As I have mentioned before, I am not afraid to blog on cases discussed by fellow bloggers. Recently, Richard Hunt, whose blog appears on my blog roll, discussed a whole bunch of cases. Many of those cases I have put in my to blog pipeline, and two of which are the subject of today’s blog. Both cases involve website accessibility. One involves a credit union and the other involves General Nutrition Corporation. The cases are Jones v. Lanier Federal Credit Union, 2018 U.S. Dist. LEXIS 171060 (N.D. GA, September 26, 2018), and Gomez v. General Nutrition Corp., 2018 U.S. Dist. LEXIS 49655 (S.D. Fla. 2018), also here. Gomez is a published decision. With respect to Jones, in the interest of full disclosure, local counsel on the case was James Radford and his firm Radford and Keebaugh, from Decatur Georgia. I know James and his partner, Regan Keebaugh, and refer many cases to them. I am not sure whether Jones will be published. As usual, the blog entry is divided into categories and they are: Jones facts; Jones court’s reasoning; Jones takeaways; Gomez facts; Gomez court’s reasoning; and Gomez takeaways. Of course, the reader is free to focus on any or all of the categories.


Jones Facts

The facts are straightforward. Plaintiff uses a screen reader, and the defendant operates a website providing information about its location, services and amenities. When plaintiff tried to access the website, he found empty or missing form labels, empty links containing no text, and redundant links thereby denying him the full use and enjoyment of the credit union’s facilities and services. Plaintiff sought an injunction as well as attorney’s fees.


Jones Court’s Reasoning

  1. Membership in the credit union is not a prerequisite for standing.
  2. Plaintiff suffered a concrete injury when he attempted to access the website but was unable to fully and effectively utilize it.
  3. Plaintiff adequately pled a threat of future discrimination by defendant when he alleged an intent to return to the website, whereupon he will face barriers to access because he is visually-impaired.
  4. The injury plaintiff seeks to address is not the inability to access defendant’s services. Rather, it is the inability to access defendant’s website. So, an order by the court requiring defendant to remove the barriers facing the plaintiff when attempting to use defendant’s website would address that injury.
  5. Defendant’s physical locations are public accommodations.
  6. Regardless of whether the theory is that a website can be considered a public accommodation without a connection to a physical place or whether a sufficient nexus must exist, plaintiff’s case goes forward either way.
  7. A nexus exists because: 1) the website provides goods and services such as information concerning the locations it operates and information and descriptions of its amenities and services, privileges, advantages and accommodations; 2) the website allows user to find locations for them to visit; and 3) plaintiff alleged he was deterred from visiting the physical locations that plaintiff has as a result of using the website.
  8. With respect to a nexus, the website is heavily integrated with and in many ways operates as a gateway to defendant’s physical store locations, and plaintiff cannot fully and equally enjoy those goods and services offered by the defendant because of the website’s inaccessibility.
  9. With respect to the due process argument under the void for vagueness doctrine since no regulation for website accessibility exist or are forthcoming, the court found that the ADA is not so unclear as to be unconstitutionally vague even without the benefit of DOJ regulations. Further, plaintiff is not seeking an injunction imposing WCAG 2.0, rather plaintiff seeks to require defendant’s compliance with the ADA without dictating how the defendant has to comply with the statute. Accordingly, the requested relief does not violate due process.
  10. In a footnote, the court notes that being a tester does not preclude standing under the ADA.
  11. In another footnote, the court questioned whether the nexus test is the proper test for figuring out website accessibility.


Jones Takeaways

  1. As Richard Hunt has discussed numerous times in his blog, some courts are buying that you can’t get to first base in a website accessibility case unless there is some probability that you could actually take advantage of that particular place of public accommodation. This court was having none of it.
  2. In a footnote, this court makes clear that while it believes a gateway exists sufficient to find standing, it prefers the approach that a website may be considered a public accommodation without a connection to a physical place.
  3. The court was also having none of the argument that the lack of DOJ regulations violates due process. The critical factor is that the defendant has flexibility with respect to ADA compliance, but that the ADA must be complied with.
  4. Just because plaintiff is a tester, doesn’t affect standing one way or the other.
  5. When I first started dealing with website accessibility issues, I was of the opinion that flexibility for defendants is great, and that regulations only take away that flexibility. However, for the reasons that Richard has mentioned in his blog on more than one occasion, I have come around to the position that DOJ regulations if gone through the proper rulemaking process whereby all views are considered would bring needed sensibility to the area. Without such regulations, it is completely up to each court to figure out what meaningful accessibility is and that is going to vary from judge to judge and plaintiff to plaintiff.


Gomez Facts

Gomez is legally blind and uses screen reading software to access the Internet. The summer of 2017, plaintiff visited the website of the General Nutrition Company. That website allows customers to purchase General Nutrition Company’s goods and services as well as view any promotions and deals offered at that time. It also provides a store locator. When Gomez visited the website, he could not access many of its features, such as adding items to its online shopping cart, accessing the store locator, or reading the deals and promotions. The inaccessibility was due to the mislabeling of the online content so that his screen reader did not work properly. While the website did not include a statement regarding defendant’s commitment to ADA compliance, in its terms and conditions, it did provide a phone number for customers to call if they needed additional assistance. As recently as June 2018, defendant’s expert using automated accessibility tests AChecker and WAVE found zero errors and no known problems with the website. However, plaintiff’s expert found errors that could prevent a user from selecting a product and completing a purchase. Plaintiff filed a motion for summary judgment and a motion to exclude the testimony and opinions of defendant’s expert.


