Takeaways from cert denial in website accessibility suit

The astronomical number of website accessibility lawsuits filed over the past few years has been well-publicized as a version of "drive-by" physical accessibility lawsuits in the digital age. These lawsuits (not to mention thousands of demand letters) have proliferated for a number of reasons, not the least of which was the Obama Department of Justice's aggressive stance in forcing businesses to make their websites accessible, while at the same time making no progress in issuing regulations for public accommodations websites. The plaintiff's bar seized on this momentum and filed more lawsuits. And as more businesses have defended against (rather than simply settle) these lawsuits, more judicial decisions have been issued which, for the most part, have been favorable to plaintiffs. However, there are only a handful of decisions on the merits and many unanswered questions remain. The outcome of these website accessibility lawsuits can vary significantly depending on the jurisdiction and even the judge, making litigation even more challenging for businesses defending these suits.

Members of Congress have urged the DOJ to provide guidance to businesses and take action to slow the litigation tsunami, with no success. The DOJ -- under the Trump administration -- officially terminated its rulemaking to set website accessibility requirements for public accommodations websites in 2017. Congress likewise has taken no action to deal with the litigation surge other than to write a few letters to the DOJ. Thus, when Domino's asked the U.S. Supreme Court to review the 9th U.S. Circuit Court of Appeals' decision to allow a website accessibility case filed against it to move forward, the business community was hopeful that the Supreme Court would take the case and provide the guidance businesses have long-sought as to how Title III of the Americans with Disabilities Act applies to businesses' websites.

The district court Robles v. Domino's Pizza, 913 F.3d 898 (9th Cir. 2019), case had dismissed the case on the theory that Domino's should not be found liable for having an inaccessible website when there are no regulations requiring public accommodations to make their websites accessible or defining an accessible website. The 9th Circuit reversed, concluding that Domino's was on notice that the ADA covers websites with a nexus to a physical place where customers go, and that allowing the case to move forward would not violate Domino's due process rights.

Domino's asked the U.S. Supreme Court to review the 9th Circuit's decision. On Oct. 7, the court declined to review the case, leaving the state of the law in a status quo.

Could a decision in Domino's have made a difference for businesses? Possibly. If the Supreme Court took the case and decided that it is a violation of due process to hold a business in violation of the ADA for having an inaccessible website, there would be no more federal ADA website accessibility lawsuits. The same would be true if the Court had decided that Title III of the ADA does not apply to websites. However, since the Supreme Court declined to hear the case, none of this happened.

Many commentators have predicted website accessibility lawsuits will increase dramatically as a result of the court's (in)action. We also expect there to be an increase in the number of lawsuits filed as additional plaintiffs' lawyers decide to join the fray, but cannot predict how much of that will be the result of the Supreme Court's refusal to grant certiorari in Domino's.

As of June 30, we counted 1,204 website accessibility lawsuits filed in federal courts since Jan. 1, 2019, for a projected total of 2,408 by year end. This would constitute a 7% increase over 2018 numbers. (By comparison, the number of ADA Title III lawsuits filed in federal courts on all grounds (not just website accessibility) totaled 5,592 for the period of Jan. 1, 2019 through June 30, 2019, versus 4,965 filed in first six months of 2018, a 12% increase.)

As these numbers make clear, website accessibility is big business for plaintiff's attorneys, especially in New York and Florida, where lawsuit numbers are exponentially higher than the next closest state -- which happens to be California. We note that these numbers do not include lawsuits filed in state courts, which are more difficult to track, but of which we know there are many in California. We expect the numbers of lawsuits filed in federal courts to continue on its trajectory, with a possible increase in California federal court now that the 9th Circuit's pro-plaintiff decision is binding precedent in the state.

Plaintiffs have found success in California state courts as well. In 2016, Judge Bryan Foster of the San Bernardino County Superior Court granted summary judgment to a blind plaintiff, finding a luggage retailer violated Title III and the Unruh Act due to a website that is not accessible to individuals with vision-related disabilities. The judge ordered payment of $4,000 in statutory damages and fees, and injunctive relief in the form of the retailer making changes so the website is "readily accessible to and useable by individuals with visual impairments or to terminate the website." In September 2019, the California Court of Appeal affirmed the Los Angeles County Superior Court's summary judgment ruling in Thurston v. Midvale Corporation, 2019 DJDAR 8559, that Midvale violated the Unruh Act (based upon a violation of Title III) by having a restaurant website that could not be used by a blind person with a screen reader. The appellate court affirmed the trial court's injunction mandating the restaurant website comply with the generally accepted (though not required by ADA statute or regulation) standard for web accessibility, the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA.

Now that the Supreme Court will not be providing any relief or guidance to businesses anytime soon, will Congress or the Justice Department take action? We seriously doubt it. Each of these two branches of government have pointed at the other as better situated to take action. In short, the litigation tsunami will likely continue until businesses make their websites and other digital assets accessible and keep them that way. 