Amanda Robert Mar. 30, 2016, 9:12am


SAN BERNARDINO, Calif. (Legal Newsline) - While companies continue a years-long wait for guidance from the Department of Justice on how to make their websites compliant with federal disabilities law, judges aren’t hitting the pause button on a growing area of litigation.

In the past year, an increasing number of companies have faced lawsuits from blind and deaf plaintiffs alleging their websites violate the Americans with Disabilities Act. Plaintiffs lawyers in three jurisdictions – California, New York and Pennsylvania – have led the charge.

Complicating matters for defendants has been the delay of formal regulations first announced by the Department of Justice in 2010. Companies will have to wait until 2018 before they are issued.

Judges, though, aren’t waiting until then. On March 21, a California judge, for what is believed to be the first time in any court, granted summary judgment to a blind plaintiff who sued luggage retailer Colorado Bag’n Baggage over its website.

“We are very grateful that the Court agreed that corporate websites must be accessible to individuals with disabilities,” said Newport Trial Group attorney Victoria Knowles, who represented plaintiff Edward Davis.

“This ruling will have implications far and wide.”

Davis has filed at least nine lawsuits in San Bernardino County Superior Court and another two in federal court. Several have ended with settlements.

Judge Brian Foster awarded Davis $4,000 in damages in the case against Colorado Bag’n Baggage. His attorneys say the judgment also entitles Davis to recover his attorneys fees.

The decision is another blow to defendants, coming more than a month after federal Magistrate Judge Katherine Robertson rejected arguments by Harvard University and the Massachusetts Institute of Technology that the court should dismiss or stay their cases while the DOJ works on its regulations.

The universities were sued in Massachusetts federal court by the National Association of the Deaf in 2015 for not providing captions and other auxiliary aids for its online programming.

“There is no reason that this case and the administrative process cannot proceed simultaneously on separate tracks,” Robertson wrote in her opinion in the Harvard case.

“Should DOJ issue either set of proposed rules while this case is still pending, the parties can bring them to the attention of the court so that the court can have the benefit of whatever aid they may offer.”

Robertson added that the help provided by the proposed rules would be limited.

“Even if DOJ issues proposed rules, they will be just that – proposed,” she wrote.

“The court would still have to consider how the proposed rules might shed light on the specific questions presented in this case – whether Harvard has violated the ADA’s prohibition against disability-based discrimination and the extent to which Harvard is required to provide accommodations under the ADA, if at all.”

Minh Vu, a partner at Seyfarth Shaw and leader of the firm’s ADA Title III team, points out in an analysis of Robertson’s opinion that there are two practical takeaways for businesses facing these types of lawsuits.

The first, she says, is that judges have not been receptive to the argument that companies don’t need to make their websites accessible until after the DOJ issues its regulations.

The second is that many judges are reluctant to dismiss website accessibility lawsuits early in the case.

“This means that the cases will likely continue to discovery and cause defendants to incur potentially substantial costs of defense, even if the defendants ultimately prevail on the merits,” Vu said.

Vu also contends that the Harvard and MIT decisions will “undoubtedly fuel the continuing explosion” of website accessibility cases.

The DOJ submitted briefs in those cases that reflect its stance on what makes a website compliant with the ADA.

Anne Marie Estevez - a Miami partner and global head of the ADA public accommodation and accessibility group at Morgan, Lewis & Bockius, who has also witnessed the surge in website accessibility litigation - adds that federal courts have come to differing conclusions on the issue.

She explains that in 2015, in Earll v. eBay, the U.S. Court of Appeals for the Ninth Circuit held that eBay.com, a website not connected to any physical place, is not a “place of public accommodation” under the accessibility requirements of Title III of the ADA.

“Very significantly, it said Title III and ADA law does not cover a website unless it is tied to a brick-and-mortar, meaning that if it’s just e-commerce, this law doesn’t apply,” Estevez said.

Foster, according to the minutes of the hearing during which he granted summary judgment, ruled Davis demonstrated that he sought goods and services from a place of public accommodation because he showed a nexus exists between the defendant's retail store and its website.

Robin Stewart, an attorney in the Kansas City, Mo., office of Lathrop & Gage, says that also in 2015, the Ninth Circuit came to the same conclusion in Cullen v. Netflix, Inc.

“Since the goods and services offered on the Netflix and eBay websites are not connected to an actual physical location, the Ninth Circuit found that the ADA did not apply to the Netflix and eBay websites and therefore the website accessibility claims failed as a matter of law,” she said.

Stewart contends that the Eleventh Circuit took the same nexus-type approach, although arriving at the opposite result, in 2002, ruling that disabled plaintiffs had a valid claim under the ADA when they alleged that the fast finger telephone selection process for the television show, “Who Wants to Be a Millionaire?” violated the federal disabilities law.

The court found that it prohibited people with disabilities from being contestants on the show, which took place in an actual physical structure.

However, she says, other courts, such as the First and Seventh circuits, found in earlier cases that no connection between a website and a physical structure needs to exist in order for a website to fall under the mandates of the ADA.

And, Stewart adds, on the far opposite end, both the Third and Sixth circuits held in the late 1990s that places of public accommodation must be actual physical structures.

“However, those rulings were not decided in the context of a website, so it is unclear how they would rule when presented with ADA website accessibility litigation,” she said.

Stewart contends that it is up to the courts, and not the DOJ, to interpret the ADA and decide if websites are considered places of public accommodation under the statute. Otherwise, she adds, Congress would need to amend the ADA to specifically address websites.

“Should the DOJ issue regulations, it would at least let us know what the DOJ expects a website to include in order to be deemed compliant with the ADA,” she said.

“Depending on the jurisdiction, a company could still defend an action in court and argue that the ADA doesn't apply to websites, regardless of the DOJ regulations.”

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