I always get depressed towards the end of summer and all the signs of fall are popping up here in Seattle. We may as well talk about something FUN-- like litigation! While this month has been a bit slow, litigation-wise, there were nonetheless a few cases I found interesting.
Second Circuit Courts Split on Coverage of Purely Online Companies
One of the more curious cases that came across my Lexis feed this month was Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995 *; 2021 WL 3617522 (E.D.N.Y. 2021). In this case, Jay Winegard, a deaf New Yorker, sued Newsday, a regional New York newspaper that also operates a website that includes videos that lack closed captioning. Newsday first moved to dismiss Mr. Winegard's complaint for lack of subject-matter jurisdiction because its videos were available on YouTube, which does provide closed-captioning. Judge Komitee cleverly dismissed this argument, noting, "This argument strikes the Court as analogous to arguing, in the case of an alleged physical barrier, that a disabled person suffers no injury sufficient to confer standing so long as an accessible store down the block offers the same product."
The odd part of the opinion came next when the Judge Komittee focused on the portion of the defendant's motion to dismiss that argued that Mr. Winegard had failed to state a claim. As we all know, the ADA prohibited discrimination by twelve broad categories of "places of public accommodation." Specifically,
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
And the court noted that newspapers don't fall within one of those twelve categories. Okay, so far so good.
But rather than just stop there, Judge Komitee veered off into exploring other reasons why the complaint should be dismissed-- and this is where things get interesting. First, the court looked at opinions like Boy Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000) PGA Tour, Inc. v. Martin, 532 U.S. 661, 675, 121 S. Ct. 1879, 149 L. Ed. 2d 904 (2001), which never involved how the phrase "place of public accommodation" should be read in the context of web sites and concludes "that the text of the ADA's definition of "public accommodation" clearly refers to physical places, and does not include stand-alone websites." Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995 at *15. Next, the court analyzed the Second Circuit's previous opinion in Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999) and concludes that "[a]t most, therefore, Pallozzi supports the conclusion that websites are swept up in Title III when they offer the same "goods and services" as the business's brick-and-mortar operation. Id at *18 (although the court favorably cites Robles v. Domino's Pizza, 913 F.3d 898, 905-06 for the proposition that the ADA applies to Domino's website and app, which "facilitate access to the goods and services of a place of public accommodation — Domino's physical restaurants").
So what does all this mean? Well, according to Judge Komitee, the ADA does not apply to websites unless they bear a strong connection to a physical place of public accommodation. Does this mean he believes in the so-called "nexus" standard followed in the Ninth Circuit? Who knows. All we do know is that he disagrees with other opinions from district courts in the Second Circuit, like Winegard v. Crain Commc'ns, Inc., No. 20-CV-1509, 2021 U.S. Dist. LEXIS 60964, 2021 WL 1198960 (S.D.N.Y. Mar. 30, 2021) and Jaquez v. Dermpoint, Inc., 2021 U.S. Dist. LEXIS 96067 (S.D.N.Y. 2021), which I talked about in Legal Update: May 2021.
The unfortunate and weird part? In addition to raising confusion, Judge Komitee didn't have to go there. He could have just left it with Newsday not falling within one of the 12 categories of places of public accommodation. But he did go there. And so now we're left with the mess of trying to figure out where courts in the Second Circuit stand on suits against online entities like Newsday.
No Browsing Allowed
While Ramon Jaquez may appear to have the wind at his back, that's not entirely the case as he did have a much harder time in another opinion this month. In addition to suing Dermpoint back in May, he also sued Aqua Carpatica USA, which sells bottled water from its website. Mr. Jaquez is blind and alleged that he browsed the website with the intent to potentially make a purchase. But the court required more in order for Mr. Jaquez to have standing. Specifically,
A plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant has acted unlawfully" in order to survive a motion to dismiss. It is not sufficient to claim that he suffered an injury in fact by casually going on the website with the intent of browsing and potentially purchasing a product without identifying the product that he was prevented from purchasing. See Guglielmo v. Neb. Furniture Mart, Inc., 2020 U.S. Dist. LEXIS 238707, at *11, (S.D.N.Y. Dec. 18, 2020) (Dismissing the plaintiff's complaint that he encountered barriers while attempting to access the defendant's website because he failed to identify the goods that he intended to purchase on any of his visits to the website).
Jaquez v. Aqua Carpatica USA, Inc., 2021 U.S. Dist. LEXIS 157918 at *10 (S.D.N.Y. 2021). In other words, a plaintiff needs to identify the specific purpose for visiting a website-- not just wishful browsing.
Back in May, I noted that Ramon Jaquez seemed to have a much easier time than Albert Rizzi in pleading standing. That luck seemed to run out in his lawsuit against Aqua Carpatica, but the lesson for plaintiffs is clear: but sure to be able to include exactly what you were after in your complaint or you stand a good chance of getting kicked out of court.
Store Locator Alone Not Enough in Ninth Circuit
Another case I wanted to discuss this month comes from the other side of the country. In Brooks v. See's Candies, Inc., 2021 U.S. Dist. LEXIS 153158 (E.D. Cal. 2021), Valerie Brook sued See's Candies because its website was inaccessible. Anyone who has visited California should know See's Candies-- they make delicious chocolates (my favorites are the caramels) and sell them everywhere and especially at airports. Valerie Brook is a name you see a lot in web accessibility cases as she is a frequent plaintiff-- and she sued See's Candies because she was "was unable to find the location and hours of operation of Defendant's locations on its website, [thereby] preventing [her] from visiting the locations to view and purchase products and/or services."
