Legal Update: June 2021

Welcome to the June legal update! We’ve been getting great feedback on these monthly posts because it helps readers quickly and easily keep up with the legal developments in web accessibility. Plus, I’m finding it helpful to write them up because it helps me remember useful legal points from all of these cases. I'll take the developments in chronological order-- but be warned because the most important stuff comes at the end. Just to whet your appetite, here's to bullet points:

  • Hotel web cases only require a bare minimal description to avoid liability in California.
  • Consent decrees need to written carefully to pass scrutiny by judges.
  • If you're a franchisor or control the websites of other companies, you can be sued under the ADA even if you're not a business open to the public.
  • A plaintiff can visit your site a million times-- but they can only recover once under Unruh.
  • Courts may be starting to loosen up what plaintiff need to allege and what expert witnesses can testify about.

Hotel Cases

I’ll start with the easy part. Among this month’s cases, I would guess that 70% are hotel web accessibility cases. As most of you know by now, these are quite different from the traditional web accessibility case; instead of challenging whether a web site is accessible, hotel cases challenge the adequacy of descriptions of accessible rooms at the hotel room (as required by the DOJ Reservation Rule). An issue in these cases has always been how thoroughly accessibility features (e.g. counter heights, door widths, grab bars, etc) need to be described. For instance, can a hotel simply say “the room is accessible” or does the hotel have to describe each accessible feature in detail? Well, a string of decisions from California this month have been saying that only the barest descriptions are needed. Love v. Handlery Hotels, Inc., 2021 U.S. Dist. LEXIS 114648 (N.D. Cal. June 21, 2021); Whitaker v. LL South San Francisco, LP, 2021 U.S. Dist. LEXIS 105671 (N. D. Cal. June 4, 2021); Rios v. Leadwell Global Prop. LLC, 2021 U.S. Dist. LEXIS 103801 (N.D. Cal. June 1, 2021). I wouldn’t be surprised if we next see a new hybrid breed of hotel web accessibility cases where the plaintiff alleges that the hotel described the room as accessible but, in fact, they have numerous architectural barriers.

Be Careful Crafting Your Consent Decrees

Williams v. Goetzes Candy Company (June 21, 2021)

Earlier in this blog, I talked about how consent decrees could be used to give defendants a litigation-free window for fixing websites. A clever defendant could use the res judicata effects of this consent decree to effectively bar other plaintiffs from suing them during the term of that settlement agreement. But this invites potential abuse. It’s not hard to imagine a situation where the defendant agrees to pay the plaintiff additional money if the plaintiff accepted a longer period for fixing their website—or agreed to accept shoddy efforts at making a website accessible. On June 21, 2021, Judge Woods from the Southern District of New York reminded us that the Federal judiciary should not bless this kind of agreement. In Williams v. Goetzes Candy Co., 2021 U.S. Dist. LEXIS 115603 (S.D.N.Y. 2021), the parties asked the judge to approve their consent decree. The court noted that, when a court approves a consent decree, it is “more than a recorder of contracts from whom parties can purchase injunctions.” Instead, the court noted that the parties had “not provided sufficient information to conclude that the terms of their agreement… are appropriate.” Specifically, the court appeared annoyed that the proposed consent decree gave the plaintiff and his counsel the sole authority to determine the steps that the defendant must undertake in order to ensure that its website complies with the ADA. A practice note to plaintiff attorneys: the court also appeared to give extra scrutiny to this consent decree because the plaintiff initially styled the complaint as a class-action lawsuit.

Takeaways from Goetzes Candy

Consent decrees are great for companies that wish to avoid the additional lawsuits while they are fixing their websites. But plaintiffs and defendants need to be fair and open-minded towards the needs of others who may be affected by their consent decrees. Some suggestions are:

  • Avoid long and protracted remediation periods for fixing your website.
  • Create a meaningful compliance program
    • Agree to compliance with WCAG A/AA.
    • Agree to monitoring or third-party evaluation of content by industry-accepted web accessibility experts.
  • If possible, incorporate contributions and assistance from known disability groups representing the kinds of disabilities at issue in the complaint.
  • Be particularly careful if the complaint was a class-action lawsuit.

If you’re not willing to have a great program you can “sell” to the judge, think seriously about just resolving your case with a private settlement agreement instead.

Robles v. Domino’s Pizza

Yes, Domino’s Pizza is back! Back in 2016, this case appeared on everyone’s radar—a big national company getting sued, the district court taking a narrow reading of the case and ordering that the case stayed because DOJ was still working on its ADA Title III regulation (!), the Ninth Circuit reversing, and Domino’s appealing to the Supreme Court—only to get quietly dumped by the nine justices. If web accessibility litigation has a soap opera, this case would be it. Well, now it appears to be finally going away. But, unlike Winn-Dixie, the Robles v. Domino's case already looks really tired and will hopefully soon die quietly.

Much Ado About Nothing? Robles v. Domino’s Pizza LLC (June 23, 2021)

I’ve got admit that, when I heard the latest news about Domino’s Pizza two weeks ago, I was less than excited and didn’t bother blogging about it. In my mind, the parties had already litigated the issues to death—and unless Domino’s could find some legal “Holy Mary,” it was all but inevitable that they were going to lose. So when I heard they lost on summary judgment, I shrugged my shoulders and said “meh, this was not big news like Winn-Dixie.”

But that cynicism was misplaced because I had a chance to actually read the opinion. I also started reading the excellent blog posts of Sherri Byrne Haber, Lainey Feingold, and Minh Vu. I'd also like to give a shout out to Thomas Logan and Meryl Evans from Equal Entry for encouraging to put pen to paper about Domino's Pizza. And, while I still stand by my position that this outcome was inevitable, I’ve changed my mind completely about its significance. Like the Odyssey, this is not a story about the destination but the journey.

