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Introduction

Legal Update: October 2021

Legal Update: October 2021

While there were a ton of new filings this month, it seemed like there were relatively few interesting judicial opinions. Nevertheless, there were a few interesting topics that came up this month.

Self-Serve Kiosks and the ADA

In my last post, I talked briefly about how the new construction and alterations provisions of the ADA for the built environment don’t have much bearing on web accessibility. And the first case this month is yet another reminder. In National Federation of the Blind v. Wal-Mart Assocs.,2021 U.S. Dist LEXIS 196175 (D. Md. 2021), the NFB sued Wal-Mart because its self-checkout kiosks were inaccessible. As anyone who has visited a large supermarket or “big box” store in the United States knows, self-serve checkout kiosks have been springing up like mushrooms after an autumn rain. The plaintiffs in this case, of course, were NFB members who could not independently use the self-serve kiosks. The NFB also presented evidence (which was rebutted by my friend Bill Hecker) of how the kiosk design was inaccessible but could be made accessible—thus, Wal-Mart should be required to make their kiosks accessible. The court rejected this argument noting that, “the absence of an applicable Design Standard demonstrates that Defendant is in full compliance with [the ADA’s new construction and alterations provisions] and forecloses an accessible design claim under this provision.” Id. at *26.

Of course, discrimination can take other forms than just building a facility incorrectly. NFB also argued that Wal-Mart failed to provide required auxiliary aids and service and that it failed to provide equal enjoyment of its facilities. The first argument was easy to dispose of—Wal-Mart has plenty of traditional checkout aisles where blind customers could easily communicate and have their needs met. The second argument made me smile—as if anyone really “enjoys” the checkout process at a Wal-Mart! Sorry, getting to use a self-serve checkout kiosk just isn’t that special or exciting.

As an aside, the court also cleared up a question I had last week when I suggested that websites wouldn’t be considered “facilities” under these provisions as it pointed out what I overlooked--- “the implementing regulations define ‘facility’ to include, as relevant, ‘any portion of buildings, structures, sites, complexes, and equipment.”

A Narrow Reading of the Nexus Standard in the Ninth Circuit?

Everyone hates serial plaintiffs, right? While that may be true, we still need to be careful in opinions dismissing their cases. This month, Chris Langer, a serial plaintiff in California, had two of his cases dismissed. In Langer v. Carvana, 2021 U.S. Dist. LEXIS 188764 (C.D. Cal. 2021), he sued Carvana because videos on its website were not captioned, making it difficult for him to understand. Carvana is a web-based service that makes delivery of used cars to customers much easier. While the court was right to dismiss this lawsuit because Carvana has no physical places of business, Judge Staton’s opinion went on to say, “Here, Langer has not pleaded that he was prevented from accessing any physical location or from ordering any products and/or services as a result of the alleged barriers on Carvana's Website.” Id at *8. Yikes! That high of a threshold sounds an awful lot like the Fourth Circuit in Winn-Dixie!!

Then, less than two weeks later, Mr. Langer had another complaint dismissed in Langer v. HV Global Grp. Inc.,2021 U.S. Dist. LEXIS 197769 (E.D. Cal. 2021). In this case, Mr. Langer was suing a much more traditional place of public accommodation—Hyatt Residence Clubs—which also provided uncaptioned videos on its website. While Judge Mendez did not choose as sweeping language as Judge Staton, he dismissed Mr. Langer’s complaint noting, “for accessibility barriers on a website to form the basis of ADA standing, that website must have "connect[ed] customers to the goods and services of [the defendant's] physical [locations]" Id. At *6. Then, the court went on to conclude that the marketing videos on the website did not have a sufficient connection with the physical locations in Hyatt’s videos.

But is that analysis, correct? I don’t know about you, but I can’t imagine learning about Hyatt Residences anywhere other than its website. And, if so if you can’t access Hyatt’s websites, can’t a plaintiff be effectively shut out from accessing a physical place of public accommodation (i.e. Hyatt’s Club residences) altogether?

Mr. Langer actually had a third bit of bad news when his complaint against the Pacific Crest Hotel in Santa Barbara was dismissed. Langer v. B.R. Guest, 2021 U.S. Dist. LEXIS 206570 (C.D. Cal. 2021) on the grounds of mootness. In the past, I’ve discussed why mootness can be a hard argument to win. But B.R. Guest shows an example where a defendant can rally facts on their side to make a convincing argument. In B.R. Guest, the non-captioned video was made available through YouTube. And, while that platform provides captioning and the video was captioned, the player had momentarily stopped displaying captions. When the hotel was notified about the problem, they immediately fixed it.

Florida: Sole Access Point and COVID Funding

I hate autumn. It signals the arrival of shorter days and colder weather. And so, I annually look to warmer climes. And in the case of Florida, that means bumping into web accessibility and the sneaky plaintiff’s attorneys who prowl this area like alligators.

In Fernandez v. Bruno Northfleet, 2021 U.S. Dist. LEXIS 200484 (S.D. Fla. 2021), Nelson Fernandez sued a local company that operated stores selling handbags, shoes, and jewelry because its website was inaccessible. While the court had no choice but to use the flawed Winn-Dixie analysis adopted by the Eleventh Circuit, it did a good job of articulating the reasoning behind it. The Winn-Dixie opinion recognized that intangible barriers, such as eligibility criteria and screening rules, can create barriers—as this is exactly what happened in its much earlier opinion in Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002). For anyone who works in this area of law, this must seem strange and maddening—never mind the myriad of other ways that web accessibility can be considered (e.g. effective communication, denial of equal enjoyment, reasonable modification of policies, etc.), the Winn-Dixie court stayed the far narrower course of using the avenue that was used in its Rendon decision. Give me a moment to open the window and scream….

Okay, so back to Bruno Northfleet… The district court also explained that, in other areas of civil rights, the Eleventh Circuit has explained further when “intangible barriers” like websites can create a violation—and the most relevant is where the intangible barrier provide a “sole access point” to a privilege of a physical place of public accommodation.

Since the Winn-Dixie opinion came down from the Eleventh Circuit, I’ve had a hard time articulating what it exactly means or where it came from. In a nutshell, the Winn-Dixie opinion is a conflation of Title III's different accessibility requirement into one single way of bringing an ADA web lawsuit: as an eligibility criteria or screening mechanism. Specifically, the website must constitute a sole means of accessing a benefit or privilege of a place of public accommodation in order to bring a lawsuit under ADA Title III. Of course, the problem with that is that I doubt anyone would consider a website an “eligibility criteria” or “screen mechanism.” Instead, I think most people would say that an inaccessible website is a form of ineffective communication—which needs to be analyzed completely differently.

But I did hint that lawyers down in Florida were sneaky, right? Well, it seems Mr. Fernandez’s attorney included a second count under the Rehabilitation Act. Now how can you use a law that prohibits the Federal government and grantees from discriminating against people with disabilities when you’re suing a small private business? Well, because we live in a pandemic and Bruno Northfleet received federal funds under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)!! We’ll see in the coming months what happens to this part of the lawsuit.

Tons of Complaints

I usually don’t look at the number of complaints filed because there are others who do a far better job at this than I could offer. But almost exactly a year ago, I noticed that Lexis was only reporting a slow trickle of lawsuits. As I read through each day’s Lexis report, the numbers of new lawsuits seemed high, so I did a rough count of this month—roughly 361 for October with the worst day being October 2, when Lexis reported 45 new lawsuits. While that seemed high to me, it’s not-- it’s almost exactly on target for Jason Taylor’s prediction of over 4,200 cases by the end of 2021.

Disclaimer

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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