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 District of Florida handed down a trial verdict against retailer Winn-Dixie. As we recently reported in a blog post and alert, Gil v. Winn-Dixie Stores, Inc., No. 16-cv-23020, Dkt. No. 63 (S.D. Fla. June 13, 2017) was the first website accessibility case to go to trial. In that case, the Website Content Accessibility Guidelines (“WCAG”) 2.0 were adopted as part of the injunctive terms of the decision.

The Hobby Lobby court’s decision is in stark contrast with another recent website accessibility decision from the Northern District of California, which dismissed a website accessibility action under the “primary jurisdiction”

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 Court noted that Winn-Dixie’s estimate of $250,000 “seems high,” the Court ultimately found that it “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website.” Gil, Dkt. No. 63 at 7.

Finally, the Court’s decision includes the specific terms of an injunction. Included among those terms are that the Web Content Accessibility Guidelines (“WCAG”) 2.0 were set forth as the accessibility standard and that Winn Dixie shall require third party vendors who participate on its website to be fully accessible.

Retailers should take