By Ray Birch
WASHINGTON–Following the recent decision by the Supreme Court, will credit unions now see another wave of lawsuits alleging their websites are in violation of the Americans with Disabilities Act (ADA)?
It’s possible, assert legal analysts, who say to what extent there is any increase in the number of cases targeting credit unions will depend on decisions in appeals courts across the country. As CUToday.info has extensively reported, credit unions have been hit with numerous lawsuits alleging their websites violate the ADA.
The primary issue is whether a website is a public accommodation and must accessible to everyone, including the blind.
As CUToday.info has also reported, the Supreme Court has declined to hear an appeal from Domino’s Pizza and has left to stand a lower court decision that ADA requirements also apply to websites and mobile applications. In a decision earlier this year, the U.S. Court of Appeals for the Ninth Circuit held ADA liability does not violate the 14th Amendment, and that Domino's had received fair notice that its website and app must comply with ADA.
Clarity Continues to be Sought
Sources agreed that if the Supreme Court had opted to review the lower court’s decision, some clarification around what is required of retailers to comply with the ADA rules would likely have surfaced from the case.
NAFCU Executive Vice President of Government Affairs and General Counsel Carrie Hunt believes had the Supreme Court taken the case, that alone may have prompted the Department of Justice to issue additional clarification around ADA website requirements.
As CUToday.info has extensively reported, the Department of Justice has never promulgated regulations regarding website accessibility for public accommodations and has withdrawn previously issued advanced notices of proposed rulemakings on this subject.
“If the Supreme Court had (taken the case) and gone the other way, saying websites are not places of public accommodation, I think that would have been helpful to some degree,” said Hunt. “But I think either way there would still be ongoing legal issues to resolve and ultimately we still need clarifying regulations and guidance from the Department of Justice.”
Not a ‘Setback’
Hunt does not believe the Supreme Court’s decision creates as significant a precedent as some might believe.
“I don't think it's necessarily a setback, because I don't think it's going to be clear that the Supreme Court was going to create enough clarity around what’s needed to comply,” said Hunt, emphasizing that the DoJ needs to take action. “Let's just go ahead and say that the Supreme Court said websites are a place of public accommodation and there needs to be some level of accessibility. Well, then that likely would mean that a lower court would have to work out some of those issues—and we would still be waiting for the Department of Justice to issue clarifying regulations. So, in many ways we would have been back in the same place.”
More Suits May be Filed
But Hunt acknowledged the Supreme Court’s decision could spur additional ADA lawsuits against credit unions, noting that had the court heard the case and ruled favorably toward Domino’s, the number of ADA lawsuits would have certainly declined.
Hunted noted, too, lawyers have been pivoting away from credit unions toward other industries with their ADA cases, as several prior cases against credit unions were dismissed based on a lack of standing by plaintiffs, as they were not members of the credit union.
“There's still tons of ADA litigation out their relative to websites, but we have just seen a decrease in the number against credit unions,” she said. “So, I certainly think we could see somewhat of an uptick after this decision. But the Ninth Circuit is just the Ninth Circuit. We still have other circuits that have gone the other way, not just on standing but on whether or not websites are places of public accommodation.”
CUNA’s Response: ‘Far From Concluded’
Alexander Monterrubio, CUNA’s senior director of advocacy and counsel, said had the Supreme Court heard the case it would have “presented an opportunity for affected industries to directly challenge some of the assumptions made by the plaintiffs suing under the ADA—including, whether websites and mobile apps are places of public accommodation. We are disappointed that the Supreme Court declined to hear the case, but the question is far from concluded.”
Monterrubio believes the credit unions most affected by the Supreme Court’s decision will be those residing in areas under the jurisdiction of the Ninth Circuit Court of Appeals. The Ninth Circuit hears appeals from Alaska, Arizona, four districts in Caliornia, Hawaii, Idaho, Montana, Nevada, Oregon, two districts in Washington, as well as Guam and the Northern Mariana islands.
“That’s the Circuit where Guillermo Robles v. Domino’s Pizza,, LLC is binding,” explained Monterrubio. “While there is potential for other circuit courts across the country to agree with the Ninth Circuit in their respective jurisdictions, at this point it’s difficult to predict exactly how other courts will rule in future situations. As we’ve seen in other contexts, TCPA for example, circuit courts do not automatically agree with one another—even on core legal questions.”
Monterrubio added CUNA and the leagues “have been successful on the litigation front in 2019 with three appellate-level victories on the standing issue that is unique to credit unions. We need to keep that momentum and continue to use all the tools available to push the Department of Justice to begin the process of coming out with a standard for website accessibility under the ADA that entities can rely upon to avoid frivolous lawsuits.”
NAFCU’s Hunt said that if the Supreme Court is to ever hear the case, it will likely only do so after additional lower courts have handed down rulings.
“I think there are a number of issues that will be played out in the lower courts, in particular coming out the Domino's case, and we’re probably going to see the courts provide some clarity as to what constitutes compliance.”
The Original Case
The lawsuit against Domino’s was originally filed by Guillermo Robles, who is blind, in Los Angeles three years ago. Robles said he had been unable to order a pizza online because the Domino’s website lacked the software that would allow him to communicate, and in his lawsuit he pointed to the ADA, which guarantees to persons with a disability “full and equal enjoyment of the goods and services ... of any place of public accommodations.”
“The ADA mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind,” the Ninth Circuit ruled.
The Ninth Circuit has now sent the case back to a judge in Los Angeles to decide whether Robles suffered discrimination.