Gibbons Law Alert

Gibbons Law Alert

Author: Mark S. Sidoti

Acheson Hotels, LLC v. Laufer: SCOTUS to Decide Whether Self-Appointed “Tester” Plaintiffs Have Standing to Sue Under the ADA

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Posted in Appellate / General Litigation

On July 31, 2023

During its next term, the United States Supreme Court will review the First Circuit Court of Appeals’s holding in Acheson Hotels, LLC v. Laufer that a self-appointed Americans with Disabilities Act (ADA) “tester” plaintiff has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if the plaintiff has no intention of visiting that place of public accommodation. In this first review of an ADA Title III case in almost two decades, the Supreme Court will address an issue that has split the circuit courts across the country. The Supreme Court’s merits decision could have significant ramifications for ADA litigation that has been wildly proliferating in the Second Circuit and elsewhere for the past decade. By way of background, a DOJ-promulgated regulation – 28 C.F.R. § 36.302(e)(1)(ii) – provides that a “public accommodation” operating a “place of lodging” must “with respect to reservations made by any means … [i]dentify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” In September 2020, Deborah Laufer, a self-proclaimed “tester” plaintiff who has filed more than 600 federal lawsuits under...

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

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Posted in General Litigation

On August 16, 2021

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...

“Winn’s of Change?” The Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc. Holds That Websites Are Not Places of Public Accommodation Under the ADA

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Posted in Disability

On April 19, 2021

The landscape of ADA website accessibility claims, which have inundated courts throughout the country for years, may be changing with the issuance, on April 7, 2021, of a long-awaited decision by the Court of Appeals for the Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc. In a decision that marks only the second time a Federal Circuit Court of Appeals has addressed the parameters of website accessibility claims based on the Americans With Disabilities Act (ADA), a majority of the panel held that websites are not “places of public accomodation” under Title III of the ADA and thus, the plaintiff’s inability to access certain services provided by Winn-Dixie’s website is not a violation of Title III. While this decision runs counter to many District Court decisions, as well as the Ninth Circuit’s decision in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), the Eleventh Circuit was clear – absent congressional action, the court cannot broaden the definition of “places of public accommodation” beyond the physical places of business enumerated in Title III. Thus, the court reversed the district court, which had found, following the only full trial to occur in these matters, that Winn-Dixie violated the ADA by offering a website that fails to meet the accessibility standards that have been accepted...

ADA Website Liability and COVID-19

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Posted in Technology Developments and Issues

On April 1, 2020

Perhaps the last thing that many companies are focused on in the midst of the COVID-19 crisis is the extent to which their websites are compliant with accepted accessibility standards and the threat of ADA website accessibility class actions or individual claims. Unfortunately, however, it appears that ever-enterprising plaintiffs’ attorneys are taking advantage of this crisis to press these already ubiquitous claims even further. Over the past several years, thousands of federal lawsuits, styled as both class and individual actions, have been filed against companies in many industries seeking injunctive and compensatory relief for website-related violations of the Americans with Disabilities Act (ADA). The Department of Justice, which enforces the ADA, has taken the position that the “Web Content Accessibility Guidelines” developed by the World Wide Web Consortium provide a minimum standard, and most courts have agreed. These cases seek injunctive and compensatory relief for violations of the ADA and analogous state and local anti-discrimination laws, specifically alleging that websites are not compliant with the ADA and accessibility guidelines particularly for vision-impaired users. These cases have developed into a lucrative cottage industry for certain plaintiffs’ attorneys, as they are easy to prosecute, difficult to defend, and often result in expedited settlements. Gibbons has defended scores of these claims for its clients across the country. Enter...

Race to the High Court: Hoosier Racing Seeks High Court Review of Third Circuit’s Slashing of E-Discovery Cost Award

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 12, 2012

The skyrocketing costs of e-discovery in modern day litigation will now be getting at least some attention from the nation’s highest court. Not long ago we reported on a decision by the Third Circuit Court of Appeals to slash recovery of costs by a prevailing party under 28 U.S.C. §1920 in Race Tires America, Inc., et al. v. Hoosier Racing Tire Corporation et al., No. 11-2316 (3d Cir. Mar. 16, 2012). In Race Tires, the Third Circuit, while acknowledging a spilt in the circuits, held that costs sought and awarded under §1920 must bear a reasonable connection to duplication of materials in the traditional sense to be recoverable by a prevailing party. Thus, certain e-discovery vendor activities — including conversion of the native files to TIFF images, the scanning of documents for the purpose of creating digital duplicates and the copying of the videos to DVD — could be reimbursed under the statute, while others, like consultant’s charges for data collection, preservation, searching, culling, conversion, and production, could not.

High Noon in DC: Judge Facciola Lays Down the Law on Discovery Cooperation

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On June 18, 2012

Anyone who thought that the concept of cooperation among counsel in discovery matters under the mandates of the Federal Rule of Civil Procedure 26(f) and The Sedona Conference® “Cooperation Proclamation” was a hollow platitude or aspirational goal, might want to review the latest word on this from one of the pre-eminent ediscovery Judges in the Country, Magistrate Judge John Facciola, of the United States District Court for the District of Columbia. As he is wont to do, Judge Facciola took the opportunity presented by a rather pedestrian discovery dispute among counsel to make clear that the watchword in litigation discovery is cooperation among counsel, at least in his court.

Not So Fast: Race Tires Court Gives a Flat to Momentum for Broad ESI Cost Shifting Under 28 U.S.C. §1920

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Posted in E-Discovery: Legal Decisions and Court Rules

On March 27, 2012

A Third Circuit Court of Appeals panel, including the Hon. Thomas I. Vanaskie, one of the leading judicial authorities in e-discovery, has spoken — e-discovery-related cost recovery pursuant to 28 U.S.C. §1920 has limits; the costs must bear a reasonable connection to duplication of materials in the traditional sense to be recoverable by a prevailing party. As the first United States Court of Appeals decision to directly address this closely watched issue, this opinion may disarm a potentially powerful weapon in the already limited arsenal of parties burdened with excessive e-discovery costs.

The Federal Circuit’s New Model Order on E-Discovery

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 7, 2011

On September 27, 2011, Chief Judge Randall Rader of the Federal Circuit announced that the Advisory Council of the Federal Circuit unanimously adopted a Model Order regarding e-discovery in patent cases. Its purpose is to serve as a “starting point” for district courts to streamline and reduce e-discovery costs, emphasizing email production limits.

New Jersey District Judge Grants Spoliation Sanctions Citing Negligent Litigation Hold Procedures

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On September 28, 2011

Failure to properly preserve electronic evidence continues to provide at-risk litigants with the ability to steer the court from scrutiny of the merits, and drastically shift the balance of litigation leverage. The latest example of this is NVE, Inc. v. Palmeroni out of the District of New Jersey. This case involved NVE’s claims of breach of fiduciary duty against its former employee Palmeroni. At least on the specific Complaint allegations, NVE’s case against Palmeroni seems formidable — while working as a NVE salesman, the defendant allegedly entered into secret kickback arrangements with product purchasers, and formed a dummy entity with another NVE employee to divert sales of NVE’s products for their own benefit. Palmeroni was terminated in 2006 and later sued by NVE. Seems like a pretty good case, if the court and a jury could get to it.

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