Seyfarth Synopsis: California will soon have a new law requiring WCAG 2.0 AA compliance for state agencies’ websites by 2019.

On October 14, 2017 California Governor Jerry Brown signed into law AB 434, which will create a new Government Code section 11546.7 and require, beginning July 1, 2019, state agencies and state entities to post on their website home pages a certification that the website complies with the Web Content Accessibility Guidelines 2.0 Level AA, or a subsequent version, and Section 508 of the Rehabilitation Act.

State agencies have been required, since January 1, 2017 by virtue of 2016 legislation, to comply with Section 508 in developing, procuring, maintaining, or using electronic or information technology “to improve accessibility of existing technology, and therefore increase the successful employment of individuals with disabilities, particularly blind and visually impaired and deaf and hard-of-hearing persons.” That statute, Government Code 7405, also requires entities that contract with state or local entities for the provision of electronic or information technology or related services to respond to and resolve any complaints regarding accessibility that are brought to the entity’s attention.

The new Government Code section 11546.7 will also require the State’s Director of Technology to create a standard form for each state agency or entity’s chief information officer to use in determining whether its respective website complies with the accessibility standards.

With this legislation, California joins state and municipal entities in other parts of the country that have similar web accessibility requirements for governmental entities and contractors.  This legislation fills a small part of a void the federal Department of Justice has decided for the time being not to fill, when it put its pending regulations that would set an accessibility standard for state and local (as well as private entity) websites on the inactive list.

Edited by: Minh N. Vu.

Seyfarth Synopsis: Florida’s recently-enacted House Bill 727 gives businesses a way to deter serial plaintiffs from suing them in Florida courts.

Watching businesses deal with the at least 1,663 ADA Title III access suits filed in federal court in Florida in 2016 motivated Florida legislators to take action with House Bill 727 (“HB 727”) which went into effect on July 1, 2017. One of bill’s sponsors, Rep. Tom Leek, claims that “[t]his law give the ADA back to the people for whom it was written, Americans with disabilities.” We are not quite so optimistic.

Under HB 727, a business that hires a “qualified expert” to inspect its premises to either verify conformity with ADA facilities access requirements, or to develop a compliance plan, can have that information considered in a lawsuit filed in a court within the state of Florida, provided that the certificate of conformity or remediation plan has been filed with the Department of Business and Professional Regulation (the “DBPR”). The court “must consider” any such remediation plan or certificate of conformity “and determine[s] if the plaintiff’s complaint was filed in good faith and if the plaintiff is entitled to attorney fees and costs.”

Here’s how it would work: An owner of a place of public accommodation pays a “qualified expert” to inspect its premises. If the expert concludes that the facility complies with the ADA, the business can submit a “certificate of conformity” to the DBPR stating that the premises conforms to Title III.  Certificates of conformity are valid for three years and must include: the date that the premises was inspected, the name of the “qualified expert,” proof of the expert’s qualifications, and a statement from the qualified expert attesting that the information contained in the certificate is complete and accurate.

Businesses whose facilities do not fully comply with the ADA can submit a remediation plan to the DBPR indicating that the facility intends to conform with ADA requirements within a reasonable amount of time that does not exceed 10 years. In addition to the requirements applicable to the certificate of conformity, the remediation plan must include the specific remedial measures that the place of public accommodation will undertake, and the anticipated date of completion.

To be a “qualified expert,” one must be a building code inspector, architect, engineer, contractor, or “person who has prepared a remediation plan related to a claim under Title III … that has been accepted by a federal court in a settlement agreement or court proceeding, or who has been qualified as an expert in Title III … by a federal court.” This means that an experienced defense attorney who has prepared a remediation plan for a court approved settlement could be considered a “qualified expert.”