Franchisor Liability

A website, of course, is not a place of public accommodation in the Ninth Circuit. You still can’t sue purely online companies in the Ninth Circuit like you can in the First and Seventh Circuits. So a physical place of public accommodation still matters. But the Robles court noted that a website can give rise to an ADA violation if it “facilitates access to the goods and services of a place of public accommodation.” Robles v. Domino’s Pizza LLC, 2021 U.S. Dist. LEXIS 124356 at *20 (C.D. Cal. 2021). That’s pretty much the standard “nexus” standard used in the Ninth Circuit. But what if the party or entity that controls that website is different from the one who controls the place of public accommodation?

This issue comes up all the time in litigation and it’s often quite hard to get to the person or entity that controls the thing that a plaintiff is suing over. In first year Civil Procedure class, we learn that the controlling party can usually be brought in as a “necessary party” because they are the only ones who can provide the remedy that the plaintiff is seeking. In the case of franchisor-franchisee liability, this usually means first suing the franchisee and then bringing in the franchisor. Well, web accessibility cases may be different! In cases where “the barriers at issue are web-based barriers that only the parent company can control,” a plaintiff can sue the controlling franchisor directly—regardless of whether the franchisee is also sued.

This just follows common sense but it does suggest that franchisors should start taking web accessibility seriously. After all, there are hundreds, if not thousands, of different franchises in this country—and they generally follow the same model: franchisees need to build facilities that follow specific design patterns and everything that each franchisee does needs to look like they are part of the same big company (even though they’re not). And now this includes using the same website. So even if franchisors may not directly own or control a single retail location (and wouldn’t be a place of public accommodation under the ADA), they can still be sued if their franchisees use a website or app that only the franchisor controls.

Phone Line as an Alternative to an Accessible Website

The original district court left open the question of whether a telephone line could be an acceptable alternative to an inaccessible website. After all, the ADA requires places of public accommodation to ensure effective communication for people with disabilities—and, if a company has an inaccessible website, could it meet its “effective communication” requirement by providing a telephone line that offers the same goods and services that are made available through its website?

Unless the courts or the Department of Justice says otherwise, answering this question will always be a question of fact. No court has ever ruled (yet) that a telephone number was an acceptable alternative to an inaccessible website—and the Robles court is no exception.

Defendant contends that its phone line is an acceptable accessibility substitute for its webpage and App. This is not true; it is undisputed that Plaintiff waited over forty-five minutes before hanging up on at least two occasions. No person who has ever waited on hold with customer service — or ever been hungry for a pizza — would find this to be an acceptable substitute for ordering from a website.

Robles, at *20. This doesn’t mean, however, that a telephone line can never serve as an acceptable alternative, however. If the operator had picked up the plaintiff’s call immediately and quickly dispatched Mr. Roble’s pizza, the court may have ruled differently.

Multiple Barriers and Multiple Incidents are not Multiple Violations

When a company violates California’s Unruh Act, they are entitled to either treble damages or liquidated damages of $4,000 per violation. But what if a plaintiff encounters lots of violations on the website? Or what if a plaintiff returns to the website? Do these constitute multiple violations or just one? It turns out that this constitutes a single violation.

The Court agrees that Plaintiff is due statutory penalties, but disagrees that each visit constitutes a separate violation of the Unruh Act. The Court found above that Plaintiff's expert could classify portions of Defendant's website as inaccessible, even if not identified in the First Amended Complaint, because Plaintiff alleged a single overarching violation: Defendant maintained a website that screen readers cannot read. For this same reason, each of Plaintiff's individual visits to the website encountered the same barrier and therefore the same violation. The Court therefore finds that Plaintiff is due $4000 in Unruh Act penalties.

Robles, at *20.

Relaxed Standing and Expert Witness Requirements with Changing Websites

Dedicated readers of this blog will know that I do not like how Albert Rizzi was treated by the court in Rizzi v. Hilton Domestic Operating Co., 2020 U.S. Dist. LEXIS 144884 (E.D.N.Y. Aug. 11, 2020). In that case, the court kicked out Albert’s case because he didn’t identify the exact date and time he visited the website, the exact barriers he encountered, a clear injury from those barriers, and an explanation tying the barriers to his injuries. And expert witnesses are expected to stay within the exact confines of those allegations. Having worked on web accessibility cases from the defense perspective, I get it—it’s almost impossible to identify exactly what your client’s website looked like when the plaintiff encountered it. Yet, on the other hand, who’s fault is that? The answer is, our client’s fault, of course.

The Domino’s court did offer some interesting ideas for plaintiff’s and expert witnesses however.

  • Don’t Focus on WCAG. Domino’s succeeded in having portions of the plaintiff’s expert’s report excluded because it focused on WCAG compliance. “Second, her testimony concerning how and whether the App and website align with the WCAG is irrelevant, as the Ninth Circuit has already held in this case that the Court may not impose liability based on any failure of Defendant to comply with the WCAG.”
  • Asserting that a Website is Inaccessible and Cannot be Read by a Screen Reader May be Good Enough. In the Ninth Circuit, ADA plaintiffs in built environment cases need to clearly identify the barriers. This is absurd with a site like Dominos, which has changed over 7,600 times since litigation started. The court concluded, “Plaintiff's First Amended Complaint was clear: Defendant maintains a continually changing website that cannot be read by a screen reader.”

If you work in the field of web accessibility or you're just curious about it, the latest Robles v. Domino's Pizza case makes good reading and I encourage you to read it. To make that a little easier, here's a copy of the official Domino's Pizza opinion from Pacer.


Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.

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