In what appears to be the first website accommodation decision within the Fifth Circuit,  Judge Sim Lake of the Southern District of Texas District Court found that a “website is not a place of public accommodation” under the Americans with Disabilities Act (“ADA”).  Zaid v. Smart Financial Credit Union, No. H-18-1130, 2019 U.S. Dist. LEXIS 11363 (S.D. Tex. Jan. 24, 2019).  Stephen W. Schueler and Modinat “Abby” Kotun defended Smart Financial Credit Union (“SFCU”) against allegations that SFCU’s website discriminated against blind individuals due to its alleged incompatibility with the plaintiff’s screen reader, which he used to access websites.  The plaintiff sought declaratory and injunctive relief requiring SFCU to ensure that its website was accessible to the visually-impaired along with attorneys’ fees.

In holding that websites are not themselves places of public accommodation, the court relied on the Fifth Circuit’s opinion in Magee v. Coca Cola Refreshments USA, Inc., which held that vending machines were not places of public accommodation.  833 F.3d 530 (5th Cir. 2016).  In Magee, the plaintiff alleged that Coca-Cola vending machines located in various public spaces were places of public accommodation because they qualified as “other sales or rental establishments” under the ADA.  42 U.S.C. § 12181(7)(E).  There, the court held that vending machines were not akin to the categories of places of public accommodation listed in section 12181(7) and thus were not places of public accommodation.  Id. at 536.  Judge Lake held similarly, stating: “[e]ach of the public accommodations listed in [section 12181(7)] are physical places.  . . .  While websites may be affiliated with brick-and-mortar businesses that are places of public accommodation, that does not render the businesses’ websites themselves places of public accommodation.”  Zaid, 2019 U.S. Dist. LEXIS 11363 at *14–15.  Because SFCU’s website is not a place of public accommodation, the court granted SFCU’s Motion to Dismiss with prejudice.

Under Title III of the ADA, places of public accommodation must provide equal access for individuals who visually or hearing impaired.  Typically, this is thought to apply to physical barriers.  However, numerous lawsuits have been filed alleging that websites are places of public accommodation.  Some courts in other circuits have held that a website may be a place of public accommodation.  Other courts have held that either a nexus to a brick and mortar/physical location or control by a place of public accommodation is required in order for a website to be a place of public accommodation.

The plaintiff’s counsel in Zaid, Scott Ferrell of Pacific Trial Attorneys, has filed similar lawsuits with similar allegations using various testers around the state and country.  In 2018 alone, Pacific Trial Attorneys filed four such lawsuits against credit unions in the Southern District of Texas, four in the Northern District of Texas, and one in the Western District of Texas all using two ADA testers.  These cases appear to have received varying levels of response from the defendants in those suits but the Zaid decision is the first case disposed of on the merits within the Fifth Circuit.  This case is a win for companies with web presences.  As it is a district court case, however, it has limited binding force but should be helpful in responding to demands from plaintiffs should they come in the future.