Seyfarth Synopsis: Florida court rules that plaintiff must allege more than being unable to learn about a brick-and-mortar business to state a claim that an allegedly inaccessible website violates the ADA. 

Allegations that an inaccessible website prevents a blind plaintiff from “learning” about a brick-and-mortar location are insufficient to state an ADA claim, according to one recent federal court decision in Florida. In Price v. Everglades College, the plaintiff alleged that he called a private university to learn about the institution, but was directed instead to its website.  While attempting to visit the website, he allegedly discovered that his screen reader software could not access information provided there, and Plaintiff thereafter filed suit under Title III of the ADA.  Defendant filed a motion to dismiss on the grounds that Plaintiff had failed to state an ADA claim.

The Court granted the motion. It held that allegations that the plaintiff could not learn about the university were insufficient, and that instead the plaintiff had to plead facts sufficient to demonstrate that the alleged digital barriers prevented him from enjoying access to the university’s brick-and-mortar facilities.  Plaintiff did not allege, for example, that he could not apply to the university, pay tuition, or use the student portal.

Courts in the 11th Circuit have required that a nexus exist between the website at issue and a physical business location (some courts from other Circuits do not follow this approach).  Price clarifies that a plaintiff cannot satisfy this nexus requirement in this jurisdiction by alleging “the mere existence of some connection or link” between the inaccessible website, on one hand, and a brick-and-mortar location, on the other.

The decision is welcome news for businesses barraged by increasing numbers of website accessibility lawsuits in recent months and a challenging litigation landscape in 2018.  The decision is also noteworthy for institutions of higher learning, which have also been targeted in these cases as reported in the national news media.  Decisions such as Price may be helpful in defending serial ADA website lawsuits filed by individuals with only tenuous connections to the businesses and institutions they sue.

Edited by Minh N. Vu and Kristina M. Launey.

Seyfarth Synopsis:  Plaintiffs secure a second judgment in a federal website accessibility lawsuit while most of the others successfully fended off motions to dismiss. 

2018 has been a bad year for most businesses that have chosen to fight website accessibility cases filed under Title III of the ADA.  Plaintiffs filing in federal court secured their second judgment on the merits in a website accessibility lawsuit, bringing the federal court judgment score to 2-0 in their favor.  Additionally, in twenty-one cases where defendants filed early motions to dismiss, judges have allowed eleven to move forward.  While a forty percent dismissal rate doesn’t seem bad, most of the cases that were dismissed had a common set of unique facts that most defendants don’t have. Below is a rundown of the most noteworthy 2018 cases and trends.

At the end of August, Southern District of Florida Judge Marcia Cooke issued the second judgment on the merits in a federal court website accessibility lawsuit and it was in favor of the plaintiff.  (The first judgment was in the Winn Dixie case after a bench trial.)  Judge Cooke held on summary judgment that retailer GNC’s website violated the ADA because the evidence in the record “suggests that the Website is inaccessible.”  The court cited to the plaintiff’s expert’s testimony and automated test results to reach this conclusion, and excluded the testimony of the GNC’s expert based on his lack of qualifications.  Judge Cooke refused to order a remedy at the summary judgment phase, but said that she found “highly persuasive the number of cases adopting WCAG 2.0 Success Level AA as the appropriate standard to measure accessibility.”

In June, the U.S. Court of Appeals for the Eleventh Circuit held that a prior private settlement of a website accessibility lawsuit in which the defendant had made a commitment to make its website more accessible did not moot a subsequent lawsuit brought by another plaintiff against the same defendant.  The Court reasoned that the website remediation work was not yet complete, and the second plaintiff had sought other relief that was not addressed by the settlement.  The Court also noted that if the defendant failed to comply with its settlement obligations, the second plaintiff would have no recourse since it was not a party to the prior settlement agreement.

