By Michael R. Christian and Sydney Sears
The following scenario is repeating itself across the country: A business operating a website receives a letter from a law firm in a distant venue. The letter claims that the website is insufficiently accessible by the firm’s visually impaired client. The letter invites the business to engage in a process to remedy the situation. However, it also threatens suit under Title III of the Americans with Disabilities Act of 1990 (“ADA”) in that distant venue if an acceptable resolution is not reached. Faced with this scenario, businesses, attorneys, and courts are struggling to determine (1) whether website or mobile applications are covered by Title III of the ADA; (2) if so, how to comply with the ADA; and (3) whether a business can be forced to defend itself against these claims in a distant jurisdiction.
Is a website or mobile application a “place of public accommodation” covered by Title III of the ADA?
The ADA is revered as an important piece of civil rights legislation. However, in recent years a small number of visually impaired plaintiffs and their attorneys have used the statute, along with its fee-shifting provision, to create a cottage industry of demands and litigation directed toward the owners of websites and mobile applications. Initially, large corporations like Nike, Amazon, Facebook, and Dominos were the focus of Title III plaintiffs. More recently, smaller businesses, often ill-equipped to litigate across the country, have become targets. Website accessibility lawsuits filed in federal court under Title III skyrocketed from 262 in 2015 and 2016 combined, to 814 in 2017, to 2,258 in 2018. Title III creates possible exposure for “businesses of every shape and size” that operate on the Internet—meaning the majority of businesses in the United States. 
The problem for businesses is that the statute does not adequately address website accessibility. Aggressive plaintiffs have used the current lack of clarity surrounding Title III application to websites to generate revenue by extracting settlements. Because of their lack of resources and the risk of a large fee award, small business owners are often forced to settle quickly rather than litigate.
Title III of the ADA provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” The statute sets forth a list of twelve categories of “private entities” that are considered to be “public accommodations.” The categories themselves include exhaustive lists of specific physical places and refer to either “places” or “establishments,” both of which seem to connote physical locations.
Absent from these categories are websites and mobile applications. When Congress passed the ADA, the World Wide Web was just taking on recognizable form, and mobile applications were an idea of the future. Now, the Internet is an engine of commerce. Close to 80% of small businesses use at least one digital platform to provide information to customers.
Under President Obama’s administration, the Department of Justice (“DOJ”) issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) to address the application of ADA Title III to websites. After a series of delays and a change in administration, on December 26, 2017, the DOJ published a “Notice of Withdrawal of Four Previously Announced Rulemaking Actions,” including the ANPRM regarding website accessibility.
Federal circuit courts are split over the question of whether Title III applies to websites. They clash over whether a website or mobile application must have a nexus to a physical (“brick and mortar”) business location—such that it is at least related to a “place of public accommodation”—in order to be subject to Title III.
Within the First, Second, and Seventh Circuits, enterprises that are Internet-only businesses—without any physical location—can face Title III liability based on alleged website inaccessibility. Plaintiffs in those circuits “must show only that the website falls within a general category listed under the ADA.” Those circuits conclude that the inclusion of “travel service” in the list of codified service establishments meant that Congress “contemplated that ‘service establishments’ include[d] providers of services which do not require a person to physically enter an actual physical structure.” Thus, in those circuits, websites offering goods or services to the public are considered public accommodations.
In contrast, the Third, Sixth, Ninth, and Eleventh Circuits hold instead that a website must have a “nexus” to a brick-and-mortar location of a business to be subject to Title III. These circuits focus on whether a particular means of access, including a website or mobile application, impedes overall access to the benefits of a physical, public accommodation. These circuits rely on the principle of noscitur a sociis (“known by its associates”), concluding that because “[e]very term listed in § 12181(7) and subsection (F) is a physical place open to public access,” a place of public accommodation must be or have a connection with, a physical place. In other words, web-only businesses with no physical location for customers to access are not subject to Title III application to their websites or mobile applications.
This issue may be reviewed during the United States Supreme Court’s next term. In Robles v. Domino’s Pizza, the Ninth Circuit held that, because Domino’s Pizza’s website and mobile application provide connectivity between customers and the resulting goods and services of its physical restaurants, each method of ordering those goods and services (e.g., pizza) must be accessible to customers with disabilities. Thus, the decision imposed ADA applicability on websites and mobile applications that offer access to companies’ in-store goods and services. Domino’s Pizza submitted a petition for certiorari to the Supreme Court on June 13, 2019, stating the question presented as follows: “Whether Title III of the ADA requires a website or mobile application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.” Domino’s Pizza argues that Congress “passed a statute to apply only to places of public accommodation, which must be physical locations, and only to ensure adequate overall access to the benefits of those locations,” arguing that a change in that policy “is up to Congress, not the judiciary.” Robles argues that all circuits agree that Title III applies at least where a physical nexus exists.
If the ADA applies to a website or mobile application, what steps are necessary to comply?
Presumably, business owners have no interest in discriminating against individuals with disabilities. However, they do need to know how to comply. Because it does not explicitly address websites or mobile applications, the ADA itself provides no answer. Having abandoned rulemaking in the area, the DOJ is of little help. With such little direction, many plaintiffs argue that websites and mobile applications must comply with Web Content Accessibility Guidelines (“WCAG”). These are voluntary website accessibility standards developed by the World Wide Web Consortium. While the DOJ has yet to formally adopt these private standards, it has pursued enforcement actions against businesses for website accessibility, seeking to apply WCAG guidelines. Compliance with these voluntary standards can be time-intensive and expensive, particularly for small businesses.
