The US Supreme Court denied certiorari on October 7 to Domino’s, locking in the US Court of Appeals for the Ninth Circuit’s ruling that, consistent with Title III of the Americans with Disabilities Act (ADA), the pizza restaurant’s website and app must be accessible to individuals with disabilities. This development may embolden those behind the avalanche of web and app accessibility lawsuits, but it does not alter the legal landscape. While a circuit split over the scope of Title III’s “place of public accommodation” has been crystalizing for 20 years, Domino’s case did not present that split to the Supreme Court. It will take the case of a web-only or app-only business for the Supreme Court to weigh in.
Title III of the ADA applies only to entities that own, lease, or operate a “place of public accommodation.” The Third, Fifth, Sixth, and Ninth Circuits hold that only actual, physical places open to the public—i.e., traditional, brick-and-mortar stores—are “places of public accommodation.” By contrast, the First Circuit holds, and the Seventh Circuit has suggested in dicta, that nonphysical, digital places also are “places of public accommodation” under Title III. In 2015, in a case successfully argued by Morgan Lewis lawyers, Earll v. eBay, Inc., the Ninth Circuit became the first (and so far, the only) circuit to apply that reasoning to websites, holding that the website of a web-only business is not a “place of public accommodation” because it is not an actual, physical place.
Domino’s case was different from Earll because, unlike eBay, Domino’s operates actual, physical stores—pizza restaurants. The Ninth Circuit panel that decided Domino’s did not hold that Domino’s website or app is a “place of public accommodation” or otherwise overrule Ninth Circuit precedent interpreting “place of public accommodation;” the panel expressly affirmed that interpretation.
Domino’s turned on a different question: Are Domino’s website and app goods or services of Domino’s physical restaurants? While Title III only applies to companies that operate “places of public accommodation,” it requires those companies to ensure that the goods or services “of any place of public accommodation” are equally enjoyable by individuals with disabilities.
Thus, the Ninth Circuit reasoned, Domino’s restaurants are “places of public accommodation,” so Domino’s website and app must be accessible to individuals with disabilities since the website and app are goods or services of the restaurants. Because customers can “use the website and app to locate a nearby Domino’s restaurant and order pizzas for at-home deliver or in-store pickup,” the Ninth Circuit concluded that the website and app are services of the Domino’s stores. As the court explained, “[t]his nexus between Domino’s website and app and physical restaurants…is critical to our analysis.”
That conclusion did not open or widen any circuit split. Courts that have addressed the question uniformly agree that companies that operate “places of public accommodation” must ensure equal access for individuals with disabilities to offsite and/or nonphysical goods and services “of a place of public accommodation”—i.e., goods and services that are integrated with or have a strong nexus to the physical store.
The circuit split over the meaning of “place of public accommodation” has been deepening for two decades. That split has given rise to forum-shopping by litigants behind thousands of Title III lawsuits involving websites and apps. Web-only and app-only businesses have a strong defense in some jurisdictions but are vulnerable in others, all over websites and apps that are available in every jurisdiction.
The Supreme Court appeared interested in resolving the split two years ago, calling for the views of the Solicitor General on a petition for certiorari filed in Magee v. Coca-Cola Refreshments, Inc. that claimed to raise the question. The Solicitor General successfully urged the Supreme Court to deny certiorari in Magee precisely because the split was not squarely presented.
Domino’s did not present the split, either. While the Supreme Court is likely to resolve the split eventually, it will probably await a case involving a web-only or app-only business.
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Anne Marie Estevez