In July, the Eleventh Circuit became the second federal appellate court to explicitly address whether the ADA covers websites.  The Court found that the plaintiff had stated an ADA claim against the defendant because the alleged barriers on its website prevented him from accessing the goods and services of its stores.  Specifically, the blind plaintiff alleged that he could not access the store locator function or purchase a gift card online using his screen reader software.  This case does have a silver-lining for defendants with web-only businesses though:  The Eleventh Circuit’s analysis followed prior precedent holding that a public accommodation is a physical place, and plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.  This puts the Eleventh Circuit mostly in line with the Ninth Circuit which has held that websites with no nexus to a physical place are not covered by the ADA, and is the only other federal appellate court to have ruled on the issue.

In eleven other decisions, district court judges in Ohio, Pennsylvania, New York, Florida and Michigan allowed website accessibility cases to move forward into discovery, rejecting defendants’ requests for early dismissal.  In most of these cases, the judges rejected the arguments that requiring businesses to make their websites accessible to people with disabilities in the absence of legal standards or regulations is a denial of due process, and that courts should not address website accessibility claims until the Department of Justice issues regulations.

In August, Judge Schwab of the Western District of Pennsylvania issued a pointed decision against a retailer because he found the aggressive tactics of its defense lawyer to constitute bad faith.  Specifically, after receiving a demand letter from the plaintiffs who later filed in Pennsylvania, the retailer filed a pre-emptive lawsuit in Utah against the plaintiffs seeking declaratory relief concerning their website-related obligations under the ADA, and asserting state law claims of negligent representation, fraud, fraudulent non-disclosure, and civil conspiracy.  When the plaintiffs then filed their lawsuit in Pennsylvania, the retailer filed a motion to dismiss based on, among other things, the “first filed” rule which gives the court in the later filed action discretion to dismiss the latter case to avoid duplicative litigation and promote judicial comity.  Judge Schwab said he did not have to apply the “first filed” rule where there was evidence of bad faith by defense counsel, and also said he would consider sanctions if defense counsel tried this forum-shopping tactic again in future cases.  Judge Schwab further held that the ADA covers websites and allowed the case to move forward in Pennsylvania.  Meanwhile, the lawsuit in Utah is still pending after the defense attorney in question withdrew from the case and the retailer filed a First Amended Complaint.

The positive decisions for defendants this year have come from judges in Virginia, Florida, and Ohio.   Judges in Virginia and Ohio dismissed six lawsuits against credit unions about their allegedly inaccessible websites because the plaintiff was not eligible to join the defendant credit unions.  These are fairly unique facts that most defendants defending website accessibility suits will not have, however.

There were four pro-defendant rulings in Florida, but one has been reopened because of the Eleventh Circuit’s holding that a prior settlement does not moot a subsequent lawsuit, discussed supra.  In the second Florida case, Judge Gayles of the Southern District of Florida dismissed an ADA lawsuit because the plaintiff had not alleged that barriers on the website impeded his access to a physical place of public accommodation.   In the third case, Judge Presnell of the Middle District of Florida dismissed a case  because the plaintiff had not alleged that he really intended to return to the location and lacked standing.  In the fourth case, Judge Presnell said that “alleging the mere existence of some connection or link between the website and the physical location is not sufficient.”  Judge Presnell distinguished “an inability to use a website to gain information about a physical location” versus “an ability to use a website that impedes access to enjoy a physical location” and said the former is not sufficient to state a claim.  The judge dismissed the case because the plaintiff’s allegations were about obtaining information, not impeding access.

The takeaway from these recent decisions is that — while the defense strategy for every website accessibility lawsuit must be evaluated on its own set of facts — most courts are not willing to dismiss these cases early except in limited circumstances.  Thus, defendants looking to fight must be prepared to go through discovery and at least summary judgment, if not trial.

Edited by Kristina Launey.

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:  Two Florida federal district court judges require websites to have a “nexus” to a physical location for coverage under Title III of the ADA, but a third judge requires more.

Modern smart mobile phone with on line shopping store graphicThe Eleventh Circuit Court of Appeals (which includes Florida, Alabama, and Georgia) has yet to decide whether and to what extent Title III of the ADA applies to websites of public accommodations, but recent rulings from three different federal judges in Florida do provide insight on where the judges in that circuit may draw the lines.

