Seyfarth Synopsis: Ninth Circuit overturns district court’s dismissal of website accessibility lawsuit on due process and primary jurisdiction grounds, remands case to proceed with discovery.

On January 15, 2019, the Ninth Circuit Court of Appeals issued the fifth federal appeals court ruling on the issue of website accessibility, and there is no doubt that it is a victory for plaintiffs and their lawyers.  However, there are some pro-defense nuances that are worth pointing out.

By way of background, the district court had concluded that the ADA does apply to Domino’s website and mobile app, but dismissed the lawsuit before discovery because:  (1) Holding Domino’s in violation of the ADA when there are no legal technical standards for public accommodations websites would be violation of due process; and (2) under the primary jurisdiction doctrine, courts should hold off on deciding cases where enforcement agencies with special expertise should weigh in first.

The Ninth Circuit  agreed with the district court that the ADA applies to Domino’s website and app.  In so doing, the court said that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”  The Ninth Circuit did not agree with the district court on the due process point, however, finding that Domino’s has been on notice since 1996 of DOJ’s position that its website and app must provide effective communication.  (We note, however, that none of the DOJ documents cited by the court actually mention mobile apps.)  The Ninth Circuit also said the district court erred in applying the primary jurisdiction doctrine, noting that since the DOJ is not going to issue any regulations about websites and mobile apps, applying the doctrine would just “needlessly delay” the resolution of the claim, and the application of the ADA to the facts of the case “are well within the court’s competence.”  The Ninth Circuit’s rejection of these due process and primary jurisdiction arguments, which are often mounted by defendants in website accessibility cases, is not entirely surprising as many district courts have also reached the same conclusion, and the district court’s decision in this case was an outlier.

The Ninth Circuit concluded by making clear that it was not expressing any opinion about whether Domino’s website or mobile app comply with the ADA.  The court instructed the district court to proceed with discovery and then decide whether Domino’s website and app comply with the ADA’s effective communication and full and equal enjoyment mandates.

From the defense perspective, there are several useful points in the decision.

First, the Ninth Circuit reaffirmed its position that, to be covered by the ADA, a website or mobile app must have a nexus to a physical place of public accommodation. The court stated that this nexus was “critical” to its analysis in the Domino’s case where the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises – which are places of public accommodation.”  The Ninth Circuit said in a footnote that it was not deciding whether “the ADA covers the websites or apps of a physical place of public accommodation where the inaccessibility does not impede access to the goods and services of a physical location.”

Second, the Ninth Circuit left open the possibility that a 24/7 toll-free phone line could be a way to provide access in lieu of an accessible app or website.  The court did not have to consider the question of whether a telephone hotline could be an adequate alternative to an accessible website or mobile app because the district court’s holding was not based on the phone line.  However, the Ninth Circuit said in a footnote that “the mere presence of a phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.”  This statement suggests that, with discovery on the effectiveness of the phone line, summary judgment for Domino’s could be a possibility.

Third, in response to Domino’s complaint that the DOJ has failed to provide clear direction as to what public accommodations must do to comply with the ADA with respect to their websites, the Ninth Circuit reiterated that “the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”

Fourth, the Ninth Circuit said that “due process constrains the remedies that may be imposed.”  Thus, defendants may be able to make the due process argument later in a case if a violation of the ADA is found and the court must fashion injunctive relief.

In sum, while this decision adds to the growing body of website accessibility case law that favors plaintiffs, there are some useful nuggets.  That said, we predict the number of website accessibility lawsuits in California federal courts will increase dramatically in 2019.  While this case was on appeal, plaintiffs largely opted to file their website accessibility cases in California state court but this decision clears the way for more federal filings.

The increase of ADA Title III lawsuits in federal court shows no signs of stopping.  From January 1 through April 30, 2017, 2629 lawsuits were filed — 412 more than during the same period in 2016.  That’s a whopping 18 percent increase.  As we previously reported, the total number of lawsuits filed in federal court in 2016 was 6,601 and represented a 37% increase from 2015.

Federal ADA Title III Lawsuits: January 1-April 30, 2017: Jan.-April 2016 (2217); Jan.-April 2017 (2629)
Federal ADA Title III Lawsuits: January-April 2017: Jan.-April 2016 (2217); Jan.-April 2017 (2629)

Based on our own practice, website and mobile app accessibility lawsuits have become more common, with lawsuits being brought in new jurisdictions.  Our research team is crunching the website lawsuit numbers and we hope to get them to you soon.

Seyfarth Synopsis: New website and mobile app accessibility settlement agreement requires WCAG 2.0 AA conformance, training, and feedback mechanism.

Being named one of the most innovative companies of 2016 doesn’t make one immune from a website and mobile app accessibility lawsuit.  Capping 2016’s banner accessibility lawsuit count, including record website accessibility lawsuit numbers, on which we reported yesterday, was an end-of-the-year settlement between innovative local-sourcing salad restaurant Sweetgreen, Inc. and two blind individuals, on behalf of other similarly-situated individuals.

