Seyfarth Synopsis: Three businesses prevail in website accessibility lawsuits in New York and California.
Defending website accessibility lawsuits can be an expensive and difficult battle for public accommodations, but there have been a few bright spots for businesses this summer.
1. On July 14, 2021, Judge Brian Cogan of the United States District Court for the Eastern District of New York dismissed a website accessibility lawsuit against a print and online newspaper publisher. The Court determined that the plaintiff—a deaf individual who claimed that the media company’s website violated the ADA by not having closed captioning for its videos—failed to state a claim for violation of Title III of the ADA because the website did not fall within the definition of a “place of public accommodation” under Title III of the ADA. The court found “[n]either a newspaper publisher nor a digital media content provider falls within any of the twelve enumerated places of public accommodation categories under the ADA” and “defendants are also not sufficiently analogous to any of the public accommodations listed in the statute to be deemed to be a public accommodation.” This decision is of particular interest to businesses that do not clearly fit within the definition of place of public accommodation, but are nevertheless faced with website accessibility lawsuits as plaintiffs are pushing the boundaries of the law.
On the separate issue of whether a business that does fall within the twelve enumerated categories of public accommodations — but has no physical place where it offers goods and services — is covered by the ADA, the court noted that this was still an open question in the Second Circuit.
2. On August 16, 2021, Judge Eric Komittee of the U.S. District Court for the Eastern District of New York in dismissed another lawsuit alleging that a newspaper publisher’s website violated the ADA because it contained videos without closed captioning. The court found that Title III of the ADA only covers the goods and services of a physical place of public accommodation, and the website is not a physical place. The decision contained a very thorough discussion of the statute and relevant case law, and concluded (as did Judge Cogan in the above case) that the Second Circuit has yet to decide this issue.
Judge Komittee parted ways with Judge Weinstein of the Southern District of New York who decided in Blick Art. Judge Weinstein relied on the Second Circuit’s decision in Allstate v. Pallozzi to conclude that websites of online-only businesses are covered by Title III of the ADA. This interpretation was a stretch because in Pallozzi, the Second Circuit held that Title III of the ADA applied to the terms of an insurance policy purchased at an actual insurance office. Judge Komittee aptly pointed out that the goods and services offered by the insurance office in Pallozzi were clearly covered by Title III of the ADA because an “insurance office” is explicitly listed in the statute’s definition of a “public accommodation,” whereas websites are nowhere to be found in that definition.
These two recent decisions from the Eastern District of New York are welcome news for “internet-only” businesses facing steadily increasing numbers of ADA website and mobile app lawsuits in this particular district. Businesses need to keep in mind, however, that just as many judges in the Southern District of New York have found that online-only businesses are covered by Title III of the ADA. Furthermore, other judicial circuits such as the First Circuit do not limit the ADA’s coverage to businesses that have physical places where goods and services are offered, and district courts in that circuit have applied that precedent to find online-only businesses to be covered by Title III of the ADA.
3. On the other side of the country, the California Court of Appeals for the Fourth Appellate District issued a decision on September 8, 2021 affirming a defense jury verdict reached in Thurston v. Omni Hotels Management Corporation. The blind plaintiff had filed this state court action under California’s Unruh Act claiming that the defendant had discriminated against her by having a website that she could not access with her screen reader. At issue on appeal was the trial court’s instruction to the jury that, to state a claim, the plaintiff had to establish that she “attempted to use [the hotel’s] website for the purpose of making a hotel reservation (or to ascertain the hotel’s prices and accommodations for the purpose of considering whether to make a reservation).” The jury found no such intent, resulting in a verdict for the hotel.
The Court of Appeals affirmed the judgment, finding that a plaintiff must demonstrate an intent to use a defendant’s services to have standing to bring a claim under the Unruh Act. The Court explained that its decision was consistent with a 2019 California Supreme Court decision holding that “a person who visits a business’s website with intent to use its services and encounters terms and conditions that exclude the person from full and equal access to its services has standing under the Unruh Act, with no further requirements that the person enter into an agreement or transaction with the business.” The Court of Appeals in Thurston noted that the Supreme Court specifically stated that defendants can — on summary judgment or at trial — dispute that a plaintiff had the required requisite intent.
UPDATE: On November 1, 2021, District Judge Cogan issued a decision holding that a website is not a place of public accommodation.