nexus

National Association of the Deaf v. Harvard Redux

April 15, 2019 by William Goren Leave a Comment

In a previous blog entry, I discussed the case of the National Association of the Deaf v. Harvard University. That particular blog entry talked about the magistrate judge denying Harvard’s motion to dismiss. Subsequently, Harvard filed a motion for judgment on the pleadings. On March 28, 2019, the magistrate judge, Katherine Robertson, denied and granted Harvard’s motion for judgment on the pleadings. Since the facts of the case have already been discussed in my previous blog entry, we don’t have to worry about that particular category. So, the blog entry is divided into three categories and they are: court’s reasoning ADA; court’s reasoning Communications Decency Act (CDA) Immunity; and takeaways. The reader, of course, free to focus on any or all of the categories.

Court’s Reasoning ADA

As a preliminary matter, the primary difference between a motion for judgment on the pleadings and a motion to dismiss is that a motion for judgment on the pleadings implicates the pleadings as a whole. Such motions are treated similarly as to a motion to dismiss. Accordingly, the court views the facts contained in the pleading in the light most favorable to the nonmoving party and has to draw all reasonable inferences in favor of the nonmoving party. Judgment on the pleadings is only allowed where the facts conclusively establish that the movant is entitled to the relief sought.
The court goes into considerable detail over whether a place of public accommodation under title III of the ADA has to be a physical place. Ultimately, it concludes that the court has no choice but to follow the controlling law in its Circuit, which holds that a physical place is not necessary per Carparts Distribution Center, Inc. v. Automated Wholesaler’s Association of New England, Inc., 37 F.3d 12 (1^st 1994).
Regardless of whether or not the Supreme Court ultimately makes the decision that a physical place is required for an entity to be subject to title III of the ADA, the magistrate found that a sufficient nexus between a physical place and the plaintiff existed in this case anyway. In particular: 1) Harvard operates a brick and mortar location; 2) the online content Harvard makes available to the general public but does not make accessible to the deaf and hard of hearing community includes Harvard@Home Presentations, which are designed to bring users inside the Harvard classroom to hear current, real-life lectures or provide them with a front row seat to University panels, alumni college forums, and other special events; 3) Harvard through its extension school offers free, noncredit courses; and 4) videos with spoken content appear in the archives of Harvard’s Peabody Museum of Art and Ethnology, Harvard’s Natural History Museum, the Institute of Politics John F. Kennedy Junior forum, Harvard’s Lifesciences Outreach program, and Harvard’s Woodberry Poetry Room. Since it can be inferred that all of this online content is the same as a good or service that is, or was, also available at one or more of the physical locations at Harvard, plaintiffs have sufficiently pled the existence of inaccessible content on websites having a nexus with on-campus activities. So, when it comes to the applicability of title III, title III is applicable regardless of whether a nexus to a place of physical accommodation is required or not.
DOJ regulations do not limit a public accommodation’s obligations as to online content that it chooses to host on its websites and platforms. That said, Harvard possibly could be able to demonstrate that providing captioning, or any other available auxiliary aid or service, fundamentally alters the nature of its service or results in an undue burden.
504 regulations prohibit a recipient of federal aid from discriminating in the providing any aid, benefit or service to a person with a disability directly or through contractual, licensing, or other arrangements. 34 C.F.R. §104.4(b)(1)(i)-(vii). Also, there is no persuasive support for limiting the general prohibition against discrimination in the provision of aids, services, and benefits to persons with disabilities under §504.
With respect to Harvard’s internet site containing content posted on third-party websites, that becomes a matter of Harvard showing whether the fundamental alteration or undue burden affirmative defense applies. That requires a factual record to be developed.

Court’s Reasoning Communication Decency Act of 1996 Immunity (47 U.S.C. §230)

