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Courts Continue to Weigh in on the Issue of Website Accessibility

Courts across the country continue to weigh in on the issue of website accessibility. Earlier this month, the U.S. District Court for the District of New Hampshire denied a Motion to Dismiss filed by online food delivery servicer Blue Apron. In denying the motion, the court found that Blue Apron’s website is a place of public accommodation – despite the fact that Blue Apron operates only online and has no traditional brick and mortar locations. Access Now, Inc. v. Blue Apron, LLC, Case No. 17-cv-00116, Dkt. No. 46 (D. N.H. Nov. 8, 2017). In so finding, the court relied on binding precedent in the First Circuit, and noted that other Courts of Appeals, namely the Third, Fifth, Sixth and Ninth Circuits, have held that in order to be considered a “public accommodation,” an online business must have a nexus to an actual, physical space. Id. at pp. 9-10. This decision highlights that the issue of website accessibility, especially as it applies to online only businesses, remains a contested issue.

The New Hampshire federal court also found that despite the lack of regulations from the Department of Justice (“DOJ”), “Blue Apron must still comply with Title III’s more general prohibition on disability-based discrimination….” Id. at pp. 14-15. The court noted that there might have been a due process violation if plaintiffs had “attempt[ed] to hold Blue Apron liable for failure to comply with independent accessibility standards not promulgated by the DOJ, such as the WCAG 2.0 AA standards….” Id. at p. 20. This was not a concern, however, because plaintiffs relied on Title III of the ADA as governing potential liability and only invoked compliance with WCAG 2.0 AA standards as a “sufficient” but not “necessary” condition. Id. at p. 21.

The Court also took up the issue of primary jurisdiction and held that because “the potential for delay” was “great,” it would not invoke the primary jurisdiction doctrine and dismiss or stay the matter until DOJ issues regulations concerning website accessibility. This holding is in direct contrast to the holding in Robles v. Dominos Pizza, LLC, where the United States District Court for the Northern District of California held that it would violate Domino’s due process rights to find that its website violates the ADA because the DOJ still has not promulgated regulations defining website accessibility. See Robles v. Dominos Pizza LLC, No. 16-cv-06599, Dkt. No. 42 (N.D. Cal. Mar. 20, 2017). Further analysis regarding the Robles case can be found in this blog post.

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Bank Website ADA Litigation

Although the frequency of bank clients receiving demand letters related to violations of the Americans with Disabilities Act (“ADA”)  based on website (in)accessibility seems to be declining, Bryan Cave lawyers around the country continue to be actively involved in defending such claims in other industries.  In addition to working with the Georgia Bankers Association and the California Bankers Association, Bryan Cave has published updates through a number of blogs that may be of value to our banking clients.

In April, Start Up Bryan Cave, our blog focusing on start ups of all kinds, published “Best Practices for your Corporate Website: How to Avoid an ADA Claim.”

Making your company’s website ADA compliant now, before your company is a target of a lawsuit or a demand letter, makes good business sense.  It will open your company up to more potential customers, limit your liability, position you to deal effectively with the regulatory challenges of growth, improve your company’s reputation in the marketplace and is simply the right thing to do.  Also, being proactive in establishing compliance protocols for your growing company will cause you to stand out among your competitors, make you more attractive to potential investors and partners, and can greatly mitigate any regulatory actions if a regulatory agency decides to audit your business.

In June, BC Retail Law, our blog focusing on clients in the retail sector, published “Retailer Loses ADA Website Accessibility Trial” about the first ADA accessibility litigation to go to trial.  The Court held that Winn-Dixie violated Title III of the ADA because its website was inaccessible to the visually impaired plaintiff.

[D]espite the fact that Winn-Dixie does not conduct sales through its website, the Court found that the website was “heavily integrated” with the physical store locations because customers can use the website to access digital coupons, find store locations, and refill prescriptions through the website.

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Media Mentions – March 29, 2013

With attorneys and staff worldwide, Bryan Cave attorneys are often quoted in the news.  Recent Media Mentions of Financial Institutions Group attorneys include:

BankBryanCave in GBA e-Bulletin

BankBryanCave post concerning a potential new wave of ATM class actions in Georgia was featured in the March 8 edition of the GBA e-Bulletin, from the Georgia Bankers Association. The suit against Branch Banking and Trust Company in federal court in Atlanta alleges that two of the bank’s ATMs did not meet the accessibility features mandated by the Americans with Disabilities Act.  Click here to read the GBA summary of the topic, which links to our original March 6 post written by Atlanta Partners Jennifer Dempsey and Bill Custer.

Linda Odom and Courtney Stolz in Bank Director

DC attorneys Linda Odom and  Courtney Stolz authored an article March 29 in Bank Director regarding steps the Federal Trade Commission has taken to push for more unified mobile payments regulation. “For banks interested in mobile banking, its actions and publications are very instructive,” they wrote. “Over the last two years, the FTC’s actions include: bringing law enforcement actions, obtaining high-profile settlements with Google and Facebook and issuing policy reports for mobile businesses and policymakers. Although financial institutions are not directly regulated by the FTC in this area, the FTC does regulate all other mobile providers including merchants, payment card networks and payment processors.”  Click here to read the full article. The two also authored an article for Bank Director on proposed guidance from the Federal Financial Institutions Examination Council to help banks manage their social media risks. “Social media has become ubiquitous and many banks are wondering if they can survive without a trendy presence on Facebook, LinkedIn, Twitter, YouTube, and in the ‘blogosphere,’ ” they wrote. “It is a bit of the Wild West out there though, with few rules in place to protect your message.” Click here to read the full article.

Judith Rinearson on Reg Watch

New York Partner Judith Rinearson was quoted March 28 on The Hill’s regulation blog, Reg Watch, regarding new regulations aimed at stopping the use of prepaid credit cards to launder money across the border. The Financial Crimes Enforcement Network within the Treasury Department has been working on rules since 2011 that would require travelers to tell customs officials if they are carrying more than $10,000 on the cards. (Travelers currently must declare only cash and travelers checks above that amount.) “Nobody takes your ATM card to find out what’s in your bank account when you go through customs,” Rinearson said. “If you’ve got a huge line of credit on your credit card – no one asks to see it. Why should prepaid cards be any different?”  Click here to read the full article.

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Media Mentions

Media Mentions

March 18, 2011

Authored by: Jeannie Osborne

With attorneys and staff worldwide, Bryan Cave often makes the news.  Recent media mentions of attorneys in the Financial Institutions group include:

Moeling in The Atlanta Journal-Constitution

Atlanta Partner Walt Moeling was quoted March 5 in The Atlanta Journal-Constitution concerning the high number of failed banks in Georgia, many of them concentrated within 70 miles of Atlanta. For the most part, the failed banks were heavily tied to the state’s once-booming housing market. “The banks that failed are a direct reflection of the economy that supported them,” Moeling said.  Click here to read the full article.

Custer and Dempsey in The Atlanta Journal-Constitution

Atlanta Partner Bill Custer was quoted March 10 in The Atlanta Journal-Constitution for his representation of a syndicate of banks that held an $89.3 million loan on a large Arizona development that failed. Following a one-week arbitration last December in which Custer and Atlanta Partner Jennifer Dempsey represented the banks, a panel of arbitrators entered an award on Valentine’s Day against longtime Atlanta developer W. Harrison Merrill in the amount of $43.6 million. Unfortunately, the decision does not clear the way for banks, located primarily in the Southeast, to collect the money any time soon. A trial in the Superior Court of Pinal County, Ariz., later this year ultimately will be required to resolve the matter.  Click here to read the full article.

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