Seyfarth Synopsis: Due process, DOJ’s failure to enact regulations, and whether the ADA covers websites arguments dominated the recent Domino’s Ninth Circuit oral argument.

In the increasing morass of varying state and federal district court opinions in website accessibility cases, we will soon have two additional federal appellate decisions to provide more guidance of precedential value to federal trial courts.  Most recently, on October 12, the Ninth Circuit heard the parties’ oral arguments in Robles v. Domino’s Pizza.  On October 4, the Eleventh Circuit heard oral argument in Gil v. Winn-Dixie.  We attended the Robles argument.

Sitting on the Domino’s Ninth Circuit panel were Ninth Circuit Judges Watford and Owens, and Arizona District Court Judge Zipps.  Judges Watford and Owens actively questioned all parties while Judge Zipps only listened.  The judges seemed to be leaning in Robles’ favor, expressing skepticism at many of Domino’s arguments, especially with respect to the main issue on appeal: Whether the court can apply the ADA to websites of public accommodations without regulatory guidance from the Department of Justice (DOJ).  Below is a summary of the key arguments and judges’ comments:

Primary Jurisdiction/Due Process.  The main issue on appeal is whether U.S. District Judge Otero erred in granting Domino’s motion to dismiss the case on primary jurisdiction and due process grounds.  Robles argued that the lack of specific website accessibility regulations does not eliminate the statutory obligation to comply with the ADA, and that Domino’s is not exempted from the ADA and its implementing regulations because DOJ was working on such regulations at one time.  Robles pointed out that DOJ has terminated the rulemaking process since the District Court ruled.  Robles stated that the court does not need the DOJ to rule on this issue – in fact, that the DOJ said in a recent letter (to Congressman Ted Budd) mentioning this very case that it was not going to act.

Frustration with DOJ’ s Inaction.  Not surprisingly, the DOJ continued to come up numerous times during the Domino’s argument.  Judge Watford stated that all “agree it’s a highly undesirable state for the law to be in” and “it’s DOJ that’s mainly at fault – it should have happened a long time ago.”  Domino’s asked whether the Court could certify the question for the DOJ to answer.  Judge Watford did not believe any mechanism to do so existed.  Judge Owens interjected that the DOJ could have intervened, but did not. “This shows the problem with your primary jurisdiction argument. It’s like a Samuel Beckett play – we’re just waiting and it’s not going to happen.”  Isn’t that an inherent due process problem, Domino’s asked?  “The court’s job is to interpret the law as best it can.”  If the Supreme Court doesn’t like it, it doesn’t like it.

Coverage of Websites by the ADA.  The question of whether the ADA covers websites also came up at several points.  Domino’s took the position that the ADA covers the communication on websites, but not the websites themselves – a position that Judge Owens said was contrary to what Domino’s said in District Court.  Judge Watford pointed out that the DOJ has said the ADA covers websites on numerous occasions.  In response, Domino’s said the DOJ’s latest position on this topic was a footnote in the U.S. Solicitor General’s brief filed in the McGee v. Coca Cola case which did not involve a website.  The footnote simply noted district courts have grappled with the question of whether the ADA applies to goods and services offered over the Internet.  Judge Watford said if that footnote is “all you’ve got, you’re on extremely shaky ground… you don’t have much to stand on there.”

What is an accessible website? Domino’s argued, as a possible explanation for DOJ’s inaction: “there is no such thing as an accessible website, and there never will be.” He cited the plaintiff’s expert’s statement in Winn-Dixie, also cited by the Eleventh Circuit judges in that oral argument, that the expert had never seen a website that complies with the Web Content Accessibility Guidelines (WCAG).  To illustrate the difficulty businesses face in applying the guidelines, Domino’s posited how detailed the alt-text behind a picture of a basketball needs to be to conform to the guidelines – if it has LeBron James’s autograph on it, for example, does the alt-text need to go to that level of detail, or can it just say “basketball.”  He thinks the regulatory effort was stymied because the DOJ couldn’t “wrap its head around” this.