Gomez Court’s Reasoning

  1. When it comes to injunctive relief, plaintiff must show a sufficient likelihood that he will be injured by such conduct in the future. Plaintiff has done that because he faces barriers to access the website and thereby suffered a concrete injury. Further, if the problems are not addressed, he will suffer that same injury in the future.
  2. Plaintiff’s status as an ADA tester has nothing to do with his standing.
  3. As we have discussed previously here, in the 11th Circuit, title III covers both tangible and intangible barriers, and that whatever goods and services the public accommodation offers as part of its place of public accommodation, the public accommodation cannot discriminate against people on the basis of disability, even if those goods and services are intangible.
  4. Courts in the 11th Circuit have found that websites are subject to the ADA if a nexus between the website and the physical premises of a public accommodation can be established.
  5. Few courts have defined nexus precisely. As we have discussed previously here and here for example, where a website is heavily integrated with physical store locations and operate as a gateway to the physical store location, courts have found that the website is a service of the public accommodation and covered by the ADA. That is, the ADA prohibits a retailer’s website from impeding a person with a disability’s full use and enjoyment of the brick-and-mortar store.
  6. Just providing information may not be enough to establish a nexus. However, citing to various cases, the ability to pre-order or purchase products probably does create a sufficient nexus between the website and the physical store.
  7. Looking at the various decisions as a whole, a number of factors exist for determining whether a website has a sufficient nexus to the physical stores. Those factors are: 1) whether the website provides a service of the public accommodation like the ability to purchase or preorder products; 2) whether the alleged barrier to access prevents the full use and enjoyment of services of the public accommodation; 3) whether the website provides more than just information about the store; 4) whether the website impedes access to the physical location; and 5) whether the website facilitates the use of the physical stores.
  8. In this situation, GNC’s website is a service facilitating the use of the physical store, and therefore, it is a place of public accommodation. More specifically, the ability to purchase products remotely is a service of the physical stores. Further, by providing information about promotions and deals in addition to information about store information, the website operates as a gateway to physical stores.
  9. Defendant’s expert lacked specialized knowledge or experience on website accessibility. Further, his professional training and experience is in e-commerce, which is only tangentially related to web accessibility. Defendant’s expert does not know the success criteria of the accessibility checking software relied on by the defendant. Further, defendant’s expert does not usually run those tests personally himself.
  10. Defendant’s expert not only based his opinion upon reliable principles or methods but also on the input he had received from people over 20+ years of just interaction. That kind of interaction cannot be tested or peer-reviewed, has no known rate of error, and defendant put forth no evidence that such a technique is accepted in the relevant scientific community.
  11. While testimony on website accessibility would be helpful to deciding the case, defendant’s expert lack of experience in web accessibility and the unreliability of his opinions outweigh any potential helpfulness.
  12. Plaintiff’s expert tested the website and found that it had 77% and 64% compliance on success levels AA and A and that such errors could prevent a user from selecting a product and completing the purchase.
  13. While the court can grant summary judgment to plaintiff as to liability, it cannot grant summary judgment as to the remedy for two reasons. First, plaintiff has provided no support that WCAG 2 .0 is an appropriate remedy. Second, even if that was the appropriate remedy, the record is silent as to which success level is most appropriate.
  14. In a footnote, the court noted that the defendant has been hauled into court regarding website accessibility before. That case settled. As part of that settlement, the defendant agreed to take commercially reasonable steps to improve accessibility for individuals using screen readers. Further, that agreement stated that the defendant may use WCAG 2.0 level AA or other applicable authority as a reference for making such improvements.
  15. In another footnote, the court noted that plaintiff’s expert may very well be qualified to talk on matters within his expertise, such as the costs to implement accessibility measures but that does not help with regard to ADA compliance.
  16. In yet another footnote, the court found highly persuasive the number of cases adopting WCAG 2.0 success level AA as the appropriate standard to measure accessibility.


Gomez Takeaways

  1. Plaintiff prevailed on summary judgment, which is not a frequent occurrence at all.
  2. When it comes to website accessibility, there are three things a business needs to be concerned about. In particular, the website needs to be meaningfully accessible to persons with disabilities using screen readers, voice dictation technology, and to the Deaf/hard of hearing, if audio is involved.
  3. This case is the first one I am aware of that has reviewed the case law to figure out just what factors the courts consider when determining whether a nexus exists. Lawyers may find this analysis very helpful in the future. As discussed in the opinion, these factors are individual and not in combination. That is, you get a nexus if any of the factors are met.
  4. One wonders how this particular judge, Marcia Cooke of the Southern District of Florida, would have dealt with Jones because of her reference that just providing information may not be enough to establish a nexus.
  5. Liability and a remedy are not the same thing.
  6. As Richard Hunt has mentioned previously in his blog entries, relying on widely available Internet checking tools for accessibility may not be enough. The key is whether the individual with the disability has meaningful access.
  7. The court acknowledged that expert testimony on website accessibility if the expert was properly qualified could be very helpful.
  8. If you are looking for signals, the footnotes mentioned in the Gomez takeaways section above, are definitely important reading.
  9. The Winn-Dixie decision that will come down from the 11th Circuit will definitely impact both of the cases we discussed today.