Website accessibility litigation under the Americans with Disabilities Act is not a new phenomenon. Visually impaired serial ADA litigants have targeted businesses for years with claims that their websites are inaccessible in violation of Title III of the ADA.
But the last several months have seen a dramatic increase in the frequency of ADA website accessibility lawsuits and prelitigation demands, and a recent ruling of the U.S. Court of Appeals for the Ninth Circuit, Robles v. Domino’s Pizza LLC, will likely make this type of claim even more attractive to serial litigants and their counsel.
In Weyer v. Twentieth Century Fox Film Corp., the Ninth Circuit ruled that an ADA website accessibility claim requires “some connection between the good or service complained of and an actual physical place .” Often referred to as the “nexus” requirement, this interpretation of the operative “place of public accommodation” term in the ADA essentially means that an ADA website claimant must show that the allegedly inaccessible website prevented them from the “full and equal enjoyment” of the goods/services/etc. offered by the defendant at a physical location.
This requirement has also been adopted in the Third, Sixth and Eleventh Circuits, and has been helpful to web-based businesses, manufacturers and distributors that do not have brick-and-mortar stores or consumer-facing physical locations. But businesses with both online and physical consumer-facing presences have often struggled to obtain dismissal of ADA website accessibility claims — as ADA website claimants have been fairly successful in pleading a “nexus” sufficient to avoid early dismissal.
One of the few recent bits of good news for ADA website accessibility defendants was the 2017 decision from the Central District of California in Robles v. Domino’s Pizza LLC. Most authorities have focused on the threshold question: Does this website impede access to a place of public accommodation in violation of the ADA? In this case, however, the defendant argued that the case should be dismissed or stayed in the absence of clear regulatory guidelines defining the technical criteria and standards businesses must meet with regard to website accessibility.
This argument was framed both in the context of due process (i.e., that it would violate due process to hold defendant liable where the ADA was ambiguous as to what it required) and the primary jurisdiction doctrine (i.e., that the court should withhold judgment until the U.S. Department of Justice issues regulatory guidelines). The district court agreed, and closed its order by “calling on Congress, the Attorney General, and the Department of Justice to take action to set minimum web accessibility standards for the benefit of the disabled community.” (Suffice it to say, this plea for action was unsuccessful. On Dec. 26, 2017, the Department of Justice withdrew a notice of proposed rulemaking it had issued seven years prior, and regulatory guidance is nowhere to be seen on the horizon.)
In its Jan. 15, 2019, decision, the Ninth Circuit reversed the district court’s order and rejected the defendant’s due process and primary jurisdiction arguments.
On the issue of due process, the Ninth Circuit began by rejecting defendant’s contention that the plaintiff’s claim was predicated on the target website not complying with the Web Content Accessibility Guidelines Version 2.0, or WCAG 2.0 — a set of nongovernmental standards that is commonly used in settlements of ADA website accessibility claims, and which plaintiffs had often alleged to be the controlling standards before the district court’s ruling caused them to change tactics.
It instead accepted the plaintiff’s contention that WCAG 2.0 merely provided a potential remedy vis-à-vis its claim for injunctive relief, and that the ADA claim was predicated on the existence of broadly-defined barriers to access, rather than the failure to comply with any specific technical standard. This interpretation of the complaint was critical.
Because the Ninth Circuit’s due process analysis was predicated on its assertion that “the Constitution only requires that [defendant] receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations,” it essentially framed the critical question (which it answered in the affirmative) as whether or not the defendant had “fair notice that its website and app must comply with the ADA.” This focus on notice of whether a website must comply with the ADA at all — rather than whether it must comply with specific standards — will pose a significant hurdle for businesses seeking to pursue a due process defense.
On the issue of the district court’s application of the primary jurisdiction doctrine, it is important to reiterate that the regulatory landscape shifted significantly while the appeal was pending. On July 26, 2010, the Department of Justice issued an advance notice of proposed rulemaking signaling that it was likely to issue regulations regarding website accessibility. This factored heavily into the district court’s analysis.
Likewise, the Department of Justice’s Dec. 26, 2017, abandonment of this rulemaking process was critical to the Ninth Circuit. It ruled that staying the case in anticipation of regulatory guidance would “needlessly delay” the resolution of the plaintiff’s claims, and that whether “[defendant’s] website and app are effective means of communication is a fact-based inquiry within a court’s competency.” Going forward, attempting to invoke the primary jurisdiction doctrine is unlikely to lead to early dismissal of ADA website accessibility claims.
The Ninth Circuit’s ruling in Robles v. Domino’s Pizza, while unfortunate for the business community, is not necessarily a game changer. Prior to the district court’s ruling, many ADA website accessibility claims relied heavily on WCAG 2.0, to the point of taking for granted that it controls whether or not a website is accessible to the visually-impaired. After the district court’s ruling, ADA website accessibility complaints quickly became more ambiguous and vague.
Claimants simply replaced references to WCAG 2.0 requirements with nondescript allegations that visually-impaired persons have faced accessibility barriers. Many federal district courts — even other Central District of California courts — found this sufficient to sidestep an alleged due process violation.
Had the Ninth Circuit affirmed the district court and ruled broadly that it violates due process to hold a business liable on a website accessibility ADA claim in the absence of clear accessibility standards, businesses obviously would have gained a very powerful tool. But as it stands, businesses are essentially back where they started: facing a complicated and conflicting legal landscape that varies from circuit to circuit, district to district and state to state.
Originally published on Law360 (Subscription required)
 Robles v. Domino’s Pizza LLC, – F. 3d – (2009), 2019 WL 190134 (9th Cir. Jan. 15, 2019).
 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).
 Robles v. Domino’s Pizza LLC, 2017 WL 1330216 (C.D. Cal. Mar. 20, 2017).