2018, at least 2,338 were filed in New York federal courts, including 1,564 ADA Title III website accessibility lawsuits, which are likely fueled in part by a few very plaintiff-friendly decisions out of the Southern District of New York (SDNY).

Last week, the business community received a favorable opinion from the SDNY.  On June 4, 2019, Judge Katherine Polk Failla of the SDNY granted The Kroger Company’s motion to dismiss an ADA Title III website accessibility lawsuit on two grounds: (1) the company mooted the plaintiff’s claims; and (2) the Court lacks personal jurisdiction over Kroger for this lawsuit.

This is the first decision that we’re aware of from a district court in the Second Circuit to grant a motion to dismiss a website accessibility lawsuit on mootness grounds.  Here, the Court was persuaded by an affidavit from a company representative which stated that:

  • Kroger has undertaken efforts to comply with WCAG 2.0 since before the lawsuit was filed;
  • The website currently complies with WCAG 2.0;
  • The company representative personally confirmed that the specific barriers the plaintiff alleged have been remedied;
  • Kroger has no plans of becoming non-compliant with WCAG 2.0; and
  • Kroger intends to maintain its website in compliance with WCAG 2.0.

Interestingly, the affidavit neither detailed the steps taken by the company to ensure that its website complies with WCAG 2.0, nor stated whether the company has adopted written policies or procedures regarding website accessibility.  Further, the affidavit did not detail the level of conformance with WCAG 2.0 the website has reached (A, AA, or AAA).  Nonetheless, the Court was persuaded that the company’s actions sufficiently mooted the plaintiff’s claims.  To that end, the Court rejected the notion that a website accessibility lawsuit can never be mooted (which the Court stated would amount to a “sweeping, technology-specific exception to the mootness doctrine”), and stated that “ADA cases involving websites are subject to the same mootness standard as their ‘structural’ counterparts.”  In contrast, other judges in the SDNY have denied motions to dismiss website accessibility lawsuits based on mootness.  See Sullivan v. Study.com LLC, 2019 WL 1299966 (S.D.N.Y. Mar. 21, 2019); Wu v. Jensen-Lewis Co., 345 F.Supp.3d 438 (S.D.N.Y. 2018); Del-Orden v. Bonobos, Inc., 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017).

The Court found dismissal appropriate for the independent reason that it does not have personal jurisdiction over Kroger to hear this lawsuit.  Although the plaintiff claimed that Kroger’s website provides a variety of services such as “the ability to … find information on promotions and coupons, discern the calories content of food, [as well as] preferred cook time and temperature,” the Court found that “[n]one of these factors, considered together or in isolation, is enough to confer personal jurisdiction.”  Rather, the Court held that the plaintiff had the burden to establish that he actually used the website to effect a commercial transaction in New York.  Here, the Court reviewed Kroger’s website, and found that Kroger, an Ohio-based corporation, has no retail presence in New York, and does not deliver goods and services to customers with a New York zip code.  Accordingly, the Court found that Kroger “[d]oes not sell, through the Website, goods or service to New York residents.”

As both mootness and personal jurisdiction defenses are highly fact-specific, this decision will not be useful in all website accessibility cases.  However, for businesses facing website accessibility lawsuits that either have already invested substantial resources on remediation or do not transact business in the jurisdiction where the lawsuit is brought, this case could prove useful.

Edited by Minh N. Vu

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: A Committee in the New York State Senate aims to develop a legal standard for the accessibility of business websites under New York law, in response to the exponential increase in website accessibility litigation in the state. Whether state legislation could stem this tide, or instead make matters worse for businesses, remains to be seen.

According to a recent article published in the New York Law Journal, a committee of state legislators in New York plan to develop a legal standard for website accessibility, in the wake of years of regulatory inactivity by the federal government.

As we have previously written about, various state and municipal jurisdictions have laws on the books requiring that government agencies and contractors provide accessible websites. New York, however, would be the first state in the country to directly hold business websites to an accessibility standard.

Ironically, this legislative effort appears, from the NYLJ article at least, to be motivated by a concern over the surge of website accessibility filings and their impact on businesses.

A State Website Accessibility Standard To Reign In Federal Lawsuits?

The NYLJ article cites statistics published on our blog that ADA plaintiffs filed an astounding 1,564 website accessibility lawsuits in New York federal courts in 2018, which amounted to more than two-thirds of all federal website cases filed throughout the country last year.

