(Reuters) - Business groups are clamoring for the U.S. Supreme Court to dam a deluge of litigation over the accessibility of their websites and mobile apps to disabled customers. As I told you last month, trade groups and right-leaning public interest shops have filed amicus briefs urging the justices to grant review of a ruling (913 F.3d 898) by the 9th U.S. Circuit Court of Appeals that allowed a blind Domino’s customer to move ahead with claims that the pizza company violated the Americans with Disabilities Act because its website and mobile app were not fully accessible to him. Domino’s and its friends want the Supreme Court to clarify whether the ADA even applies to websites.
There’s no question that ADA website litigation has exploded in the last few years. There were fewer than 100 such suits filed in federal court in 2015, according to Seyfarth Shaw’s ADA blog. In 2018, that number reached 2,258 – and this year’s filings are on pace to set a new record, according to a report last month from the web services company UsableNet. UsableNet estimates that plaintiffs are filing new ADA website accessibility suits in federal court at a pace of one per hour – and those numbers don’t reflect state court suits or simple demand letters to businesses with allegedly deficient websites. UsableNet’s Chief Innovation Officer, Jason Taylor, told me in an interview that disabled plaintiffs and their lawyers are probably targeting something like 10,000 companies a year with ADA website accessibility claims.
But according to Guillermo Robles, the customer who sued Domino’s because he could not order the pizzas he wanted on its website or mobile app, the proliferation of ADA website accessibility suits is precisely why the Supreme Court should deny Domino’s petition for review (2019 WL 2484566). In a strong opposition brief, Robles’s counsel of record, Joseph Manning of Manning Law argues that the 9th Circuit was actually the first federal appellate court specifically to address ADA liability in a case involving allegedly inaccessible online services for a business that the law defines as a “public accommodation.” The justices, Manning argued, should give other appellate courts a chance to weigh in – and there will be plenty of chances, he said, if Domino’s and its amici are right about the suits’ proliferation.
The business groups, as the Robles brief acknowledged, argued that unclear standards for website accessibility make it tough for companies to mount a defense when they’re hit with these ADA suits. Businesses contend that they have little choice but to settle quickly, upgrade their websites and pay fees to plaintiffs’ lawyers under the ADA’s fee-shifting provision. Robles’ opposition brief said defendants actually have more leverage. They can attempt to moot cases by fixing their websites quickly, the brief argued, or they can delay paying fees to plaintiffs’ lawyers by actually litigating claims they consider unwarranted.
The opposition brief, moreover, contends that Domino’s and its friends have manufactured uncertainty among the appellate courts on website accessibility standards. Domino’s counsel Lisa Blatt of Williams & Connolly described a deep circuit split: The 1st, 2nd and 7th Circuits, according to Domino’s, have essentially concluded that, in the language of the ADA, the internet is a place of public accommodation so any business can be liable for a website that is not fully accessible; but the 3rd, 6th and 11th Circuits have said that because the ADA applies to physical places, only businesses with a bricks-and-mortar presence can be sued for websites that aren’t fully accessible.
Robles counsel Manning argued that none of the cases cited by Domino’s actually involved a plaintiff attempting to access online services – and the reasoning that other courts have applied, according to Manning, actually supports the 9th Circuit’s conclusion that the ADA covers the Domino’s website and app because those online services connect customers to the services available in Domino’s brick-and-mortar restaurants.
“To the extent that the cases cited by petitioner said anything at all relevant to this case,” the Robles brief said, “they endorsed the ‘nexus’ approach applied by the court of appeals.”
There’s a passage in the Robles brief that captures a point elided in the Domino’s and business-group briefs in this case. For all of the assertions that plaintiffs’ lawyers are raking in money from “extortionate” ADA website suits (the Robles brief actually uses that word), these cases are about the civil rights of disabled plaintiffs. Robles counsel Manning picked up on an analogy in the U.S. Chamber of Commerce amicus brief supporting Domino’s. The Chamber said that holding Domino’s liable for failing to offer full web access to disabled customers who could use other means to order pizzas would be like claiming that a stairway violates the ADA because it’s not accessible to people in wheelchairs, even if the business offers a ramp.
The Robles brief said that’s not the right analogy. “Rather, Robles alleges that this case resembles one in which nondisabled customers have ready access to the front door through a stairway that adjoins a sidewalk, while wheelchair users must enter the back door via a ramp surrounded by trash dumpsters in an alley,” the brief said. Even if disabled customers in this hypothetical managed to enter the restaurant, the Robles brief argued, no one would argue that they received full and equal enjoyment of the restaurant’s services. Inaccessible web services, the brief contends, are the virtual equivalent of the back-alley entrance for disabled customers.
Domino’s reply brief is due on Aug. 28.