Seyfarth synopsis:  A Florida Judge Holds that SeaWorld’s website is not a place of public accommodation covered by Title III of the ADA but the decision has its limits.

Defendants fighting website accessibility lawsuits in the past several years have not had a great deal of success, so the recent decision by Florida federal Magistrate Judge Carol Mirando holding that SeaWorld’s website is not a place of public accommodation was a small bright spot — albeit one with limitations.

The disabled pro se plaintiff in this case sued SeaWorld under Title III of the ADA because the business allegedly did not provide him with an electric wheelchair or allow his two service dogs entry.  The court held that the plaintiff did not have standing to bring these claims because there was no threat of imminent harm.  The plaintiff also alleged that SeaWorld’s website was not accessible to individuals with disabilities, although it is not clear how his disability impacted his use of the website.  The court rejected this claim, holding:

“Neither Busch Gardens’ nor SeaWorld’s online website is a physical or public accommodation under the ADA.  The Internet is a unique medium — known to its users as ‘cyberspace’ — located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet.  Hence, Plaintiff is unable to demonstrate that either Busch Gardens’ or SeaWorld’s online website prevents his access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency.  As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA.”

In so holding, the court cited to Access Now, Inc. v. Southwest Airlines, Co., 227 F.Supp.2d 1312 (S.D.Fl. 2002), where another Florida district court had dismissed an ADA Title III claim against Southwest because the Southwest website was neither a public accommodation nor was a means of accessing a physical place of public accommodation.  The court in the Southwest Airlines case relied on the Eleventh Circuit holding in Rendon v. Valleycrest Prods., 294 F.3d 117 (11th Cir. 2002). There, the appellate court held that a plaintiff alleging that the telephone screening process for the Who Wants to be a Millionaire gameshow had stated a claim under Title III of the ADA — despite the fact that the telephone was not a physical place — because the screening process was a means of accessing the show which took place in a physical location.

The SeaWorld decision is not surprising in light of the Rendon decision and this pro se plaintiff’s failure to plead that the inaccessibility of the website prevented him from accessing a physical place of public accommodation.  The outcome could have been different if the case had been brought by a different plaintiff who was represented by competent counsel.

Moreover, as we have noted, other judicial circuits such as the First Circuit do not require that a business have a nexus to a physical location to be a place of public accommodation.  Thus, plaintiffs bringing lawsuits about websites that do not have a nexus to a physical place will likely choose those circuits for their lawsuits.  The Department of Justice (“DOJ”) has also made clear its position that a website need not have any connection to a physical place to be covered by the ADA.  Thus, businesses that choose to argue in defense of a lawsuit that their websites are not public accommodations may invite an intervention by the DOJ as we blogged about last month.

In short, many considerations should go into a business’ decision as to whether it should fight or resolve a website accessibility lawsuit.

Edited by Kristina Launey.

(Photo) Online ShoppingBy Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.

Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.

Does Title III of the ADA apply to web-only businesses? Continue Reading Ninth Circuit Hears Arguments: Are Web-Only Businesses “Places of Public Accommodation” Subject to Title III?

By Minh N. Vu

For more than a decade, courts have struggled with the question of whether the ADA’s coverage of twelve “places of public accommodation” (e.g., places of lodging, entertainment, retailers, restaurants, service establishments) is limited to physical places, or whether they can be virtual.  The answer to this question dictates whether virtual places, such as websites, are covered by Title III of the ADA, and therefore must be accessible to individuals with disabilities.  If accessibility is required, businesses must, among many other things, ensure that audio content is communicated to deaf users in some effective manner (e.g., captioning, transcripts) and that visual content can be read by screen readers used by blind readers.

In 2006, federal District Court Judge Marilyn Patel in San Francisco avoided answering the question directly by holding that Target’s retail website is a covered “place of public accommodation” because there was a “nexus” between the website and Target’s brick and mortar stores.  This week, federal Massachusetts District Court Judge Michael A. Ponsor pushed the envelope one step further in National Association for the Deaf v. Netflix (June 19, 2012) by holding that Netflix’s web only video streaming business, “Watch Instantly,” is a “place of public accommodation” covered under Title III of the ADA. 

The decision is not entirely surprising.  In 1994, the First Circuit held in Carparts Distribution Center v. Automotive Wholesaler’s Association of New England, that the phrase “place of public accommodation” is not limited to physical places.  The Court allowed an ADA Title III claim to proceed against an insurance plan that provided its benefits through the employer and had no physical place of business patronized by customers. 

That said, the extension of this concept to include all websites of public accommodations regardless of whether the business has a physical presence has a much greater impact.  Essentially every public accommodation business in the world that has a website that can be accessed by customers in the United States and its Territories might be covered under Title III of the ADA.  What would happen if the United States and other countries adopted conflicting technical standards for an “accessible” website?  As with many other areas of the ADA (e.g., pool lifts), the lawyers and consultants will benefit greatly from the complicated issues that will arise.  It may be time for Congress to step in to deal with these issues now in a certain and sensible fashion rather than allowing the law to develop in piecemeal fashion in the courts.    

Further complicating matters is the fact that the U.S. Department of Justice (“DOJ”) has yet to issue regulations setting technical standards for accessible public accommodations websites.  Despite the lack of standards, the DOJ has made clear that it expects websites to be “accessible” — whatever this might mean. Most businesses seeking to make their websites accessible to individuals with disabilities have adopted WCAG 2.0, a standard developed by a private group called the Worldwide Web Consortium.  The DOJ has signaled in an Advanced Notice of Proposed Rulemaking for website accessibility standards that it is considering adopting WCAG 2.0 as the legal standard.  However, because making websites comply with this standard can cost millions of dollars, many businesses understandably want a definitive legal standard to be in place before investing that kind of money.  Businesses are increasingly caught between a rock and a hard place:  Adopt a standard that could change before it becomes legally binding, or risk exposure to class action lawsuits that could cost millions of dollars.  The Netflix decision may well tip the scale in favor of adopting WCAG 2.0 now for many businesses with and without physical locations. 

The San Francisco Chronicle also published an interesting article on the Netflix decision.  For more interesting commentary on this decision, see this article from the Cato Institute.