Is Your Website Accessible And Are You Liable If It Isn't?
January 06, 2020 —
Kyle Janecek and Jeffrey Dennis - Newmeyer DillionTo anyone who does business online - beware. While the ADA has been in play for years, it did not necessarily account for all the technological advances that have been made over time. Specifically, when it comes to accommodations - what accommodations can and should be made within a website, and whether accommodations should be made on all websites or just some. However, because of this, a new type of lawsuit has emerged, and is slowly becoming more prominent. Since the Supreme Court refused to clarify this particular area of law, we must turn to the recent Ninth Circuit Ruling in Robles v. Domino's for guidance.
What Happened in Robles v. Domino's?
As part of a spree of litigation, Guillermo Robles had sued Domino's Pizza due to the lack of accessibility for the Domino's smartphone application and website. Mr. Robles is blind, and neither the website nor application, which allowed users to order Domino's food for pickup or delivery, and offer exclusive discounts, were accessible to him. The Domino's website and application were both incompatible with his chosen software, prompting a lawsuit in 2016. After a short success in the trial court due to the lack of guidance given to websites and applications in how to accommodate for the ADA, the Ninth Circuit overruled the trial court, finding that: (1) the ADA applied to Domino's as there was a nexus between the Domino's website and app, and physical restaurants; and (2) the lack of guidance to Domino's did not violate its right to due process.
The ultimate effect of Robles v. Domino's found that businesses cannot necessarily avoid ADA litigation, even though the federal government hasn't given guidelines on how to make a website or mobile application accessible.
What Happened at the Supreme Court?
Back in June, Domino's appealed the Ninth Circuit decision, prompting a flurry of amicus briefs. This was done, in part, because there is a circuit split between the Sixth, Ninth, and Eleventh Circuits requiring that a website has a physical nexus to a place of public accommodation (i.e. a "brick-and-mortar" location), and the First, Second, Fifth and Seventh Circuits, which will rule that a website is a place of public accommodation if it does something a place of public accommodation would do (i.e. Netflix showing films). In addition, parties aside from Domino's have been looking for further guidance given the lack of comments from the Department of Justice and Congress. This is especially relevant because the Department of Justice has been considering the application of the ADA to the internet from 1996 to 2018, resulting in some inconsistent comments regarding the need for rule making.
This had pushed Domino's and others to attempt to end the ongoing regulation through litigation and furthermore, due to the decision in the Ninth Circuit, to avoid the Domino's holding from creating a "defacto" requirement.
How Do You Prepare?
While there is an off-chance that this kind of civil ADA litigation will resurface to the Supreme Court, these claims tend to settle relatively quickly, and ultimately may prevent courts from providing any solid or concrete guidance on accessibility until either the Department of Justice provides guidelines or Congress amends the ADA to specifically address website accessibility.
However, a determination of what is "accessible" may be put forward due to the new proposed regulations for the CCPA set forth by California's Attorney General. The proposed regulations specifically state that a privacy policy should be accessible to consumers with disabilities, and at a minimum, should provide information on how a consumer with a disability can access the notice in an alternative format. Importantly, this removes the arguments on whether or not the website would have to be a place of public accommodation. It is now widely applicable to every website. Given the CCPA is to be enforced by the Attorney General, this presents a possible situation where the state of California will determine what is accessible through enforcement actions.
In the absence of guidelines however, you have four actions you can take to protect your business.
- Learn the standards. There are unofficial accessibility guidelines such as WCAG 2.0AA that are treated as an industry standard. While this may not completely protect you from claims made by litigants, this will help your business move towards compliance.
- Know and negotiate. When dealing with third party service providers or developers, make sure that accessibility is brought up, discussed, and addressed before moving forward with using that service provider or developer. If the developer or service provider cannot assure that their product is accessible, be prepared to walk away. A business may be found liable for the inaccessibility of an online service provider used by the business to provide the business's services.
- Beta test often. As technology changes or websites are updated to be more device-friendly, new code or functions may make a website less accessible for accessibility devices and software. In addition, just because a website meets the WCAG 2.0AA, this may not account for all accessibility issues, so it would be prudent and beneficial to be thorough.