HB 727 is not likely to have much impact on the number of ADA Title III lawsuits filed in Florida for several reasons. First, the law will likely only apply to ADA lawsuits filed in state court, and most ADA Title III lawsuits are filed in federal court. This is because under the Supremacy Clause of the United States constitution, Florida state’s requirement that a court must consider remediation plans and certifications of conformity are likely preempted by the ADA and will not be applied to a plaintiff’s federal lawsuit. Second, given that HB 727 does not explicitly render an access lawsuit moot just because there is a remediation plan or certificate of conformity on file, businesses will be reluctant to publicize access barriers in their facilities in a publicly-filed document, which plaintiffs can still use to sue them. Third, having a court consider the existence of a remediation plan or certificate of conformity in deciding whether to award a plaintiff attorneys’ fees is not likely to deter plaintiffs who know that defendant businesses will need to spend a lot of money litigating before a court ever considers either of these documents.  Fourth, HB 727 does nothing to address the explosion of website access litigation under the ADA in Florida which has been a key driver in the increased number of lawsuits in the past 12 months. Indeed, as we have previously reported (here and here), California has similar legislation to HB 727, yet California still had approximately 2,468 ADA Title III filings in federal court in 2016 and continues, along with Florida, to be a hotbed for ADA Title III litigation.

Seyfarth Synopsis:  In denying Dave & Buster’s motion to dismiss and for summary judgment, a federal judge said that telephonic access might be an alternative to having an accessible website, but cannot decide until the record is much more developed.

No court has yet decided whether a public accommodation can comply with Title III of the ADA’s equal access mandate by providing telephonic access to the information and services on a website blind people cannot use with a screenreader.  However, last week federal Judge Philip Gutierrez of the Central District of California recognized it as a possibility, while allowing a website accessibility lawsuit against Dave & Buster’s to move forward to discovery.

In Gorecki v. Dave & Buster’s, Dave & Buster’s filed a motion to dismiss and for summary judgment at the outset of the case, arguing that it had complied with the law by providing telephonic access to the information and services on its website.  Specifically, it had placed an “accessibility banner” on its website stating: “If You Are Using A Screen Reader And Are Having Problems Using This Website, please call 1 (888) 300-1515 For Assistance.”  Dave & Buster’s had staffed the line with a “receptionist.”  In response, the court acknowledged that the Department of Justice had stated in 2010 that telephonic access could be a means of complying with law in lieu of having an accessible website.  However, the court found that the plaintiff had raised a genuine dispute as to whether having the phone line and receptionist satisfies the ADA because—among other things—Dave & Buster’s failed to submit evidence that the accessibility banner itself was accessible (i.e., could be read) to screen reader users.  The court concluded that “the record as it stands is insufficient to address compliance, so the court disagrees with D&B that the mere appearance of the phone number on the Website renders Gorecki’s claim moot.”

Our takeaway from this holding is that a defendant seeking to show that it is providing access to the information and services on its website through a telephone line must submit more robust evidence about how that telephonic provides equal access.

The court also rejected Dave & Buster’s three other arguments for dismissal.  First, the court said that holding Dave & Buster’s liable for a Title III violation in the absence of regulations about websites would not violate due process because the DOJ made clear “as early as 1996” that websites are covered under the law, and plaintiff was not advocating for adherence to any particular set of accessibility standards such as the Web Content Accessibility Guidelines 2.0.  Second, the court said dismissal was not appropriate under the doctrine of primary jurisdiction because “a finding of liability regarding the Website’s compliance with the ADA does not require sophisticated technical expertise beyond the ability of the Court.”  These two holdings echo the same or similar holdings by virtually every other court that has considered these issues.  Finally, the court stated that plaintiff did not necessarily have to request an accommodation from Dave & Buster’s before filing suit.

Judge Gutierrez’s decision is the third in which the Manning law firm in Newport Beach, CA has successfully rebuffed motions to dismiss website claims by defendants in federal court.  The firm has appealed to the Ninth Circuit the one unfavorable decision it received in Robles v. Dominos Pizza. The opening brief will is due to be filed this week.

Seyfarth Synopsis:  The Supreme Court declines to review a Fifth Circuit decision stating that a public accommodation covered by Title III of the ADA has to be a physical place and vending machines are not sales establishments covered by Title III of the ADA.