Gil v. Winn DixieIn December 2016, we wrote about the Gil v. Winn Dixie Stores case where a blind plaintiff alleged that Winn Dixie’s website violated Title III of the ADA because it was not accessible to him.  Winn Dixie moved to dismiss the case, arguing that websites are not covered by Title III of the ADA because they are not physical places.  Though not a party to the lawsuit, the Department of Justice filed a Statement of Interest supporting the plaintiff and expressing its view that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.”  In response, Winn Dixie objected to the DOJ’s involvement and moved to strike the DOJ’s Statement of Interest.

District Court Judge Robert Scola recently denied Winn Dixie’s motion to dismiss the case and to strike the DOJ’s Statement of Interest.  The case is now on its way to a bench trial — the first trial concerning an ADA Title III claim about a website, to our knowledge.  In denying the motion to dismiss, Judge Scola agreed with the DOJ’s analysis that the law guarantees a plaintiff equal access to the services, privileges, and advantages “of” a public accommodation, not just those that are offered “at” a place of accommodation.  Judge Scola noted that “Winn-Dixie’s website is heavily integrated with, and in many ways operates as a gateway to, Winn-Dixie’s physical store locations.”  The court found that allegations concerning the website’s store locator feature and prescription ordering service for in-store pick up, if proven, could establish “nexus between Winn-Dixie’s website and its physical stores.”

Gomez v. J. Lindeberg USA, LLC.  In this case, the defendant defaulted and District Court Judge Kathleen Williams had to determine if, on the basis of the facts alleged in the complaint, serial plaintiff Andrew Gomez was entitled to have a judgment entered in his favor.  The complaint alleged that the plaintiff could not purchase clothing or search for store locations on the defendant retailer’s website because it was not accessible.  Judge Williams concluded that the plaintiff had alleged sufficient facts establish a “nexus between the challenged service and the place of public accommodation,” and entered an injunction requiring the defendant to “undertake immediate remedial measures to make its website readily accessible and usable to people with visual disabilities.” The judge also ordered the defendant to pay plaintiff’s attorneys’ fees and costs.

Gomez v. Bang & Olufsen.  District Court Judge Joan Lenard held in this case that the plaintiff had failed to state a claim under the ADA because he had not alleged that the website’s alleged inaccessibility impeded his full use and enjoyment of the brick-and-mortar store.  The plaintiff had alleged that he could not shop for items on the website to have them delivered to his home.  Judge Lenard held that the plaintiff failed to claim “an actual (not hypothetical) impediment to the use of Defendant’s retail location.”

***

To summarize, two of the three Florida federal judges to have decided whether Title III of the ADA covers websites of public accommodations require a “nexus” between the website and a physical place of business where customers go (in alignment with the Ninth Circuit and precluding suits against web-only businesses), and one requires that the website’s lack of accessibility actually impede a plaintiff’s access to a physical place of business.  All three judges agree that websites with no nexus to a physical place of public accommodation are not covered by the ADA.

Edited by Kristina M. Launey.

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.

By Minh N. Vu

United States District Judge Virginia Covington of the Middle District of Florida recently held that serial plaintiffs (Denise Payne and Access for the Disabled) who had reached a voluntary settlement with the defendant in an ADA Title III case were not entitled to attorneys’ fees and costs because the court neither retained jurisdiction of the case to enforce the settlement agreement nor incorporated the terms of the settlement into the order of dismissal. 

The parties had settled the injunctive relief portion of the case in mediation, then filed a joint stipulation to dismiss the case with prejudice. In the stipulation they requested that the court retain jurisdiction to enforce the agreement and determine the fees and costs to be awarded to the plaintiffs.  The court sua sponte declined to retain jurisdiction to enforce the agreement.  Defendant then opposed the plaintiffs’ motion for more than $34,000 in fees and costs on the theory that the plaintiffs were not  “prevailing” parties or their “functional equivalent” under Supreme Court and Eleventh Circuit precedents.  The court agreed and denied the plaintiffs’ motion.  These plaintiffs had suffered a similar fate in another lawsuit filed in the same court in 2007.  A copy of the order can be viewed here.