- Get help. Consider hiring third parties to help you evaluate a plan for accessibility and keep you up-to date for online accessibility issues.
Nonetheless, there is still a significant risk and uncertainty for anyone who does business online, as any business has to be aware of the current general framework of laws and industry accessibility guidelines to hope they meet the murky definition of "accessible."
Kyle Janecek is an associate in the firms Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
Jeff Dennis (CIPP/US) is the Head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that align with the business objectives of clients in diverse industries. With over 70 attorneys working as an integrated team to represent clients in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer Dillion delivers tailored legal services to propel clients' business growth. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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Labor Under the Miller Act And Estoppel of Statute of Limitations
May 08, 2023 —
David Adelstein - Florida Construction Legal UpdatesIf you want a case that goes into history of the federal Miller Act, check out the Fourth Circuit Court of Appeal’s opinion in U.S. ex rel. Dickson v. Fidelity and Deposit Company of Maryland, 2023 WL 3083440 (4th Cir. 2023). While I am not going to delve into this history, it’s a worthwhile read. It is also a worthwhile read for two other points.
First, it discusses what constitutes “labor” under the Miller Act.
Second, it discusses doctrine of estoppel to prevent a surety from raising the statute of limitations to bar a Miller Act payment bond claim, which is a doctrine you do NOT want to rely on, as this case reinforces.
Both of these points applicable to Miller Act claims are discussed below.
This case dealt with a prime contractor renovating staircases that was terminated by the federal government. The prime contractor hired a professional engineer as its subcontractor to serve as its project manager and supervise labor on the project. The engineer/subcontractor also had “logistical and clerical duties, taking various field measurements, cleaning the worksite, moving tools and materials, and sometimes even watering the concrete himself.” Dickson, supra, at *1.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Privileged Communications With a Testifying Client/Expert
June 10, 2019 —
Shannon M. Warren - The Subrogation StrategistIn
In re City of Dickinson, 568 S.W.3d 642 (Tex. 2019), the Supreme Court of Texas recently assessed whether a client’s emails with its counsel were subject to disclosure after the client was designated as a testifying expert witness. In re City of Dickinson involved a coverage dispute between a policyholder and its insurer. The policyholder moved for summary judgment on the issue of causation, essentially alleging that its insurer did not pay all damages caused by Hurricane Ike. In responding to the motion, the insurer relied upon an affidavit by one of its employees, a claims examiner, that included both factual testimony and expert witness testimony.
The policyholder subsequently filed a motion to compel, seeking the production of emails between the claims examiner and the insurer’s counsel that were generated while the affidavit was being drafted. The emails contained numerous revisions of the affidavit. The insurer objected, asserting that the emails were protected by the attorney-client privilege and were generated in the course of the rendition of legal services.
The trial court granted the motion to compel, ordering production. Ultimately, after a series of appeals, the Supreme Court had to decide whether the documents in dispute were subject to discovery. In resolving this issue, the court examined the rules pertaining to expert disclosures. As noted by the court, the rules authorize the production of all documents provided to a testifying expert witness. Thus, the court was faced with determining if its rules required the disclosure of documents that are also subject to the attorney-client privilege.
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Shannon M. Warren, White and WilliamsMs. Warren may be contacted at
warrens@whiteandwilliams.com
Vermont Supreme Court Finds COVID-19 May Damage Property
November 07, 2022 —
Michael S. Levine & Lorelie S. Masters - Hunton Insurance Recovery BlogAs reported on this
blog, policyholders have long been of the view that the presence of substances like COVID-19 and its causative virus SARS-CoV-2, which render property dangerous or unfit for normal business operations, should be sufficient to trigger coverage under commercial all-risk insurance, as has been the case for more than 60 years.
