By Kristina M. Launey & Minh N. Vu
Seyfarth Synopsis: Ninth Circuit overturns district court’s dismissal of website accessibility lawsuit on due process and primary jurisdiction grounds, remands case to proceed with discovery.
On January 15, 2019, the Ninth Circuit Court of Appeals issued the fifth federal appeals court ruling on the issue of website accessibility, and there is no doubt that it is a victory for plaintiffs and their lawyers. However, there are some pro-defense nuances that are worth pointing out.
By way of background, the district court had concluded that the ADA does apply to Domino’s website and mobile app, but dismissed the lawsuit before discovery because: (1) Holding Domino’s in violation of the ADA when there are no legal technical standards for public accommodations websites would be violation of due process; and (2) under the primary jurisdiction doctrine, courts should hold off on deciding cases where enforcement agencies with special expertise should weigh in first.
The Ninth Circuit agreed with the district court that the ADA applies to Domino’s website and app. In so doing, the court said that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.” The Ninth Circuit did not agree with the district court on the due process point, however, finding that Domino’s has been on notice since 1996 of DOJ’s position that its website and app must provide effective communication. (We note, however, that none of the DOJ documents cited by the court actually mention mobile apps.) The Ninth Circuit also said the district court erred in applying the primary jurisdiction doctrine, noting that since the DOJ is not going to issue any regulations about websites and mobile apps, applying the doctrine would just “needlessly delay” the resolution of the claim, and the application of the ADA to the facts of the case “are well within the court’s competence.” The Ninth Circuit’s rejection of these due process and primary jurisdiction arguments, which are often mounted by defendants in website accessibility cases, is not entirely surprising as many district courts have also reached the same conclusion, and the district court’s decision in this case was an outlier.
The Ninth Circuit concluded by making clear that it was not expressing any opinion about whether Domino’s website or mobile app comply with the ADA. The court instructed the district court to proceed with discovery and then decide whether Domino’s website and app comply with the ADA’s effective communication and full and equal enjoyment mandates.
From the defense perspective, there are several useful points in the decision.
First, the Ninth Circuit reaffirmed its position that, to be covered by the ADA, a website or mobile app must have a nexus to a physical place of public accommodation. The court stated that this nexus was “critical” to its analysis in the Domino’s case where 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.” The Ninth Circuit said in a footnote that it was not deciding whether “the ADA covers the websites or apps of a physical place of public accommodation where the inaccessibility does not impede access to the goods and services of a physical location.”
Second, the Ninth Circuit left open the possibility that a 24/7 toll-free phone line could be a way to provide access in lieu of an accessible app or website. The court did not have to consider the question of whether a telephone hotline could be an adequate alternative to an accessible website or mobile app because the district court’s holding was not based on the phone line. However, the Ninth Circuit said in a footnote that “the mere presence of a phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.” This statement suggests that, with discovery on the effectiveness of the phone line, summary judgment for Domino’s could be a possibility.
Third, in response to Domino’s complaint that the DOJ has failed to provide clear direction as to what public accommodations must do to comply with the ADA with respect to their websites, the Ninth Circuit reiterated that “the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”
Fourth, the Ninth Circuit said that “due process constrains the remedies that may be imposed.” Thus, defendants may be able to make the due process argument later in a case if a violation of the ADA is found and the court must fashion injunctive relief.
In sum, while this decision adds to the growing body of website accessibility case law that favors plaintiffs, there are some useful nuggets. That said, we predict the number of website accessibility lawsuits in California federal courts will increase dramatically in 2019. While this case was on appeal, plaintiffs largely opted to file their website accessibility cases in California state court but this decision clears the way for more federal filings.