In the past week, two US Court of Appeals issued notable opinions on standing as part of the ever-evolving landscape of ADA website accessibility litigation (see our previous coverage here, here, here, and here).

Already-emboldened ADA website plaintiffs will find support in the Ninth Circuit's decision yesterday (available here) in Guillermo Robles v. Dominos Pizza LLC (see our previous coverage here). The Ninth Circuit issued a wide-ranging opinion affirming that Dominos' website and app are places of public accommodation subject to the ADA—noting that the ADA applies to services of a public accommodation, not services in a place of public accommodation. The Ninth Circuit also held that Dominos had received fair notice that its website had to comply with the ADA, even if the DOJ had not yet announced specific rules regarding which accessibility guidelines to apply. Finally, the Ninth Circuit rejected Dominos' "primary jurisdiction" argument and held that courts have jurisdiction to adjudicate ADA website claims even while the DOJ delays its rulemaking process. Critically for ADA website defendants, the Ninth Circuit limited its holding to situations where the website or app impedes access to the goods or services of a physical location—without addressing the situation where the defendant’s website does not impede access to these goods or services, or situations where the defendant has no physical presence to speak of.

On January 3, the Fourth Circuit also answered a key standing issue in Griffin v. Department of Labor Federal Credit Union: where the plaintiff does not meet the criteria for membership in the defendant credit union, and could never in fact actually use the credit union’s services, does the plaintiff have standing to challenge the accessibility of the credit union's website?

The Fourth Circuit's opinion (available here) narrowly rejected the plaintiff's standing on the grounds that the plaintiff was ineligible to become a credit union member under the federal law governing the requirements for membership of the Department of Labor credit union. The Fourth Circuit did not address the applicability of the ADA to websites more generally, or whether other forms of tester standing pass constitutional muster (for example, where a "walled garden" website or app can only be used in conjunction with a product that the plaintiff has not purchased). The opinion was decidedly narrower than the wide-ranging skepticism the judges expressed at oral argument back in October, where the panel observed that the plaintiff’s position raised a concept of standing that was "altogether abstract," "almost vaporizes" the concept of standing, and that would erode the Constitutional standing requirement to the "point of nothingness."

Griffin is certainly not the only case facing this standing issue—plenty of pending ADA website cases throughout the United States involve complaints filed for websites that can only be used by consumers who have purchased a particular product the plaintiff has never actually purchased. The Fourth Circuit, however, did not quite deliver the critical blow to wide-ranging standing for ADA website plaintiffs that have allowed hundreds of cookie-cutter (or, as the Fourth Circuit panel put it, "mimeographed") complaints to proliferate over the past few years.

While the two decisions may be factually distinguishable from each other (the Fourth Circuit addressed federal credit union membership, while the Ninth Circuit focused on websites and apps that are a critical part of services at a retailer’s physical location), their generally opposing views on standing for ADA website plaintiffs may tee up a circuit split for higher court review as additional Courts of Appeal weigh in. In the meantime, as the DOJ continues to punt on their rulemaking duties, expect plaintiffs to be emboldened by the lack of clear guidance in this area.