Robles v. Domino’s: The Saga Continues – On Remand, District Court Grants Partial Summary Judgment to Plaintiff, Solidifying the Scope of ADA Website Liability in the Ninth Circuit
Robles v. Domino’s Pizza LLC is a seminal case in the development of ADA website accessibility claims, particularly in the Ninth Circuit. The case has been the subject of a long awaited opinion in the Ninth Circuit, and an unsuccessful petition for certiorari. On June 23, 2021, after five years of litigation, on remand from the Ninth Circuit’s decision, the Central District of California granted the plaintiff’s motion for summary judgment, holding that Domino’s violated the ADA because its website was not fully accessible to visually impaired individuals. The court thus ordered Domino’s to bring its website into compliance with industry standards for website accessibility, known as the WCAG 2.0 guidelines, and to pay the plaintiff $4,000 in penalties.
The plaintiff, a visually impaired individual who was unable to order a pizza from the defendant’s website in 2015, sued Domino’s claiming violations of the ADA. In granting summary judgment on remand, the district court reiterated the Ninth Circuit’s finding that websites and mobile apps are not “places of public accommodation.” However, where websites or apps like those controlled and maintained by Domino’s “facilitate access to the goods and services of a place of public accomodation,” such as a Domino’s franchise, the ADA applies. This holding rejected Domino’s argument that the ADA did not apply to its website and app because Domino’s itself did not own or operate the brick-and-motor franchise locations, i.e., the places of public accomodation. The court explained that the distinction is irrelevant because, as the Ninth Circuit already decided, the inaccessibility of Domino’s website and app – which it indisputably does own and control – impedes access to the goods and services of the franchise facilities that conduct Domino’s business, regardless of who owns and controls those locations.
While Domino’s expert initially contended that the plaintiff’s difficulties arose from using an outdated browser platform that was incompatible with screen reader software, the expert nonetheless could not opine that the website was fully accessible under the WCAG standards even on any current browser platforms. Accordingly, the court rejected Domino’s standing and mootness arguments based on Domino’s post-complaint improvements to the website and found the inaccessibility of the website under the ADA to be undisputed. Of note, on the issue of the plaintiff’s use of an “outdated” web browser, the court pointed out that if the website were fully accessible when using up-to-date technology (like the most current web browser), the court would have been “forced to wade into a sticky question: what level of technological capabilities is required of a blind website user such that the failure of [common screen reader] technology is necessarily the fault of the website owner?” A defendant who has standing/mootness challenges to website inaccessibility should therefore explore whether and to what extent the plaintiff’s original claims arise out of the use of outdated or inadequate technology and ensure that its website is fully compliant with WCAG standards using current technology.
Domino’s further argued that, even if the website and app were not fully accessible, its telephone help line was an acceptable “auxiliary aid or service” under the ADA. The court found this argument unpersuasive because the plaintiff was forced to wait over 45 minutes on the phone before hanging up on two separate occasions. This, the court stated, was not an acceptable substitute for ordering from a website. This finding aligns with the 2018 Superior Court of California decision in Thurston v. Midvale Corporation, which found generally that telephone helplines are not acceptable auxiliary aids to address otherwise inaccessible retail websites.
Finally, the court denied the plaintiff’s request that he was due $4,000 in statutory damages under California’s Unruh Act for each of his visits to defendant’s website. Rather, and again consistent with several California state court opinions, including Thurston, the court found that the plaintiff was due a total of $4,000 in penalties because each of the plaintiff’s individual visits to the website encountered the same barrier and, thus, constituted the same “violation.”
Overall, this decision represents an anticipated but fairly clear victory for plaintiffs who allege retail website inaccessibility in California and other jurisdictions covered by the Ninth Circuit. While there are some defendant-favorable aspects of the opinion, including the Unruh Act damages assessment, the decision generally supports liability in the Ninth Circuit for website owners whose websites (1) “facilitate access to the goods and services of” the retail locations (whether owned by them or not), and (2) have not been fully remediated prior to or following institution of the lawsuit.