In the course of the development of the common law, with its unique dependence on a sometimes unholy alliance between enacted and judge-made law, curiosities will arise. Retailers, auction houses and others with consumer websites that support physical sales facilities have seen this recently, as lawyers around the country have driven in fifth gear to their nearest federal courthouses to file lawsuits on behalf of the visually impaired, claiming that those websites exclude the visually impaired from equal access in violation of federal law.
 

That no federal law specifically makes such an exclusion unlawful is a discussion for another day, but it helps explain why, as retailers worked hard to go omnichannel, they did not see this one coming. Here, in practical terms, is the problem for retailers and others at risk of litigation, and what has been done (and might yet be done) about it.
 

In 1990, President George H.W. Bush signed into law the statute known as the Americans with Disabilities Act.[1] Title III of the act has been broadly understood to require that provision be made for access by people with disabilities to “places of public accommodation.” The most common example has been the construction of ramps to permit people in wheelchairs to enter offices, restaurants, shops and other places in a manner consistent with access provided to able-bodied people.
 

Recently, lawsuits have been filed as putative class actions throughout the United States, based upon the theory that certain websites, when used for commercial purposes, are also “places of public accommodation” and thus subject to the requirements of access by the disabled that are mandated by the ADA. What that means in practice is that, if a method is not provided for use of a screen reader, which is technology that permits a vision-impaired person to receive data from a website, litigation could follow.
 

Indeed, multiple cases have been filed by certain firms, often for the same vision-impaired plaintiff. Targeted site owners include financial institutions, big box and chain retailers and luxury goods companies, among others.
 

It is important to note that any application of the ADA to websites has been made by courts, and because the statute does not expressly provide that websites are “places of public accommodation,” not all courts have elected so to apply the ADA. The federal courts for the Eastern District of New York, Southern District of New York, the District of Massachusetts and the District of New Hampshire have denied motions to dismiss website accessibility cases, holding that websites may indeed be places of public accommodation under Title III of the ADA. There is also case law from the Courts of Appeals for the First, Second and Seventh Circuits that provides support for the interpretation of “place of public accommodation” to include nonphysical places.
 

The Southern District of Florida, however, has determined that Title III of the ADA does not cover websites because a “place of public accommodation” must be a physical structure under the plain text of the statute.[2] The Eastern District of Virginia has taken the same position.[3] Other courts have denied dismissal of website accessibility cases only in situations in which there is a demonstrated “nexus” between the website and a physical location.
 

As in any other case, before a court can hear an accessibility case, it must first find it has jurisdiction. The question of jurisdiction can be complex when it involves facilities such as websites, which may well be hosted and stored in territories (U.S. states or foreign countries) other than the state in which the suit has been brought.
 

A court of first impression has “general jurisdiction” over any business organized or headquartered in the state in which the court sits.[4] In the majority opinion of Daimler AG v. Bauman, Justice Ruth Bader Ginsburg of the United States Supreme Court made it clear that a defendant must be “at home” in a state for general jurisdiction to apply, noting that the defendant in that case was neither incorporated in California (the state in which the case was brought) nor had its principal place of business there.[5]
 

If a company is sued about an allegedly inaccessible website in the state in which it is incorporated, the court will have general jurisdiction over that company and will be able to hear the case. Other situations are less certain.
 

If a court should find that it does not have general jurisdiction, it could still conclude that it has “specific jurisdiction” over a defendant that has certain minimal contacts with the state in which the court sits. That means the court could determine that it has jurisdiction over the owner of a non-U.S. website if the owner sells products in the state or maintains physical stores there.
 

That does not mean there is an open-ended right to litigate due to minimal contacts having been demonstrated. A website that only provides general information, and does not allow citizens of a state to purchase items through it (typically with the virtual shopping cart method), may not have sufficient contacts for a court to have jurisdiction to hear a website accessibility case filed against the owner.
 

To date, it appears that no website accessibility cases have gone to trial, with the result that key theories have not yet been fully tested.
 

There has been something of a “race to the courthouse” by certain law firms to file website compliance cases — because the first to file typically has the upper hand in getting a class certified. When that happens, the action could potentially be certified to proceed as a class action, which is typically an advantage to the plaintiff’s law firm over maintaining the case as an action solely for a named plaintiff.
 

At least one website accessibility case has been dismissed based on the doctrine of primary jurisdiction,[6] which means that a court will allow a governmental agency (in this case, the U.S. Department of Justice) the first opportunity to litigate an issue if that agency has jurisdiction over the issue. The highly respected Judge Jack Weinstein of the United States Federal District Court for the Eastern District of New York refused, however, to apply the doctrine of primary jurisdiction, noting that “it is unlikely that the [Department of Justice] will resolve this issue in a timely manner.”[7]
 

The federal government had been in the process of developing rules relating to website accessibility under Title III of the ADA until the Trump administration declared the rulemaking process “inactive” in July 2017. There being no present indication that rulemaking will proceed, other courts may well agree with Judge Weinstein and refuse to dismiss under the doctrine of primary jurisdiction.
 