47 U.S.C. §230(c)(1) (§230 of the Communication Decency Act) provides protections for a “Good Samaritan,” that blocks and screens offensive materials. In particular, it says that, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The effect of 47 U.S.C. §230(c)(1) is that lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content- are prohibited.
The CDA defines an interactive computer service as, “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including… systems operated or services offered by libraries or educational institution.” 47 U.S.C. §230(f)(2).
The CDA defines an information content provider as, “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. §230(f)(3).
The immunity under this section only applies when the information forming the basis of the claim has been provided by another information content provider. That is, an interactive computer service provider is liable for its own speech.
Near universal agreement exists that §230 must be construed liberally. Therefore, the section operates to prohibit many causes of action premised on the publication or speaking of information content.
No authority exists holding the title II of the Civil Rights Act of 1964 provides an exception to the immunity afforded by the CDA.
In order to be covered by the immunity provision of the CDA, three things have to be shown: 1) Harvard must be a provider or user of an interactive computer service; 2) the claim of the plaintiffs have to be based upon information provided by another information content provider; and 3) the claim must treat Harvard as the publisher or speaker of that information.
No support exists for plaintiff’s claims that the CDA does not apply when a plaintiff claims disability discrimination is based upon a lack of access rather than on the content of speech.
Federal and state antidiscrimination statutes, see 47 U.S.C. §230(e), are not exempted from the immunity provided by the CDA.
Citing to a case from the Seventh Circuit, the court noted that the Seventh Circuit held that §230 operated to preclude Fair Housing Act claims. Citing to a case from the First Circuit, the court noted that the CDA operated to preclude a claim under the Trafficking Victims Protection Reauthorization Act of 2008.
Since Harvard acknowledges that it hosts platforms to which online content may be uploaded, it isn’t absurd to treat Harvard as an interactive computer service.
Since Harvard, to some extent, provides platforms in which third parties post content that Harvard does not create, produce or substantively alter, Harvard is hosting information provided by another Internet content provider.
Since numerous cases include educational institutions in the CDA’s definition of Internet computer services providers, that means that Harvard gets a get out of jail free card with respect to the inaccessibility of online content created or developed by a third party that is not altered by Harvard.
The CDA relieves interactive computer service providers from liability whenever they exercise control, such as blocking and screening of third-party content.
Harvard’s choices about what third-party content can appear on its website and in what form, are editorial choices falling within traditional publisher function protected by §230.
While §230 immunity is an affirmative defense, a motion to dismiss still works if the dismissal is evident from the face of the complaint.
The court at this point is unable to determine as a matter of law whether Harvard is not in some matter a content provider at the information on its platforms originating with student, faculty members, or other scholars.
Harvard does get a get out of jail free card with respect to inaccessible content that is merely embedded online content (i.e. content hosted on a third-party server that is hyperlinked in its existing form content that is hosted on a harbor platform or website), produced or created by Harvard because Harvard remains a publisher under the communication decency act as to embedded content.
Would you like to be confused? Try understanding this paragraph: “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part-in other words, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings.”

III

Takeaways

The court properly notes that when it comes to whether title III of the ADA only applies to places of public accommodation that are physical spaces, is something that is very much a debate. We have discussed the issue on our blog numerous times. As I discussed in this blog entry, it is very possible that when the Supreme Court ultimately get to this issue, they will hold that a physical place is not necessary.
It probably would not be all that hard to find a nexus to a physical place with respect to online content appearing on a university’s website since colleges and universities are places of education. As a place of education, disseminating information is a critical part of what they do on their brick-and-mortar campus.
This case is another example of how §504 and the ADA are not always identical. Sometimes, §504 goes further than the ADA. Sometimes, it works the other way around.
One of the reasons I enjoy practicing in the area of the rights of people with disabilities, is that it interacts with all kinds of laws. You would not think of the CDA and disability accessibility going together, but in this case, it does. It also means that practicing in this area can be a bit daunting because you never know where a related law is going to come from.
47 U.S.C. §230 provides for broad immunity. After this decision, look for colleges and universities in particular that are being sued for inaccessibility of their web content to rely on this case as a matter of course. In fact, it will probably be legal malpractice for colleges and universities not to do so.
It is really unclear just how far the immunity goes. For example, I link to things all the time when I do my blog. However, ¶ 20 above, where the court stated: “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part-in other words, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings,” is really unclear. The reason this paragraph is so confusing is that most certainly students and faculty will put things up with links. Those links are not college or university’s responsibility under this decision. Does the answer change with respect to anything the college or university posts as a result of a license that it has? Does the answer change with respect to anything it puts up through the fair use doctrine? What if there is content beyond the link posted on Harvard’s site? It seems from ¶ I 6 above that Harvard is on the hook for that inaccessibility absent a showing of fundamental alteration or undue burden. However, it also seems per ¶ II 14, it may or may not have immunity for such claims.

What’s a Nexus Anyway?