Judge Watford disagreed, “I don’t think it’s as dire as you painted”.  The Judge added, skeptically, “You want us to just throw our hands up and say this is just impossible, there’s no way to figure this out.  I don’t think that’s correct.”  Judge Watford noted any particulars as to what businesses need to do to have an accessible website can be worked out in the remedy stage.  At various points, counsel for Robles and the National Federation of the Blind (NFB), as Amicus, as well as Judge Owens, remarked that the lower court had not decided whether Domino’s website was required to be, and was or was not, accessible – let alone by what standard accessibility should be measured.  Thus, those issues were not before this Court.  Judge Watford asked, since it appears the WCAG is the “only game in town”, “how could compliance with anything else render a website’s content accessible to people with vision disabilities”? (Note that in its oral argument, Winn-Dixie, appealing the district court’s order that the grocer conform its website to the WCAG, argued that such an order constituted “legislating from the bench”, which denies businesses due process.)

Telephonic Access.  At one point, Domino’s counsel stated that that people who could not use the website could call a 1-800 number.  Judge Watford reminded him that banner displaying the number was not on the Domino’s website at the time Robles attempted to access it.  The Judge did not say that the phone number could not provide a lawful alternative to access but said “we can debate whether that would be adequate.”  Amicus Counsel for the NFB expressed skepticism about whether the phone could ever be an adequate substitute, and argued that this was an issue of fact.

The Ninth Circuit will likely issue its order in the next three to twelve months.

Edited by Minh N. Vu.

This morning, October 12, in sunny Pasadena, California, the Ninth Circuit Court of Appeals heard oral argument in the Robles v. Dominos case. The main issue on appeal was whether the district court erred in applying the doctrines of primary jurisdiction and due process as the basis for granting Domino’s motion to dismiss Robles’s claims that Dominos violated Title III of the Americans with Disabilities Act due to an inaccessible website. The parties and judges had a lively 30-minute discussion, after which the Court took the matter under submission.

In addition to the main issue on appeal, the parties, amicus counsel, and the judges discussed whether the ADA applies to websites in the first place, whether the website is a communication or a service, alternatives to an accessible website such as telephone, whether this is an effective communication case or not, and why the prior and current Administrations’ DOJ haven’t issued regulations.

Next week we’ll discuss our impressions and implications of this hearing.  Have a great weekend everyone.

Seyfarth Synopsis: DOJ’s response to members of Congress about the explosion in website accessibility lawsuits contains some helpful guidance for public accommodations fighting these claims.

As we reported in June, 103 members of the House of Representatives from both parties asked Attorney General Jeff Sessions to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urged the Department of Justice (DOJ) to “provide guidance and clarity with regard to website accessibility under the … ADA.”

DOJ’s September 25 response did not do what the members asked, but it did provide some helpful guidance and invited Congress to take legislative action to address the exploding website accessibility litigation landscape. DOJ first said it was “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.” (This is helpful – to at least know this issue has not fallen totally off DOJ’s radar.) It continued:

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.

These statements are not surprising, as DOJ (granted, under the previous Administration) has made them on other occasions.  But here’s the part of the letter that is helpful for businesses:

Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

(emphasis added). The fact that public accommodations have “flexibility” in how to comply with the ADA’s effective communication requirement has been lost in the past eight years, even though DOJ made this point in its 2010 Advanced Notice of Proposed Rulemaking (ANPRM) for websites.  In that document, DOJ stated that a 24/7 staffed telephone line could provide a compliant alternative to an accessible website.  The few courts to have considered this argument in the context of an early motion to dismiss have recognized its legitimacy, but have allowed cases to move forward into discovery on this and other issues.  There have been no decisions on the merits addressing the viability of having a 24/7 telephone option in lieu of an accessible website.

The statement that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA” is new and significant.  It is a recognition that a website may be accessible and usable by the blind without being fully compliant with the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1.  The statement confirms what some courts have said so far:  That the operative legal question in a website accessibility lawsuit is not whether the website conforms with WCAG, but whether persons with disabilities are able to access to a public accommodation’s goods, services, and benefits through the website, or some alternative fashion.

In response to the members’ concern about the proliferation of website litigation lawsuits, DOJ said:  “Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.”  DOJ is essentially putting the ball back in the Congressional court, where little is likely to happen.

