The much-anticipated decision from the U.S. Supreme Court (SCOTUS) on Domino’s Pizza’s Petition for Certiorari is in. On October 7, 2019, the SCOTUS denied review of a decision from the Ninth Circuit Federal Court of Appeals in Robles v. Domino’s Pizza. The Ninth Circuit in Robles held that (1) Title III of the ADA covers websites with a nexus to a physical place of public accommodation, and (2) liability for not having an accessible website, even without any regulation on the subject, does not violate due process rights of business covered by Title III. The SCOTUS denial of certiorari leaves intact the Ninth Circuit’s decision. The case will be remanded to the federal district court where Plaintiff filed the lawsuit originally for a decision on the merits.
Business trade groups were looking to the SCOTUS to review Robles in order to provide some relief and clarity to what has been chaotic legal regime resulting in an ever-ticking upwards onslaught of lawsuits against business. The Department of Justice (DOJ), the federal agency responsible for issuing regulations under Title III so that stakeholders better understand their rights and obligations under the law, does not appear to be poised to issue website accessibility regulations anytime soon, if at all. The DOJ first announced its intention to do so back in 2010. Business trade groups were hoping the SCOTUS might provide some needed guidance in this area.
Although disability rights groups and the plaintiff’s bar may tout the SCOTUS’s decision as a victory, the impact on website accessibility litigation under Title III is far from clear. While the decision is certainly not going to reduce the number of lawsuits filed or dampen the motivation of attorneys and serial plaintiffs to file these lawsuits, most plaintiffs’ law firms already had been filing literally thousands of lawsuits over the last few years on the premise that holding companies liable under Title III due to an inaccessible website does not violate due process rights. Unfortunately, the SCOTUS’s decision to deny certiorari does not help businesses or, for that matter, the disabled as there remains no consistent guidance on website accessibility. Since the Congress does not appear ready to amend the law and the DOJ is seemingly reluctant to regulate in an area where the agency many years ago stated it was needed, the courts have been left to decide what the law requires in a rapidly-changing technological environment. Unfortunately, because many of these cases settle early on, litigation is also not likely to timely and effectively shape the law in this area either.