Online Shopping11th Circuit Holds a Website is Not a Place of Public Accommodation in Gil v. Winn-Dixie Stores

11th Circuit Holds a Website is Not a Place of Public Accommodation in Gil v. Winn-Dixie Stores

Website class actions alleging violations of the Americans with Disabilities Act (“ADA”) have been on the rise in recent years – involving small and large businesses alike.  These lawsuits generally involve a plaintiff who suffers from a disability and attempted to access a business’ website, but their disability hindered their enjoyment of the full range of the website’s services.  Moreover, these website class action lawsuits began their rapid proliferation in June 2017 after a Southern District of Florida court held that Winn-Dixie grocery store chain had violated the ADA because the inaccessibility of its website had denied the plaintiff the full and equal enjoyments of the goods, services, facilities, privileges, advantages, or accommodations that that grocery store offered.  However, now the Eleventh Circuit has unequivocally clarified that a website is not a “place of public accommodation” within the meaning of Title III of the ADA.

The District Court: Gil v. Winn-Dixie Stores

In 2017, Plaintiff Juan Carlos Gil, who is legally blind, sued the grocery retailer Winn-Dixie, alleging the business violated the Americans with Disabilities Act (ADA) because the website was allegedly inaccessible to Gil due to its incompatibility with Gil’s screen reading software.  Gil wanted to order his prescriptions for pickup and to download online coupons onto his rewards card for store use.  The Southern District of Florida concluded that as Winn-Dixie’s website was not accessible to the screen reader users, it had violated the ADA.  Moreover, the court determined that as the website was heavily integrated with Winn-Dixie’s physical stores, acting as a gateway to the physical store, the court did not need to consider whether websites were places of public accommodation under the ADA.  Finally, the Southern District of Florida, issued a detailed injunctive relief order, requiring Winn-Dixie to make its website conform to the Web Content Accessibility Guideline 2.0 Level AA – a privately developed set of criteria for web accessibility that has not been adopted as a legal standard under the ADA for the public accommodation websites.  In response to this finding, Winn-Dixie allocated $250,000 to update their site to make it more accessible to those with significant visual impairment.

 The Circuit Court: Gil v. Winn-Dixie Stores 

Winn-Dixie immediately appealed the Southern District of Florida’s holding, seeking further clarification on three issues:

  1. Whether Gil has standing to bring this case;
  2. Whether websites are places of public accommodation under Title III of the ADA; and
  3. Whether the district court erred in its verdict and judgment in favor of Gil, including the court’s injunction.

In April 2021, the Eleventh Circuit held, in relevant part that:

  1. Winn-Dixie did not violate the ADA because its website is not a place for public accommodation; and
  2. Winn-Dixie’s website did not pose an intangible barrier to his access to goods, services, privileges, or advantages to Winn-Dixie’s physical stores.

In reaching its conclusion, the Eleventh Circuit focused on two important facts:

  1. No goods or services could be purchased on Winn-Dixie’s website; and
  2. All interactions with Winn-Dixie can be, although need to be, initiated on the website must be completed in store: prescription pickups and redemption of coupons.

Therefore, the Winn-Dixie website had limited functionality and purchases could not be made on the Winn-Dixie website.

What does this mean going forward?

After this recent decision, there are now three different theories of liability for website accessibility adopted by the federal courts of appeal. The Eleventh Circuit states that in order to establish a violation of the ADA based on an inaccessible website, a plaintiff must show the inaccessibility of the website prevented him/her from accessing goods, services, privileges, or advantages of a physical place of public accommodation. The Ninth Circuit has held that a plaintiff must show that an inaccessible website has a nexus to a physical place of public accommodation to establish ADA liability. The First Circuit has held that a plaintiff would have a strong argument under current precedent that a website that falls into one of twelve categories of business in ADA’s definition of the term “public accommodation” would be covered under the ADA, even if it has no physical place of public accommodation. The statutory definition of a ‘public accommodation’ is “an expansive list of physical locations,” that does not include websites.

