New York Federal Choose Points Landmark Ruling Signaling Potential Change In Tide Of ADA Web site Litigation – Legislation Division Efficiency

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New York federal judge issues landmark ruling signaling a possible change to the spate of ADA website litigation

August 26, 2021

Lewis Brisbois Bisgaard & Smith LLP

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New York, NY (August 2021) Unlike some courts in other jurisdictions, the New York federal courts are hospitable to claims made by claimants with disabilities that websites do not comply with the Americans with Disabilities Act (ADA) because, among other things, they are inaccessible to incompatibility with software used by the visually impaired People, and lack of subtitles for videos that contain audio, as required by the deaf or hard of hearing. As a result, disabled plaintiffs file hundreds of such lawsuits each year in the Southern District of New York and Eastern District of New York, including against companies with little connection to New York. A notable new ruling from Judge Eric’s Committee in the Eastern District of New York at Winegard v. Newsday LLC, 19 CV 04420, issued August 16, 2021, took an entirely different route. If this decision is upheld on appeal or pursued by other lawyers, the New York federal courts will no longer be a hotbed for these cases.

In Winegard, the Judge Committee dealt with the question of whether a website constitutes a “place of public accommodation” that should be accessible to disabled people according to ADA Title III. On the basis of the legal text and context, the history of the term “place of public accommodation” and a German appeal decision, he decided that “the ADA, by its simple language, excludes the websites of companies that do not have publicly accessible, physical retail stores from the definition from ‘public accommodation’. ”He therefore dismissed plaintiff’s allegations that Newsday’s website denied the deaf and hard of hearing access to videos on an equal footing and that Newsday had failed to make reasonable changes to the videos in order to gain access to enable.

In concluding that a website is not a public accommodation place, the court found that out of the 50 examples of public accommodation listed in 42 USC § 12181 (7), 49 were indisputably related to physical locations. Judge Committee argued that Congress could have referred more generally to any company engaged in interstate commerce, or any retail or service business, but focused instead on physical locations. He was not deterred by the argument that when the ADA was passed in 1990 the World Wide Web was not expected, and pointed out that even then there were countless other types of companies operating outside of the brick and mortar store (e.g. the Sears Roebuck catalog). The decision was also based on the use of the word “place”, which clearly referred to a physical place. The Judge Committee identified the requirement of a physical establishment as a condition precedent for ADA’s liability.

In addition, the court rejected the plaintiff’s argument that a 1999 precedent set by the Second Circuit Court of Appeals – the appellate court of which New York is a part – supported a broad interpretation of the term “place of public accommodation”. In Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2nd Cir. 1999), the Second Circuit ruled that an insurer operating a physical insurance office violated the ADA by refusing to issue a policy based on the mental health diagnosis of the Issue plaintiff. Judges Committee argued that the verdict did not depend on whether it was a public lodging facility, but correctly stated that the ADA was applicable because the defendant had a public physical office.

Finally, the decision finds that public policy considerations that favor accessibility may not exist in view of the legal restriction that accommodation is only required in relation to actual public accommodation.

It is, of course, far too early to issue a litigation death certificate on the ADA website in New York or elsewhere. This decision can certainly be reversed on appeal, other judges who have already come to contrary conclusions may well stick to their previous reasoning, and judges who have not dealt with the question may come to a different conclusion. And the decision would not apply to a company that has a website and a store, office, or restaurant that is a physical location of public accommodation. But there is no doubt that many of the defendants named in these cases currently have another arrow up their sleeves with which to defend these cases.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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