Legal Update: April 2022

Narrow Nexus Opinions from the Ninth Circuit

For several decades, web accessibility lawsuits in many circuits in the United States require establishing a “nexus” between an (inaccessible) website and a traditional bricks-and-mortar place of public accommodation. And for several decades, courts have struggled to figure out exactly what that means. In some cases, features like a store locator feature or allowing customers to buy gift cards redeemable at any of the defendant’s stores, creates a sufficient nexus to support suing a company because of its inaccessible website. See, e.g., Fuller v. Smoking Anytime, LLC, 2018 U.S. Dist. LEXIS 118290 (S.D. Fla. 2018). On the other hand, some cases suggested that these same features are not enough to create a nexus. See, e.g., Brooks v. See's Candies, Inc., 2021 U.S. Dist. LEXIS 153158 (E.D. Cal. 2021).

Since the Ninth Circuit’s opinion in Robles v. Domino's Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), however, I’ve noticed that district courts in California have often (but not always) taken a narrower interpretation of the nexus standard. But first a note: Mr. Robles and Domino’s Pizza have a long history in the Federal district and appellate courts in California and this decision is just one decision from the Ninth Circuit (we discussed the latest opinion in our June 2021 Legal Update). In particular, courts have gravitated towards the language in the earlier Domino’s decision in which the court noted that, “"The alleged inaccessibility of Domino's website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” Domino's Pizza, LLC, 913 F.3d at 905. For instance, earlier this month, in Downing v. SBE/Katsuya USA, LLC, 2022 U.S. Dist. LEXIS 63584 (C.D. Cal. 2022), the plaintiff visited the website of a local chain of restaurants, which allowed her to learn about menu items and place online orders for pickup or delivery from specific restaurants. The court dismissed the complaint focusing on the fact that the plaintiff had not alleged that the website impeded her access to a specific restaurant. Just a few days later, in Gomez v. Como, 2022 U.S. Dist. LEXIS 66674 (N.D. Cal. 2022), Andres Gomez, a blind plaintiff who was interested in buying a house, sued a realtor because their site was inaccessible. And again the court dismissed the case because the plaintiff failed to allege that the barriers prevented them from accessing the defendant’s physical place of public accommodation.

I think these decisions miss the mark. Why? First, while the Ninth Circuit’s opinion in Domino’s Pizza did note that its website and mobile app impeded access to its physical stores, it did not use that as the standard for whether a nexus was created. In fact, later in the same opinion, the court concludes that,

Domino's website and app facilitate access to the goods and services of a place of public accommodation—Domino's physical restaurants. They are two of the primary (and heavily advertised) means of ordering Domino's products to be picked up at or delivered from Domino's restaurants.

Domino's Pizza, LLC, 913 F.3d at 905. While it may sound like quibbling over words to distinguish between “impedes access” and “facilitates access,” I think it potentially makes a big difference in the way cases are decided. After all, “impeding access” is basically the standard used in the impossibly narrow Winn-Dixie case while “facilitating access” can be read to only require that the website serve as an extension of the goods and services offered in a traditional bricks-and-mortar business. I think it’s clear from the other opinions in the Ninth Circuit that this more liberal interpretation is what the nexus standard entailed.

A second reason why I think that these decisions miss the mark is because they seem to undercut the ADA simply to avoid addressing the elephant in the room: the lack of a clear injury. Earlier this month, I discussed how Federal appellate courts on the other side of the country have struggled to identify an “injury” in ADA hotel web cases. In the Downing, the court noted that Ms. Downing never indicated that she intended to place a restaurant order from the website. And in Gomez, the plaintiff failed to identify the defendant’s place of business suggesting that he also never had a clear intention to become a customer. And I think that dismissing these cases because of that lack of injury have been a much better way to go.

This kind of approach was taken by the court later in the month in Gomez v. Lesti Real Estate, Inc., 2022 U.S. Dist. LEXIS 75787 (N.D. Cal. 2022) in which another realtor was also sued by Mr. Gomez. In that case, the court noted in passing that the Ninth Circuit requires showing a nexus between a website and a physical place of public accommodation, but ultimately agreed to dismiss the case if Mr. Gomez could not attest that he would seek to become a customer at one of the Lesti’s physical places of business. Also, in Gomez v. Miersch, 2022 U.S. Dist. LEXIS 77444 (N.D. Cal. 2022), the court faced an almost identical lawsuit but was able to dismiss it without weakening the nexus standard. In that case, Mr. Gomez argued that he was reviewing real estate listings because he was “merely curious” about the business and never alleged an interest in becoming the defendant’s customer. While this should be enough to have a case dismissed on the basis of standing in any case, the court pointed out that it was “far from pleading a ‘nexus’ between any purported website inaccessibility and a place of accommodation…” Gomez v. Miersch, 2022 U.S. Dist. LEXIS 77444 at *6.