The settlement concluded a lawsuit filed on March 2, 2016 in the United States District Court for the Southern District of New York, which alleged that Sweetgreen discriminated against the plaintiffs due to an online ordering portal and mobile app that were not accessible in violation of Title III of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Specifically, the plaintiffs alleged that Sweetgreen’s online and mobile app ordering systems allowed customers to “customize signature salads, filter by dietary preferences, track calories and more,” but that barriers to accessibility on the online ordering portal and mobile app prohibited them from independently placing salad orders online for pick-up.

The settlement agreement requires:

  • Improving accessibility to both the online ordering portal and mobile app (excluding third party content except as integral to an online transaction function) to conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria by March 31, 2017, and maintaining that conformance;
  • A link on Sweetgreen’s contact page that provides visitors the opportunity to provide feedback regarding accessibility;
  • Attempt to remedy accessibility issues raised through the feedback page within 30 days of receipt; and
  • For a period of two years, web accessibility training to employees who write or develop programs or code for http://order.sweetgreen.com, and its mobile applications, or who publish final content to http://order.sweetgreen.com, and its mobile applications.

These are common settlement terms; signaling they are also good proactive steps for companies to take in their own web and mobile app accessibility efforts.  And for those companies frustrated with the proliferation of ADA lawsuits and demand letters, some solace in knowing they’re not the only ones grappling with this issue.

Notably, one of the plaintiffs, Mika Pyyhkala, was a plaintiff (in addition to the National Federation of the Blind) in the landmark web accessibility H&R Block lawsuit and consent decree.  Advocacy group Washington Lawyers’ Committee For Civil Rights And Urban Affairs represented Pyyhkala in the Sweetgreen lawsuit.

Edited by Minh Vu.

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years.  In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013.  In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)
ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions.  Here are the numbers for the top ten states:

  1. CA: 2468
  2. FL: 1663
  3. NY: 543
  4. AZ: 335
  5. TX: 267
  6. GA: 193
  7. UT: 124
  8. PA: 102
  9. MN: 96
  10. CO: 92
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits.  Other states that experienced significant increases include Arizona, California, Colorado, and Georgia.  Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers?  While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits.  There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps.   This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105).  We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility.  Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit.  Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation.  There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

Last week, Buzzfeed reported that the United Spinal Association opposed Uber’s CEO’s nomination for Time Magazine’s Man of the Year award because Uber cars are allegedly not wheelchair accessible.  This controversy raises an important and novel question:  Are online-only businesses like Uber and Airbnb covered by Title III of the ADA, and what would coverage mean when the businesses don’t own or operate the vehicles or accommodations that customers use?

Uber provides transportation services to the public through a mobile app that connects independent drivers and their vehicles with customers. Uber does not employ the drivers, own any vehicles, or have a physical place of business to serve customers.  Airbnb is a similar service for transient lodging.  Airbnb, through its website and mobile app, connects renters with people who have overnight accommodations that they want to rent and processes the payment.  Like Uber, Airbnb is a web-only business that does not own or operate the actual accommodations that are provided to the public.

Title III of the ADA only applies to owners, operators, lessors, and lessees of “place[s] of public accommodations.” Businesses such as Uber and Airbnb do not fit neatly fit into this definition because, as web-only businesses, they are not actual “places” of public accommodation.  Moreover, they don’t own, operate, or the goods or services – the vehicles or accommodations – used by the end customer.

We were unable to find any ADA Title III lawsuits against Airbnb on the federal docket but Uber has been sued several times. In one case, Uber argued that it is not a place public accommodation in an ADA Title III lawsuit filed by the National Federation of the Blind.  The case concerns the treatment of service animals by Uber drivers and we blogged about that case previously. The federal court in the Northern District of California refused to dismiss the case on this basis and allowed it to move forward for more fact development. Although the court will revisit this issue after the parties engage in discovery, its initial decision showed a willingness to find that Uber is a public accommodation.   The court said that Uber could be considered a “travel service” which is one of the twelve categories of businesses listed in the ADA that are places of public accommodations.

One legal development that may change how the court in the Uber case ultimately rules is the Ninth Circuit Court of Appeal’s binding decision in two ADA Title III cases brought against Ebay and Netflix. The Ninth Circuit had issued its decision in the Ebay and Netflix cases two weeks prior to district court’s ruling in the Uber case.  As we discussed in an earlier blog post, the Ninth Circuit held that the websites of online-only businesses are not places of public accommodation subject to Title III of the ADA.  Uber would appear to fall within this category of online-only businesses, but the district court did not mention the Ninth’s Circuit decision in Ebay and Netflix at all.

If the case moves forward to trial (currently set for April 2016) and the court finds that Uber is a place of public accommodation, the court will have to decide what obligation, if any, Uber has to provide access to wheelchair accessible vehicles when it does not own or operate any vehicles or employ any drivers. If this case follows the path of most ADA Title III cases, it will settle before we get a ruling.