However, many courts, federal courts in particular, despite decades of pro-policyholder precedent, have embraced the view that “viruses harm people, not [property].” Thirty-one months after the start of the pandemic, the first state high court has gone in a different direction, according greater weight to pro-policyholder precedent.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Lorelie S. Masters, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Masters may be contacted at lmasters@HuntonAK.com
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San Francisco International Airport Reaches New Heights in Sustainable Project Delivery
November 21, 2022 —
Aileen Cho - Engineering News-RecordTen years ago, Geoff Neumayr decided he was tired of “doing design and construction by combat.” San Francisco International Airport had completed a master plan for the complex and the front of the airport facilities doing things the traditional way.
Reprinted courtesy of
Aileen Cho, Engineering News-Record
Ms. Cho may be contacted at choa@enr.com
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Plan Ahead for the Inevitable Murphy’s Law Related Accident
August 06, 2019 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Construction Law Musings, we welcome back Melissa Dewey Brumback. Melissa (@melissabrumback) is a construction attorney and partner in the firm Ragsdale Liggett, PLLC in Raleigh. Melissa has spent over a decade representing engineers and architects, advising them on contract proposals to limit risks, and defending them when litigation does arise. She is the author of the award-winning Construction Law in North Carolina a blog dedicated to the A/E community. Melissa is rated AV, the best rating of the Martindale Hubbell lawyer rating system, is a certified LEED Green Associate, and serves as President of the RL Mace Universal Design Institute. She is also signed up to take a cruise this summer with her family (!).
The recent cruise ship fiasco, in which thousands were stranded at sea for an entire week with no running water or toilet facilities, visibly brought to mind the old axiom to “Be Prepared.” As Chris likes to say, Murphy was an optimist.
What does this have to do with your construction company? Plenty. Since time is money and a downed project extremely expensive, you should plan in advance for likely emergency situations. Some things to consider:
1. Emergency Contacts: Do you only have a cell number for your key project manager? You should have at least two ways to reach all key employees and subcontractors, as well as owner representatives and the designers of record. Consider that in a large emergency, sometimes entire cell phone towers are out of commission from overuse. A land line comes in awfully handy in such a situation.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Global Emissions From Buildings, Construction Climb to Record Levels
November 28, 2022 —
Gautam Naik - BloombergCarbon-dioxide emissions from building construction and operations hit an all-time high in 2021, according to the most recent data, a sign that the push to decarbonize the industry by 2050 may be slipping out of reach.
Energy-related emissions from the operation of buildings reached 10 gigatonnes of CO2 equivalent, 5% higher than 2020 levels and 2% more than the pre-pandemic peak in 2019, according to data compiled by the Global Alliance for Buildings and Construction. Operational energy demand in buildings for heating, cooling, lighting and equipment rose about 4% from 2020 levels, the group said.
While investments in building energy efficiency increased 16% last year to $237 billion, the growth in floor space outpaced efficiency efforts. As a result, “the gap between the climate performance of the sector and the 2050 decarbonization pathway is widening,” the report concluded.
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Gautam Naik, Bloomberg
Power & Energy - Emerging Insurance Coverage Cases of Interest
November 30, 2020 —
David G. Jordan & Tiffany Casanova - Saxe Doernberger & Vita, P.C.The Power & Energy sector faces a multitude of risks that impact output and profitability, requiring sound risk management and robust insurance programs. As of recent, like most industries, there have been significant challenges facing the industry in light of COVID-19. These issues, including decreased product demand as well as supply- side issues, have been well documented. However, other issues continue to impact Power & Energy providers, with significant insurance coverage implications that are worthy of note. Below is a summary of three open cases of interest, where declaratory relief has been sought by energy providers’ insurance carriers, seeking an avoidance of coverage.
1. Fracking Dispute and “Intentional Acts”
In the Texas case of The James River Insurance Co. v. Clearpoint Chemicals LLC et al., No. 4:20-cv-0076 (N.D.Tex), James River Insurance Company (“James River”) is asking a federal district court to declare that it does not owe defense or indemnity to its insured for acts it defines as both intentional and/or malicious acts.
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David G. Jordan, Saxe Doernberger & Vita, P.C. and
Tiffany Casanova, Saxe Doernberger & Vita, P.C.
Mr. Jordan may be contacted at DJordan@sdvlaw.com
Ms. Casanova may be contacted at TCasanova@sdvlaw.com
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