October 22, 2018 by William Goren 1 Comment

As I have mentioned before, I am not afraid to blog on cases discussed by fellow bloggers. Recently, Richard Hunt, whose blog appears on my blog roll, discussed a whole bunch of cases. Many of those cases I have put in my to blog pipeline, and two of which are the subject of today’s blog. Both cases involve website accessibility. One involves a credit union and the other involves General Nutrition Corporation. The cases are Jones v. Lanier Federal Credit Union, 2018 U.S. Dist. LEXIS 171060 (N.D. GA, September 26, 2018), and Gomez v. General Nutrition Corp., 2018 U.S. Dist. LEXIS 49655 (S.D. Fla. 2018), also here. Gomez is a published decision. With respect to Jones, in the interest of full disclosure, local counsel on the case was James Radford and his firm Radford and Keebaugh, from Decatur Georgia. I know James and his partner, Regan Keebaugh, and refer many cases to them. I am not sure whether Jones will be published. As usual, the blog entry is divided into categories and they are: Jones facts; Jones court’s reasoning; Jones takeaways; Gomez facts; Gomez court’s reasoning; and Gomez takeaways. Of course, the reader is free to focus on any or all of the categories.

Jones Facts

The facts are straightforward. Plaintiff uses a screen reader, and the defendant operates a website providing information about its location, services and amenities. When plaintiff tried to access the website, he found empty or missing form labels, empty links containing no text, and redundant links thereby denying him the full use and enjoyment of the credit union’s facilities and services. Plaintiff sought an injunction as well as attorney’s fees.

Jones Court’s Reasoning

Membership in the credit union is not a prerequisite for standing.
Plaintiff suffered a concrete injury when he attempted to access the website but was unable to fully and effectively utilize it.
Plaintiff adequately pled a threat of future discrimination by defendant when he alleged an intent to return to the website, whereupon he will face barriers to access because he is visually-impaired.
The injury plaintiff seeks to address is not the inability to access defendant’s services. Rather, it is the inability to access defendant’s website. So, an order by the court requiring defendant to remove the barriers facing the plaintiff when attempting to use defendant’s website would address that injury.
Defendant’s physical locations are public accommodations.
Regardless of whether the theory is that a website can be considered a public accommodation without a connection to a physical place or whether a sufficient nexus must exist, plaintiff’s case goes forward either way.
A nexus exists because: 1) the website provides goods and services such as information concerning the locations it operates and information and descriptions of its amenities and services, privileges, advantages and accommodations; 2) the website allows user to find locations for them to visit; and 3) plaintiff alleged he was deterred from visiting the physical locations that plaintiff has as a result of using the website.
With respect to a nexus, the website is heavily integrated with and in many ways operates as a gateway to defendant’s physical store locations, and plaintiff cannot fully and equally enjoy those goods and services offered by the defendant because of the website’s inaccessibility.
With respect to the due process argument under the void for vagueness doctrine since no regulation for website accessibility exist or are forthcoming, the court found that the ADA is not so unclear as to be unconstitutionally vague even without the benefit of DOJ regulations. Further, plaintiff is not seeking an injunction imposing WCAG 2.0, rather plaintiff seeks to require defendant’s compliance with the ADA without dictating how the defendant has to comply with the statute. Accordingly, the requested relief does not violate due process.
In a footnote, the court notes that being a tester does not preclude standing under the ADA.
In another footnote, the court questioned whether the nexus test is the proper test for figuring out website accessibility.

III

Jones Takeaways

As Richard Hunt has discussed numerous times in his blog, some courts are buying that you can’t get to first base in a website accessibility case unless there is some probability that you could actually take advantage of that particular place of public accommodation. This court was having none of it.
In a footnote, this court makes clear that while it believes a gateway exists sufficient to find standing, it prefers the approach that a website may be considered a public accommodation without a connection to a physical place.
The court was also having none of the argument that the lack of DOJ regulations violates due process. The critical factor is that the defendant has flexibility with respect to ADA compliance, but that the ADA must be complied with.
Just because plaintiff is a tester, doesn’t affect standing one way or the other.
When I first started dealing with website accessibility issues, I was of the opinion that flexibility for defendants is great, and that regulations only take away that flexibility. However, for the reasons that Richard has mentioned in his blog on more than one occasion, I have come around to the position that DOJ regulations if gone through the proper rulemaking process whereby all views are considered would bring needed sensibility to the area. Without such regulations, it is completely up to each court to figure out what meaningful accessibility is and that is going to vary from judge to judge and plaintiff to plaintiff.