In August 2016, the U.S. Court of Appeals for the Fifth Circuit ruled in Magee v. Coca-Cola that vending machines are not places of public accommodation covered by Title III of the ADA. The blind plaintiff in that case had argued that the inaccessible Coca-Cola vending machine in question was a “sales establishment” regulated by Title III of the ADA and sued Coca Cola — the owner and operator of the vending machine.  Both the trial court and the Fifth Circuit Court of Appeals disagreed, holding that a “sales establishment” is a physical space that is occupied by a business and that the vending machine was not such a space.  In other words, the owner or operator of the establishment where the vending machine was located who was not sued may have had obligations with respect to the machine, but not the owner or operator of the vending machine itself.

The plaintiff petitioned the U.S. Supreme Court for review.  On Monday, the Supreme Court Denied plaintiff’s petition for writ of certiorari, declining to hear the case.  Before issuing Monday’s denial deciding whether to review the case, the Supreme Court had asked the U.S. Department of Justice (DOJ) to weigh in on whether vending machines are places of public accommodation.  The DOJ firmly answered the question in the negative and also urged the Court to not review the Fifth Circuit’s decision. We blogged about the DOJ’s position and how it may prove useful to defendants defending cases involving self-service machines here.

The Magee decision has implications beyond vending machines.  It makes the federal courts in the Fifth Circuit (i.e. Louisiana, Mississippi, and Texas) unattractive venues for lawsuits against web-only businesses that have no physical location where customers go.  Plaintiffs seeking to sue such businesses will be much more likely to bring their lawsuits in the First or Seventh Circuit which have interpreted the term “public accommodation” to extend beyond physical spaces.  The Supreme Court’s denial of review prolongs the conflict among judicial circuits about whether a “public accommodation” under the ADA must be a physical place, and promotes forum shopping for plaintiffs.

Seyfarth Synopsis:  The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.  Businesses remain well-advised to seek advice from counsel experienced in website accessibility to manage risk.

Different year, same news: Website accessibility lawsuits show no signs of slowing down. In fact, with the DOJ’s recent placement of website regulations on the “inactive list”, litigation will likely only continue. As we have written about extensively, most recently here, court orders are issuing more and more from courts across the country, slowly creating a body of jurisprudence around this issue; though the rulings differ vastly by court and even judge.

The number of website accessibility lawsuits filed in federal court since the beginning of 2015 has surged to at least 751 as of August 15, 2017, with at least 432 of those filed in just the first eight and a half months of 2017—well over the 262 lawsuits that were filed in all of 2015 and 2016. We say “at least” because there is no easy way to capture every website accessibility lawsuit filed in federal court. Thus, the actual numbers are likely higher than we can report with certainty. Our numbers also do not include the many cases filed in state courts nor demand letters that resolve without ever turning into lawsuits.

Number of federal website accessibility lawsuits by year from January 2015 to August 15, 2017: 2015 (57), 2016 (262), 2017 (432). There are at least this many lawsuits.

Retailers remain the most popular targets, followed by restaurant and hospitality companies.

Number of federal website lawsuits by industry from January 2015 to August 15, 2017: Academic (7), Entertainment (27), Financial (17), Hospitality (57), Medical (42), Personal Services (18), Restaurant (186), Retail (353), Vehicle Manufacturer (13), Other (22). There are at least this many lawsuits.

Although California continues to have the highest number of federal ADA title III lawsuits generally, Florida (385), New York (170) and Pennsylvania (85) have overtaken California with respect to the number of federal website accessibility lawsuits.

Number of states with the most website lawsuits in federal court as of August 15, 2017: Arizona (7), California (65), Florida (385), Illinois (5), Massachusetts (17), New York (170), Ohio (4), Pennsylvania (85), Texas (4), Washington (5). There are at least this many lawsuits.

These lawsuits are a significant portion of the increase in total ADA Title III lawsuits filed in federal courts this year, which, as of April 2017, was already over 2600 filings in 2017—an 18% increase over the number of federal cases filed in the same time period in 2016.

Edited by Minh N. Vu.

