Yesterday, in a closely-followed case, the Supreme Court decided not to hear an appeal brought by the Domino’s pizza chain, which sought to overturn the Ninth Circuit Court of Appeal’s decision that entities selling online must make their websites and apps accessible to people with disabilities. The decision is considered a major win for disability rights advocates, who have been arguing that the Americans with Disabilities Act (“ADA”) applies to websites, digital platforms, and other non-physical spaces. It is a disappointment for retailers and service providers who were operating their websites and apps with the understanding that the ADA applies only to brick-and-mortar locations, not to non-physical spaces. The Supreme Court’s refusal to address the issue leaves the law unsettled both as to brick-and-mortar retailers who also have websites/apps (like Dominos) and e-commerce-only businesses. It is a case thatallcompanies doing business over the internet need to be aware of.

A visually-impaired man filed the lawsuit against Domino’s, alleging he couldn’t use the company’s website or delivery app even with screen-reader software and, consequently, was unable to order a pizza online. Screen-reading software users often say modern websites and apps don’t have enough built-in cues to let the software meaningfully translate what’s happening on-screen to audio output. But businesses have expressed concern that the Ninth Circuit’s decision, coupled with uncertainty about exactly what it means to make a website accessible, have caused a flood of lawsuits over website/app access that, in turn, are causing businesses to consider reducing their online presence, which would ultimately hurt all consumers. The Supreme Court’s decision not to hear the case allows the Ninth Circuit’s about-face in ADA law to remain in place and leaves open the litigation floodgates, at least for now.

Ever mindful that uncertainty and related litigation costs hurt businesses, those conducting business over the internet are looking to take the needed steps in making their non-physical spaces accessible, while seeking to secure federal standards for all retail and service providers to follow.

Dykema has been counseling certain of its clients in this area, and has handled litigation like the Domino’s case. For more information, please contact Thomas Alleman, [email protected]or 214-698-7830, James Azadian at 213-457-1779 or [email protected], Jill Wheaton at 734-214-7629 or [email protected], Laura Worsinger, 213-457-1744 or [email protected], or your Dykema relationship attorney.

Robles v. Domino’s Pizza, LLC Supreme Court Case No. 18-1539 Ninth Circuit Case No. 17-55504