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Motions to Dismiss Granted in ADA Gift Card Cases

A New York federal court has granted motions to dismiss in four separate cases alleging that the failure to offer gift cards in Braille violates the ADA. The rulings by U.S. District Court Judge Gregory H. Woods (Southern District of New York) all hold that the plaintiffs in those cases failed to state a claim for violation of the ADA, and also lack standing.  The rulings allow plaintiffs to file an amended complaint within 15 days.

As we previously reported, the lawsuits were among more than 100 such complaints alleging that failure to offer gift cards in Braille violates Title III of the Americans with Disabilities Act.

ADA Does Not Require Offering Braille Gift Cards

Judge Woods issued the first opinion last Thursday, and the following day issued rulings in the other three cases referencing that opinion. Judge Woods concluded that the complaints failed to state a claim because the ADA does not require retailers to create specialty goods for the visually impaired.  In doing so, Judge Woods rejected the three theories advanced by plaintiff: (1) that gift cards are goods that need to be accessible; (2) that gift cards are places of public accommodation that must be independently accessible; and (3) that plaintiff was denied access to the defendant’s services when it denied plaintiff a Braille gift card.

With respect to the first theory, Judge Woods concluded that Title III prohibits a public accommodation from discriminating based on disability when providing “access to” whatever goods and services the

Are Your Gift Cards Accessible? Lawsuits Assert Gift Cards Should Be Offered in Braille

In addition to concerns surrounding the accessibility of a business’ website, retailers now have a new concern – the accessibility of their gift cards. Plaintiffs have recently filed a number of lawsuits alleging that the failure to sell gift cards containing writing in Braille is a denial of full and equal access to blind and visually impaired individuals, and thus is a violation of Title III of the Americans with Disabilities Act (“ADA”).

On October 24, 2019, twelve lawsuits were filed in the United States District Court for the Southern District of New York against well-known retailers, restaurants, and other businesses. The complaints allege, in part, that because store gifts cards are generally the same size and texture as credit cards, they are indistinguishable by a blind person from credit cards and other gift cards.

To support this new theory of ADA liability, the complaints provide some background into the gift card market. They cite industry surveys stating that sales of store gift cards amount to $400 billion in 2019 and that such sales grow annually at 10 percent.  They also allege that store gift cards increase revenue for merchants because they foster communication and brand loyalty, increase sales, and because consumers often spend more money than the amount of the gift card.

The complaints allege claims for violation of the ADA, violation of the New York State Human Rights Law, and violation of the New York City Human Rights Law. For relief, the plaintiffs seek both declaratory and injunctive

Supreme Court Denies Review in Website Accessibility Case Against Domino’s Pizza

Businesses should expect that lawsuits and demand letters alleging that their websites violate the Americans with Disabilities Act (“ADA”) will continue to increase in the wake of the United States Supreme Court’s October 7, 2019 decision denying Domino’s Pizza’s (“Domino’s”) petition for a writ of certiorari in the Robles v. Domino’s Pizza case. The Supreme Court’s decision to deny certiorari to Domino’s petition will send the lawsuit back to the United States District Court for the Central District of California to be tried on its merits.

Guillermo Robles (“Robles”) filed this lawsuit in September 2016 alleging, in part, that Domino’s website contained barriers to accessibility in violation of the ADA. Robles alleged that he unsuccessfully tried to order custom pizza online from a nearby Domino’s location. Robles sought, in part, a permanent injunction requiring Domino’s website to comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0.

In March 2017, the District Court dismissed the case, without prejudice, based upon the primary jurisdiction doctrine, which allows courts to stay or dismiss lawsuits pending the resolution of an issue by a government agency, because absent “regulations and technical assistance” from the Department of Justice (“DOJ”), Domino’s due process rights would be violated. The District Court, however, also held that Title III of the ADA applied to Domino’s website.

As we previously reported, on January 15, 2019, the Ninth Circuit reversed the District Court’s order. The Ninth Circuit agreed with the District Court that the ADA applies to Domino’s website and mobile application,

No Longer a “Whisper” – California Appellate Court Joins List of Courts to Weigh in on Website Accessibility

In the first decision by a California appellate court addressing the application of Title III of the Americans with Disabilities Act (“ADA”) to websites, the court in Thurston v. Midvale Corp. (Sept. 3, 2019) 2019 WL 4166620, affirmed summary judgment for the plaintiff and held that the ADA, as incorporated by California’s Unruh Act, applies to websites connected to a brick and mortar business.

California’s Court of Appeal for the Second Appellate District declined to adopt the position of the U.S. Court of Appeals for the Third Circuit that the ADA applies only to physical locations. Instead, the court followed the position of the U.S. Court of Appeals for the Ninth Circuit, holding that “including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute.” Id. at *6.  Declining to go a step further, the court refrained from holding that a website unconnected to a physical location is similarly subject to the ADA because that issue was not squarely presented.

The court also affirmed the trial court’s order requiring compliance with the Web Content Accessibility Guidelines (WCAG) 2.0, though it made clear that the defendant’s failure to comply with WCAG did not itself violate the ADA. It was merely evidence of the ultimate question – i.e., whether the website was accessible.

