Seyfarth Synopsis:  In denying Dave & Buster’s motion to dismiss and for summary judgment, a federal judge said that telephonic access might be an alternative to having an accessible website, but cannot decide until the record is much more developed.

No court has yet decided whether a public accommodation can comply with Title III of the ADA’s equal access mandate by providing telephonic access to the information and services on a website blind people cannot use with a screenreader.  However, last week federal Judge Philip Gutierrez of the Central District of California recognized it as a possibility, while allowing a website accessibility lawsuit against Dave & Buster’s to move forward to discovery.

In Gorecki v. Dave & Buster’s, Dave & Buster’s filed a motion to dismiss and for summary judgment at the outset of the case, arguing that it had complied with the law by providing telephonic access to the information and services on its website.  Specifically, it had placed an “accessibility banner” on its website stating: “If You Are Using A Screen Reader And Are Having Problems Using This Website, please call 1 (888) 300-1515 For Assistance.”  Dave & Buster’s had staffed the line with a “receptionist.”  In response, the court acknowledged that the Department of Justice had stated in 2010 that telephonic access could be a means of complying with law in lieu of having an accessible website.  However, the court found that the plaintiff had raised a genuine dispute as to whether having the phone line and receptionist satisfies the ADA because—among other things—Dave & Buster’s failed to submit evidence that the accessibility banner itself was accessible (i.e., could be read) to screen reader users.  The court concluded that “the record as it stands is insufficient to address compliance, so the court disagrees with D&B that the mere appearance of the phone number on the Website renders Gorecki’s claim moot.”

Our takeaway from this holding is that a defendant seeking to show that it is providing access to the information and services on its website through a telephone line must submit more robust evidence about how that telephonic provides equal access.

The court also rejected Dave & Buster’s three other arguments for dismissal.  First, the court said that holding Dave & Buster’s liable for a Title III violation in the absence of regulations about websites would not violate due process because the DOJ made clear “as early as 1996” that websites are covered under the law, and plaintiff was not advocating for adherence to any particular set of accessibility standards such as the Web Content Accessibility Guidelines 2.0.  Second, the court said dismissal was not appropriate under the doctrine of primary jurisdiction because “a finding of liability regarding the Website’s compliance with the ADA does not require sophisticated technical expertise beyond the ability of the Court.”  These two holdings echo the same or similar holdings by virtually every other court that has considered these issues.  Finally, the court stated that plaintiff did not necessarily have to request an accommodation from Dave & Buster’s before filing suit.

Judge Gutierrez’s decision is the third in which the Manning law firm in Newport Beach, CA has successfully rebuffed motions to dismiss website claims by defendants in federal court.  The firm has appealed to the Ninth Circuit the one unfavorable decision it received in Robles v. Dominos Pizza. The opening brief will is due to be filed this week.

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: A state court has granted the Arizona Attorney General’s Motion To Dismiss approximately 1,700 Arizona access lawsuits on grounds that the organizational and individual plaintiffs lacked standing to sue.

As we previously reported here, the Arizona Attorney General responded to a surge of approximately 1,700 access suits filed in that state’s courts by moving to consolidate, to intervene in, and to dismiss all of such actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler.  According to a recent communication from the Arizona AG’s office describing his court appearance on February 17, 2017,  the Arizona trial court judge on that date orally granted the AG’s motion to dismiss virtually all of the consolidated cases with prejudice and directed the AG to submit a proposed form of judgment.

There currently is no written decision laying out the Court’s reasoning for its decision, so it is not clear which of the AG’s arguments persuaded the court to issue this decision.  The AG’s Motion to Dismiss challenged both the individual’s (Ritzenthaler’s) and AIDF’s standing to bring claims under what the AG described as the “rigorous” standing requirements of Arizona law. The AG presented several arguments about how the Plaintiffs failed to meet these requirements.  First, the AG argued that the Plaintiffs failed to allege that they patronized the businesses that they sued.  Second, the AG asserted that the Plaintiffs failed to allege an actual barrier to their access.  The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’”  The AG then stated that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.”  Third, the AG  asserted that Plaintiffs’ claims were insufficient because they failed to sufficiently allege denial of access based upon their particular, identified disability.  Fourth, the AG argued that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint.  Fifth, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief:  That the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

If the court issues a written opinion explaining the basis for his ruling, we will update you.

In an interesting peripheral note, the Arizona Attorney General’s office has notified affected parties that the Court also stated that it would consider applications for attorneys’ fees and costs following its ruling, and noted that, should any affected party be interested in filing a fee petition, it should keep in mind that any fee request “must be in sufficient detail to enable the court to assess the reasonableness of the time incurred.”  Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188 (App. 1983).  Based upon the AG’s comments, this portion of the ruling apparently extends beyond the AG’s own attorneys’ fees and costs, potentially including any defendant who hired counsel to defend against Plaintiffs’ 1,700 dismissed actions prior to entry of the stay.

