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After SCOTUS Doesn’t Take Domino’s Website Accessibility Case, More ADA Suits Could Be Coming

October 08, 2019 / Source: LAW.COM

After SCOTUS Doesn't Take Domino's Website Accessibility Case, More ADA Suits Could Be Coming

Some lawyers say the high court’s silence is a loud proclamation that inaccessible websites violate the ADA, while others say it echoes a void of guidance on the issue.

By Alaina Lancaster | October 08, 2019 at 01:00 AM

Presently, U.S. consumers can order a Domino’s pizza via bot or voice command.

But in recent years the pizza delivery pioneer found itself at the center of a court battle over whether places of public accommodation have to make their website or mobile applications compliant with the Americans with Disabilities Act. On Monday, the U.S. Supreme Court denied the restaurant chain’s request to review a decision finding Domino’s liable for violating the federal civil rights law by failing to make its website accessible to blind customers. 

Some lawyers say the high court’s silence is a loud proclamation that inaccessible websites violate the ADA, while others say the Supreme Court’s denial of Domino’s petition for certiorari echoes a void of guidance on the issue. 

The underlying case began in 2016 after Los Angeles County resident Guillermo Robles, who is blind, said he was unable to browse Domino’s website with a screen reader, which helped him navigate the internet on his computer and phone. In his complaint, Robles said the pizza brand violated rights granted to him by the ADA when he was unable to complete his purchase online. Domino’s has argued that the civil rights law was passed in “the age of landlines and snail mail” and meant to apply to brick-and-mortar locations, not the web.

In January, the U.S. Court of Appeals for the Ninth Circuit shot down Domino’s arguments. The court ruled that the ADA applies to Domino’s website and mobile services, “even though customers predominantly access them away from the physical restaurant.” 

In response to the Supreme Court’s cert denial, Domino’s said in an online statement that it looks forward to presenting its case at the trial court. “Creating a nation-wide standard will eliminate the tsunami of website accessibility litigation that has been filed by plaintiffs’ lawyers exploiting the absence of a standard for their own benefit, and chart a common path for both businesses and non-profit institutions to follow in meeting the accessibility needs of the disabled community,” the company said.

However, some legal experts think the Supreme Court’s cert denial did, in fact, create a widespread standard. Linda Dardarian, of Goldstein, Borgen, Dardarian & Ho in Oakland, California, said the consequence of the order is that it has established the Ninth Circuit decision as the law of the land. “I think that was clear from the natural reading of the Americans with Disabilities Act, but businesses were resisting that,” said Dardarian, who specializes in class action employment discrimination and disability access. “They can’t resist it anymore. It’s just true.”

Minh Vu, a partner at Seyfarth Shaw in Washington, D.C., and a leader of the firm’s ADA Title III practice team, agreed with Dardarian that, at this point, there really are no avenues for recourse. 

“I think businesses saw the Domino’s case as perhaps a last chance to get some relief from the tsunami of lawsuits that have been filed in the last several years,” Vu said. “Now that’s done, and there’s no appeal to the Supreme Court, I think many businesses will more diligently focus on making their websites more accessible.”

The main problem with the petition, Vu said, was that there really is not a conflict in the circuit courts on the questions presented in the Domino’s case. Vu said the appellate courts have seen a conflict on whether ADA applies to web-only businesses, so had Domino’s not had a physical presence, the court might’ve taken up the case, she said. 

Vu said it’s possible another case that seeks to answer that legal question could make its way back up to the justices, but it will take a long time. Even Gil v. Winn Dixie, another ADA case pending in the Eleventh Circuit, will likely face the same barriers as the Domino’s case, since the website in that case is also associated with a physical place, she said. In the meantime, Vu agrees with Domino’s that the lack of guidance from the high court will embolden the plaintiffs bar and lead to more federal filings related to website accessibility. 

The  U.S. Chamber of Commerce, the National Retail Federation, Restaurant Law Center, Cato Institute and Washington Legal Foundation all supported Domino’s petition with amicus briefs. In the Chamber of Commerce’s brief, the group said holding the Ninth Circuit’s decision could make it “a magnet for forum shopping.” 

Martin Orlick of Jeffer Mangels Butler & Mitchell in San Francisco agrees, saying that California judges will likely see more and more of these cases.

“I think that the Ninth Circuit will be perceived as a place where you can bring these lawsuits,” Orlick said. 

Dardarian, on the other hand, said that the Ninth Circuit’s decision is very consistent with rulings in the Seventh, First, Eleventh and Second Circuits. She said the Ninth Circuit is “no more a magnet than anywhere else in the country.” 

Scott Ferrell, an attorney for Pacific Trial Lawyers who won a web accessibility case in a California appellate court last month, said the Chamber of Commerce, is, at best, mistaken. “The Ninth Circuit Law in this area is less favorable for plaintiffs than the First, Second and Seventh Circuits,” Ferrell said.

Right now, Orlick has about 100 ADA cases on his plate, compared to four years ago, when he didn’t have any. He says he expects to see an avalanche of ADA filings after the cert denial against companies struggling to keep up with compliance software that is constantly evolving. “Unlike that step that is now a ramp—that ramp is going to be there for generations—that software will be there for generations, but the software generations have a six-month shelf-life,” he said.