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.

On May 21, a California state court in Los Angeles held on summary judgment that the Whisper Lounge restaurant violated California’s Unruh Act by having a website that could not be used by a blind person with a screen reader, and ordered the restaurant to make its website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA.  The court also ordered the restaurant to pay $4,000 statutory damages.  This is the second decision by a California state court on the merits of a website accessibility case.  The first decision concerned the Bags n’ Baggage website.  In 2017, a Florida federal judge conducted the first trial in a website accessibility case against Winn Dixie and held that the grocer’s website violated the ADA because it was not accessible to the blind plaintiff, and ordered Winn Dixie to make its website conform to WCAG 2.0 AA.

The court in the Whisper Lounge case rejected – as most courts on similar facts have – the restaurant’s argument that the website is not a place of public accommodation under the Americans with Disabilities Act (ADA).  The court found that the restaurant’s website “falls within the category of ‘services….privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

Next, the court noted that the restaurant presented no evidence in opposition to the plaintiff’s showing that the website was inaccessible on February 20, 2017 – the date the plaintiff said she attempted to use the website.  The restaurant only submitted a declaration stating that the declarant was generally able to use the screen reader NVDA on the website from 2014 through 2017, without addressing the specific barriers the plaintiff said prevented her from using the website.

The restaurant also argued that it provided access to the information on its website by having a telephone number and email.  The Court rejected this argument as well, finding that the provision of a phone number and email does not provide “equal enjoyment of the website”, as the ADA requires, but instead imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate access like sighted customers.  Thus, the court reasoned, the email and telephone number do not provide effective communication “in a timely manner” nor protect the independence of the visually impaired.  The court did not say whether a toll-free number that is staffed 24-hour a day would have yielded a different outcome.

Finally, the Court rejected the restaurant’s argument that the WCAG 2.0 AA is not yet a legal requirement, finding that the Complaint did not seek to hold the restaurant liable for violating the WCAG 2.0 AA.  Rather, the Complaint alleged that the website discriminated against the plaintiff by being inaccessible and sought an injunction to require the restaurant to make its website accessible to the blind.  The Court also rejected the restaurant’s arguments that requiring it to have an accessible website violated due process and the court should wait until the Department of Justice issues regulations addressing website accessibility.  The Court noted that the fact that the restaurant was redesigning its website did not render the case moot because the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

The decision does have a silver lining for the defense bar.  The Court noted that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination.  The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

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:  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:  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.

Seyfarth Synopsis: Today’s first impression trial verdict finding retailer Winn-Dixie liable under Title III of the ADA for having an inaccessible website suggests that public accommodations should focus on their website accessibility efforts now.

As we reported yesterday, Florida federal District Court Judge Robert Scola last week presided over the first trial in the history of the ADA about an allegedly inaccessible website.  Today, Judge Scola issued a 13-page Verdict and Order finding that grocer Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.  Mr. Gil is blind and uses screen reader software to access websites.  Judge Scola ordered injunctive relief, including a draft three-year injunction we have included below, and awarded Mr. Gil his attorneys’ fees and costs.

Although the decision is not binding on any other federal courts or judges – not even in the same judicial district – it is significant for a number of reasons.

First, it is the first decision to hold, after a full trial, that a public accommodation violated Title III of the ADA by having an inaccessible website.  To the extent that businesses are considering whether to settle or litigate these cases, this decision makes the possibility of an adverse verdict much more real.

Second, the draft injunction adopts the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility standard that Winn-Dixie must meet in making its website accessible.  WCAG 2.0 AA is a set of guidelines developed by a private group of accessibility experts and has not been adopted as the legal standard for public accommodation websites, although it has been incorporated into many consent decrees, settlement agreements, and is the standard the Department of Justice referenced in the Title II rulemaking process.  The court’s adoption of this set of guidelines further points to WCAG 2.0 AA as the de facto standard for website accessibility.

Third, the court did not consider the $250,000 cost of making the website accessible to be an undue burden.  The court said this cost “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti program.”

Fourth, commenting on an issue causing many businesses concern, the court held Winn-Dixie responsible for the entire website’s lack of accessibility even though parts of the website are operated by third party vendors.  It stated: “[M]any, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.”

The court issued the following draft injunction, and ordered the parties to confer about the deadlines to be inserted in the blanks.