Edited by Kristina M. Launey.

Seyfarth Synopsis: Two recent decisions by federal judges to dismiss website accessibility lawsuits may cause more public accommodations to fight instead of settle these suits, but businesses must continue to weigh many factors before making that decision.

The litigation tide might be turning for public accommodations choosing to fight lawsuits brought by blind individuals claiming that the businesses’ websites violate Title III of the Americans with Disabilities Act (ADA) by not being accessible to them.  As we have previously reported, about a dozen or so plaintiffs’ firms have filed hundreds of lawsuits and sent thousands of demand letters to businesses asserting this type of claim on behalf of blind clients in the past two years.  Most of these matters have settled quickly and confidentially, and the relatively few defendants who chose to litigate rarely had success in getting the cases dismissed.  However, two recent decisions from California and Florida federal judges do provide encouragement for businesses that are willing to spend the money to litigate.

On March 20, 2017, federal District Judge James Otero of the Central District of California dismissed a lawsuit by a blind plaintiff who claimed that he could not order pizza from the Domino’s website because it could not be accessed using his screen reader.  The plaintiff claimed that by having an inaccessible website, Domino’s had violated Title III of the ADA and various California laws that prohibit discrimination against individuals with disabilities by public accommodations.

Dominos made three arguments as to why the case should be dismissed.  First, websites are not covered by Title III of the ADA.  Second, in the absence of regulations requiring public accommodations to have accessible websites, such entities can choose how they provide access to individuals with disabilities.   Dominos submitted evidence that it provided access for blind individuals through a 24-hour toll-free phone number where live agents would provide assistance with using the website, as well as direct phone access to stores for placing orders.  Third, holding Dominos liable for not having an accessible website would violate due process principles because the Department of Justice (DOJ) has not issued any regulations specifying whether and to what extent websites must be accessible or the legal standard to be applied in determining accessibility.

Judge Otero rejected the argument that the ADA does not cover websites of public accommodations. However, he agreed that Dominos had met its obligations under the law by providing telephonic access, and that requiring Dominos to have an accessible website at this time would violate its constitutional right to due process.  Judge Otero pointed out that neither the law nor the regulations require websites to be accessible, and that the 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, 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.”  This is the first time a court has dismissed a website accessibility case based on “due process” grounds and a welcome rebuke of the DOJ’s regulatory and enforcement activities to date.

On February 2, 2017, Florida District Judge Joan Lenard dismissed serial plaintiff Andres Gomez’s ADA Title III website lawsuit claim with leave to amend because he had failed to allege that his ability to use the defendant retailer’s website prevented him from accessing its stores.  Judge Lenard held that “[a]ll the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.  To survive a motion to dismiss, Plaintiff must claim an actual (not hypothetical) impediment to the use of Defendant’s retail location.”  Gomez had alleged that he could not purchase products online, but did not claim that the website’s inaccessibility impeded his ability to go to a store.  Judge Lenard explicitly rejected the argument that the ADA requires a website to provide the same online-shopping experience as non-disabled persons, stating that “the ADA does not require places of public accommodations to create full-service websites.”

Practical Takeaways.  Here are some takeaways from these recent decisions:

  • All businesses that do not have an accessible website should have a 24/7 toll-free telephone number serviced by live customer service agents who can provide access to all of the information and functions on the website. The phone number should be identified on the website and be accessible using a screen reader.
  • Just because the judges in these cases ruled for the defendants does not mean that all defendants in future website accessibility cases will get the same outcome. These district court decisions are not binding on any other judges who may reach different conclusions.

These decisions do not change the analysis that a defendant must conduct in considering whether to fight or settle a particular case.  Defendants must consider many factors, including (1) the facts (e.g., is access to the goods and services on the website provided through some alternative channel, such as the telephone?), (2) the law in the circuit where the case is pending, (3) the judge, (4) the plaintiff, (5) the plaintiff’s law firm, (6) the cost of settlement, and (7) the cost of litigation.  The fact is that many of these cases can be settled for considerably less than what it would cost to file a motion to dismiss, and it is very difficult for prevailing defendants to recover their fees.  Defendants can only recover fees when the lawsuit was frivolous.