It is unclear what the impact of the Winn Dixie decision will be, although it is anticipated that it will not have a tremendous impact on the number of website accessibility lawsuits filed because plaintiffs can choose to file in a different circuit court where the precedent is more favorable. The likelihood that the Supreme Court will take up this issue has increased due to the new conflict between the Eleventh and Ninth Circuits as to when an inaccessible website belonging to a physical place of public accommodation violates the ADA.

Many lawsuits filed in the past few years involve the threshold issue of whether and to what extent Title III applies to websites, leaving the courts left to decide. Case law is developing rapidly in this area because website accessibility claims have become a big business for the plaintiff’s bar. It is important that companies are proactive and prioritize accessibility to put themselves into a legally defensible position.

At Beckage, we have a team of highly skilled ADA attorneys and technologists who are uniquely situated to help clients navigate website accessibility and work towards national and international standards with other privacy and security laws from both a litigation defense perspective but also with unique technical experience. Beckage works with clients at all stages of the accessibility analysis and is here to help make your company evaluate your ADA compliance posture and implement a legally defensive plan to mitigate risk.

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Jennifer Beckage Bloomberg LawJennifer A. Beckage, Esq., CIPP/US, CIPP/E quoted in Bloomberg Law Article

Jennifer A. Beckage, Esq., CIPP/US, CIPP/E quoted in Bloomberg Law Article

Jennifer A. Beckage, Esq., CIPP/US, CIPP/E | April 16, 2021

‘Biden’s Russia Strike Marks Shift in U.S. Cybersecurity Strategy’

“It’s nice to see the government support private-public collaboration to drive this forward,” Beckage said. “It’s more indication from the current administration that cybersecurity is important and will continue to be going forward.”

Risk Management MagazineJennifer A. Beckage, Esq., CIPP/US, CIPP/E was published ‘Risk Management Magazine’

Jennifer A. Beckage, Esq., CIPP/US, CIPP/E was published ‘Risk Management Magazine’

‘The Legal Issues in Cyber Incident Response’

Jennifer A. Beckage, Esq., CIPP/US, CIPP/E | April 1, 2021

When we think about cyber incident response, we think about detection, analysis, containment, eradication, remediation and reporting. These stages are not just about technical and forensic response, however. Throughout each, legal risks and considerations must also be addressed. It is imperative to focus on gaining technical understanding of what the threat actor did, when they did it, and how to overcome their interference and resulting business interruptions. At the same time, equal focus must be given to examining applicable state and/or federal laws, contractual obligations, and any other potential legal exposures or rights. This can be accomplished while simultaneously managing other aspects of incident response, including cyber insurance carrier updates, public relations, internal communications and, of course, technical response. Working with legal counsel and the organization’s incident response team to answer material legal questions through the phases of incident response often dictates how and when the next phase is handled. 

BiometricsIn the Face of Huge Settlements, BIPA May Soon Be Losing Its Bite

In the Face of Huge Settlements, BIPA May Soon Be Losing Its Bite

Illinois lawmakers are considering a bill which has the potential to dramatically rein in the state’s strict Biometric Information Privacy Act (“BIPA”).  On March 9, 2021, the Illinois House judiciary committee advanced House Bill 559 (the “Bill”) which would amend BIPA.  The Bill has a couple of key amendments that may impact your business.

First, the Bill changes BIPA’s “written release” requirement to instead simply require “written consent”.  Thus, under the Bill, businesses would no longer be required obtain written release, but instead could rely on electronic consent.

Second, whereas BIPA currently requires that a business in possession of biometric identifiers draft and provide a written policy regarding its handling of biometric data to the general public, under the Bill, businesses would only be required to provide this written policy to affected data subjects.

Third, the Bill creates a one-year statute of limitations for BIPA claims.  Moreover, the Bill provides that prior to initiating a claim, a data subject must provide a business with 30 days’ written notice identifying the alleged violations.  If the business cures these violations within the 30 day window, and provides the data subject an express written statement indicating the issues have been corrected and that no further violations shall occur, then no action for individual statutory damages or class-wide statutory damages can be taken against the business.  If the business continues to violate BIPA in breach of the express written statement, then the data subject can initiate an action against the business to enforce the written statement and may pursue statutory damages.  Therefore, not only does the Bill finally create a statute of limitations, but also provides a mechanism by which businesses can respond to alleged violations of BIPA prior to engaging in costly litigation.