The Ninth Circuit, of course, holds that the ADA only applies to places of public accommodation. Thus, in order to sue a company for its inaccessible website, that website needs to have a sufficiently close "nexus" to a physical place of public accommodation. While a store locator is certainly one factor in establishing that nexus, the court in Brooks v. See's Candies, Inc. pretty said that it is not sufficient on its own. After noting that the Ninth Circuit's holding in Robles v. Domino's Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) controlled this issue, the court went on to note,
The instant matter fails to identify any similar nexus. Plaintiff here does not allege she tried to order candy from the website for pickup at a See's shop but was unable to do so. Nor does she identify any comparable integration between the See's website and its physical stores comparable to that encountered in Robles. Instead, she identifies only a store locator that, by all indications, would have no functional difference from the results obtained by a simple Google search for See's shops on any internet browser. She identifies none of the interconnectedness present in Robles between the See's website and the actual place of public accommodation that would make the website deserving on ADA protection.
Brooks v. See's Candies, Inc., 2021 U.S. Dist. LEXIS 153158 at *9. I think that logic is pretty compelling.
What's ironic is that See's Candies (www.sees.com) DOES provide exactly the kind of close integration that was missing in Ms. Brook's complaint. Specifically, you can order chocolates through the website and pick them up in a See's physical store. During times of peak demand (such as the holidays) and during COVID-19 (when we are discouraged from loitering indoors), this feature will give a real advantage to customers who can access it. But, Ms. Brooks did not include an allegation about this feature in her complaint. Perhaps that feature wasn't available at the time she sued See's-- or maybe she just didn't try to access it. Either way, these tiny differences can make or break a web accessibility lawsuit.
Title II and Intentional Discrimination
As I was wrapping up the week, Lexis decided it wasn't done with me and proceeded to dump a bunch of new decisions on me. One of them was Payan v. Los Angeles Community College District, 2021 U.S. App. LEXIS 25324 (9th Cir. 2021) in which two blind students (together with the National Federation of the Blind), sued the community college district because the college failed to make its website accessible and failed to uphold it internal accessible media policy (thus forcing the students to use classroom material that would not work with their screen readers). The district court ruled in favor of the plaintiffs, issuing an injunction against the college and awarding $40,000 in compensatory damages to one of the plaintiffs after he fell behind in his math class because his classroom material was inaccessible. Neither the college district nor the plaintiffs apparently felt satisfied with this ruling and so both appealed to the Ninth Circuit.
The Ninth Circuit reversed the district court and sent it back to the district court. The decision was based on reasoning that I'm sure most non-attorneys would consider a technicality; in a nutshell, the Circuit court said that the way in which the district court arrived at its decision for the individual plaintiff was incorrect because it involved a specific instance of discrimination and so should not have been decided using a "disparate impact" approach. At the end of the day, the district court will likely issue a very similar ruling. But the court did not have trouble with applying a disparate impact approach and did not have trouble with the award of compensatory damages. One judge dissented and argued that ADA Title II and Section 504 cannot reach disparate impact cases at all.
So what does this have to do with web accessibility? Well, just about everything. First, few organizations intentionally discriminate against people with disabilities when they build web sites. Instead, the problem is usually due to the fact that they (or their web designers and developers) failed to think about accessibility when they design their websites. And, when plaintiffs note flaws like missing alt attributes on images or unlabelled forms, they point to the fact that these innocent mistakes have a harmful effect on people with disabilities. These innocent mistakes form the basis of so-called "disparate impact" cases-- something that wasn't intended to cause harm just happens to have a big effect on one group rather than another. Second, it's rare that we get to talk about Title II and Section 504, which involve state/local governments and Federal grantees, respectively.
And how does this case affect web accessibility? Well, potentially, in some big ways. First, when I was at Justice, we just lived by a basic understanding that, if you were suing a state or local agency under the ADA, you couldn't get money damages unless you could prove intentional discrimination. This has to do with how the Supreme Court interprets a different law (Title VI), which forms the basis for the types of remedies available under Section 504, which then forms the basis for remedies under ADA Title II. Otherwise, you were limited to just injunctive relief and attorney fees. The Payan v. Los Angeles Community College District don't focus on money damages versus injunctive relief and the two opinions (majority and dissent) swing broadly in both directions. Notably, the majority opinion seems to argue that intent is never required-- and this is a position I agree with (and so does this law review article). This has a big implication for public sector websites-- and the damages that are available to plaintiffs when suing state and local governments as well as federal grantees.
Hotel Cases Continue to Get Little Respect
Just like in past months, the largest number of reported cases this month were California lawsuits involving hotel reservation systems-- and all of them getting kicked out of court. I don't think there's anything new or interesting, however, to report about them.
A new development towards the end of the end was the courts' reluctance to approve consent decrees sought by David Poschmann against Anchorage Company LLC and the Sunshine Island Inn. Both cases involved web-based hotel reservation systems. District Judge Badalamenti did not approve consent decrees in both cases-- noting that the 11th Circuit's decision in Winn-Dixie effectively precluded website lawsuits unless the website served as a "sole access point" for the business. And because this wasn't clear in the proposed consent decree, the court refrained from approving the consent decree. Poschmann v. Anchorage Co., 2021 U.S. Dist. LEXIS 160590 (M.D. Fla. 2021); Poschmann v. Sunshine Island Inn, 2021 U.S. Dist. LEXIS 160594 (M.D. Fla. 2021).
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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