Finally, the court rejected the defendant’s

Senate Members Ask DOJ to Take Action as Number of Website Accessibility Lawsuits Continues to Rise

Members of Congress are once again asking the U.S. Department of Justice (“DOJ”) to take action addressing website accessibility under the Americans with Disabilities Act (“ADA”) in light of the increasing number of lawsuits and claim letters asserting violation of the ADA.

Based on the first six months, 2019 is likely to exceed the records set in 2018 for the number of website accessibility cases filed, according to digital accessibility solutions provider AudioEye, which tracks such case filings. More than half of the cases filed, or 55 percent, were against retailers, followed by complaints against defendants in the hotel, restaurant, banking, and real estate industries. Many of those defendants have been hit with more than one lawsuit.

Despite the increasing number of lawsuits and claim letters, the DOJ has not issued regulations concerning website accessibility under the ADA. As we previously reported, the DOJ issued an Advanced Notice of Proposed Rulemaking concerning website accessibility standards in 2010, but withdrew the proposal in 2017, stating that it was “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.” 

In a September 2018 letter to then Attorney General Jeff Sessions, seven Senators urged DOJ “to promptly take all necessary and appropriate actions within its authority – including filing statements of interest in currently pending litigation – to resolve the current uncertainty.” The letter is similar to a June 2018 letter by a bi-partisan assembly of 102 members of the House of Representatives, which we

Domino’s Petitions Supreme Court for Review of Unfavorable Website Accessibility Decision

Domino’s Pizza LLC has submitted a petition asking the U.S. Supreme Court to review and reverse a decision from the Ninth Circuit Court of Appeals that allowed a website accessibility case to proceed against Domino’s. The question presented to the Supreme Court by Domino’s is“[w]hether Title III of the ADA requires a website or mobile application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.” Domino’s Pizza LLC v. Guillermo Robles, Petition for a Writ of Certiorari, at 2.

As we previously reported, in June 2019, the Ninth Circuit held in Robles v. Domino’s Pizza, LLC, that the ADA applies to the Domino’s website and mobile application, rejecting the due process and primary jurisdiction arguments that had led the district court to stay the action.

Title III of the ADA applies to “physical places of public accommodation.”   42 U.S.C. § 12182(a).  Circuit Courts are split over whether the ADA thus applies to websites, with some courts holding that it applies to all websites that offer goods and services to the public, and other courts holding that it only applies to websites with a nexus to a physical location open to the public.

In its Domino’s decision, the Ninth Circuit  continued to follow the rule it had established in prior cases – that a public accommodation under Title III must be or have a connection to a physical location – “reinforcing the existing circuit split.”  (Petition at 16.)  Domino’s urges the

New York District Court Addresses Mootness Argument in Website Accessibility Case

As businesses continue to face lawsuits and demand letters alleging that their websites are inaccessible to blind and deaf patrons in violation of the Americans with Disabilities Act (“ADA”), courts across the country continue to weigh in on the issue.  On Tuesday, June 4, 2019, the United States District Court for the Southern District of New York issued a decision in Diaz v. The Kroger Co. – holding that the Court lacked both subject matter and personal jurisdiction over the case because the complaint had been rendered moot by modifications defendant made to the website and because the defendant did not sell goods or services in New York.  Diaz v. The Kroger Co., Case No. 18-cv-07953, Opinion and Order [Dkt. No. 35]. 

In Diaz, the plaintiff, a visually-impaired and legally blind individual who resides in the Bronx, New York, alleged that the website of defendant Kroger, a supermarket chain with its principal place of business in Cincinnati, Ohio, denied equal access to blind customers.  Kroger moved to dismiss the complaint on two grounds:  (1) for lack of subject matter jurisdiction because it remedied the barriers to access to its website, and (2) for lack of personal jurisdiction because it does not conduct business in New York.  The Court granted Kroger’s motion to dismiss on both grounds.

In granting Kroger’s motion to dismiss for lack of subject matter jurisdiction, the Court noted that the facts of the case were different from other cases where courts found, “on the facts of those

Ninth Circuit Issues Important Decision in Domino’s Website Accessibility Action

As businesses continue to face lawsuits and demand letters alleging that their websites are inaccessible to blind and deaf patrons in violation of the Americans with Disabilities Act (“ADA”), courts across the country continue to weigh in on the issue. On Tuesday, January 15, 2019, the United States Court of Appeals for the Ninth Circuit issued its much-awaited decision in the Robles v. Domino’s Pizza case – holding that the ADA applies to the Domino’s Pizza (“Domino’s”) website and mobile application (“app”), and rejecting due process and primary jurisdiction challenges raised by Domino’s successfully in the court below.

As we previously reported, in March 2017, the United States District Court for the Central District of California granted Domino’s motion to dismiss under the primary jurisdiction doctrine, which allows courts to stay or dismiss lawsuits pending the resolution of an issue by a government agency. The District Court held that because the Department of Justice (“DOJ”) has not promulgated regulations defining website accessibility or providing guidance on how to make websites accessible, Domino’s due process rights would be violated if the Court were to hold that its website was not compliant with the ADA.  (For more information regarding the DOJ’s position, visit this blog post.)

