With the United States Supreme Court’s decision not to hear the appeal in the matter of Robles v. Domino’s Pizza, the landscape with respect to website accessibility lawsuits under the Americans with Disabilities Act remains both somewhat murky and probably daunting to those who defend such claims. This decision will, in all likelihood, have both short-term and long-term consequences.
The initial victory gained by Domino’s at the trial court level in Robles, where the court had dismissed the complaint and concluded that it would be violation of Domino’s due process rights to have the ADA applied to its website and mobile application in the absence of Department of Justice regulations, was then wiped out by the United States Court of Appeals for the 11th Circuit. The appellate court reversed the trial court’s decision and remanded the case back down for further proceedings. Thus, the most direct short-term consequence of the Supreme Court’s refusal to entertain the Robles appeal is very specific to that case—the case lives on in the federal district court where it will, presumably, either proceed to trial or be resolved by the parties. This is no small consequence in that, to date, only one known ADA website accessibility case, Gil v. Winn Dixie, has actually gone to trial. And the result there was not good for defendants and those who defend these cases.
There are additional short and long-term consequences, however, associated with the Supreme Court passing on a review of Robles that extend far, far beyond the four corners of that particular case. Perhaps, most importantly, had the Supreme Court accepted review, finally, years after these cases first exploded, for lack of a better term, onto the litigation scene, we would or at least could have had a good deal more clarity—good, bad or indifferent—with respect to these claims in that the nation’s highest court would have spoken on such lawsuits. As it is now, what we instead have are a number of federal trial and appellate court decisions, some of which are consistent and some of which are not.
In addition, in light of the Supreme Court’s decision not to review the Robles appeal, plaintiffs and plaintiffs’ counsel will, in all likelihood and probably most certainly, be emboldened to continue to file website accessibility lawsuits. Indeed, by all accounts, it looks like these lawsuits are on the rise again in 2019. They have continued to rise each year.