The Circuit Court, quoting a District Court case, clarified that Title III “applies to the services of a place of public accommodation, not in a place of public accommodation.”
On October 7, 2019, the Supreme Court of the United States issued an order denying certiorari in Domino’s Pizza, LLC v. Robles, a case that would have required the Supreme Court to determine the application of Title III of the Americans with Disabilities Act (ADA) to websites and mobile applications. The Supreme Court’s order means a Ninth Circuit decision applying Title III to websites and mobile apps will stand, even in the absence of Department of Justice-promulgated regulations outlining applicable compliance standards.
On September 1, 2016, Guillermo Robles, who is visually impaired, filed suit in the U.S. District Court for the Central District of California. He alleged that Domino’s website and mobile app were incompatible with his chosen screen-reading software, and thus violated Title III of the ADA, among other statutes. Domino’s moved for summary judgment, in part on the basis that Title III of the ADA does not extend to its website or mobile app. The District Court found that Title III did apply to Domino’s website and app, but granted summary judgment on the grounds that imposing liability on Domino’s without clear standards for satisfying Title III obligations would violate the company’s due process rights. Robles then appealed.
On January 15, 2019, the Ninth Circuit issued a unanimous decision reversing and remanding the District Court decision. The Circuit Court was persuaded that Title III extended to websites and mobile apps, relying heavily on the text of Title III itself and Department of Justice regulations requiring a public accommodation to “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” The Circuit Court also specifically rejected any argument that Title III did not apply simply because an online customer may not set foot in an actual store. The Circuit Court, quoting a District Court case, clarified that Title III “applies to the services of a place of public accommodation, not in a place of public accommodation.” The Circuit Court’s decision focused on the “nexus” between the website and mobile app and the physical place of public accommodation.
The Circuit Court also rejected Domino’s claim that liability without clear standards for compliance violated its right to due process—a clear rebuke of the District Court’s decision. In so doing, the Circuit Court distinguished the Domino’s matter from United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008), which had been cited extensively by the District Court. In that case, the Ninth Circuit vacated an injunction that would have required the retrofit of AMC movie theaters to comply with standards promulgated after construction. The court distinguished AMC from the Domino’s matter on several bases, including that Domino’s website was created after 1996, the year the Department of Justice stated its position that the ADA requires “effective communication.” The Circuit Court concluded that although Domino’s “wants DOJ to issue specific guidelines for website and app accessibility, the Constitution only requires that Domino’s receive fair notice of its legal duties.”
Finally, the Ninth Circuit essentially side-stepped Domino’s argument that its liability could not be based on a purported violation of the Web Content Accessibility Guidelines (WCAG) 2.0, a set of nonauthoritative guidelines created to help increase the accessibility of websites and apps. Domino’s argued that it could not, as a constitutional matter, be liable for violating WCAG 2.0 because it had had no notice that it was required to comply with it. The court resolved the issue, albeit only indirectly, finding that Robles did not seek liability based on WCAG 2.0. Instead, the court credited Robles’ argument that his complaint was made under the ADA exclusively, and that compliance with WCAG 2.0 was a remedy the court could order after a finding of liability. Thus, the court rejected Domino’s argument without actually deciding its merits.
Ultimately, the Circuit Court reversed and remanded, and Domino’s subsequently sought review by the Supreme Court. It argued, among other things, that Supreme Court review was necessary to prevent the Ninth Circuit’s decision from unleashing a “tsunami” of litigation. This argument and the others proffered by Domino’s—including the existence of an alleged circuit split—were insufficient to convince the Supreme Court to grant a petition for certiorari. As a result, the Ninth Circuit’s decision will go into effect with the likely result of increased litigation concerning the interaction of Title III, websites and mobile apps.