Browsewrap could tame the ADA website litigation monster.

Terms and Conditions In the last two years the federal courts have had a number of opportunities to find that Title III claims under the ADA are not arbitrable and have declined the invitation. That doesn’t mean these cases are in fact going to arbitration. In every case I found the arbitration agreement was found to be unenforceable on state law grounds, leaving open the possibility of a public policy argument. Nonetheless, I think that a properly written and implemented arbitration clause can force a Title III case into arbitration and give defendants a chance to avoid much of the unnecessary cost of litigation. Here’s why.

The starting point in a discussion of arbitration for civil rights statutes has to be Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In Gilmer the Supreme Court found that claims under the Age Discrimination in Employment Act could be made subject to a valid arbitration agreement, rejecting claims that it was somehow inconsistent with public policy. A few months later Congress passed the Civil Rights Act of 1991, in which, among other things, it affirmed that

Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including … arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title.

Section 118, as quoted in Lambert v. Tesla, Inc., 923 F.3d 1246, 1249 (9th Cir. 2019). In Lambert the Ninth Circuit concluded that the 1991 Act could only be read to support the arbitrability of civil rights claims. Equally important, the few decisions considering the arbitrability of ADA claims outside the employment context agree that they are subject to arbitration. See, Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141 (1st Cir. 1998) and Cheshire v. Fitness & Sports Clubs, LLC, 382 F. Supp. 3d 1329, 1334 (S.D. Fla. 2019). There is clearly no public policy or similar reason why website accessibility cases should not be subject to arbitration.

Of course, before a defendant can compel arbitration of a claim it must prove that it has an enforceable arbitration agreement. The difficulties of making such an agreement were explained in Natl. Fedn. of the Blind v. The Container Store, Inc., 904 F.3d 70 (1st Cir. 2018), a case that nonetheless supports the view that website accessibility claims can be subject to arbitration. In Container Store the arbitration clause was contained in the terms and conditions for The Container Store’s customer loyalty program. When blind customers sued claiming that touch screen point of sale devices violated Title III of the ADA the Container Store tried to push the claims into arbitration.* The plaintiffs fell into two categories. One group had signed up for the loyalty program at a touchscreen POS device in the store. These customers could not have read the terms and conditions, being blind, and denied that the terms and conditions had been read to them. The Court had no trouble finding there was no assent to a contract whose terms they did not know, but left open the possibility that a summary of terms might have sufficed if actually read to the customer. A last plaintiff had signed up on line, where the terms and conditions appeared in full and were accessible to the plaintiff’s screen reader. This plaintiff could not claim there was no assent to the contract; instead the Court found the agreement was illusory because The Container Store reserved the right to change any of the terms and conditions at any time. Such provisions are not uncommon in on-line agreements, for businesses want the flexibility to revise their marketing programs as they need to. The defendant lost in Container Store, but the opinions of both the District Court and Court of Appeals make it clear that if you do it right it is possible to compel arbitration of Title III claims.

How do you do it right? The first step is to avoid the argument that the arbitration agreement was not accessible. No matter what other accessibility problems a website may have it should make access to the terms and conditions of use easy for every disabled person. Next, of course, the arbitration agreement has to be part of an enforceable contract. The safest way is certainly to require a click; that is, a positive act showing assent to the arbitration agreement. The District Court in Container Store wrote:

Here, Plaintiff Lineback used her computer to enroll, was required to click the box to enroll, and had an opportunity to review the terms and conditions by clicking on the link next to the acceptance box. Because Plaintiff Lineback was able independently to enroll in the Loyalty Program, she is bound by its terms and conditions. Whether she “recalls” being presented with the terms and conditions is irrelevant, because Plaintiff Lineback is subject to the basic rule that one who signifies assent to an agreement is bound by its terms whether or not she reads them.

Natl. Fedn. of the Blind v. Container Store, Inc., 2016 WL 4027711 (D. Mass. July 27, 2016). This would be simple enough except for one thing. In Container Store the plaintiff was not merely using the website; she was signing up for a program that promised something in return for enrollment.**

That brings us to browsewrap agreements; that is, agreements to which the user assents by merely using the website. The enforceability of browsewrap agreements is not in serious doubt, but their creation requires some thought. There is a useful discussion of the issues in Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014) but the basic rule simple: a browsewrap agreement can be enforced only if the website is designed so every user has notice of the browsewrap agreement. For blind users this should be relatively easy. Screen reader software is designed to read a page in a particular order and the page structure can compel a blind user to hear the agreement or a summary before having access to anything else on the page. This is critical because most ADA website litigants have no intention of buying a product or using any service of the website. They will only stay long enough to find an accessibility problem (or confirm a problem found by the legal assistant of the lawyers with whom they associate). To be effective a browsewrap link must be the first thing they encounter or it won’t be sufficiently “conspicuous” to be enforceable.

Dealing with serial litigants who are deaf requires an examination of the structure of the page and its purpose, for deaf users will generally encounter the same visual content as sighted users. There are plenty of browsewrap cases applying the law of different states, and they are the best start for design of a working browsewrap arbitration clause for sighted users.

Regardless of technical issues, the law is clear that browsewrap arbitration agreements are enforceable, and subject to state consumer protection laws venue and choice of law agreements may be as well. Arbitration takes away many of the advantages that plaintiffs and their lawyers have in website accessibility cases, giving the website operator or owner much more control of the cost and pace of litigation. Unless there are competing considerations they should not only be part of every website, but should be designed so that no disabled user can avoid knowing of them before accessing any part of the website.

* I blogged about POS devices and clickwrap as the early Container Store decisions came out. “You can’t agree to what you can’t read – the perils of clickwrap when the ADA is involved.” and “The next wave – ADA lawsuits against touchscreen POS devices“

** The problem of illusoriness that undid The Container Store is fairly easy to avoid – just don’t write a set of terms and conditions all of whom can be amended at any time. Exclude from any free amendment provision the arbitration provision and any others that it might be important to enforce later.