Gomez Facts

Gomez is legally blind and uses screen reading software to access the Internet. The summer of 2017, plaintiff visited the website of the General Nutrition Company. That website allows customers to purchase General Nutrition Company’s goods and services as well as view any promotions and deals offered at that time. It also provides a store locator. When Gomez visited the website, he could not access many of its features, such as adding items to its online shopping cart, accessing the store locator, or reading the deals and promotions. The inaccessibility was due to the mislabeling of the online content so that his screen reader did not work properly. While the website did not include a statement regarding defendant’s commitment to ADA compliance, in its terms and conditions, it did provide a phone number for customers to call if they needed additional assistance. As recently as June 2018, defendant’s expert using automated accessibility tests AChecker and WAVE found zero errors and no known problems with the website. However, plaintiff’s expert found errors that could prevent a user from selecting a product and completing a purchase. Plaintiff filed a motion for summary judgment and a motion to exclude the testimony and opinions of defendant’s expert.

Gomez Court’s Reasoning

When it comes to injunctive relief, plaintiff must show a sufficient likelihood that he will be injured by such conduct in the future. Plaintiff has done that because he faces barriers to access the website and thereby suffered a concrete injury. Further, if the problems are not addressed, he will suffer that same injury in the future.
Plaintiff’s status as an ADA tester has nothing to do with his standing.
As we have discussed previously here, in the 11^th Circuit, title III covers both tangible and intangible barriers, and that whatever goods and services the public accommodation offers as part of its place of public accommodation, the public accommodation cannot discriminate against people on the basis of disability, even if those goods and services are intangible.
Courts in the 11^th Circuit have found that websites are subject to the ADA if a nexus between the website and the physical premises of a public accommodation can be established.
Few courts have defined nexus precisely. As we have discussed previously here and here for example, where a website is heavily integrated with physical store locations and operate as a gateway to the physical store location, courts have found that the website is a service of the public accommodation and covered by the ADA. That is, the ADA prohibits a retailer’s website from impeding a person with a disability’s full use and enjoyment of the brick-and-mortar store.
Just providing information may not be enough to establish a nexus. However, citing to various cases, the ability to pre-order or purchase products probably does create a sufficient nexus between the website and the physical store.
Looking at the various decisions as a whole, a number of factors exist for determining whether a website has a sufficient nexus to the physical stores. Those factors are: 1) whether the website provides a service of the public accommodation like the ability to purchase or preorder products; 2) whether the alleged barrier to access prevents the full use and enjoyment of services of the public accommodation; 3) whether the website provides more than just information about the store; 4) whether the website impedes access to the physical location; and 5) whether the website facilitates the use of the physical stores.
In this situation, GNC’s website is a service facilitating the use of the physical store, and therefore, it is a place of public accommodation. More specifically, the ability to purchase products remotely is a service of the physical stores. Further, by providing information about promotions and deals in addition to information about store information, the website operates as a gateway to physical stores.
Defendant’s expert lacked specialized knowledge or experience on website accessibility. Further, his professional training and experience is in e-commerce, which is only tangentially related to web accessibility. Defendant’s expert does not know the success criteria of the accessibility checking software relied on by the defendant. Further, defendant’s expert does not usually run those tests personally himself.
Defendant’s expert not only based his opinion upon reliable principles or methods but also on the input he had received from people over 20+ years of just interaction. That kind of interaction cannot be tested or peer-reviewed, has no known rate of error, and defendant put forth no evidence that such a technique is accepted in the relevant scientific community.
While testimony on website accessibility would be helpful to deciding the case, defendant’s expert lack of experience in web accessibility and the unreliability of his opinions outweigh any potential helpfulness.
Plaintiff’s expert tested the website and found that it had 77% and 64% compliance on success levels AA and A and that such errors could prevent a user from selecting a product and completing the purchase.
While the court can grant summary judgment to plaintiff as to liability, it cannot grant summary judgment as to the remedy for two reasons. First, plaintiff has provided no support that WCAG 2 .0 is an appropriate remedy. Second, even if that was the appropriate remedy, the record is silent as to which success level is most appropriate.
In a footnote, the court noted that the defendant has been hauled into court regarding website accessibility before. That case settled. As part of that settlement, the defendant agreed to take commercially reasonable steps to improve accessibility for individuals using screen readers. Further, that agreement stated that the defendant may use WCAG 2.0 level AA or other applicable authority as a reference for making such improvements.
In another footnote, the court noted that plaintiff’s expert may very well be qualified to talk on matters within his expertise, such as the costs to implement accessibility measures but that does not help with regard to ADA compliance.
In yet another footnote, the court found highly persuasive the number of cases adopting WCAG 2.0 success level AA as the appropriate standard to measure accessibility.