The appeal presented three questions: 1) whether the ADA applies to Domino’s website and app; 2) whether a holding that the ADA applies raises due process concerns; and 3) whether the primary jurisdiction doctrine should be invoked because the DOJ has failed to

California Court Grants Nonsuit in Website Accessibility Trial

A California court has dismissed a website accessibility case shortly after commencing trial, issuing a sua sponte nonsuit on grounds that the defendant credit union’s website is not subject to the ADA.

Martinez v. San Diego Credit Union, San Diego Superior Court Case No. 37-2017-00024673, would have been the only known website accessibility lawsuit to go to trial in the state of California. Instead, after commencing trial, the Court ordered the parties to submit trial briefs, inquired whether the parties would object to the Court issuing a sua sponte ruling at the outset of the case, and then granted the nonsuit.  In so ruling, the Court advised the parties that it agreed with the defendant credit union’s position that the complaint failed to state facts sufficient to constitute a cause of action, and that it wished to save plaintiff’s counsel the expense of flying its expert witness from the East Coast.

Plaintiff had alleged violation of California’s Unruh Act, which incorporates Title III of the Americans with Disabilities Act (“ADA”). Title III provides that:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

42 U.S.C. § 12182(a). Title III defines the term “public accommodation” by listing twelve specific categories of private businesses that are covered.  42 U.S.C. § 12181(7).

The implementing regulations

DOJ Says Online Businesses Have “Flexibility” in How to Make Websites Accessible

As we reported in June, a bi-partisan assembly of 103 members of the House of Representatives wrote a letter to Attorney General Jeff Sessions and asked the Department of Justice (“DOJ”) to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” That letter urged the DOJ to “provide guidance and clarity with regard to website accessibility under the … ADA.”

On September 25, the DOJ responded to that letter. While the response does not directly address the members’ questions, it does state that the DOJ “is evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.”

The letter also provides some guidance that could prove useful to retailers and other businesses with an online presence. First, the letter repeats statements previously made by the DOJ:

“The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 year ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.”

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.

But, then, the letter continues:

“Absent the adoption

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 not moot.” The Court stated that “Hooters’ assurance to an unrelated third party to remediate its website does not alone moot Haynes’ claim for relief.”

The Court noted that while Hooters may be in the process of updating the accessibility of its website, “there is nothing in the record demonstrating that Hooters has successfully done so.”

Moreover, the Court relied upon the fact that the present plaintiff sought injunctive relief requiring Hooters to maintain the website in a complaint condition. In contrast, “nothing in the [prior] agreement requires Hooters, … to continuously update and maintain its website to ensure it

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.

For users with low vision, WCAG 2.1 also extends content requirements to graphics, and introduces new requirements for text and layout customization. For users with cognitive, language, and learning disabilities, the WCAG 2.1 updates include a requirement to provide information about the specific use of input controls, and additional requirements to support timeouts due to inactivity.

Although the Department of Justice has not issued regulations concerning website accessibility, and has removed the issue from rulemaking, many courts have applied WCAG 2.0 as the standard for website accessibility. All criteria included in WCAG 2.0 are included in WCAG 2.1.

California court

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 get Florida district courts to dismiss website accessibility cases against them.  Panda Express initially lost its motion to dismiss, but convinced the court to reconsider and dismiss the case after the Hooters case was decided.  Both the Haynes and Hooters cases are on appeal.

The Eleventh Circuit’s decision could have important implications for the success of this mootness argument for other retailers, and in other jurisdictions.

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 July 2017, the DOJ placed the website accessibility regulations on its “Inactive List.”  And now, most recently, the DOJ has withdrawn the proposed rulemaking.  Its Notice withdrawing the website accessibility rulemaking states that the DOJ is “evaluating whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”

The withdrawal of the rulemaking means that while the number of website accessibility lawsuits continues to rise, retailers and other businesses with an online presence will have to continue to look to the patchwork of decisions being issued by the Courts for guidance.

Included 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 that the issue of website accessibility, especially as it applies to online only businesses, remains a contested issue.

The New Hampshire federal court also found that despite the lack of regulations from the Department of Justice (“DOJ”), “Blue Apron must still comply with Title III’s more general prohibition on disability-based discrimination….” Id. at pp. 14-15.  The court noted that there might have been a due process violation if plaintiffs had “attempt[ed] to hold Blue Apron liable for failure to comply with independent accessibility standards not promulgated by the DOJ, such as the WCAG 2.0 AA standards….” Id. at p. 20. 

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 document called “2017 Inactive Actions.”

Recently, courts have filled the void left by the absence of government regulations with a patchwork of conflicting decisions. As we have previously reported, the Northern District of California granted a motion to dismiss a website accessibility case under the primary jurisdiction doctrine. In Robles v. Dominos Pizza LLC, the court found that holding Dominos liable when the DOJ still has not promulgated website accessibility regulations would violate Dominos’ due process rights.

As we also reported, however, the Southern District of Florida ruled, following a bench trial in Gil v. Winn-Dixie Stores,

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