In the face of an ever-growing number of lawsuits based upon allegedly non-ADA compliant website designs, defendants have enjoyed little success obtaining dismissal at the pleadings stage of proceedings. One lingering glimmer of hope had been the viability of a due process argument premised upon the “primary jurisdiction” defense, which formed the basis of Judge Otero’s decision dismissing the plaintiff’s complaint in Robles v. Domino’s Pizza, LLC. In short, the defendant argued that the plaintiff’s action must be either stayed or dismissed because the plaintiff’s request to impose liability under the ADA would violate the defendant’s constitutional right to due process, because the Department of Justice (DOJ) had not promulgated concrete guidance regarding the accessibility standards an e-commerce webpage must meet. Concluding that the plaintiff sought to impose on all regulated persons and entities a requirement that they “compl[y] with the WCAG 2.0 Guidelines” without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic, the trial court dismissed the plaintiff’s complaint without prejudice subject to the DOJ’s issuance of regulations concerning Title III’s application to website design.
On January 15, 2019, the Ninth Circuit Court of Appeals reversed and remanded the trial court’s order, effectively closing the door on a defendant’s ability to obtain dismissal of a website ADA claim at the pleadings stage, and providing a roadmap to future the plaintiffs for how to successfully plead similar claims to survive FRCP 12(b)(6) motions. Whereas the District Court was concerned that the “lack of formal guidance in this complex regulatory arena…placed [defendants] in the precarious position of having to speculate which accessibility criteria their websites and mobile applications must meet”, the Ninth Circuit observed that “the Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations”. Pointing to standing precedent within the Circuit that “the lack of specific regulations cannot eliminate a statutory obligation”, the Ninth Circuit reviewed the 23-year history of the DOJ’s public statements concerning the applicability of the ADA to websites of places of public accommodation, concluding that “at least since 1996, Domino’s has been on notice that its online offerings must effectively communicate with its disabled customers and facilitate ‘full and equal enjoyment’ of Domino’s goods and services”. The Ninth Circuit further disagreed with Domino’s violation of due process argument observing that “[the plaintiff] only seeks to impose liability on Domino’s for failing to comply with Section 12182 of the ADA, not for the failure to comply with a regulation or guideline of which Domino’s has not received fair notice”. Finally, the Ninth Circuit held that “efficiency is the deciding factor in whether to invoke primary jurisdiction”, and noted that “court[s] should not invoke primary jurisdiction when the agency is aware of but has expressed no interest in the subject matter of the litigation”. In view of the DOJ’s publicly stated awareness of these specific issues, coupled with its December 26, 2017 withdrawal of its July 26, 2010 Advance Notice of Proposed Rulemaking on these specific issues, the Ninth Circuit held that the potential for needless delay in adjudication of the plaintiff’s claims was not just likely, but inevitable, thereby undermining efficiency.
Although the Ninth Circuit was crystal clear that it was providing “no opinion about whether Domino’s website or app comply with the ADA”, this decision is a significant blow to defendants hoping to avoid the significant costs associated with discovery and obtain early dismissal of website based ADA claims. With due process and primary jurisdiction defenses no longer appearing viable, defendants will have no alternative than to defend their individual ADA-compliance on the merits, which will require them to incur substantial litigation costs with no set benchmark establishing what constitutes compliance with the ADA’s mandate to provide “full and equal enjoyment” to prospective patrons with visual impairments. In the wake of the Ninth Circuit’s decision, a further uptick in similar claims should be expected, with the burdensome costs of litigation and pervasive uncertainty regarding standards for compliance as leverage to obtain settlements that a favorable to the plaintiffs’ bar.