Seyfarth Synopsis: The Supreme Court declines to review a Fifth Circuit decision stating that a public accommodation covered by Title III of the ADA has to be a physical place and vending machines are not sales establishments covered by Title III of the ADA.

In August 2016, the U.S. Court of Appeals for the Fifth Circuit ruled in Magee v. Coca-Cola that vending machines are not places of public accommodation covered by Title III of the ADA. The blind plaintiff in that case had argued that the inaccessible Coca-Cola vending machine in question was a “sales establishment” regulated by Title III of the ADA and sued Coca Cola — the owner and operator of the vending machine. Both the trial court and the Fifth Circuit Court of Appeals disagreed, holding that a “sales establishment” is a physical space that is occupied by a business and that the vending machine was not such a space. In other words, the owner or operator of the establishment where the vending machine was located who was not sued may have had obligations with respect to the machine, but not the owner or operator of the vending machine itself.

The plaintiff petitioned the U.S. Supreme Court for review. On Monday, the Supreme Court Denied plaintiff’s petition for writ of certiorari, declining to hear the case. Before issuing Monday’s denial deciding whether to review the case, the Supreme Court had asked the U.S. Department of Justice (DOJ) to weigh in on whether vending machines are places of public accommodation. The DOJ firmly answered the question in the negative and also urged the Court to not review the Fifth Circuit’s decision. We blogged about the DOJ’s position and how it may prove useful to defendants defending cases involving self-service machines here.

The Magee decision has implications beyond vending machines. It makes the federal courts in the Fifth Circuit (i.e. Louisiana, Mississippi, and Texas) unattractive venues for lawsuits against web-only businesses that have no physical location where customers go. Plaintiffs seeking to sue such businesses will be much more likely to bring their lawsuits in the First or Seventh Circuit which have interpreted the term “public accommodation” to extend beyond physical spaces. The Supreme Court’s denial of review prolongs the conflict among judicial circuits about whether a “public accommodation” under the ADA must be a physical place, and promotes forum shopping for plaintiffs.