ATLANTA (Legal Newsline) – A federal appeals court has dealt a blow to plaintiffs lawyers who developed a cottage industry of suing the owners of websites on behalf of the visually impaired.
The U.S. Court of Appeals for the 11th Circuit on April 7 struck down those lawyers’ key win, ruling that a website is not a “place of public accommodation” under the Americans with Disabilities Act. Without legislative rulemaking that extends that definition beyond brick-and-mortar stores, plaintiffs lawyers can’t claim websites that lack software for the blind violate the ADA, the 11th Circuit ruled.
It strikes down the first of these thousands of cases to go to trial. A Florida federal judge ruled years ago that Winn-Dixie’s site violated the ADA and ordered it to make updates and pay plaintiffs lawyers close to $100,000.
The 11th Circuit differentiated between a Ninth Circuit case against Domino’s over its pizza-ordering app and the Winn-Dixie site, which offers no products for sale. The Ninth Circuit also applied a “nexus” label to the Domino’s app but the 11th Circuit refused to adopt that standard.
“We also recognize that for many Americans like (plaintiff Juan Carlos) Gil, inaccessibility online can be a significant inconvenience. But constitutional separation of powers principles demand that the details concerning whether and how these difficulties should be resolved is a project best left to Congress,” Judge Lisa Branch wrote.
“Absent congressional action that broadens the definition of ‘places of public accommodation’ to include websites, we cannot extend ADA liability to the facts presented to us here, where there is no barrier to the access demanded by the statute.”
For more than a decade, the Department of Justice has refused to release formal guidance on website compliance with the ADA, leaving judges to weigh a variety of factors when presiding over these cases.
Plaintiffs firms have teamed with blind individuals to file ever-increasing amounts of lawsuits, many in preferred jurisdictions like Florida, California, New York and Pennsylvania.
Some plaintiffs, like Gil, have filed dozens of lawsuits. His lawyers in the Winn-Dixie case, Entin & Della Ferra of Fort Lauderdale and Scott Dinin of Miami, were awarded $105,000, even though there was no monetary value to the verdict. They backed their request by noting the “extraordinary relief” they initially obtained.
Miami federal judge Robert Scola ordered the company to comply with what is considered the "de facto" standard - the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA drafted by accessibility experts.
Gil can’t see the screen of his computer but uses JAWS or other screen reader software that tells Gil the details of the site he is visiting. When he hits the tab and shift buttons, it tells him what he needs to type.
Scola said Winn-Dixie’s website was heavily integrated with its stores, but the 11th Circuit overruled him. It noted Title III of the ADA is unambiguous when defining a public place of accommodation.
“It describes 12 places that are public accommodations,” Judge Branch wrote. “All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed.”
As to whether the site is an intangible barrier that prevents an individual with a disability from enjoying Winn-Dixie’s goods and services, the 11th Circuit decided not to apply case law involving the phone system for wannabe contestants for the game show “Who wants to be a millionaire?”
“Most importantly, (Winn-Dixie’s site) is not a point of sale; all purchases must occur at the store,” Branch wrote.
“Further, all interactions with Winn-Dixie which can be (although need not be) initiated on the website must be completed in-store: prescription pick-ups and redemption of coupons. And nothing prevents Gil from shopping at the physical store. In fact, he had done so for many years before he freely chose to stop shopping there.”
Judge Jill Pryor was the lone member of the minority in the 2-1 decision. She wrote in a dissenting opinion that the language of ADA Title III mandates that disabled individuals are not excluded or denied services available to others.
“The majority opinion’s declaration that Gil could fully and equally enjoy Winn-Dixie’s offerings does not make it so,” she wrote.
“Winn-Dixie treated Gil as a second-class customer, offering him different and inferior prescription and coupon services than it provided to its nondisabled customers. I fear the majority opinion’s errors will have widespread consequences.”