The representative leading this initiative, State Sen. Diane Savino, referred to plaintiffs-side attorneys commencing these lawsuits as “ambulance-chaser[s]” who are “exploiting loopholes in the law” to look for quick settlements, and described the cases as having the potential to “bankrupt a small business.”

Senator Savino attributed the surge in website accessibility filings to “a real lack of regulation from the federal level down to the states.” Accordingly, the Internet and Technology Committee that she chairs will “try to develop a set of standards [for website accessibility] recognizing . . . that there are not four walls of the internet.”

It is laudable that Senator Savino and her Committee are attempting to tackle the surge in “surf by” ADA lawsuits. That said, we are not sure how developing a legal standard for business websites at the state level will mitigate the surge in federal lawsuits.

In our experience, most website accessibility lawsuits in New York are filed in federal court. Since Title III of the ADA does not provide for damages, New York plaintiffs typically add “tag-along” claims under state (and municipal) law for damages. However, as demonstrated from states’ attempts to reign in physical barrier cases, no state law can affect the remedies and procedures available under the federal ADA.

Would Legislation Provide Relief To Businesses, Or Create More Uncertainty?

Website accessibility lawsuits are usually based on the ADA’s general mandate that public accommodations provide people with disabilities equal access to their goods, services, and accommodations, specifically through auxiliary aids and services to ensure that their communication with individuals with disabilities is “effective.”

These regulations expressly state that a business can choose which auxiliary aid or service to provide, however, as long as the method is effective, free of charge, and safeguards the privacy and independence of the individual with a disability. Requiring New York businesses to conform their websites to a set of accessibility standards such as the Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1, without more, would reduce the flexibility that businesses currently have in how they provide “effective communication” as to the content and services available on websites and other digital assets.

In addition, federal courts are addressing website accessibility issues on a case-by-case basis. A body of case law is thus developing in this area, albeit with distinctions across jurisdictions. A state law standard that is inconsistent with these rulings may add to the confusion for businesses.

An Opportunity For Governmental Direction?

In her remarks, Senator Savino described states as “the incubators of ideas,” which is particularly opportune in the area of website accessibility, where federal regulators “have dragged their feet.” The prospect of legislation in this area presents, in our view, an opportunity for a governmental body to provide reasoned and balanced direction on this issue, which has been lacking at the federal level.

Nevertheless, the devil is in the details. The task of regulating this area effectively and fairly will involve the consideration of a number of issues. For example:

  • A standard that accounts for user experience. We know that compliance with every WCAG 2.1 AA requirement is challenging and requires extensive resources and expertise that most businesses do not have. Should the legislation prioritize frequent user journeys (e.g., browsing and searching for products, placing orders, and searching for brick and mortar business locations) over less traveled areas of a website?
  • Legacy content. Should any technical standard apply only to new content or new websites? Should it apply only to existing content that has been updated or modified within a specified period of time?
  • Safe harbor. Businesses modify their digital properties much more frequently than their physical, “brick and mortar” spaces. Updates and new content can inadvertently impact the accessibility of a website or other digital asset. Website “bugs” do not equate to intentional discrimination. Regulations should contain a safe harbor or cure period for accessibility issues introduced by an update or change to a website or digital asset.
  • An implementation period. Businesses must be given sufficient time to comply with the standard, and should be afforded a “safe harbor” from private claims during this period. There are simply not enough accessibility experts out there to assist businesses to make their websites accessible. Small businesses in particular must have a longer time period for compliance.
  • Third party website developers. Most businesses know little about website development and hire third party vendors to create and/or update their websites. From our experience, most of these third party vendors do not have the expertise to create and maintain accessible websites and other digital assets. Any legislation must recognize and address the difficult position that businesses are in because they are the ones in the lawsuit crosshairs, not the website developers.
  • Third party content. Many businesses have embedded third party content (e.g., maps) on their websites, over which they frequently have little or no means to change (other than removing the content entirely). Legislation over the accessibility of business websites should recognize these practical limitations on accessibility efforts.
  • Alternative access for complex content. Detailed charts and graphics with embedded text, and other complex content, can present challenges for screen reader users. These features can be very burdensome and expensive for businesses to address. Should legislation exempt complex content, or permit businesses to provide an alternative means of providing the information?
  • Small business considerations. Any legislation must acknowledge that small businesses generally cannot afford to hire expensive accessibility consultants and have little leverage to make their website development vendors conform their websites to accessibility guidelines. Strict adherence to these criteria, as Senator Savino alluded to in the NYLJ article, could bankrupt many small businesses.
  • Future technology. One of the challenges of regulating this area is the fast-paced nature of technological change. Any legislation needs to promote, rather than discourage, businesses in exploring new technologies that could reduce the costs of compliance and provide enhanced access to digital content for individuals with disabilities.

