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.**
Missing from the decision, and presumably from the briefing, is any mention of the theories under which a website, as a service of a public accommodation rather than a public accommodation itself, must be accessible. A host of cases in the Ninth and Eleventh Circuits hold that while websites themselves are not public accommodations they must be accessible if there is a sufficient nexus to a physical place. This case may be an experiment by Scott Ferrell’s Pacific Trial Attorneys to get a finding that websites are places of public accommodation, for despite McGee v. Coca-Cola, the ADA’s application to websites has not previously been determined in a Fifth Circuit court.†
The Court does reject a defense standing argument, holding the plaintiff had sufficiently pleaded standing because the defendant credit union is open to all residents of Harris County and the plaintiff resides in Harris County. This is consistent with most other case law in this area – standing can be pleaded with such ease that it rarely works as a defense before the summary judgment stage.
The authority of a single district court decision is limited, but this case will be important for defendants as the locust swarm of professional ADA website plaintiffs descends for the first time on Texas.
* It is always worth remembering that no matter how striking a district court decision may be:
A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.
Camreta v. Greene, 563 U.S. 692, 709 n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011), citing 18 J. Moore et al., Moore’s Federal Practice § 134.02 [d], p. 134–26 (3d ed.2011).
** See “Kiosks, Coca Cola and the ADA” and “Vending Machines and the ADA”
† The defendant was represented by my former colleague Steve Schueler of the Winstead firm.