On March 20, 2017, U.S. District Court Judge S. James Otero for the Central District of California in Robles v. Domino’s Pizza LLC, granted defendant Domino’s Pizza LLC’s motion to dismiss without prejudice and ruled that the plaintiff’s class action complaint alleging that the pizza maker’s website, www.dominos.com, and mobile website were not accessible using a screen reader designed for the blind and visually-impaired and therefore in violation of the Americans with Disabilities Act (“ADA”) and California Unruh Civil Rights Act (“UCRA”). The dismissal of the complaint without prejudice was based upon the District Court’s finding that the U.S. Department of Justice (“DOJ”) has not yet promulgated concrete guidance regarding the accessibility standards an e-commerce webpage must meet under the ADA and that this violated Dominos’ due process rights.[1]
This is the first opinion that reconciles the Ninth Circuit’s previous statement that websites are not subject to the ADA “accessibility” requirement unless there is a connection between the good or service on the website and an actual physical location, and the DOJ’s position that websites must be made accessible. Assuming websites are to be made accessible, the question faced by businesses is what specific guidelines they must meet and how they demonstrate compliance.
The District Court rejected the plaintiff’s argument that the Court should apply the Web Content Accessibility Guidelines 2.0 (“WCAG”) that were developed by the Web Accessibility Initiative of the World Wide Web Consortium, a third party non-profit organization because the DOJ’s notice of rulemaking explicitly sought public comment as to whether these standards should be adopted, especially given “the ever-changing nature of many Web sites.” (Emphasis added in the Court’s opinion).
The Court found the Ninth Circuit’s opinion in United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008), to be entirely on point. In AMC, the Ninth Circuit found that the imposition of vague accessibility standards would violate a defendant’s right to due process because “the text of 4.33.3 did not even provide our colleagues, armed with exceptional legal training in parsing statutory language, a ‘reasonable opportunity to know what is prohibited’ -- let alone those of ‘ordinary intelligence.’” Likewise, reliance on the DOJ’s issuance of statements of interest, consent decrees or settlements under the ADA was inappropriate, stating that “the Court concludes that little or no deference is owed to statements made by the DOJ through documents filed in the course of litigation with regulated entities” because the DOJ never provided formal regulatory guidance concerning website accessibility criteria (despite its promise to do so).
The Court dismissed the complaint pursuant to the doctrine of primary jurisdiction recognizing that the complex question of how best to regulate website accessibility has not been answered by the DOJ, notwithstanding the fact that it has been under development since 2010.[2] The Court held that due process required that defendants be afforded adequate notice and reasonable guidance of the official regulations once adopted rather than being held to ambiguous technical standards prior to DOJ adoption. The Court’s opinion also makes clear that simply not mentioning the WCAG 2.0 standards in the complaint will not cure the due process deficiencies and that “[e]ven more problematic to Plaintiff’s case is the apparent absence of any discussion by the DOJ regarding whether a mobile website or mobile application must conform with Apple’s iOS accessibility guidelines.’”
The Court concluded its opinion by calling on the Congress and the DOJ to issue regulations and provide businesses with concrete guidance on how businesses can meet the ADA for the benefit of the disabled community.
Web-facing businesses across the country have been subjected to a tsunami of demand letters and lawsuits alleging class actions for violations of the ADA because their websites allegedly are not accessible to blind or visually impaired individuals. This decision provides a straightforward blueprint for courts and litigants faced with similar ADA class actions until such a time as the DOJ promulgates and issues formal ADA regulatory standards for online and mobile websites and mobile applications. This opinion also provides clarity and welcome relief to businesses facing significant potential liability in the form of injunctive relief, damages, and attorneys’ fees. Nevertheless, prudent businesses need to take the initiative to assess the accessibility of their websites and make sure that potential risks are mitigated by ensuring that individuals with disabilities can independently access their goods and services.
[1] Robles v. Dominos Pizza LLC. Sheppard Mullin’s Gregory F. Hurley and Bradley J. Leimkuhler represented defendant Domino’s Pizza LLC in this matter.
[2] Given the new priorities of the incoming administration, it is not clear when the DOJ will issue the applicable ADA accessibility standards.