While the ADA finished celebrating its 27^thanniversary at the end of July, for plaintiffs looking to bring website accessibility complaints in New York the party is still ongoing.  Following on the heels of last month’s decision of the U.S. District Court for the Southern District of New York in Five Guys, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, in Andrews vs. Blick Art Materials, LLC, recently denied a motion to dismiss a website accessibility action, holding that Title III of the ADA (“Title III”), the NYS Human Rights Law and the New York City Human Rights Law all apply to websites – not only those with a nexus to brick and mortar places of public accommodation but also to cyber-only websites offering goods and services for sale to the public.

The Court’s decision in Blick was comprehensive – spanning nearly 40 pages – addressing the major theories and defenses website accessibility decisions have been considering with increasing frequency for more than a decade, through lenses that were extremely sympathetic to plaintiff’s claims.  Relying upon the Second Circuit’s decision in Pallozzi v. Allstate., 198 F.3d (2d Cir. 1999), recognizing the need to apply Title III broadly to match the expansive remedial and protective purposes of the ADA (albeit in the context of insurance policies), along with other district court decisions within the Second Circuit expressly applying that same theory to website accessibility (NFB v. Scribd and Five Guys), Judge Weinstein rejected the decisions of other circuits and district courts concluding that Title III only applies to a website when there is a connection to a physical place of public accommodation.  Adopting what it deemed to be a “sensible approach to the ADA”, the Court held that, “Blick is prohibited from discriminating against the blind by failing to take the steps necessary to ensure that the blind have ‘full and equal enjoyment’ of the goods, services, privileges, advantages, facilities, or accommodations of its website – provided that taking such steps would not impose an undue burden on Blick or fundamentally alter the website.”  This conclusion was deemed to embody the broad remedial mandate of the ADA, protecting individuals with disabilities from discrimination and allowing them to fully and equally participate in society – one that in 2017 places significant value on the ability to utilize websites – with accommodations needing to evolve alongside technology.  (The Court postponed a decision on whether such an action is appropriate for a class action.)

In reaching its conclusion, the Blick decision was also the latest to reject defenses based upon primary jurisdiction and due process (joining other decisions such as Hobby Lobby and Harvard/MIT.  First, the Court rejected the primary jurisdiction argument because:  (i) the question at issue was legal in nature and within traditional judicial competence (e.g., courts regularly decide similar issues under Title III involving “full and equal enjoyment” and “effective communication”/“auxiliary aids and services”); and (ii) plaintiff is entitled to a prompt adjudication of his claims (and the U.S. Department of Justice’s failure to promulgate regulations seven years after suggesting it would do so cannot be a reason to delay that process).  To alleviate defendant’s concern that the Court might lack the technical background necessary to rule on the issue, the Court ordered a “Science Day”, during which experts will testify and provide demonstrations about website design and assistive technology.  Second, the Court rejected any claims that plaintiff’s claim would violate concepts of due process, finding that the ADA, which requires a contextual assessment of specific facts against a “gray” backdrop of various defined terms (e.g., “reasonable modification”, “full and equal enjoyment”, “auxiliary aides and services”, “fundamental alteration”, and “undue burden”) is merely providing necessary flexibility.  (Moreover, any challenges by defendant regarding whether specific modifications or remedies might be improper was not ripe at the current stage of the litigation.)

While it is still possible the other cases with different facts decided in the EDNY and SDNY may not follow Blick and Five Guys, for now businesses in New York City must take these decisions seriously.  With DOJ no longer expected to issue clarifying regulations in the near future (if at all) and in light of the recent pro-plaintiff decisions in this case, Five Guys, Winn-Dixie, and Hobby Lobby, the plaintiffs’ bar is further escalating its efforts to blanket most major industries with website accessibility demand letters and lawsuits.  Not only are new players emerging every day, but the well-known plaintiff’s attorneys in this area – emboldened by these recent decisions – are becoming increasingly aggressive.  The Blick decision underscores what we’ve been cautioning clients about for some time – businesses with websites that are either connected to a brick and mortar place of public accommodation or use a website to directly sell goods and services to the public who are looking to avoid website accessibility lawsuits should promptly take the steps necessary to make their websites accessible that we have addressed in our previously website accessibility blogs.