Seyfarth Synopsis: In an apparent effort to stop one plaintiff’s lawsuit spree, the Nevada Attorney General moves to intervene in a federal ADA Title III lawsuit arguing that the plaintiff failed to provide notice to the state agency responsible for enforcing Nevada’s antidiscrimination law before filing suit.

On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months.

The motion to intervene argues that Title III of the ADA requires private plaintiffs to – before filing in federal court – provide 30 days’ notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit.  The Nevada Attorney General explained that the notice gives the state enforcement agencies an opportunity to conduct their own investigation and take action.  The brief notes that there is an exception to this notice requirement where a plaintiff has actual notice that the defendant does not intend to comply with the law, but Mr. Zimmerman did not plead that he had actual notice of any such intent.  This is an interesting argument that could be a useful defense strategy in some ADA Title III cases, though it has been rejected as the basis for a dispositive ruling by the Ninth Circuit in Botosan v. Paul McNally Realty.

The Nevada Attorney General’s motion to intervene is not the first time that a state attorney general has stepped in to thwart the actions of serial plaintiffs filing accessibility lawsuits.  Last year, the Arizona Attorney General intervened in and secured the dismissal of 1700 cases filed against Arizona businesses under the Arizonians with Disabilities Act (not the ADA), as we reported here.

Stay tuned for more developments in Nevada – a state that only had 6 ADA Title III lawsuits in all of 2016.

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: In amicus brief to the U.S. Supreme Court, the Justice Department agreed with the Fifth Circuit and defendant Coca-Cola that a vending machine is not a place of public accommodation and that public accommodations can comply with the ADA by providing assistance to customers in lieu of having accessible self-service equipment.

The Supreme Court recently asked the U.S. Department of Justice (DOJ) to weigh in on whether vending machines are places of public accommodation covered by Title III of the ADA.  The Court’s request related to a pending a Petition for Certiorari filed by a blind plaintiff who unsuccessfully sued Coca-Cola for allegedly owning and/or operating vending machines that are not independently usable by the blind.  Both the District Court and the Fifth Circuit had concluded that such machines are not public accommodations under the ADA.

The DOJ’s amicus brief unequivocally stated its position that vending machines are not public accommodations.  The DOJ advanced a number of arguments in support of its position that a vending machine does not fall within any of the 12 categories of businesses that are considered public accommodations under the statute.  Among other things, the DOJ stated that a vending machine is not a “sales establishment” covered by the law but rather a piece of equipment typically found within public accommodations facilities.

The most significant commentary from the DOJ’s brief concerns a public accommodation’s obligations with regard to self-service equipment provided for public use.  The DOJ stated:

the operator of a public accommodation in which the vending machines is located is better suited to determine whether such changes [(i.e. making the vending machines independently accessible by blind users)] are the most efficient means of complying with the ADA.  When buying or leasing vending machines, some business owners may insist upon the inclusion of accessible features.  Others, however, might choose instead to install the machines at locations within their establishments where their employees will be available to assist customers with disabilities.  The business owner is better positioned than the seller or lessor of the machines to determine what method of ensuring accessibility will be most effective at a particular location.

In other words, it is the DOJ’s position that providing assistance to customers with disabilities is a lawful way to provide access in lieu of procuring accessible vending machines.  Presumably this position would extend to all self-service equipment provided for customer use — at least when there are no privacy concerns.  (In 2014, the DOJ had filed a Statement of Interest in a different case involving allegedly inaccessible point-of-sale devices where it took the position that a public accommodation must provide individuals with disabilities independent access to point-of-sale devices which require the entry of Personal Identification Numbers (PINs).)

Also significant was DOJ’s view that the Supreme Court should not grant review of the case in order to address the question of whether online-only businesses are covered by Title III of the ADA.  The DOJ noted that while “questions concerning Title III’s application to non-physical establishments – including websites or digital services – may someday warrant” the Supreme Court’s attention, this case was not the time or place to do so since the plaintiff here encountered the machines in person, not via telephone or internet.  The DOJ’s suggestion that the Court should defer on this issue suggests that the Department may be evaluating its prior position that online-only businesses are covered by the ADA.