Gomez Takeaways

Plaintiff prevailed on summary judgment, which is not a frequent occurrence at all.
When it comes to website accessibility, there are three things a business needs to be concerned about. In particular, the website needs to be meaningfully accessible to persons with disabilities using screen readers, voice dictation technology, and to the Deaf/hard of hearing, if audio is involved.
This case is the first one I am aware of that has reviewed the case law to figure out just what factors the courts consider when determining whether a nexus exists. Lawyers may find this analysis very helpful in the future. As discussed in the opinion, these factors are individual and not in combination. That is, you get a nexus if any of the factors are met.
One wonders how this particular judge, Marcia Cooke of the Southern District of Florida, would have dealt with Jones because of her reference that just providing information may not be enough to establish a nexus.
Liability and a remedy are not the same thing.
As Richard Hunt has mentioned previously in his blog entries, relying on widely available Internet checking tools for accessibility may not be enough. The key is whether the individual with the disability has meaningful access.
The court acknowledged that expert testimony on website accessibility if the expert was properly qualified could be very helpful.
If you are looking for signals, the footnotes mentioned in the Gomez takeaways section above, are definitely important reading.
The Winn-Dixie decision that will come down from the 11^th Circuit will definitely impact both of the cases we discussed today.

In the Middle District of Florida, Curiosity isn’t Enough to get by a Motion to Dismiss When it Comes to Website Accessibility

October 9, 2018 by William Goren 1 Comment

Yesterday, I celebrated my birthday. It turns out that both my wife and my daughter had the day off. So, I got some time with the family and some alone time, including watching the Braves lose unfortunately. Still, a great season for the Braves. If you still have a team in the hunt, good luck!

One of the things that I do is a great deal of legal consulting. That includes this blog and training. It also includes serving as an expert witness, consulting expert, or consultant on litigation when it comes to ADA compliance. The Expert Institute is running a best legal blog contest, and I would appreciate your vote if you have the time to do so. Of course, I so much appreciate you voting for me with respect to the ABA 100. I should find out about that around Thanksgiving. Thanks again for all your support and your readership. I wouldn’t do this otherwise.

Today’s blog entry explores whether curiosity is sufficient to get you pass a motion to dismiss when it comes to website accessibility. The Middle District of Florida in Price v. Everglades College Inc. says it is not. I fully expect this case to be appealed in light of how progressive the 11^th Circuit has been lately when it come to the rights of persons with disabilities. Also, I note that last week the 11^th Circuit heard argument in the Winn-Dixie case (the lower court decision we discussed here).

As usual, the blog entry is divided into categories and they are facts; court’s reasoning granting the motion to dismiss; deep dive into court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Facts Taken Directly from the Court Opinion

“The Complaint states that the Plaintiff, who is visually impaired, “is a prospective student who is interested in attending the Keiser University by taking classes at its Daytona Beach campus location.”¹²² Doc. 1 ¶ 24. The Plaintiff allegedly called the Defendant²²³ in order “to inquire about Admission to the Keiser University, requirements for admissions, available courses, and accommodations for his disability.” Id. ¶ 25. The Plaintiff claims that the “Defendant’s representative failed to fully assist Plaintiff and referred him to its Website.” Id. The Plaintiff apparently attempted to utilize the Defendant’s website using screen reader software, but because the software was unable to access various electronic documents on the website, the Plaintiff states that he could not find out information necessary to apply to Keiser; research available degree types, pre-requisites, and course descriptions; view the course catalog; and view available accommodations that Keiser could offer him for his disability. Id. ¶ 29.”

The defendant filed a motion to dismiss.