It is positive that elected leaders are taking note that the litigation environment over the accessibility of websites is becoming increasingly untenable for businesses. Should new legislation limit damages for website access violations, or require some procedure or process before a litigant can file a claim?

A litigant can visit the websites of businesses much faster than he or she can visit (and encounter barriers to access) at “brick and mortar” locations. Should a few minutes of internet browsing give rise to dozens of class action lawsuits over accessibility? Accordingly, should the law provide for enhanced standing requirements in website accessibility cases to ensure that plaintiffs have a legitimate stake in the case? What can be done to reign in litigants who file lawsuits resulting in quick settlements en masse?

There are many issues for the Committee to consider, and it is critical to include practitioners who are “on the ground” working through these issues to develop sensible legislation that will advance the dual goals of accessibility and reducing the crushing number of lawsuits.

Edited by Kristina M. Launey

 

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf’s (NAD) online video captioning lawsuit against Harvard is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university’s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.

Physical Nexus Argument Rejected. The First Circuit has held in a case about an allegedly discriminatory insurance policy that a business can be a public accommodation covered by Title III of the ADA even if it is not associated with a physical place where customers go. Harvard argued that this precedent did not apply to cases involving websites, but the Court was not persuaded. The Court also said that even if the law did require Harvard’s websites to have a nexus with a good or service provided at a physical location, the Plaintiffs had sufficiently alleged such a nexus because some of the allegedly inaccessible videos could, for example, pertain to courses taught at the school.

University Content Posted on Third Party Websites. The Court said whether Harvard could be legally responsible for content it posts on third party websites (e.g. YouTube, iTunesU, and SoundCloud) depends on facts which have yet to be developed, including whether the university has control over how the content is displayed, and whether captioning the content would provide meaningful access. The Court also noted that the university may be able to show that providing captioning would fundamentally alter the nature of the service provided or be an undue burden.

CDA Immunity for Third Party Content. In a meaningful initial victory for Harvard, the Court acknowledged that the Communications Decency Act (CDA) shields Harvard from liability under Title III of the ADA and the Section 504 of the Rehabilitation Act with respect to two categories of content: (1) content hosted on a third party-server (not belonging to Harvard) that is hyperlinked in its existing form to content that is hosted on a Harvard platform or website (“Embedded Content”) and (2) content is hosted on a Harvard platform or website that Harvard did not create, produce, or substantially alter (“Third Party Content”). The CDA shields website operators, including educational institutions, from being treated as the publisher or speaker of material posted on the website by third party users. While the Court’s holding reduces the number of videos that remain at issue in the case, the Court was not willing to immediately exclude all content posted by students, individual faculty members, or other scholars as requested by Harvard. The Court said discovery into Harvard’s role with respect to such content is needed to see if it really is third party content exempted by the CDA.

To Be Continued… We will continue to monitor this long- running case. NAD filed the lawsuit in 2015, alleging Harvard violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on its websites. In November 2016, the court denied Harvard’s motion to stay or dismiss on the primary jurisdiction doctrine, finding the court did not need the DOJ’s expertise to rule on the issue. The present order noted that in the time intervening the two motions, the parties engaged in settlement talks and negotiations to resolve or narrow the issues, but could not reach an agreement.

Seyfarth Synopsis:  Domino’s Likely to File Petition for Certiorari from Ninth Circuit’s Ruling in Robles v. Domino’s.

As we reported, the Ninth Circuit held in January that a blind plaintiff could move forward with his ADA Title III lawsuit against Domino’s Pizza for having an allegedly inaccessible website and mobile app.  The court determined that allowing the claim to move forward was not a violation of Domino’s due process rights, even though the ADA and its regulations contain no definition of, or technical specifications for, “accessible” public accommodations websites.

We believe Domino’s will be petitioning the U.S. Supreme Court for certiorari because on March 6, 2019, it requested a sixty-day extension of time to file said petition.  The request was filed by a newly-engaged Supreme Court specialist which further confirms our conclusion that a petition will be filed.  Justice Kagan granted the request, and Domino’s Petition for Certiorari is due on June 14, 2019.

