By: Alisa N. Carr, Esq.
On Friday, April 21, 2017 we issued a Client Alert about Carlson Lynch Sweet & Kilpela filing ten website accessibility lawsuits in the U.S. District Court for the Western District of Pennsylvania. The Alert also discussed the 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.
On April 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.
Originally consisting of 13 consolidated cases, two defendants, AmeriServ Financial Bank (“AmeriServ”) and Churchill Downs Incorporated (“Churchill”) filed Motions seeking the dismissal of the Complaints, in part, due to the plaintiffs’ lack of standing to sue and, the failure of the ADA to define websites as a “place of public accommodation.”
With respect to AmeriServ’s argument that the individual plaintiffs lacked standing, the court held that “[b]ecause AmeriServ’s website barred Plaintiffs’ screen reader software from reading the context of its website, Plaintiffs were unable to conduct on-line research to compare financial services and products; and this constitutes an injury-in-fact under Article III of the ADA.” The court further concluded that organizational plaintiff, Access Now, Inc., had standing to sue because the injunction it seeks, if granted, will inure to the benefit of the members of its group.
The court also rejected dismissal of the Complaints based upon the argument that a website is not a place of “public accommodation” under Title III of the ADA.
AmeriServ did not dispute that its brick and mortar locations are subject to the ADA. Rather, it argued that the AmeriServ website is not a “place of public accommodation” because it is not a physical location and; (i) plaintiffs are not account holders so their inability to access content from the website is of “no moment” and, (ii) the plaintiffs’ inability to access the website does not foreclose the plaintiffs from obtaining the same information elsewhere, at a physical location or via telephone conversation with an AmeriServ representative.
Discussing and distinguishing earlier Third Circuit analysis that has concluded a public accommodation is a physical “place,” the court noted that the discrimination alleged against AmeriServ has taken place on property that AmeriServ owns, operates and controls – the AmeriServ website:
This Court finds that because AmeriServ owns, operates and controls the property through which persons access its services, this matter is distinguishable from the Ford and Peoples cases. This Court also finds that the allegations set forth in Plaintiffs’ Complaint establish that the alleged discrimination – Plaintiffs’ inability to access financial services information – took place at a property that AmeriServ owns, operates and controls. Accordingly, this Court will deny AmeriServ’s 12(b)(6) Motion because Plaintiffs have property pled a legally cognizable claim under Title III of the ADA.
The court further refused to grant Churchill’s Motion to dismiss based upon plaintiffs’ failure to plead their intent to return to the website. Distinguishing a decision issued from the District Court for the Eastern District of Pennsylvania, the court held that analysis of the plaintiffs’ past patronage, proximity and personal connections to the defendants’ websites is not appropriate in a website case such as the one before this court because the proximity of the website to Plaintiffs’ homes is a “nonissue.”
While the court repeatedly noted that these Motions were presented in the earliest stages of the proceedings, with burdens of proof that are significantly less than Motions that follow fact discovery, the court’s Opinion is expected to have a significant impact on the litigation and settlement of the existing cases, the proliferation of demand letters and, the number of new cases filed.
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 firstname.lastname@example.org.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.