I hope everyone is enjoying the summer. Here in  the Atlanta area, it has gotten really hot, which is to be expected this time of year down here. I just recently got back from Savannah from training municipal judges throughout Georgia on some hot issues they face with respect to the ADA. They were a great audience, and I had a blast.

Turning to today’s blog entry, website accessibility is back in the news. In particular, just how successful can a company be in fending off website accessibility litigation. Also, we will discuss why website accessibility litigation is here to stay, and we will try to read some tea leaves as to how the Supreme Court will deal with the issue. Before proceeding further, my colleague, Richard Hunt, and also blogger has an excellent blog entry this week talking about how it when it comes to website accessibility, your best choice is to fix it rather than contest it. Do you really want to be the Supreme Court test case? That blog entry also mentions a recent case from the 11th Circuit, Haynes v. Hooters of America LLC, where the 11th Circuit allowed a website accessibility case to proceed. As usual, the blog entry is divided into categories and they are: why you don’t want to be a test case; Haynes v. Hooters of America, LLC; and lessons learned from Haynes and takeaways. The reader is free to focus on any or all of the categories.


Why You Don’t Want to Be the Test Case: South Dakota v. Wayfair, Inc.

As most of you know by now, the Supreme Court on June 21, 2018, held that States could tax Internet only businesses consistent with the U.S. Constitution. Several statements from that decision strongly suggest that the Supreme Court would likely hold that businesses that are only on the web are places of accommodation under the ADA. Let’s explore those statements.

  1. “The physical presence rule has been the target of criticism over many years from many quarters.” I have not done a law review survey of whether the few cases holding that the ADA title III provisions only applies to physical spaces have been the target of large-scale criticism. I have certainly criticized it in this blog. It would not surprise me if others have as well.
  2. “And while Nexus rules are clearly necessary, the Court should focus on rules that are appropriate to the 21st-century, not the 19th [citation omitted]. Each year, the physical presence rule becomes further removed from economic reality…” As the Court notes, “it is an inescapable fact of modern commercial life that a substantial amount of business is transacted with no need for physical presence within the State in which business is conducted.”
  3. Paraphrasing, a physical presence rule creates rather than resolves market distortions. Certainly, that is true in the case of website accessibility litigation. That is, a holding that website only businesses do not have to comply with the ADA distorts the market because businesses with a physical presence do have to comply with an elaborate set of architectural guidelines. Such a policy creates a subsidy for Internet only business.
  4. “But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether companies happen to have a physical presence in the State… In other words, …, A small company with diverse physical presence might be equally or more burdened by compliance costs than a large remote seller.” This is especially so when it come to the ADA Architectural Guidelines for physical spaces, which can be quite involved.
  5. “And it is certainly not the purpose of the commerce clause to permit the judiciary to create market distortions.” Certainly, a get out of jail free card to website only businesses creates market distortions.
  6. Paraphrasing, worse still, [a physical presence]… rule produces an incentive to avoid physical presence in multiple States. That means the market might currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. True, the Supreme Court was referencing tax collection here, but the incentive is exactly the same when it comes to website accessibility.
  7. “… When the day-to-day functions of marketing and distribution in the modern economy are considered, it is all the more evident that the physical presence rule is artificial in its entirety.” Also, paraphrasing here, modern e-commerce does not align analytically with a strict physical presence test. Again, the Supreme Court was referring to tax collection here, but the same analysis applies to website accessibility.
  8. “But it is not clear why a single employee or a single warehouse creates a substantial nexus while physical aspects of pervasive modern technology should not. For example, a company with the website accessible in South Dakota may be said to have a physical presence in the State via the customer’s computers. A website may leave cookies saved to the customers hard drives, or customers may download the company’s app onto their phones.” The impact of this paragraph on whether website only businesses must be accessible to persons with disability can’t be overstated. This particular paragraph strongly suggests that a customer when accessing a business on the web is actually in that place.
  9. “The dramatic technological and social changes of our increasingly interconnected economy means that buyers are closer to most major retailers than ever before-regardless of how close or far the nearest storefront.” Absent websites being accessible, this would not apply to persons with disabilities.
  10. A business may be present in the State in a meaningful way without that present being physical in the traditional sense of the term. A virtual showroom can show far more inventory, in far more detail and with greater opportunities for consumer and seller interaction than might be possible for local stores.” Further, “this Court should not maintain a rule that ignores the substantial virtual connection to the State.” Another indication that the Supreme Court recognizes that a person accessing an Internet only business is really in fact accessing that place in a way that may even be superior to being in the store itself.
  11. “Yet the physical presence rule undermines that necessary confidence by giving some online retailers and arbitrary advantage over their competitors….” That is, as mentioned above, website only businesses would not have to worry about accessibility for persons with disabilities but physical stores do.
  12. “Further, the real world implementation of commerce clause doctrines now makes it manifest that the physical presence rule… Must give way to the far-reaching systemic and structural changes in the economy and many other societal dimensions caused by the cyber age.”.
  13. 89% of the American public has Internet access.
  14. “The Internet’s prevalence and power have changed the dynamics of the national economy.” Why should people with disabilities be excluded from that?
  15. “Last year, e-commerce grew up four times the rate of traditional retail, and it shows no signs of any slower pace.”

