Website AccessibilityEastern District of New York Holds a Website By Itself is Not Place of Public Accommodation

Eastern District of New York Holds a Website By Itself is Not Place of Public Accommodation

Website class actions alleging violations of the Americans with Disabilities Act (“ADA”) continue to dominate the court systems. These lawsuits are indiscriminate involving businesses of all sizes across a myriad of industries. Commonly, these lawsuits involve a plaintiff who suffers from a disability and attempted to access a business’s website, alleging that the website itself should be considered a place of public accommodation, but their disability hindered their enjoyment of the business’s services. Nevertheless, a court in the Eastern District of New York has unequivocally concluded that a website is not a “place of public accommodation” within the meaning of Title III of the ADA.

Winegard v. Newsday LLC

On July 31, 2019, Plaintiff Jay Winegard, a legally deaf individual residing in Queens, New York, filed an action in the Eastern District of New York against the news service provider Newsday. Winegard alleged that Newsday violated the Americans with Disabilities Act, the New York State Human Rights law, and the New York State Civil Rights Law, and the New York City Human Rights Law in failing to provide closed captioning on two of the videos it hosted on its website.

On May 1, 2020, Newsday filed a Motion to Dismiss, arguing, in relevant part, that Newsday is not a place of public accommodation within the meaning of Title III of the ADA.

On August 16, 2021, while initially observing that the Second Circuit has not squarely resolved whether a website itself is a place of public accommodation, the Eastern District of New York concluded that “the ADA excludes, by its plain language, the websites of businesses with no public-facing, physical retail operations from the definition of” places of public accommodation. In reaching its conclusion, the court relied heavily upon the text of the ADA, noting that the ADA’s definition of places of public accommodation were overwhelmingly comprised of physical locations.

Echoing the recent Eleventh Circuit holding in Gil v. Winn-Dixie, the court further called upon Congress to clarify whether the places of public accommodation include websites and further remarked that in the thirty-one years since the passage of the ADA, Congress has failed to add non-physical places to the definition of places of public accommodation.

Finally, the court in Winegard concluded that previous Second Circuit reliance on Pallozzi v. Allstate Life Insurance Co. is misplaced, as that matter dealt with the enjoyment of insurance services which still had to procured at a physical location.

What does this mean going forward?

Whereas the Court’s decision in Winegard may not initially upend all website-based ADA claims in the Second Circuit, it is yet another example of the eroding argument that websites are automatically places of public accommodation. To that end, 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 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. Beckage works with clients at all stages of accessibility analysis and is here to help make your company ADA compliant and help ensure your company has the right tools in place to mitigate risk.

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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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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.

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FingerprintBiometric Litigation Continues To Rise As Businesses Work To Minimize Risk

Biometric Litigation Continues To Rise As Businesses Work To Minimize Risk

In 2008, Illinois enacted the Illinois Biometric Information Privacy Act (“BIPA”) with the purpose of recognizing a person’s privacy right to their “biometric information” and “biometric identifiers”.  BIPA was enacted in response to the growing use of biometrics by businesses.   

In part because of its private right of action, by which plaintiffs may bring suit against businesses directly, BIPA litigation remains at the forefront of the data privacy litigation landscape as businesses continue to collect the biometric identifiers of their employees.  Recent BIPA class action settlements with major tech companies like Facebook and TikTok have been in the hundreds of millions of dollars, but the majority of BIPA litigation is brought against small and medium sized enterprises who collect biometric information in employee timekeeping or for access controls to physical spaces.   

To date, defendants have found courts to be generally unwilling to dismiss BIPA litigation at early motion practice.  Two recent cases, Thornley v. Clearview AI and Barton v. Swan Surfaces, demonstrate that there are some potential limits to BIPA litigation. 