There is a lot at stake with this petition.  Congress and the DOJ have taken no action to stop the tsunami of lawsuits against thousands of businesses about their allegedly inaccessible websites.  A Supreme Court decision could put an end to the litigation frenzy and provide some relief for businesses.

Stay tuned for updates on this exciting development.

Edited by Kristina M. Launey

Seyfarth Synopsis:  DOJ provides guidance on sales/service counter rules in the 2010 Standards that provides some relief to businesses.

Retailers and other businesses should be pleased with the DOJ’s pronouncement on February 25, 2019, that they can lawfully provide sales/service counter space that is less than 36” long, as long as the entire space is at an accessible height of 36” or lower.  While we always thought the 2010 ADA Standards for Accessible Design (“2010 Standards”) were unambiguous on this point, plaintiffs filed many lawsuits claiming the ADA requires retailers to provide a minimum 36” length of lowered accessible counter that is entirely clear of all objects.  Courts have reached different conclusions, and now the DOJ has weighed in.

The DOJ’s statement came in the form of an amicus brief which Judge William Alsup of the Northern District of California had requested in connection with a pending motion for summary judgment.  The sales/service counter at issue in the case was at an accessible height (i.e., 36” or less above the floor), but did not provide a 36” length because it included items such cash registers and merchandise displays on the counter.  The DOJ stated that this counter complies with the Exception to Section 904.4.1 of the 2010 Standards because it is at a uniform accessible height, even if the space provided is not 36” long.  The DOJ also said that the placement of merchandise displays and a cash register on a sales/service counter that is 36” long does not violate the 2010 Standards because Section 904.4.1 “does not so much as mention, let alone prescribe any requirements regarding ‘clear’ counter space.”

While this DOJ pronouncement provides much needed clarification, businesses should consult their ADA Title III specialist attorneys before filling up their accessible lowered counters with anything more than a register and some merchandise displays, particularly if high counters are provided for use by non-disabled customers.

Edited by Kristina M. Launey

As we had predicted, the number of website accessibility lawsuits (i.e. lawsuits alleging that plaintiffs with a disability could not use websites because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them) filed in federal court under Title III of the ADA exploded in 2018 to at least 2258 – increasing by 177% from 814 such lawsuits in 2017.

Graph: ADA Title III Website Accessibility Lawsuits in Federal Court: 2017-2018: 2017: 814; 2018: 2258, 177% increase over 2017. *The number of cases that could be identified through a diligent search.]

 

 

 

 

 

 

 

 

 

Plaintiffs filed these federal ADA Title III lawsuits in fourteen states—New York and Florida being the most busy jurisdictions with 1564 and 576 lawsuits, respectively.  Pennsylvania and Massachusetts held distant third and fourth positions, as shown in the chart below.

[Graph: Top 10 States for ADA Title III Website Accessibility Lawsuits in 2018: NY 1564, FL 576, PA 42, MA 26, CA 10, OH 9, VA 8, IL 7, TX 7. *The number of cases that could be identified through a diligent search.]

 

 

 

 

 

 

 

 

 

The number of New York federal website accessibility lawsuits is staggering, brought primarily by fifteen law firms/lawyers.  The lawyers appearing most frequently on filings are Joseph Mizrahi, Jonathan Shalom, Doug Lipsky, C.K. Lee, Bradley Marks, and Jeffrey Gottlieb.  We saw a surge in these cases after New York federal judges allowed website accessibility cases to proceed to discovery in lawsuits against Blick Art and Five Guys.  The 2018 New York website accessibility filing statistic brought New York into a close second to California in the total number of ADA Title III lawsuits (not just website accessibility cases) filed in federal court.

The fact that the California federal courts only had ten website accessibility lawsuits filings in 2018 may be a surprise to some since California continues to lead the pack in the number of all ADA Title III lawsuit filings in federal court.  However, it appears that plaintiffs filed their new cases in state court after a federal judge in the Central District of California dismissed a website accessibility lawsuit against Dominos’ in 2017.  The Ninth Circuit reversed that dismissal last month, making California federal court an attractive venue for plaintiffs once again.  We predict that the Ninth Circuit’s ruling will cause the number of website accessibility lawsuits in California federal courts to increase dramatically in 2019.