Court’s Reasoning Granting the Motion to Dismiss

Citing to a Middle District of Florida case, the court says that a website itself is not a public accommodation for purposes of the ADA.
Citing to Rendon v. ValleyCrest Productions, Limited, an 11^th Circuit case from 2002, the court says that the ADA covers both tangible and intangible barriers to enjoyment of public accommodations.
The court notes disagreement among the district courts with respect to website accessibility, but goes on to say that it appears to it that the majority of courts agree that websites are not covered by the ADA unless some function on the website hinders the full use and enjoyment of a physical space. In particular, the court cites to Gomez v. Bang and Olufsen Am., Inc., which we discussed in this blog entry.
A plaintiff alleging an inaccessible website impedes access to a physical location must establish some nexus between the website and the physical place of public accommodation.
All the ADA requires is if a public accommodation chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick and mortar place of public accommodation.
While a nexus is obviously a requirement, alleging the mere existence of some connection or link between the website and the physical location is not sufficient to survive a motion to dismiss.
District Courts in the 11^th Circuit distinguish between the inability to use a website to gain information about a physical location and the inability to use a website that impedes access to enjoy a physical location by holding, that the inability to use a website to gain information is not sufficient to state a claim under the ADA.
To hold otherwise, would mean that all websites with any nexus to a physical public accommodation must be formatted in such a way that they are accessible to screen reader software. District courts have been unwilling to take such a leap and neither will this court.
Plaintiff alleged only facts indicating his inability to gain information about the location, rather than his access to enjoyment of the University itself. The plaintiff did not make any allegation that he was unable to apply to the University, pay tuition, or use the student portal on the website.
The court dismissed the complaint without prejudice. Therefore, the plaintiff has 21 days from the date of the order to file an amended complaint.

III

Deep Dive

It is absolutely true that the 11^th Circuit has held that the ADA covers both tangible and intangible barriers to enjoyment of public accommodations. However, reading Rendon v. Valleycrest Productions, Limited reveals that what they were referring to with respect to intangible barriers was practices, policies, and procedures. In that case, they held that the practices, policies, and procedures screened out persons with disability from being able to participate in the game show. Rendon at its core is really a screen out case. As such, Rendon could be used to support the plaintiff on appeal.
Interestingly enough, there is no mention of Haynes v. Dunkin’ Donuts LLC in the decision. Admittedly, Haynes is unpublished, but in the 11^th Circuit, citing to unpublished decisions is permissible when that decision is very much on point, which is the case here.
The court doesn’t quite get it right how Internet accessibility jurisprudence is evolving. As we have talked about in our blog, there are several possibilities when it comes to website accessibility litigation and they are: 1) a place of public accommodation must be a physical space; 2) the Internet is always subject to the ADA; 3) an Internet site is subject to the ADA if it acts as a gateway to a brick-and-mortar store; and 4) the Internet site is subject to the ADA if one of the activities and 42 U.S.C. §12181(7) is involved. As we have discussed here and here, the trend is headed towards #4.
The Bang and Olufsen case, which we discussed here, is a real outlier. There is a difference between that holding and between the cases holding that a gateway to the physical place of public accommodation must exist for the ADA to apply to the Internet site. There is also a difference between the holding in Bang and Olufsen and the 11^th Circuit holding in Haynes v. Dunkin’ Donuts, LLC, discussed here, which focuses on whether the website was facilitating the use of the place of public accommodation.
The inability to use a website to gain information about a physical location being insufficient for coverage under the ADA does in fact screen out people with disabilities in that how are they going to find out about something they are curious about if the site is inaccessible?

Takeaways

I fully expect the plaintiff to either appeal this decision to the 11^th Circuit or to take advantage of amending the complaint within 21 days of the order in order to satisfy the concerns of the court. If an amended complaint does not satisfy the court, I definitely would expect an appeal.
As I mentioned above, Winn-Dixie was argued last week and the decision there will very much impact this particular case.
The Southern and Middle District of Florida and other District Courts in the 11^th Circuit are clearly lagging behind the 11^th Circuit jurisprudence.
If there is a moral of the story, setting forth enough facts to give the court a very specific idea as to what is going on is always a good approach. That is, pure notice pleading is not recommended. The closer you get to fact-based pleadings, the better off you are going to be.
A close read of Rendon reveals that that case can be used to support the plaintiff as well as the defendant.
The court’s reliance on Bang and Olufsen is interesting in light of the fact that particular case is very much an outlier.
Richard Hunt, who blog can be found in my blog roll, in one of his recent blog entries, discussed why the lack of regulations for website accessibility even if it offers businesses more flexibility, is a disaster. I commend readers to its reading.

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