Fourth, the Bill modifies BIPA’s damages provisions.  Currently BIPA provides that prevailing plaintiff is entitled liquidated damages of $1,000 or actual damages, whichever is greater, when a business is found to have negligently violated BIPA.  The Bill would limit a prevailing plaintiff’s recovery to only actual damages.  Similarly, in its current form, BIPA provides that a prevailing plaintiff is entitled to liquidated damages of $5,000 or actual damages, whichever is greater, when a business is found to have willfully violated BIPA.  The Bill would limit a prevailing plaintiff’s recovery to actual damages plus liquidated damages up to the amount of actual damages.  Therefore, the Bill would limit a businesses exposure in BIPA claims to what a prevailing Plaintiff can demonstrate as actual damages.

Finally, the Bill provides that BIPA would not apply to a business’ employees if the those employees were covered by a collective bargaining agreement.  Something which has been at issue in recent BIPA litigation as discussed here.

BIPA litigation has increased dramatically and resulted in a number of recent high-profile settlements, including TikTok’s $92 million dollar settlement and Facebook’s $650 million dollar settlement.  This Bill has the potential to greatly curtail this spiral of litigation and high settlement figures.  Beckage will continue to monitor any developments regarding the Bill and will update its guidance accordingly.  Our team of experienced attorneys, who are also devoted technologists, are especially equipped with the skills and experience necessary to not only develop a comprehensive and scalable biometric privacy compliance program but also handle any resulting litigation.

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Auto DialerSCOTUS Narrows Scope of TCPA to Only Systems that Use Random Number Generators

SCOTUS Narrows Scope of TCPA to Only Systems that Use Random Number Generators

In a long-awaited decision, on April 1, 2021, the Supreme Court of the United States released its opinion in Facebook v. Duguid et al., and unanimously adopted a narrow interpretation of the term “automatic telephone dialing system” or ATDS under the Telephone Consumer Protection Act (“TCPA”).  Hundreds of TCPA class action complaints are filed every year against defendants in all industries leveraging text message or calling consumers.  One of the central legal questions addressed in these litigations is whether the text messaging systems used to contact consumers are ATDS such that TCPA liability can stand. Specifically, if these databases are used to store, but not generate, numbers, can they constitute an ATDS?  The Supreme Court’s opinion answers this question in the negative, and provides necessary clarity to the ATDS definition, and its narrow holding is expected to benefit TCPA defendants nationwide.  

The Allegations in Facebook v. Duguid et al.

In Duguid, Plaintiff Noah Duguid alleges he received several text messages from Facebook alerting him that someone had attempted to access a Facebook account associated with his number from an unknown browser.  Duguid alleged that he did not have a Facebook account and never provided Facebook his telephone number.  As a result, Duguid asserted that Facebook violated the TCPA by maintaining a database that stored phone numbers and programing its equipment to send out automated text messages to those numbers each time the associated account was accessed by an unrecognized device or web browser.

Facebook argued that the database in which it stored telephone numbers was not an ATDS such that TCPA liability could be established, and the Supreme Court agreed.  As defined by the TCPA, an “automatic telephone dialing system” is a piece of equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers.  Based on Duguid’s allegations, at issue was whether that definition encompassed equipment that can “store” and dial telephone numbers, even if the device does not “us[e] a random or sequential number generator.”  The Supreme Court of the United States held that because Facebook’s database system did not involve a random or sequential number generator but simply stored numbers, the text messages sent from the system did not violate the TCPA.

What Now?

The Supreme Court’s holding has the potential to greatly limit the number and scope of putative TCPA class actions in the future as it eliminates from the definition of ATDS those systems which do not use a random or sequential number generator, but simply store numbers. 

Despite this added clarity, TCPA litigation remains complex.  Being proactive and building robust and scalable policies into the foundation of your organization will help mitigate legal risk. The Beckage TCPA team has handled numerous class actions litigations in this space and can help your business navigate this complex area of the law.

*Attorney Advertising: Prior results do not guarantee a similar outcome.

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