About our methodology:  Our 2018 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability.  For example, there were a number of lawsuits in 2018 brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities.  We also removed a number of lawsuits brought against state and local government entities under Title II of the ADA for having inaccessible websites.

The number of ADA Title III lawsuits filed in federal court in 2018 hit a record high of 10,163 – up 34% from 2017 when the number was a mere 7,663.  This is by far the highest number of annual filings since we started tracking these numbers in 2013, when the number of federal filings was only 2,722.  In other words, the number of cases has more than tripled.  The chart below shows the explosion in these types of suits:

[Graph: ADA Title III Lawsuits in Federal Court: 2013-2018: 2013: 2722; 2014: 4436, 63% increase over 2013; 2015: 4789, 8% increase over 2014; 2016: 6601, 37% increase over 2015; 2017: 7663, 16% increase over 2016; 2018: 10163, 33% increase over 2017]
California, New York, and Florida led the pack by a wide margin as the states with the most ADA Title III lawsuits, with Texas, Georgia, Pennsylvania, Arizona, Massachusetts, New Jersey, and Alabama making the top ten but trailing far behind.  Nevada, Colorado, and Utah fell out of the top ten in 2018, displaced by newcomers Alabama, Arizona, and Massachusetts.  No ADA Title III lawsuits were filed in Montana, New Mexico, North Dakota, South Dakota, Vermont, Wyoming.

[Graph: Top 10 States for ADA Title III Federal Lawsuits in 2018: CA 4249, NY 2338, FL 1941, TX 196, GA 160, PA 129, AZ 94, MA 91, NJ 82, AL 80.

 

 

 

 

 

 

 

 

[Graph: Top 10 States for ADA Title III Federal Lawsuits in 2017: CA 2751, FL 1488, NY 1023, UT 360, NV 276, CO 215, GA 187, PA 182, TX 129, NJ 108.]

 

 

 

 

 

 

 

 

The big news among the top three states is that New York displaced Florida as the second busiest jurisdiction.  Filings in New York more than doubled from 2017 to 2018 (1023 vs. 2338) while the number of cases filed in Florida only increased from 1488 to 1941.  The number of lawsuits filed in California increased by 54% from 2751 in 2017 to 4249 in 2018.  This record-breaking California number does not even include the many state court filings which we do not track.

[Graph: California, New York and Florida ADA Title III Lawsuits in Federal Court: 2013-2018: 2017: CA 2751, 2018: CA 4249, 2017: NY 1023, 2018: NY 2338, 2017: FL 1488, 2018: FL 1941.]

 

 

 

 

 

 

 

 

What is driving the ADA Title III lawsuit explosion?  We are still crunching the numbers but we believe there were nearly 2000 federal lawsuits about allegedly inaccessible websites filed in 2018.  There were very few of these cases before 2015.  In addition, plaintiffs and their attorneys branched out into suits about hotel reservations websites in 2018, further driving the numbers.  We also continue to see many lawsuits about physical access barriers.

A note on our methodology: Our research involved a painstaking manual process of going through all federal cases that were coded as “ADA-Other” and manually culling out the ADA Title II cases in which the defendants are state and local governments.  The manual process means there is the small possibility of human error, but we are confident in our process.

Seyfarth Synopsis: Ninth Circuit overturns district court’s dismissal of website accessibility lawsuit on due process and primary jurisdiction grounds, remands case to proceed with discovery.

On January 15, 2019, the Ninth Circuit Court of Appeals issued the fifth federal appeals court ruling on the issue of website accessibility, and there is no doubt that it is a victory for plaintiffs and their lawyers.  However, there are some pro-defense nuances that are worth pointing out.

By way of background, the district court had concluded that the ADA does apply to Domino’s website and mobile app, but dismissed the lawsuit before discovery because:  (1) Holding Domino’s in violation of the ADA when there are no legal technical standards for public accommodations websites would be violation of due process; and (2) under the primary jurisdiction doctrine, courts should hold off on deciding cases where enforcement agencies with special expertise should weigh in first.

The Ninth Circuit  agreed with the district court that the ADA applies to Domino’s website and app.  In so doing, the court said that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”  The Ninth Circuit did not agree with the district court on the due process point, however, finding that Domino’s has been on notice since 1996 of DOJ’s position that its website and app must provide effective communication.  (We note, however, that none of the DOJ documents cited by the court actually mention mobile apps.)  The Ninth Circuit also said the district court erred in applying the primary jurisdiction doctrine, noting that since the DOJ is not going to issue any regulations about websites and mobile apps, applying the doctrine would just “needlessly delay” the resolution of the claim, and the application of the ADA to the facts of the case “are well within the court’s competence.”  The Ninth Circuit’s rejection of these due process and primary jurisdiction arguments, which are often mounted by defendants in website accessibility cases, is not entirely surprising as many district courts have also reached the same conclusion, and the district court’s decision in this case was an outlier.

