Like Coke machines, websites are not places of public accommodation subject to the ADA according to Judge Sim Lake’s January 24, 2019 decision in Zaid v. Smart Fin. Credit Union, 2019 WL 314732 (S.D. Tex. Jan. 24, 2019). It is a holding of first impression in the Fifth Circuit and it can be hoped it will influence the flood of cases sure to follow.* The Court’s reasoning was straightforward: The list of public accommodations in the ADA itself refers exclusively to physical places and the Fifth Circuit’s holding in Magee v. Coca-Cola Refreshments USA, Incorporated, 833 F.3d 530 (5th Cir. 2016) confirms that only physical places can be places of public accommodation.** More
ADA – drive-by litigation
ADA and the Internet – 9th Circuit overrules Robles v Dominos
This afternoon the Ninth Circuit overruled the district court decision in Robles v. Domino’s Pizza LLC. Robles has always been an outlier. It is one of only a couple of cases holding that the absence of DOJ regulations made it unfair to prosecute claims against website operators under the ADA. The Ninth Circuit disagreed, adding additional weight to the lower court decisions finding that the lack of regulations does not raise due process concerns and confirming that in website accessibility litigation justice is simply not available to small businesses. More
Beyoncé’s website was sued – but that’s not the news
A lawsuit claiming that Beyoncé’s website is not accessible to the blind has gotten lots of coverage*, but the real news of importance to business is that the plaintiff – Mary Conner – has filed more than 20 similar suits in the last twelve months. She claims to be a passionate Beyoncé fan who wanted to buy a special hoodie, just as she has claimed to be a passionate Rihanna fan who wanted to buy a Rihanna hoodie, and as she claimed to want a Christmas tree from Christmascentral.com, and wanted some Honey Barbeque Jerky from Chefscutrealjerky.com, and wanted to book a workout at Barre3.com, and wanted to buy shoes from Marc Fisher footwear and so forth and so on. She’s such an enthusiast for Spanish food that she was anxious to get menu information about a restaurant in Washington D.C. even though she lives in New York. And the concern that has lead her to file so many lawsuits is so intense that she doesn’t use the same gender in the various complaints, sometimes referring to herself as a “he” and sometimes as a “her.” More
ADA and FHA Quick Hits – Happy New Year edition
There is only one prediction that can be made with complete certainty about ADA and FHA litigation in 2019: Lawyers will continue to make money exploiting these laws for profit in the name of accessibility. The number of lawsuits continues to climb, and with Congress and regulators unwilling to do anything this exploitation will continue. However, before we face the new challenges of a new year it is time for a final look backward at the recent decisions concerning accessibility for the disabled.
Standing in website accessibility cases.
Price v. Orlando Health, Inc., 2018 WL 6434519, at *4 (M.D. Fla. Dec. 7, 2018) shows just how important theories about why the ADA covers websites can be to standing in such cases. Courts in the 11th Circuit have adopted the theory that a website is covered by the ADA only if it has a nexus to a physical public accommodation. Because this relationship is required, the ADA injury giving rise to standing must be some inability to use the physical accommodation. The plaintiff in this case had no plausible intent to use the defendant’s facilities so he could not establish an ADA injury and did not have standing to sue. This is one of many reasons there is a widening gap between the Circuits with respect to how website cases can be effectively defended. More
ADA Title III year in review – it’s a bull market in website accessibility lawsuits.
The financial markets are bouncing around like ping pong balls, but there is one financial indicator that is only going up. For website accessibility litigation we have a bull market and no sign of a recession. Based on federal filings alone the number of website accessibility cases almost tripled in 2018, increasing by 181%*. For ordinary serial ADA litigation based on parking and restrooms the market is flat and the cases confirm the general lack of consistent standards across circuits and between judges – know your court is the rule with respect to every strategic decision. The fake service animal businesses online continue to outrage businesses but without much resulting litigation. A few notable serial filing lawyers have gotten trouble, but the 181% increase in federally filed** web access cases has created both the most serious threat to businesses and the most interesting legal developments in Title III litigation. More