In short, there is much language in this decision that plaintiffs can use to counter defense arguments that websites do not have to be accessible to persons with disability.


Haynes v. Hooters of America, LLC

On June 19, 2018, the 11th Circuit in a published decision dealt with the issue of whether a company sued once before for website inaccessibility can fight off a nearly identical lawsuit with someone else on the grounds that they previously settled a nearly identical lawsuit. The 11th Circuit said a company can’t do it that way. That is, the company had to fight the second lawsuit. In its reasoning, the 11th Circuit also gives a roadmap as to how a company can fend off numerous website accessibility lawsuits. Let’s look at the reasoning of the court first.

  1. While the prior settlement agreement is in effect, the only person who can enforce any rights under it, is the plaintiff in that case. Once that agreement expires, no one has any rights under it. That is, plaintiff was not a party to the prior settlement agreement. Therefore, if Hooters does not remediate its website in accordance with that settlement agreement, the plaintiff has no way of enforcing the remediation plan.
  2. Nothing in that prior settlement agreement requires Hooters, either before or after it expires, to continuously update and maintain its website to ensure it remains accessible to the blind. Further, because the parties in the prior case voluntarily dismissed the case and the District Court did not retain jurisdiction to enforce the settlement agreement, the court could not order Hooters to abide by it.
  3. While Hooters may be in the process of updating the accessibility of its website, nothing in the record demonstrates that Hooters has successfully done so.
  4. Plaintiff requested an injunction against Hooters if it does not bring its website into compliance with the ADA. Plaintiff also requested in his complaint that the District Court direct Hooters to continually update and maintain its website to ensure that it remain fully accessible.


Lessons Learned from Haynes and Takeaways

  1. Web content accessibility guidelines 2.0, which has now been amended to 2.1, continues to be the gold standard for accessibility of websites. Keep in mind, the ADA requires meaningful access. Accordingly, flexibility exists as to what meaningful access is. Nevertheless, web content accessibility guidelines 2.0 et al remains the gold standard.
  2. This case makes it in the interest of both a plaintiff and a defendant to put in a clause in when settling saying that the defendant will continuously update and maintain its website to remain accessible to persons with disabilities. It also might make a great deal of sense to go with a consent decree rather than a settlement so that the court can retain continuing jurisdiction.
  3. Once you enter into any kind of settlement agreement, get cracking on it.
  4. Reading tea leaves with respect to what the United States Supreme Court will do is always dangerous business. However, the South Dakota v. Wayfair decision sends a pretty clear message that this Supreme Court recognizes how the universe has changed with technology, and that it may be a thin reed indeed to say that the ADA only applies to a physical space. Also, the Supreme Court has been very favorable to people with disabilities outside of the employment context.
  5. As my colleague Richard Hunt points out in his last blog entry, credit unions have had some success in dismissing cases based on standing saying that the person who could not access its website could not possibly be a member and therefore, a credit union had no obligation to that person. That may work, but it won’t work once a person with a disability eligible for membership in that credit union runs into trouble with accessing its website.
  6. The language in the Supreme Court opinion discussed in this blog entry combined with the Department of Justice Amicus brief in the case we discussed here, strongly suggests that the courts now have license to move to the ScribD line of cases when deciding whether an Internet site is a place of public accommodation. That is, if the Internet site engaged in any one of the categories laid out in 42 U.S.C. §12181(7) then it is a place of public accommodation and subject to the ADA. Wayfair’s gateway language is so broad that one wonders whether the gateway theory would not just fall by the wayside in favor of whether one of the categories of a place of public accommodation is involved.