As I predicted, the United States Supreme Court denied Domino’s Petition for Certiorari today. It did so without any formal explanation – the case is simply listed as one of many for which cert was denied. I’m sure the blogosphere and many business groups will decry the lost opportunity for a ruling that might limit ADA website litigation, but after thinking it over I don’t think there was ever much the Supreme Court could have done that would deter ADA website filers. The split in the circuits that was used to justify the Supreme Court’s interest only concerned whether websites with no affiliated physical place of business are covered by the ADA. A favorable decision would have still left the vast majority of businesses at risk. Equally important, the U.S. Supreme Court has no jurisdiction over state versions of the ADA, meaning that plaintiffs in two of the hottest states for these lawsuits, California and New York, could keep filing under state law. Finally, and most important, almost all ADA website cases are filed only to get money for the lawyers who file them. The settlement dynamics are simple – a business pays the lawyers less than the cost of a basic defense and agrees to fix its website because it makes economic sense to do so. No matter what the Supreme Court might have done it could not have significantly changed that settlement dynamic, for even the most business friendly decision could only give defendants a reasonable chance of success on a Rule 12(b)(6) motion. The Supreme Court could not make that motion cheap enough to beat the certainty of settlement because the cost of such a motion is deeply embedded in the structure of the Rules of Federal Procedure. Even more important, the heads I win, tails you still lose advantage on recovery of attorneys fees for plaintiff’s is one fundamental driver of all ADA litigation and the Supreme Court can’t do anything about that without overturning decades of civil rights precedent. The Supreme Court could favorably rule on standing issues in a case I’ll blog about tomorrow, but the refusal of cert. in Domino’s is only a mild disappointment because the real solution remains with Congress.
Dominos v Robles
ADA Website litigation may get Supreme Court review – Domino’s fights on
Domino’s Pizza has filed a Petition for a Writ of Certiorari with the United States Supreme Court challenging the Ninth Circuit’s recent ruling in favor of Guillermo Robles.* The Court’s decision on whether to grant certiorari will have a profound impact on the possible “tsunami”** of website accessibility lawsuits, but we don’t have to wait for that decision to find the Petition itself interesting.
What I find most intriguing is Domino’s argument that the Ninth Circuit has adopted a new, third standard for application of the ADA to the internet. Along with other commentators I have always seen a two way split in the Circuits. Some (the First, Second and Seventh) simply hold that all websites are public accommodations subject to the ADA. It is a simple approach that leaves no room for doubt about a website’s accessibility obligation. Others (the Third, Sixth, Eleventh and Ninth Circuits) find that a website is covered by the ADA only if it has some nexus to a physical place of business. The exact nature of that nexus is a question being slowly answered as different situations are presented to the courts, but details aside, the nexus requirement seemed a common thread in decisions from these Circuits. More