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.
Robles v. Domino’s Pizza LLC, Case No. 2:16-CV-06599 (C.D. Cal.). 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 what their obligations are, 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.
Gomez v. Bang & Olufsen America, Inc., Case No. 16-CV-23801 (S.D. Fla.). On February 2, 2017, Florida District Judge Joan Lenard dismissed serial plaintiff Andre 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.