waterloo_3027224bADA defendants just won two significant victories concerning internet accessibility. In a March 20, 2017 decision in Robles v. Dominos Pizza LLC, Case No. 2:16-cv-06599, (C.D. Cal.) Judge Otero dismissed a claim concerning the accessibility of Dominos’ web site and mobile app based on a due process objection. The Court found that DOJ’s failure to issue regulations implicated the holding in United States v. AMC Entertainment, 549 F. 3d 760 (9th Cir. 2008) that a failure to give fair notice of what was required violated due process. In Gomez v. Bang & Olufsen America, Inc., Case No. 1:16-cv-23801 (S.D. Fla) Judge Lenard adopted a rule derived from earlier cases in the 11th and 9th Circuits that that a claim under the ADA exists if “a website’s inaccessibility impedes the plaintiff’s “access to a specific, physical, concrete space.” He then dismissed the complaint because the plaintiff failed to allege with sufficient specificity that his access to the brick and mortar stores had been impeded. The holding seems more restrictive than the case on which he relies, National Association of the Blind v. Target Corp., 452 F.Supp.2d 946, 956 (N.D. Cal. 2006), but the differences are not explored in the opinion.

A few weeks earlier one of the leading plaintiffs’ firms in the field of internet accessibility entered into an agreement not to sue banks in Texas as part of a settlement of a barratry case brought by a banking trade association, another victory that shows one way to deal with serial or “drive-by” lawsuits. The Texas legislature is also considering an anti-troll law that would make bad faith ADA demands a violation of the law. If such a law survived a preemption challenge it might also help eliminate such lawsuits.

Hooray! Or maybe not. The two district court decisions only have persuasive value with respect to other district courts, and Judge Lenard’s decision turns on a defect in pleading that could be cured by amendment. The Texas bank settlement is just that; a settlement, and it was based on procedural rather than substantive issues. Judge Otero’s decision will certainly act as a roadmap for those who want to mount a vigorous defense to the next ADA internet claim, but it rests on 9th Circuit case law that might not be accepted in other circuits and its reasoning has already been rejected in other districts. At the end of the day these decisions represent nothing but the ordinary ebb and flow of ADA decisions in which defendants win some and lose some and then usually settle.

The state of law, in the meantime, remains mixed. In the 9th Circuit and 11th Circuit a pure internet business is not covered by the ADA. In the 9th and 11th Circuits a business with a physical presence and a web presence may be subject to the auxiliary aids and services requirement of the ADA, but the needed connection between the website and the physical store remains largely undefined. Finally, in some courts and circuits it appears the ADA applies to every website, regardless of its relationship to physical store. Because internet business is at least national most potential defendants will find their liability depends on where they are sued.

Continuing to move toward website accessibility is the most prudent strategy for any business that can afford it. Smaller enterprises that find the cost prohibitive may choose for strategic reasons to wait until the software tools improve and costs go down, but even smaller businesses should take the handful of relatively cheap steps available to improve accessibility, including the provision of a toll-free customer assistance number like that provided by Dominos Pizza. Recent victories are nice, but until the Supreme Court rules on the ADA and internet the state of the law will remain confused, and litigation avoidance will be the best strategy.