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Eleventh Circuit Holds Prior Settlement Does Not Render New Website Accessibility Case Moot

The Eleventh Circuit Court of Appeals has held that a prior settlement agreement, pursuant to which a defendant has agreed to improve website accessibility, does not necessarily render moot a new website accessibility lawsuit.

In Haynes v. Hooters of America, LLC, Case No. 17-13170 (11th Cir. June 19, 2018), the Court of Appeals concluded that the “plaintiff’s claims are not moot” as a result of a settlement agreement between Hooters and a different plaintiff in an almost identical prior lawsuit that required Hooters to improve accessibility of its website within 12 months.

As we previously reported, the district court had granted Hooters’ motion to dismiss the action, on grounds that Hooters was in the process of actively implementing a remediation plan for its website, and therefore the prior agreement rendered the new ADA action moot.

The Eleventh Circuit rejected this argument, however, and held that “this case is

Website Accessibility Guidelines Get Update; California Court Limits Penalties to One Visit

An update has been published to the Web Content Accessibility Guidelines (WCAG) 2.0, the standards that have been applied by many courts in the absence of website accessibility regulations by the Department of Justice.

The new version, named WCAG 2.1, was published on June 5 by the World Wide Web Consortium (W3C), an industry group of website accessibility experts.

WCAG 2.1 amends the prior standards, which were issued in 2008, by adding 17 additional criteria to address accessibility barriers.  The updates are mainly related to mobile devices and disabilities that affect vision and cognitive function.

For example, WCAG 2.0 did not expressly address mobile applications, although many of the same criteria for website accessibility was also applicable to mobile apps. WCAG 2.1 provides additional guidance concerning accessibility of mobile apps, including:

  • user interactions using touch,
  • handling more complex gestures, and
  • avoiding unintended activation of an interface.

Eleventh Circuit to Consider Whether Prior Settlement Moots Website Accessibility Case

The Eleventh Circuit Court of Appeals is set to hear oral arguments on April 11 concerning whether a website accessibility plan pursuant to a prior settlement agreement moots injunctive relief claims under Title III of the Americans With Disabilities Act.

In Haynes v. Hooters of America, LLC, the U.S. District Court for the Southern District of Florida granted Hooters’ motion to dismiss on grounds that the company has already agreed to make its website accessible pursuant to a prior settlement agreement.  Judge Robert Scola held that the prior agreement rendered moot the plaintiff’s ADA action, since the ADA does not provide for recovery of damages, only injunctive relief.  Judge Scola is the judge that previously ruled after trial that Winn Dixie’s website was not accessible in violation of the ADA.

Other retailers, including Outback Steakhouse and Panda Express, have also been successful in using the same argument against the same plaintiff to

A New Year for Online Businesses: DOJ Ends 2017 by Withdrawing Website Accessibility Rulemaking

2017 was a busy year for retailers and businesses with an online presence, as they faced a wave of demand letters and lawsuits alleging that their websites are inaccessible to the visually impaired and/or hearing impaired in violation of Title III of the Americans With Disabilities Act of 1990 (the “ADA”).  As we have previously reported, courts across the country weighed in on the issue throughout the year.  To bring an end to 2017, the Department of Justice (“DOJ”) withdrew its proposed rulemaking for accessible websites.

In July 2010, the DOJ announced an Advanced Notice of Proposed Rulemaking related to the issuance of new regulations to cover the accessibility of websites of public accommodations.  While businesses with an online presence were waiting for those regulations to be promulgated, plaintiffs began taking the issue to the courts, resulting in a patchwork of conflicting decisions.  As we previously reported, in

Online Retailers Beware: Court Holds Website Violates ADA Despite Lack of Physical Store

Courts across the country continue to weigh in on the issue of website accessibility. Last week, the U.S. District Court for the District of New Hampshire denied a motion to dismiss filed by online food delivery servicer Blue Apron.  In denying the motion, the court found that Blue Apron’s website is a place of public accommodation – despite the fact that Blue Apron operates only online and has no traditional brick and mortar locations. Access Now, Inc. v. Blue Apron, LLC, Case No. 17-cv-00116, Dkt. No. 46 (D. N.H. Nov. 8, 2017).

In so finding, the court relied on binding precedent in the First Circuit, and noted that other Courts of Appeals, namely the Third, Fifth, Sixth and Ninth Circuits, have held that in order to be considered a “public accommodation,” an online business must have a nexus to an actual, physical space. Id. at pp. 9-10.  This decision highlights

DOJ Puts Website Accessibility Regulations on Inactive List

Retailers and other businesses that have been waiting for the Department of Justice (“DOJ”) to promulgate regulations concerning website accessibility under Title III of the Americans with Disabilities Act (the “ADA”) will now have to wait a lot longer. Eight years after the DOJ began the rulemaking process on this issue, it has now listed the rulemaking as “inactive.”

Federal agencies typically provide public notice of the regulations that are under development twice a year in the Unified Regulatory Agenda. The first Agenda was issued by the Trump Administration on July 20, 2017, and contains noteworthy changes from the last Agenda issued by the Obama Administration.

For the first time, the Agenda breaks down all agency regulatory actions into three categories: active, long-term, or inactive. While the Agenda does not define these terms, only the active and long-term matters receive a description and projected deadlines. The inactive matters appear in a

Website Accessibility Update: California Federal Court Denies Hobby Lobby’s Motion to Dismiss

Another website accessibility decision against a retailer, this time involving Hobby Lobby Stores, Inc. in the Central District of California, highlights the uncertainty of the law and of litigating such cases while courts continue to reach different conclusions.

In Gorecki v. Hobby Lobby Stores, Inc., Case No. 2:17-cv-01131-JFW-SK (C.D. Cal. June 15, 2017), the district court denied Hobby Lobby’s motion to dismiss and held that the retailer’s website constitutes a “public accommodation” under Title III of the Americans With Disabilities Act (“ADA”).  In so holding, the court noted that the website allows consumers to purchase products, search for store locations, view special pricing offers, obtain coupons, and purchase gift cards.

The court also relied on Department of Justice (“DOJ”) regulations requiring public accommodations to use auxiliary aids and services to “communicate effectively” with disabled customers.

This decision was issued only two days after a federal judge in the Southern

Retailer Loses ADA Website Accessibility Trial

Retailers with both physical locations and a website should take note that a United States District Court has held that Winn-Dixie violated Title III of the Americans with Disabilities Act (“ADA”) because its website was inaccessible to the visually impaired plaintiff.

The Court’s decision in Gil v. Winn-Dixie Stores, Inc., No. 16-cv-23020, Dkt. No. 63 (S.D. Fla. June 13, 2017) is significant for a number of reasons.  First, Gil appears to be the first website accessibility lawsuit to go to trial.

Second, despite the fact that Winn-Dixie does not conduct sales through its website, the Court found that the website was “heavily integrated” with the physical store locations because customers can use the website to access digital coupons, find store locations, and refill prescriptions through the website.

Third, the Court considered the cost of making Winn-Dixie’s website accessible in light of the total cost to launch and upgrade a website. While the

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