Edited by Minh Vu.

Seyfarth Synopsis: A disability advocacy group behind approximately 1,700 Arizona access lawsuits breaks new ground by filing suit against the Arizona Attorney General, in an unusual counter-attack to the AG’s motion to dismiss those cases for lack of standing. 

As we previously reported here, the Arizona Attorney General (“AG”) responded to a surge of access suits filed in that state’s courts by moving to consolidate and to intervene in all actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler.  The state court granted the AG’s motions on September 23.  Soon thereafter the AG filed a Motion to Dismiss and For Judgment on the Pleadings.

In a further twist on this story, AIDF and Ritzenthaler have now sued AG Mark Brnovich in his official capacity for mandamus relief against the AG and for attorneys’ fees and costs.  Specifically, the Plaintiffs seek an order that the AG must initiate an investigation into the violations that have been alleged in approximately 9,000 complaints allegedly filed with the AG’s office.  Plaintiffs argue that the AG is required to investigate such complaints under state law, and has failed to do so. Plaintiff further alleges that non-compliance with the state’s accessibility statute is widespread, apparently citing an AIDF press release.

Whether or not this tactic is an effective litigation strategy remains to be seen.  The AG’s pending Motion to Dismiss challenges both the individual’s (Ritzenthaler’s) and the organizations’ standing to bring their claims under Arizona law.  According to the AG, Arizona has a “rigorous” standing requirement, which the plaintiffs in the consolidated matters fail to meet for several reasons.  First, they fail to allege that they patronized or attempted to patronize the defendants’ businesses.  Second, the AG argues that the plaintiffs fail to allege an actual barrier to their access.  The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’”  The AG then states that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.”  Third, the AG asserts that plaintiffs fail to sufficiently allege standing because they did not allege denial of access based upon an identified disability.  In other words, the plaintiffs do not link an identified instance of non-compliance to their particular disability.  Fourth, the AG argues that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint.  Finally, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief, i.e., that the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

The AG argues that the various Plaintiffs in these consolidated actions should not be given leave to amend such deficiencies in the pleadings, due to a “documented history of bad faith, abusive tactics, and dilatory motives.”   To support this assertion, the AG notes that plaintiffs have filed over 1,700 deficient complaints in 2016, and have “extracted” about $1.2 million from those lawsuits.  The AG also contends that the plaintiffs’ proposed “Universal Amended Complaint” still fails to adequately plead standing, further demonstrating undue delay.  It also, perhaps, demonstrates futility of amendment under these circumstances.

These, first-of-their-kind, cross actions between an enforcement agency and a serial plaintiff may continue to provide additional data and insight into assertions of lawsuit abuse in the disability access context.   We will continue to monitor these actions and keep posting on developments.

Edited by Kristina Launey and Minh Vu.

By Todd C. Hunt 

On the heels of Cullen v. Netflix, Inc., reported here last month, two other federal judges in the U.S. District Court for the Northern District of California followed the lead established by the Ninth Circuit more than a decade ago in ruling in a putative class action that websites not connected to “physical spaces” are not covered by the ADA [click here for order].  Initially, in refusing to accept the deaf plaintiff’s proposed amended complaint that included an ADA claim that deaf people cannot use a telephonic verification/registration process used by the online auction company, Judge Fogel found that “the ADA could not afford a remedy to [the plaintiff] in this case because [the defendant’s website] is not a place public accommodation.”  However, the denial was without prejudice, and plaintiff tried again.  The case was reassigned to Judge Davila before eBay brought a motion to dismiss the new complaint, and, in ruling on the motion, Judge Davila reinforced Judge Fogel’s finding and dismissed the ADA claim, despite the plaintiff’s effort to allege that the defendant had a “brick and mortar” presence through the company’s recently launched initiative that offered online customers the ability to search for items in local stores. 

Both judges also emphasized the heightened burden and factual showings required for a plaintiff to establish claims under the Unruh Civil Rights Act and the Disabled Persons Act (DPA) when those claims are not based on underlying ADA violations.  Regarding the DPA, the court held that to establish a violation the plaintiff would have to allege “a particular provision or regulation under California law that requires higher standards of website accessibility than the ADA.”  As for the Unruh Act, the court held that the plaintiff needed to make specific allegations that would establish intentional discrimination.  Plaintiff’s allegation that the defendant had created an inaccessible process and refused to implement “easy and inexpensive” solutions used by other companies in response to her request, in the court’s view, was not enough to support a claim of intentional discrimination, even at the motion to dismiss stage.  While acknowledging that the plaintiff’s allegations may raise an issue of disparate impact, Judge Davila found the defendant’s online processes to be facially neutral and that the plaintiff did not sufficiently allege that the defendant treated her differently “because of her disability” or that the website feature “target[ed] individuals with disabilities.”