Location, Location, Location: New Website Accessibility Decision May Encourage Forum Shopping
On November 8, 2017, the U.S. District Court for the District of New Hampshire joined the ranks of the federal courts that have held that a website itself is a place of public accommodation—even if the business that maintains the website does not own or operate any physical place of public accommodation. The defendant in this case operates an online-only business and does not own or operate any traditional brick and mortar locations. The websites of such online-only businesses have been subject to increasing attack.
In denying the defendant’s motion to dismiss, the court not only held that websites may be places of public accommodation but also roundly rejected several popular defenses, including due process, primary jurisdiction doctrine, and lack of specificity of the requested injunction in violation of Federal Rule of Civil Procedure 65(d). While this sweeping rejection of the defendant’s arguments may appear to be bad news for owners and operators of websites, a deeper dive into the opinion reveals that much (but not all) of the decision turns on binding precedent and the specific allegations and arguments in this case.
In denying the defendant’s argument that its website is not a place of public accommodation, the court acknowledged that while the majority of courts of appeals that have addressed this issue require a “public accommodation” to be an actual, physical space or have a nexus to an actual, physical space, such that stand-alone websites may not be considered “public accommodations,” the First Circuit Court of Appeals is not one of them. As a result, the court was bound by the First Circuit’s decision in Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc., even though the court otherwise found the majority holdings from the Third, Fifth, Sixth, and Ninth Circuits to be “convincing.” This decision highlights the outcome-determinative effects of the current circuit split on this issue, which may lead to forum shopping by plaintiffs.
With respect to primary jurisdiction, the court held that because the U.S. Department of Justice (DOJ) has affirmatively abandoned any consideration of website accessibility standards for the immediate future, the potential for delay is “great” and weighs against invoking the primary jurisdiction doctrine. This holding is contrary to the recent holding of the U.S. District Court for the Central District of California in Robles v. Domino’s Pizza LLC.
However, with respect to the defendant’s due process argument, the court implicitly agreed with the Domino’s court, noting that though an attempt to hold the defendant liable for failing to comply with independent accessibility standards that have not been promulgated by the DOJ, such as the WCAG 2.0 AA standards, could violate due process standards, that concern is not implicated here, as the plaintiffs did not allege that the defendant violated the Americans with Disabilities Act (ADA) specifically by failing to comply with the WCAG 2.0 AA standards and because the defendant did not challenge the vagueness of the ADA itself. Thus, the court has left the door open for due process challenges in cases where plaintiffs have insisted upon compliance with WCAG 2.0 and has indicated that defendants may want to raise a due process defense for lack of specificity of the ADA itself in future cases.
In a move that, at first blush, seems to conflict with its holding regarding due process, the court held that an injunction requiring the defendant to comply with WCAG 2.0 AA is proper. The key to requiring WCAG 2.0 compliance is in the timing: it may violate due process to hold a website owner to the WCAG 2.0 AA standard prior to the filing of a lawsuit, but it may also be proper to hold the website owner to this standard for purposes of injunctive relief following the initiation of a lawsuit.
The court declined to definitively address the defendant’s arguments regarding “effective communication,” as it is a fact-specific affirmative defense. The court noted that while there was no argument as to the standing of the individual plaintiffs, it may take up the question of the standing of plaintiffs with nonvisual disabilities at a later date.
While this decision may result in more plaintiffs filing cases in the First Circuit’s constituent courts, particularly against online-only businesses, it is not a fatal blow to owners and operators of websites with respect to accessibility claims.