The Ninth Circuit concluded by making clear that it was not expressing any opinion about whether Domino’s website or mobile app comply with the ADA.  The court instructed the district court to proceed with discovery and then decide whether Domino’s website and app comply with the ADA’s effective communication and full and equal enjoyment mandates.

From the defense perspective, there are several useful points in the decision.

First, the Ninth Circuit reaffirmed its position that, to be covered by the ADA, a website or mobile app must have a nexus to a physical place of public accommodation. The court stated that this nexus was “critical” to its analysis in the Domino’s case where the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises – which are places of public accommodation.”  The Ninth Circuit said in a footnote that it was not deciding whether “the ADA covers the websites or apps of a physical place of public accommodation where the inaccessibility does not impede access to the goods and services of a physical location.”

Second, the Ninth Circuit left open the possibility that a 24/7 toll-free phone line could be a way to provide access in lieu of an accessible app or website.  The court did not have to consider the question of whether a telephone hotline could be an adequate alternative to an accessible website or mobile app because the district court’s holding was not based on the phone line.  However, the Ninth Circuit said in a footnote that “the mere presence of a phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.”  This statement suggests that, with discovery on the effectiveness of the phone line, summary judgment for Domino’s could be a possibility.

Third, in response to Domino’s complaint that the DOJ has failed to provide clear direction as to what public accommodations must do to comply with the ADA with respect to their websites, the Ninth Circuit reiterated that “the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”

Fourth, the Ninth Circuit said that “due process constrains the remedies that may be imposed.”  Thus, defendants may be able to make the due process argument later in a case if a violation of the ADA is found and the court must fashion injunctive relief.

In sum, while this decision adds to the growing body of website accessibility case law that favors plaintiffs, there are some useful nuggets.  That said, we predict the number of website accessibility lawsuits in California federal courts will increase dramatically in 2019.  While this case was on appeal, plaintiffs largely opted to file their website accessibility cases in California state court but this decision clears the way for more federal filings.

Seyfarth Synopsis: A new Ohio law will require notice and opportunity to cure as a prerequisite for a plaintiff’s recovery of attorney’s fees in physical accessibility lawsuits.

Businesses across the country have been asking Congress to provide some relief from ADA “drive by” and “gotcha” lawsuits about physical access barriers at public accommodations facilities.  Federal efforts to amend the ADA stalled early in 2018, but a new Ohio law may provide businesses in that state with some advance notice and an opportunity to cure physical access violations before being held liable for paying the plaintiff’s attorney’s fees – at least under Ohio accessibility laws.

In 2018, the U.S. House of Representatives passed the ADA Education and Reform Act of 2017, H.R. 620, which would have prohibited a plaintiff from filing a federal ADA lawsuit based on failure to remove an architectural barrier unless the plaintiff has first given the businesses notice of the alleged violations and an opportunity to provide a plan to address them.  H.R. 620 gained no traction in the U.S. Senate, however.

Ohio Governor Kasich recently signed House Bill 271, which will require a plaintiff, to be eligible for attorney’s fees, to provide a notice of an alleged accessibility law violation in advance of filing a civil action.  After serving notice, the plaintiff cannot file a lawsuit until the property owner or responsible party fails to respond or fails to remediate the violations under certain conditions and in certain time frames.  A plaintiff who provides notice but fails to allow the defendant opportunity to remediate the property as specified in the bill may forfeit entitlement to attorney’s fees, as specified in the bill.  That said, a plaintiff who does not provide notice may still be able to recover fees if the trial court determines attorney’s fees are appropriate due to the nature of the violations.

House Bill 271 says it applies to alleged violations of Ohio and federal accessibility laws (except housing discrimination), but since no state law can affect the remedies and procedures available under the federal ADA, it will not impact the recovery of attorney’s fees in ADA lawsuits.  Time will tell as to whether this legislation will cause a decrease in the number of physical accessibility lawsuits filed in Ohio, but we remain skeptical.

Edited by Minh N. Vu