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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Missouri Construction Company Sues Carpenter Union for Threatening Behavior
February 10, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to KMOV News, Raineri Construction Company in Missouri filed suit against the Local Carpenters’ District Council claiming employees had been “stalked and threatened” by the union. However, the Carpenters Union “denies the allegations” and said “it has the right to protest against a company that doesn’t always meet the union standards for pay and benefits.”
Tony Raineri, one of the construction company’s executives, said to KMOV News: “For me it wasn’t such a big deal until they started making threats of bodily harm, started following me and my wife to our home, started following my employees to their homes.”
KMOV News reported that a “union representative told News 4’s Craig Cheatham that no one acting on behalf of the Carpenters Union ever threatened, harassed or stalked Raineri, his employees or their clients.”
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Newmeyer & Dillion Announces New Partner Bahaar Cadambi
May 06, 2019 —
Newmeyer & DillionProminent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that Newport Beach attorney Bahaar Cadambi has been elected to partnership.
"Bahaar has worked hard to become an integral part of the firm's litigation practice, delivering exceptional value to her colleagues and clients at every opportunity," said the firm's Managing Partner, Paul Tetzloff, "We are proud to count her among our partners and look forward to her continued success and contributions."
Cadambi concentrates her practice in business, insurance, and real estate litigation. She represents businesses, homebuilders, developers, and general contractors in complex, multi-party real estate, construction defect, and insurance disputes. She also represents individuals and businesses across a variety of business litigation matters. Her approach to litigation ensures that clients are informed of all potential strategies, the consequences of those strategies, and how the implementation of those strategies will affect their business.
Passionate about the legal community, Cadambi is an adjunct professor at the University of Southern California Gould School of Law and an active member of CREW (Commercial Real Estate Women Orange County). She is also a Barry's Bootcamp and yoga enthusiast, lover of all things interior design, avid traveler, devoted wife, and favorite aunt to two energetic nieces and one cheerful nephew.
Bahaar earned her B.A. from the University of California, Los Angeles and her J.D. from the University of California, Hastings College of Law. Prior to joining Newmeyer & Dillion, she served as a Judicial Extern for the Honorable William Alsup in the U.S. District Court for the Northern District of California.
Bahaar Cadambi: bahaar.cadambi@ndlf.com
Practice Areas
- Business Litigation
- Construction Litigation
- Insurance Law
About Newmeyer & Dillion
For almost 35 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. 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 have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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Bad Faith Claim for Inadequate Investigation Does Not Survive Summary Judgment
May 20, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe insured's claim for bad faith investigation regarding their hail damage claim did not survive the insurer's motion for summary judgment. Amarillo Hospitality Tenant, LLC v. Mass. Bay Ins. Co., 2015 U.S. Dist. LEXIS 56228 (N. D. Tex. April 29, 2015).
A hailstorm caused damage to the Courtyard Marriot. The day after the storm, the insured inspected the roof of the hotel and observed damage to a sign and some aluminum vent tubes. No damage to the roof itself was observed. Subsequently, leaks were found on the tenth floor of the hotel. A public adjuster concluded that the roof had sustained damage during the hailstorm.
The insured filed a claim with Massachusetts Bay Insurance Company. The insurer paid for the cost of repairing the damaged sign. To determine whether the damage to the roof was caused by the hailstorm, the insurer hired Donna Engineering, who conducted two inspections of the roof. Both inspections concluded that the hailstorm did not cause damage to the roof. Consequently, the claim was denied.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Congratulations to Associate Madeline Arcellana on Her Selection as a Top Rank Attorney in Southern Nevada!
July 18, 2022 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is proud to announce Senior Associate Madeline Arcellana was selected by Nevada Business Magazine as a Top Rank Attorney in Southern Nevada for her work in Civil Litigation, General Liability, and Personal Injury!
The lawyers selected to Nevada Business Magazine, Top Rank Attorneys list are at the top of their field and each nomination is put through an extensive verification process, resulting in the top attorneys in Nevada who are chosen by their peers. To view Nevada’s 2022 Top Rank Attorneys, please click
here.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Reasonableness of Liquidated Damages Determined at Time of Contract (or, You Can’t Look Back Again)
October 05, 2020 —
Christopher G. Hill - Construction Law MusingsI’ve discussed the continuing litigation between White Oak Power Constructors v. Mitsubishi Hitachi Power Systems Americas, Inc. previously here at Construction Law Musings because the case was another reminder that your construction contract terms matter and will be interpreted strictly here in the Commonwealth of Virginia. The prior opinion in this case from the Eastern District of Virginia court the Court considered the applicability of a liquidated damages provision. In the latest opinion from the Court (PDF) the Court looked at when and how any liquidated damages would be calculated. In its June 22, 2020 opinion, the Court put the issue as follows:
White Oak’s motion for partial summary judgment presents a narrow issue: whether courts may consider the damages actually sustained by a party as a result of a contract breach when deciding if liquidated damages required by a contract “grossly exceed” a party’s actual damages.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Executing Documents with Powers of Attorney and Confessions of Judgment in PA Just Got Easier
October 27, 2016 —
Thomas C. Rogers, Nancy Sabol Frantz and Susan Fetterman – White and Williams LLPCertain tedious requirements in Pennsylvania for the execution of a document used in a commercial transaction which contains a power of attorney have been eliminated. Act 103 of 2016, which was signed by Governor Wolf on October 4, 2016, exempts certain powers of attorney from the requirement that it be acknowledged by a notary public as well as other formalities.
Reprinted courtesy of White and Williams LLP attorneys
Thomas C. Rogers,
Nancy Sabol Frantz and
Susan Fetterman
Mr. Rogers may be contacted at rogerst@whiteandwilliams.com
Ms. Frantz may be contacted at frantzn@whiteandwilliams.com
Ms. Fetterman may be contacted at fettermans@whiteandwilliams.com
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More Musings From the Mediation Trenches
July 30, 2015 —
Christopher G. Hill – Construction Law MusingsAs those that read this construction blog on a regular basis know, I became a Virginia Supreme Court certified mediator a few years ago. I did so because I believe that mediation as a form of alternate dispute resolution is in most cases a much better alternative to resolve a construction dispute than litigation.
While I still act as counsel to construction companies participating in mediations (and have posted my thoughts on this topic on numerous occasions), working with the General District Courts of Virginia and acting as a mediator for private disputes has given me an interesting perspective on how the flexibility and process of mediation can resolve disputes in a way that formal court litigation or other forms of ADR may not.
After almost 4 years of working with the general district courts here in Virginia and working with private companies and individuals to resolve their disputes, I have come to the conclusion that often the real issue is not the money (though that is the big one) but some other intangible issue, whether an emotional one or some conflict of personality or even what may seem in hindsight to be a minor miscommunication. Because of this fact of life, and the life of a mediator, the ability to “vent” in the confidential setting of a mediation and in a way that no Court with rules of evidence could allow can go a long way toward a resolution of the dispute.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