Thornley  v. Clearview AI 

In Thornley, Melissa Thornley accused Clearview AI of scaping publicly available photos from her social media accounts for facial recognition purposes and selling her biometric information to third parties without her consent.  Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1242-1243 (7th Cir. 2021).  Thornley initially filed a complaint in Illinois state court, alleging as a class representative, that Clearview violated § 15(c) of BIPA, which requires in relevant part, that “[n]o private entity in possession of a biometric identifier or biometric information may sell, lease, trade, or otherwise profit from a person’s or a customer’s biometric identifier or biometric information.”  Id. at 1246.  Clearview removed the case to federal court on the basis that the allegation of a statutory violation gave rise to a concrete and particularized injury-in-fact that is necessary for Article III standing.  Id. at 1243.  Under the Constitution, a plaintiff must have Article III standing to sue in federal court, which requires that the plaintiff prove: (1) an injury in fact; (2) causation of the injury by the defendant; and (3) that the injury is likely to be redressed by the requested relief.  See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).  In Spokeo, the Supreme Court of the United States held that a statutory violation could be sufficient to constitute an injury in fact; however, it did not provide any analysis as to which types of statutory violations necessarily implicate concrete and particularized injuries in fact.  Id.   

The district court held that Clearview alleged violation of § 15(c) of BIPA was “only a bare statutory violation, not the kind of concrete and particularized harm that would support standing”, the case must be remanded to the state court.  Thornley., 984 F.3d at 1242.  Clearview then appealed to the Seventh Circuit, who concurred with the District Court and remanded the case back to the Illinois State Court for much the same lack of standing.  Id.  Clearview has now petitioned the Supreme Court of the United States to take its case.  See Porter Wells, Clearview AI Will Take BIPA Standing Challenge to Supreme Court. 

Barton v. Swan Surfaces, LLC 

In Barton, a unionized employee of Swan Surfaces, LLC (“Swan”) was required to clock in and out of her employer’s manufacturing plant using her fingerprints as part of company protocol.  Barton v. Swan Surfaces, LLC, No. No. 20-cv-499-SPM, 2021 WL 793983 at *1 (S.D. Ill March 2, 2021).  On May 29, 2020 Barton filed a complaint in the United States District Court for the Southern District of Illinois alleging that she represented a class of individuals who “while residing in the State of Illinois, had their fingerprints collected, captured, received, otherwise obtained and/or stored by Swan”.  Id. at *2.  Barton asserted Swan violated BIPA in: (1) failing to institute, maintain, and adhere to publicly available retention schedule in violation of 740 ILCS 14/15(a); and (2) failing to obtain informed written consent and release before collecting biometric of information.  Id.  On July 31, 2020, Swan filed a Motion to Dismiss, asserting in relevant part, that Barton’s BIPA claims were preempted by § 301 of the Labor Management Relations Act (“LMRA”).  Id.  

On March 2, 2021, the court held that as Barton was a unionized employee, her Collective Bargaining Agreement (“CBA”), which contained a management rights clause and grievance procedure, controlled and as such Barton’s BIPA claims were preempted by § 301 of the LMRA.  In coming to its conclusion, the court heavily relied on the courts holding in Miller v. Southwest Airlines, Inc., 926 F.3d 898 (7th Cir. 2019). Id. at *6. In Miller, the Seventh Circuit held an adjustment board had to resolve the employees’ dispute over the airline’s fingerprint collection practices because their unions may have bargained over the practice on their behalf.  Miller, 926 F.3d 898.  The court in Barton noted that the United States “Supreme Court has held that the RLA preemption standard is virtually identical to the pre-emption standard the Court employs in cases involving § 301 of the LMRA” and therefore the same outcome should apply.  Barton, 2021 WL 793983 at *4. 

Key Takeaway 

While these cases demonstrate the potential to circumvent or limit BIPA litigation, the increased volume of biometric information being used by companies and the push for biometric policies that govern the use of these technologies and promote safeguards for consumers will undoubtedly continue.  

With many states looking to implement biometric privacy laws similar to BIPA, it is important to have legal tech counsel to address compliance with these emerging laws. Beckage attorneys, who are also technologists and former tech business owners, have years of collective experience with new technologies, like artificial intelligence, biometric data, facial recognition technology. We have a team of highly skilled lawyers that stay up to date on all developments in case law on BIPA and who can help your company best defense given the current legal landscape. Our team can help assist your company in assessing and mitigating risks associated with emerging technologies. 

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