By Kristina M. Launey

Once again, CSUN’s International Technology and Persons with Disabilities Conference brought together thought leaders, programmers, corporate and governmental accessibility representatives, vendors of digital accessibility solutions, advocates, and others in the field of digital accessibility to share developments and ideas. The large, varied crowd, as well as the substantive sessions, remove any possible doubt that the area of web and mobile accessibility is rightfully garnering a lot of attention.

Although the Department of Justice is still working on proposed regulations that would presumably adopt a legal standard defining what is an accessible website or mobile app, its recent enforcement actions make clear that the absence of regulations poses no impediment to legal action against businesses for not having accessible websites or mobile apps. Private plaintiffs have been also been very active in filing lawsuits or asserting such claims against many companies.  In this climate, many companies that have either been the targets of these actions, or just paying close attention to these developments, have decided that it is better to commit to accessibility now than to engage in a protracted and expensive legal battle.  Moreover, as many companies at the conference have recognized, building accessibility into any refreshes, redesigns, or new rollouts of websites or mobile apps makes sense over increased expense of remediating those same sites later, especially if remediation is done in response to legal action.

The conference’s legal update session drove these points home.  Accessibility civil rights attorneys Lainey Feingold and Linda Dardarian emphasized their position that Title III of ADA does cover websites, and gave a year-in-review report of digital accessibility legal developments in the following industries: Continue Reading Accessible Websites and Mobile Apps: Hot Topics at CSUN’s International Technology and Persons with Disabilities Conference

By Michael Fleischer

They’re here and they’re not going away. Six weeks ago we blogged about AXS Map. Now comes AbleRoad, a much more comprehensive customer review website/mobile app that allows individuals to post online reviews of a business’s accessibility to individuals with disabilities.

AbleRoad, which worked with Yelp.com to allow both Yelp and AbleRoad ratings to be viewed on the same screen, allows users to not only leave comments but to rank a business using a one through five-star rating system.  Unlike AXS Map, AbleRoad’s rating system is based on four main categories: Mobility, Hearing, Sight, and Cognitive.  Further, within each category there are 12 sub-categories (for a total of 48 categories) which allows users to rate businesses on accessibility issues including: Path of Travel, Directional Signage, Captioning on TVs; Braille Information; Guide-Dog/Service Animal access; and whether the business has Knowledgeable and Respectful Staff. 

AbleRoad also has several features that AXS Map lacks, including the ability for users to quickly upload pictures (and video coming soon), provides easy sharing on social media platforms like Facebook and Twitter, and also has voice over screen capabilities for blind or low vision users. AbleRoad also provides a badge system where users can like and rate other reviewers. AbleRoad hopes that a reviewer’s badge level (Rookie to Hall of Fame) will help verify the reviewer as a trusted source for his or her reviews and content.

AbleRoad’s goal is to provide a forum where individuals with disabilities or their families and friends can research and choose businesses they wish to patronize based on accessibility.  Like AXS Map, we expect AbleRoad to be well-received by individuals with disabilities.  If accurate, it should be a very useful tool. 

However, we still have serious concerns for businesses if the reviews provide misinformation. Like with AXS Map, we were unable to find a way on AbleRoad’s website or mobile app for businesses to flag reviews as inappropriate or to respond to reviews that are unfair or inaccurate. Without such a safeguard, these website/mobile apps may become a resource for serial plaintiffs looking for businesses to sue even if those plaintiffs have no genuine desire to patronize the businesses. As with AXS Map, we will follow up with the founder of AbleRoad to discuss these concerns and will keep you posted.

Edited by Minh Vu and Kristina Launey

By Minh N. Vu

Similar to Trip Advisor and Yelp, AXS Map is a  new customer review website/mobile app that allows people to review businesses on their accessibility to people with disabilities.  Every business that opens its doors to the public can be reviewed.  Hotels, restaurants, retailers, gyms: You name it – it’s on AXS Map ready to be reviewed. The mobile app will be available in December 2013 but website is up and running now.

Reviewers can provide a one through five-star rating for the accessibility of the entrance and restroom.  They can also check boxes to indicate the presence of the following attributes:  Quiet environment, accessible parking, ramp, second means of entry, and Braille.  There is also a text box for comments.  According to AXS Map’s founder, Jason DaSilva’s, blog, volunteers are also visiting businesses and collecting accessibility data for the site.

AXS Map’s focus is on what is important for most customers with disabilities:  Being able to get into an establishment to enjoy its goods, services, and restroom facilities.   We expect that this website and mobile app will be well-received by individuals with disabilities and their families to whom information about a business’ accessibility is important and, if accurate, very useful.  That said, AXS Map could become a serious headache for businesses if reviews provide misinformation. We looked at the website and could not find a way for businesses to flag reviews as inappropriate or to respond to reviews that are unfair or inaccurate.  AXS Map may also become a resource for serial plaintiffs looking for businesses to sue even if they have no genuine desire to patronize them. 

We will be reaching out to the founder of AXS Map to follow up on these issues.  In the meantime, read Time Magazine’s article about this new website: http://healthland.time.com/2013/10/14/wheelchair-inaccessible-the-story-behind-an-app-that-maps-obstacles-for-the-disabled/