A recent trial court decision offers some encouragement for certain businesses facing the ongoing wave of litigation in which plaintiffs are asserting claims under Title III of the Americans with Disabilities Act (ADA) that companies have failed to make their websites sufficiently accessible to individuals with disabilities. In Winegard v. Newsday, a New York federal court held that a website, by itself, when not a "service" of a physical place of public accommodation, is not covered by the ADA. For businesses like Newsday that serve the public but do not maintain physical locations open to the public, this decision may help defend against those claims. This judge followed the precedent of district and appellate courts in other circuits that have similarly held that the ADA does not apply to such websites, and it may strengthen the position of those businesses in litigation in the Second Circuit.
The question of whether a website is itself a "place of public accommodation" covered by the ADA is not yet settled within the Second Circuit. In Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999), the Second Circuit held that the ADA covered insurance underwriting services offered outside of that company's insurance offices because the ADA meant to cover "more than mere physical access." Plaintiffs' attorneys and some district court judges have relied on this case and its expansive discussion and analysis to conclude that the ADA reaches websites, even when those websites are unconnected to a physical location.1
In Winegard, the court relied entirely on textual analysis, using the historical use of the term "public accommodation"2 as well as the 12 categories of "places of public accommodation" identified in the ADA itself to conclude that websites are only covered by the ADA as a "service of" a physical location that is open to the public; when that nexus to a public physical location is absent, the ADA does not apply. Given the plain statutory language, the court did not consider the Second Circuit's analysis of the legislative intent in Pallozzi.
The decision creates a rift among the district courts in the Second Circuit. Will the Second Circuit side with the Third, Sixth, and Ninth Circuits, which have all held that the ADA covers only websites with a nexus to a physical place of public accommodation? Will it join the First and Seventh Circuits in holding that standalone websites are also covered? Or will it follow the logic of the Eleventh Circuit and find that unless a plaintiff can show that accessing the website was necessary to access the goods and services of a place of public accommodation, the website is not covered by the ADA?3 Until these questions are answered, businesses without physical locations that face lawsuits over the accessibility of their websites in the Second Circuit may want to argue that other district courts should adopt the reasoning in Winegard v. Newsday.
Footnotes
1. See, e.g., Winegard v. Crain Commc'ns, Inc., No. 20-CV-01509 (AJN), 2021 WL 1198960, at *2 (S.D.N.Y. Mar. 30, 2021) (Nathan, J.); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 403 (E.D.N.Y. 2017) (Weinstein, J.) (in dicta); Del-Orden v. Bonobos, Inc., No. 17 CIV. 2744 (PAE), 2017 WL 6547902, at *7 (S.D.N.Y. Dec. 20, 2017) (Engelmeyer, J.) (in dicta). The courts reached this conclusion even though the court in in Pallozzi noted that there was no dispute that the plaintiffs established a nexus between Allstate's insurance offices and the policies at issue in the case.
2. Judge Komitee noted the existence of businesses offering services to the public without a physical location that predated the ADA and the internet age, such as mail-order catalogs, TV shopping networks, and subscription services. See Winegard v. Newsday LLC, 19-CV-04420(EK)(RER), (E.D.N.Y. Aug. 16, 2021).
3. For a discussion of the Eleventh Circuit's ruling, see Lindsay Alter and Mark T. Phillis, Because of Winn-Dixie: What Does the Eleventh Circuit's Ruling Mean for Website Accessibility Claims?, Littler Insight (Apr. 13, 2021).
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