In another blow to those defending website accessibility cases, brought by legally blind or visually impaired plaintiffs under the Americans with Disabilities Act (ADA), the United States Court of Appeals for the Ninth Circuit recently reversed the dismissal of a lawsuit filed pursuant to Title III of the ADA in the United States District Court for the Central District of California.  In Robles v. Domino’s Pizza, Case No. 17-5504, the plaintiff, a blind man, alleged that Domino’s had failed to construct, design, maintain and operate both its website and  mobile application in such a manner so that he could fully access them.  Robles claimed that on at least two separate occasions he had tried to order a customized pizza online from Domino’s but was unsuccessful because the Domino’s website and mobile application did not allow his software to read them.

The federal district court dismissed Robles’ complaint without prejudice.  Although the district court found that Title III of the ADA did in fact apply to both Domino’s website and mobile application, the court, nevertheless, concluded that the application of the ADA to the Domino’s website and mobile application violated the company’s due process rights because the Department of Justice had failed to provide any helpful guidance on the issue and that “regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III.”  Since the district court felt that only such regulations could cure these due process issues, it invoked what is known as the “primary jurisdiction doctrine”, a doctrine that allows a trial court to stay or dismiss a complaint without prejudice.

On appeal, however, the Ninth Circuit reversed and remanded the case back down to the trial court, agreeing with the district court that the ADA did apply to Domino’s website and mobile application but disagreeing with the district court’s application of the primary jurisdiction doctrine and its conclusion that imposing liability on Domino’s pursuant to Title III of the ADA somehow violated its due process rights.  The appellate court further reasoned that Robles was not seeking to have Domino’s held liable for a failure to comply with private industry standards regarding website accessibility, known as the Web Content Accessibility Guidelines 2.0; rather, an equitable remedy, requiring compliance with WGAC 2.0 was a possibility.

The Ninth Circuit, in its opinion in Robles, made clear it was expressing no opinion as to whether Domino’s website or mobile application actually complied with the ADA but rather was leaving that determination to the trial court.

Lawsuits under Title III of the Americans with Disabilities Act, or ADA, based upon a company’s alleged failure to make its website accessible to the visually impaired or legally blind exploded in 2017 and 2018.  In  Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the only known website accessibility case to actually go to trial, Judge Robert N. Scola, Jr. of the United States District Court for the Southern District of Florida ruled in favor of Gil, holding that Winn-Dixie’s website was indeed a place of public accommodation inaccessible to persons with visual impairments and holding that:  a.) the website had to be fully accessible; and b.) Winn-Dixie was required to implement the Web Content Accessibility Guidelines (WCAG) 2.0 for its website by an agreed-upon date.

The Gil v. Winn-Dixie case is currently on appeal to the United States Court of Appeals for the 11th Circuit.  The appellate court heard oral argument on October 4, 2018.  Winn Dixie’s arguments were as follows:

  • websites are not places of public accommodation under Title III of the ADA;
  • the WCAG are not law and the trial court’s adoption of those guidelines violated due process;
  • Winn Dixie is in compliance with the ADA because Gil had not been deprived of the full benefit of and equal access to the services and goods in Winn Dixie’s stores.

The 11th Circuit has not yet issued its decision on the appeal.  The outcome—particularly if there is a reversal—can potentially dramatically impact the landscape of website accessibility cases, particularly in Florida.

In another important website accessibility case under the ADA, Haynes v. Dunkin’ Donuts, LLC et al., Case No. 18-10373, the 11th Circuit, in a written opinion dated July 31, 2018, reversed the lower court’s dismissal of the website accessibility complaint of Dennis Haynes, a legally blind person.  The lower court had concluded that Haynes had failed to properly allege a nexus between barriers to accessing the website and an inability to access services and goods at a physical store.  In reversing and remanding the case back down to the trial court, the appellate court found that Haynes had demonstrated “a plausible claim for relief under the ADA.”  Thus, the initial victory for those defending ADA lawsuits arising from the trial court’s decision in Haynes was essentially wiped out by the 11th Circuit’s reversal.

Finally the future of the ADA Education and Reform Act of 2017 remains uncertain.  The bill, passed by the House of Representatives, requires amongst other things, pre-suit notice to an owner or operator of a place of public accommodation and an opportunity to cure prior to the filing of a lawsuit under Title III of the ADA.  That bill, however, does not appear to have gain any real traction in the Senate where 43 Senators—enough for a filibuster—have pledged, in writing, to block a vote on the Act.