Seyfarth Synopsis: Trump Administration’s first Unified Agenda reveals DOJ has placed web accessibility, medical equipment, and furniture rulemakings under Title II and III of the ADA on Inactive List.

Federal agencies typically provide public notice of the regulations that are under development twice a year in the Unified Regulatory Agenda. The first Agenda the Trump Administration issued, which went online July 20, 2017, contains some very noteworthy changes from the last such Agenda, issued by the Obama Administration.

For the first time, the Agenda breaks down all agency regulatory actions into three categories: active, long-term, or inactive. While the Agenda does not define these terms, it appears that only the active and long-term matters receive a description and projected deadlines. The inactive matters appear on a PDF document under a link called “2017 Inactive Actions”.

The Agenda places the Department of Justice’s rulemakings under Titles II and III of the ADA for websites, medical equipment, and furniture of public accommodations and state and local governments on this 2017 Inactive Actions list, with no further information. Thus, as we had predicted, there will be no regulations about public accommodations or state and local government websites for the foreseeable future.

In the absence of website regulations, the courts are filling the void with a patchwork of decisions that often conflict with one another. The uncertain legal landscape has fueled a surge of lawsuits and demand letters filed and sent on behalf of individuals with disabilities alleging that the websites of thousands of public accommodations are not accessible.

The placement of the website and all other pending ADA Title III rulemaking activities (medical equipment and furniture) on the Inactive list is part of the Administration’s larger effort to reduce the number of regulations in development.  The Administration touted the following accomplishments on the Agenda’s homepage:

  • Agencies withdrew 469 actions that had been proposed in the Fall 2016 Agenda;
  • Agencies reconsidered 391 active actions by reclassifying them as long-term (282) and inactive (109), allowing for further careful review;
  • Economically significant regulations fell to 58 – about 50 percent fewer than Fall 2016;
  • For the first time, agencies will post and make public their list of “inactive” rules.

Edited by: Kristina M. Launey.

Seyfarth Synopsis:  A federal judge in the Central District of California has allowed a blind plaintiff to continue his lawsuit about the accessibility of a public accommodation’s website under Title III of the ADA, despite the diametrically opposite views of his Central District colleague.

Within a week after a Florida federal judge handed down a trial verdict finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California ruled that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website.  The retailer had asked the court to dismiss the case on various grounds, all of which were rejected by the judge.  The case will now move forward.

This decision is significant for several reasons:

  • The decision illustrates that two judges in the same United States District Court can have diametrically opposite views on the very same issue. In March of this year, U.S. District Judge James Otero dismissed a lawsuit brought by a blind plaintiff against Domino’s Pizza about its allegedly inaccessible website.  Judge Otero found that Domino’s had met its obligations under the law by providing telephonic access via a customer service hotline, and that requiring Domino’s to have an accessible website at this time would violate its constitutional right to due process.  On the due process point, Judge Otero noted that neither the law nor the regulations require websites to be accessible, and that the Department of Justice (DOJ) had failed to issue regulations on this topic after seven years.  As further evidence that covered entities have not been given fair notice of their obligations under the ADA, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website.  Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”
  • In stark contrast, U.S. District Judge John Walter in the Hobby Lobby case rejected the due process argument and held that the “primary jurisdiction” doctrine did not apply. With regard to the due process argument, Judge Walter stated that “[f]or over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation” and that “Hobby Lobby had more than sufficient notice in 2010 to determine that its website must comply with the ADA.”  Judge Walter also held that the “primary jurisdiction” doctrine did not apply because it only applies to cases whose resolution require the “highly specialized expertise” of a federal agency.  Judge Walter found that this case is a “relatively straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website.”
  • Judge Walter reserved judgment on what Hobby Lobby would have to do to make its website accessible until after a decision on the merits. The Court specifically noted that the plaintiff was not asking for conformance with a specific technical rule such as the Website Content Accessibility Guidelines 2.0.

Because Judge Walter’s decision was on a motion to dismiss and not a final judgment, Hobby Lobby does not have the right to appeal the decision at this time.  We predict that the case will settle before the court reaches the merits of the case.