***

Pursuant to the terms of this Order and Injunction, Winn-Dixie, Inc.:

  1. Shall not, no later than _____(date) _____, deny individuals with disabilities, including the Plaintiff, the opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets, and smart phones.
  2. Shall not, no later than _____(date) _____, provide individuals with disabilities, including the Plaintiff, an unequal opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets and smart phones.
  3. No later than _____(date) _____, shall adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria.
  4. No later than _____(date) _____, shall require any third party vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.
  5. No later than _____(date) _____, shall make publicly available and directly link from the www.winndixie.com homepage, a statement of WinnDixie’s Accessibility Policy to ensure the persons with disabilities have full and equal enjoyment of its website and shall accompany the public policy statement with an accessible means of submitting accessibility questions and problems.
  6. No later than _____(date) _____, and at least once yearly thereafter, shall provide mandatory web accessibility training to all employees who write or develop programs or code for, or who publish final content to, www.winndixie.com on how to conform all web content and services with WCAG 2.0 criteria.
  7. No later than _____(date) _____, and at least once every three months thereafter, shall conduct automated accessibility tests of its website to identify any instances where the website is no longer in conformance with WCAG 2.0.
  8. If the Plaintiff believes the Injunction has been violated, he shall give notice (including reasonable particulars) to the Defendant of such violation. The Defendant shall have 30 days from the notice to investigate and correct any alleged violations. If the Defendant fails to correct the violation, the Plaintiff may then seek relief from the Court.
  9. In light of what the Court has already found to be the Defendant’s sincere and serious intent to make its website accessible to all, this Injunction will expire in three years.

***

In the absence of any regulations setting forth the requirements for a website accessibility program, this injunction, once finalized, will provide a judicially-approved framework for such a program for those public accommodations that want to adopt one.

Edited by Kristina M. Launey.

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: 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.

Seyfarth Synopsis: With the recent proliferation of web accessibility demand letters and lawsuits, businesses often ask whether settling a claim with one plaintiff will bar future lawsuits brought by different plaintiffs. One federal judge recently said no.

Plaintiffs Rachel Gniewskowski, R. David New, and Access Now, Inc.—represented by Carlson, Lynch, Kilpela & Sweet—sued retailer Party City in the Western District of Pennsylvania on September 6, 2016, alleging that Party City’s website is not accessible to visually impaired consumers in violation of Title III of the Americans with Disabilities Act (“ADA”).  On October 7, 2016 (while the Pennsylvania lawsuit was pending), Party City entered into a confidential settlement agreement with Andres Gomez, who had previously filed a similar lawsuit in Florida.  Both lawsuits contained the same basic set of facts and legal claims, and sought similar relief—modification of the website to make it accessible to, and useable by, individuals with disabilities.

Party City filed a summary judgment motion in the Pennsylvania case, arguing that the Pennsylvania case was barred by the prior settlement under principles of res judicata.  Res judicata applies when three circumstances are present: (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies, and (3) a subsequent suit based on the same cause of action.  In an order issued on January 27, 2017, the court denied the motion, finding that Party City could not establish the second element.

In its attempt to establish the second element, Party City argued that the Pennsylvania plaintiffs Gniewskowski and New were “adequately represented” in the Florida action by Gomez.  The Court disagreed, finding Gomez did not purport to represent Gniewskowski or New, noting that the “complaint in Gomez’s lawsuit made clear that Gomez brought his lawsuit ‘individually.’” Nor could Party City “point to any ‘procedural protections…in the original action’ that were intended to protect the current plaintiffs’ rights to due process”, such as notice of the prior settlement, or measures the court in the prior litigation took to determine whether the settlement was fair as to absent parties.

The court’s straightforward application of res judicata principles is not surprising, and even less so because there is no indication that Party City had committed to making its website accessible in the confidential settlement agreement—the relief sought in the Pennsylvania case. Public settlement agreements requiring a company to make its website accessible, or a consent decree in which a court orders a company to make its website accessible, are much more likely to deter additional website accessibility lawsuits.  Companies that are under a court order to make their websites accessible have a strong argument that any subsequent ADA Title III suit is moot because the only relief that can be obtained in such a suit—injunctive relief—has already been ordered.  Plaintiffs are also likely to find companies that have made a contractual commitment to making their websites accessible to be less attractive targets because the work may be completed while the second lawsuit is pending, mooting out the claim.  Ultimately, the best deterrence is having a website that is accessible to users with disabilities.  While there is still no legally-prescribed standard for accessibility (nor, with the present Administration’s actions toward regulations does it appear likely one will issue anytime soon), the Web Content Accessibility Guidelines, 2.0 Levels A and AA are widely used in the industry as the de facto standard.