By: Alisa N. Carr, Esq.

In the first two weeks of April, 2017, the Pittsburgh-based law firm Carlson Lynch Sweet & Kilpela filed ten website accessibility lawsuits in the U.S. District Court for the Western District of Pennsylvania. The defendants are alleged by the plaintiffs to have brick and mortar locations with integrated e-commerce sites; rendering the defendants’ websites “public accommodations” subject to Title III of the Americans with Disabilities Act (“ADA”)*.

The continuing delay by the Department of Justice (“DOJ”) to adopt technical guidelines for website accessibility, in conjunction with a split among the Circuit Courts as to the scope and applicability of the ADA to websites, has left e-commerce vendors with conflicting legal guidance in the wake of increased litigation.

One example of conflicting legal authority is the March 20, 2017 Opinion by District Judge S. James Otero in the matter of Robles v. Domino’s Pizza, LLC (No. CV 16-06599 C.D. Cal.). The Court granted a Motion to dismiss website accessibility claims filed against Domino’s Pizza based upon the lack of government issued technical standards for website accessibility. Judge Otero held that due process is violated when a plaintiff asks the court to require a defendant to comply with a particular, but not fully identified, and modifiable, accessibility standard issued by a non-government entity. The Robles court dismissed plaintiff’s Complaint, without prejudice, pursuant to the doctrine of primary jurisdiction which allows a court to stay proceedings or dismiss a Complaint, without prejudice, pending the resolution of an issue that is within the unique purview of an administrative agency–in this case, the technical guidelines pending before the DOJ. The case is currently on appeal before the Ninth Circuit Court of Appeals.

While not presented in the context of a due process challenge, Judge Arthur J. Schwab, the District Judge assigned to most website ADA matters in the Western District of Pennsylvania, including the ten new cases, declined to apply the doctrine of primary jurisdiction and the request to dismiss or stay ADA litigation pending the publication of DOJ’s technical standards for website accessibility. Presently pending before Judge Schwab in another case is a Motion to dismiss asserting that a website is not a “public accommodation” subject to the ADA.

Update: On March 21, 2017, Judge Arthur J. Schwab, District Judge for the Western District of Pennsylvania, issued an Opinion holding that both individual and group plaintiffs have met their preliminary burden of pleading a cause of action in ADA Title III website accessibility Complaints filed by Pittsburgh-based law firm Carlson Lynch Sweet & Kilpela, LLC. We have issued a full Client Alert on this topic, here.

In light of the DOJ’s delays and conflicting legal authority, businesses that maintain websites, whether for e-commerce or only for informational and marketing purposes, are encouraged to continue, or begin, a review of their website’s ADA accessibility to prevent costly litigation.

If you have any questions regarding ADA litigation, accessibility issues for public accommodations, or ADA website accessibility litigation, contact Alisa N. Carr. Alisa is a Partner in Leech Tishman’s Litigation Practice Group and is based in the Pittsburgh office. Alisa can be reached at 412.261.1600 or acarr@leechtishman.com.

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*42 U.S.C. § 12101 et seq.

Robles v. Domino’s Pizza, LLC, Civil Action No. CV 16-06599 (C.D. Cal).

Sipe v. Huntington National Bank, Civil Action No. 2:15-cv-01083 (W.D. Pa; November 18, 2015).