As noted above, a case could be dismissed in federal court due to a failure to meet the “nexus” requirement. The Ninth Circuit (the federal appeals circuit for West Coast states, including California) has ruled that it requires a “nexus” between the website and a physical location (usually a shop doing business within the applicable state) in order for the website to count as a “place of public accommodation.”
 

For example, in a lawsuit against Target, the court of first impression, the Federal District Court for the Northern District of California, required the plaintiffs to allege that “the inaccessibility of Target.com impede[d] the full and equal enjoyment of goods and services offered in Target stores.”[8] Because the plaintiffs showed that there was a working connection between the website and the physical stores, the court denied Target’s motion to dismiss, thereby allowing the case to proceed.
 

The “nexus” requirement has not been applied in all jurisdictions. The First, Second and Seventh Circuits have interpreted the term “place of public accommodation” more expansively, and have not required the showing of such a nexus for claim under Title III to survive a motion to dismiss. That would, in theory, put out-of-state website owners at greater risk within states in those federal circuits. Judges in the two of the four federal district courts in New York state have also rejected the nexus requirement, with the result that a website does not need to have any connection to a physical place (such as a shop) within the state for an ADA lawsuit to proceed.
 

Website accessibility lawsuits pose several risks to retail businesses with websites. Title III provides for injunctive relief, a type of relief in which a court orders a party to act (or not act). A court could order a defendant to alter its facilities (here, a website) to make them accessible to people with disabilities, or require the defendant to change its policies to ensure compliance with the ADA.
 

In settlements, courts have accepted the Web Content Accessibility Guidelines 2.0 Level AA[9] as providing an appropriate standard for ADA compliance. It is possible that this standard would also be adopted by a court ordering injunctive relief. There are many tech consulting companies that specialize in analyzing websites for compliance with the WCAG 2.0 Level AA standard and recommending changes in accordance with their analysis.
 

In general, monetary damages are not available under Title III, but a prevailing party may be awarded attorneys’ fees, at the court’s discretion. That amount could be significant, especially if the case results in substantial discovery or motion practice, as can easily happen in federal litigation. A company could, however, be subject to a monetary penalty under the ADA if the attorney general of the United States brings a civil suit against the company — which currently seems unlikely.
 

It is important to consider that state laws can be used for a similar purpose by state attorneys general. The New York state attorney general, for example, negotiated a settlement with Priceline.com relating to website accessibility in 2004.[10] States may also have antidiscrimination laws that provide for monetary damages for plaintiffs, unlike Title III of the ADA.[11]
 

The bottom line: Because WCAG 2.0 level AA compliance is typically part of the settlement of an accessibility case, companies at risk of such litigation should review the status of their websites relative to those standards, working with their IT and legal professionals, in an effort to head off any potential litigation. The proverbial ounce of prevention appears to be prudent in these situations.
 

Alan Behr is a partner and Rachel Bandli is an associate at Phillips Nizer LLP.
 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 

Published by Law360, July 27, 2018
 

[1] Introduction to the ADA, ADA.gov, https://www.ada.gov/ada_intro.htm (last visited May 16, 2018).

[2] Access Now v. Southwest Airlines , 227 F. Supp. 2d 1312, 1317 (S.D. Fla. 2002).

[3] Noah v. AOL Time Warner Inc. , 261 F. Supp. 2d 532, 544 (E.D. Va. 2003).

[4] If a court has general jurisdiction over a defendant, it may hear any case brought against that defendant, unless the type of case is limited to a particular court, such as a patent infringement case, which may only be heard by a federal district court and the U.S. Court of Appeals for the Federal Circuit.

[5] Daimler AG v. Bauman , 571 U.S. 117, 139 (2014).

[6] Robles v. Domino’s Pizza LLC , Case No.: 2:16-cv-06599-SJO-FFM (C.D. Cal. March 20, 2017).

[7] Andrews v. Blick Art Materials LLC , 268 F. Supp. 3d 381, 403 (E.D.N.Y. 2017).

[8] Nat'l Fed'n of the Blind v. Target Corp. , 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006).

[9] For additional information on the requirements of this standard, please refer to the Web Content Accessibility Guidelines 2.0 website at http://www.w3.org/TR/WCAG20/. These guidelines were created by the World Wide Web Consortium.

[10] Spitzer Agreement to Make Web Sites Accessible to the Blind and Visually Impaired, New York State Attorney General, https://ag.ny.gov/press-release/spitzer-agreement-make-web-sites-accessible-blind-and-visually-impaired (last accessed May 16, 2018). The New York attorney general’s press release notes that state law provides civil rights protections similar to those provided by the ADA.

[11] California, for example, allows plaintiffs to recover monetary damages under the Unruh Civil Rights Act, California Civil Code §§ 51-52.