As an aside, it was a tough month for Mr. Gomez because at least 30% of the cases I read this month had his lawsuits against various California wineries and realtors challenged. My friend Jack McElaney pointed out an excellent article on these cases. It’s clear that the courts are getting tired of serial plaintiffs filing web accessibility lawsuits.

Rethinking the “Place” Requirement in the ADA

In recent weeks, I’ve been rethinking the “nexus” requirement that courts have struggled with. This requirement comes about because the ADA prohibits discrimination by “places of public accommodation”—yet the ADA and its legislative history is completely silent on why the law is worded that way. I think that the reason is fairly clear—it’s because that’s the way that the 1964 Civil Rights Act was written. I blogged about this a year ago in the context of Jaquez v. Dermpoint, Inc., 2021 U.S. Dist. LEXIS 96067 (S.D.N.Y. 2021), which held that restricting the ADA to physical places makes no sense. But now I believe that this is the right interpretation for more basic reasons.

It may come as a surprise to most non-lawyers but, under our Constitution, Congress has very little power to prohibit discriminatory conduct by private individuals. When it was written, the Bill of Rights only prohibited discrimination by the Federal government—it wasn’t until after the Civil War and the passage of the 14th Amendment that state governments were prohibited from discriminating against private individuals. The 13th Amendment, which prohibited slavery, has been interpreted by the Supreme Court as a basis for prohibiting racial discrimination by private individuals but nothing else. So how does Congress prohibit discrimination against private individuals in other areas like gender and disability? Oddly enough, the answer is through Congress’s broad power to control commerce between the states. The seminal Supreme Court case here is Katzenbach v. McClung, 279 U.S. 294 (1964), in which a popular barbecue restaurant named Ollie’s Barbecue tried to argue that Congress exceeded its authority by passing the 1964 Civil Rights Act, which made Ollie’s Barbecue’s refusal to seat black customers illegal. The Court disagreed and noted that even a small restaurant affected interstate commerce—and so Congress could regulate discrimination there.

We may never know exactly what Congress had in mind in 1964 when it used the language “place of public accommodation” in the Civil Rights Act, but I like to think that they had businesses like Ollie’s Barbecue firmly in mind. Also, I think that by using the word “place,” Congress was deliberately focusing on invoking the Commerce Clause because people need to travel to a “place.” This is supported by the way in which Section 201(b) introduces the list of businesses that are covered by the Act.

(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce or if discrimination or segregation is supported by State action:

(2) any restaurant, cafeteria, …

Civil Rights Act of 1964, 78 Stat. 241, § 201(b) (1964), codified at 42 U.S.C § 2000a (2022). In other words, the only thing that transforms an “establishment” (like a restaurant) into a “place of public accommodation” is if that restaurant either affects interstate commerce or engages in discrimination supported by the state. Of course, the Ollie’s Barbecue decision makes this extra wording unnecessary because restaurants always affect interstate commerce—and if Ollie’s Barbecue were decided before Congress passed the Civil Rights Act of 1964, it probably would have never used the term “place of public accommodation” at all.

While I think this argument makes sense, it hasn’t been supported by the courts. Instead, looking at exactly the same language, decisions like Welsh v. Boy Scouts of America, 787 F. Supp. 1511, 1538-39 (N.D. Ill.1992) have held that the plain meaning of “place” is literally a physical “place.” But I still believe that it’s the right approach. In summary, I think that the language “place of” public accommodation in the ADA doesn’t mean anything at all—it’s just copying language from the 1964 Civil Rights Act that Congress thought back then would help the law pass the Commerce Clause. And thus all of this nonsense of courts searching for a “nexus” is just nitpicky judges who have lost sight of the real goal of civil rights laws

Sometimes Mootness Does Work

In March, I mentioned the mootness almost never works in web accessibility cases. The lead case here is Haynes v. Hooters of America., LLC, 893 F.3d 781 (11th Cir. 2018), in which Hooters restaurants could not have a second complaint dismissed while it was working under an earlier settlement agreement to bring its website up to WCAG 2.0. That decision was based on the fact that the second plaintiff was not a party to the first settlement agreement and so they had no guarantee that Hooters would make their site accessible.

On a few rare occasions, however, mootness does work. In Langer v. Russell Motorsports, Inc., 2022 U.S. Dist. LEXIS 68842 (E.D. Cal. 2022), the plaintiff complained that lack of captioning made several videos on the defendant’s website inaccessible. Shortly after the lawsuit began, the defendant either removed the videos or added captioning. And, because the plaintiff’s complaint gave no suggestion that the violation was likely to recur, the ADA claim was moot.


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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