In the latest decision applying the Americans with Disabilities Act to an online retailer, a California federal court judge granted a defendant's motion to dismiss over concerns about due process.

The lawsuit involved charges that Domino's Pizza ran afoul of the statute because neither its website nor its mobile app was in compliance with version 2.0 of the W3C's Web Content Accessibility Guidelines (WCAG). For visually impaired plaintiff Guillermo Robles, that meant he was unable to order a pizza online because the site and app lacked the necessary screen reader software.

But the pizza chain moved to dismiss the suit. In addition to contending that its website and mobile app were not "place[s] of public accommodation" subject to the requirements of the ADA, the defendant told the court that being held liable under the statute with an absence of concrete guidance on compliance violated the company's due process. The Department of Justice—despite promising to issue guidance on the issue—has not promulgated accessibility compliance standards that e-commerce sites must meet, much less that businesses comply with the specific standards cited in the plaintiff's complaint, Domino's told the court.

U.S. District Court Judge S. James Otero sidestepped the defendant's first argument but agreed with the second.

In 2010, the DOJ issued a Notice of Proposed Rulemaking (NOPR), stating that the agency was "considering revising the regulations implementing Title III of the [ADA] in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the [Web], accessible to individuals with disabilities."

As part of the NOPR, the DOJ noted that "a clear requirement that provides the disability community consistent access to websites and covered entities clear guidance on what is required under the ADA does not exist."

Seven years have passed without a final rule from the DOJ, the court said, leaving covered entities still waiting for clear guidance on what is required under the ADA—including the defendant. "Here … Plaintiff seeks 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," Judge Otero wrote. "This request flies in the face of due process."

The court was not persuaded by Robles' argument that the DOJ has demonstrated its position in consent decrees and settlements involving ADA compliance. The cases cited by the plaintiff were materially distinct from the case at bar, the court said, and the DOJ required the covered entities to comply with different standards.

The examples proffered by the plaintiff "highlight, rather than dispel, the vagueness concern that forms the basis of Defendant's Motion, and demonstrate why a lack of formal guidance in this complex regulatory arena places those subject to Title III in the precarious position of having to speculate which accessibility criteria their websites and mobile applications must meet," the court wrote. "Indeed, the Court, after conducting a diligent search, has been unable to locate a single case in which a court has suggested, much less held, that persons and entities subject to Title III that have chosen to offer online access to their goods and services must do so in a manner that satisfies a particular WCAG conformance level."

The court granted Domino's motion, dismissing each of Robles' causes of action without prejudice pursuant to the primary jurisdiction doctrine.

To read the order in Robles v. Domino's Pizza, click here.

Why it matters: The court noted that Congress provided the DOJ with a mandate to issue regulations and render technical assistance regarding Title III of the ADA. "Such regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III," Judge Otero explained. "Moreover, the Court finds the issue of web accessibility obligations to require both expertise and uniformity in administration, as demonstrated by the DOJ's multi-year campaign to issue a final rule on this subject. The Court concludes by calling on Congress, the Attorney General, and the Department of Justice to take action to set minimum web accessibility standards for the benefit of the disabled community, those subject to Title III, and the judiciary."