WCAG standards have been through multiple revisions. In June 2018, WCAG published an updated accessibility criterion in version 2.1. Businesses need guidance to determine which version will produce compliance with the ADA. Small businesses may not be able to afford compliance, potentially resulting in the discontinuation of their websites. Moreover, small businesses also risk litigation over their website at least if associated with a brick-and-mortar establishment.
Where can a business be forced to defend itself against an ADA complaint?
Claims regarding website or mobile application accessibility further raise issues of jurisdiction. Websites and mobile applications, by their nature, are accessible anywhere the Internet can be accessed. Plaintiffs sue, or threaten to sue, where they live rather than where a website operator is headquartered.
Courts exercise two types of personal jurisdiction over defendants: general and specific. General jurisdiction exists when a defendant is domiciled in the forum state or its “affiliations with the state are so ‘continuous and systematic’ as to render the entity essentially at home in the forum State.” Specific jurisdiction requires: (a) a non-resident defendant must have “purposefully directed” activities to the forum state or its residents, or have performed “some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws”; (b) the claim must “arise out of” the defendant’s forum-related activities; and (c) the exercise of jurisdiction must be fair and reasonable. In Walden v. Fiore, the Supreme Court held that in order to create specific personal jurisdiction, the defendant’s “suit-related conduct must create a substantial connection with the forum State,” and clarified that the “‘minimum contacts’ analysis looks to the defendant’s contacts with the forum state itself, not the defendant’s contacts with persons who reside there.”
No court has found general jurisdiction over a defendant solely as a result of the operation of a generally available website or mobile application. Likewise, the mere maintenance of a website or mobile application outside a forum state, but accessible to residents within it, likely does not subject the owner of the application to special jurisdiction there. The Ninth Circuit has held that a mere internet presence in a forum state cannot confer jurisdiction over foreign parties because, if that were the case, “[t]he eventual demise of all restrictions on personal jurisdiction of state courts would be the inevitable result.” However, if a business makes significant sales to residents of a state via its website, that may be enough to confer specific jurisdiction there. Thus, a business operating in Idaho but engaging in sufficient sales to residents of another state could find itself hauled into a court on the other side of the country and subject to potential liability under Title III.
What is the best way for a business to avoid the pitfalls and uncertainty of these types of accessibility claims? Unless the Supreme Court decides websites are not subject to the ADA, the answer is to provide accessibility. The unfortunate reality is that what “accessible” means remains unclear. It seems clear, however, that doing nothing is no longer an option. Attorneys can advise their clients regarding the issues and risks, but it will be the rare attorney who can implement changes needed to make a website WCAG 2.1 compliant or otherwise compatible with screen-reader technology. Consulting a qualified web design expert with experience in screen reader compatibility is a highly recommended next step.
Michael R. Christian is an attorney at Smith + Malek with 30 years of experience in business, real estate, natural resources, and administrative law. He represents a broad range of businesses and has litigated disputes across a wide variety of subjects. He is a graduate of the University of Washington and Northwestern University.
Sydney Sears is an intern at Smith + Malek while completing her final year at the University of Idaho College of Law. She serves as the chief symposium editor for the Idaho Law Review and holds degrees in finance and accountancy from Boise State University. She hopes her practice will focus on business law.
 See 42 U.S.C. § 12101, et seq.
 42 U.S.C. § 12205.
 Cedric Bishop v. Amazon.com Inc.,No. 1:18-cv-00973 (S.D.N.Y. Feb. 04, 2018); Mendizabal v. Nike, Inc., 1:17-cv-09498 (S.D.N.Y. Dec. 4, 2017); Robles v. Domino’s Pizza, LLC, Case No. 17-55504 (9th Cir., Jan. 25, 2019); Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1115 (N.D. Cal. 2011).
 Kristina M. Launey & Melissa Aristizabal, Website Accessibility Lawsuit Filing Still Going Strong, Title III Access, Aug. 22, 2017, https://www.adatitleiii.com/2017/08/website-accessibility-lawsuit-filings-still-going-strong/; Mimh N. Vu, Kristina M. Launey & Susan Ryan, Number of Federal Website Accessibility Lawsuits Nearly Triple, Exceeding 2250 In 2018, Title III Access, Jan. 31, 2019, https://www.adatitleiii.com/2019/01/number-of-federal-website-accessibility-lawsuits-nearly-triple-exceeding-2250-in-2018/.
 Letter from Congressman Ted Budd to Attorney Gen. Jeff Sessions (June 20, 2018) https://www.cuna.org/uploadedFiles/Advocacy/Priorities/Removing_Barriers_Blog/ADA%20Final_06212018.pdf.
 See Helia Garrido Hull, Vexation Litigants and the ADA: Strategies to Fairly Address the Need to Improve Access for Individuals with Disabilities, Cornell J. of L. and Pub. Pol’y, Vol. 26:71, 82 (2016).
 42 U.S.C. §§ 12181–89.
 42 U.S.C. § 12181(7); Jankey v. Twentieth Century Fox Film Corp., 14 F. Supp. 2d 1174, 1178 (C.D. Cal. 1998); see ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities, ADA.GOV, https://www.ada.gov/taman3.html (last visited Jul. 16, 2019).
 See, e.g., 42 U.S.C. § 12181(7)(A)-(F).
 The first iPhone was released in 2007.
 U.S. Chamber of Commerce, Morning Consult, Facebook, Examining The Impact of Technology on Small Business 3 (Jan. 18, 2018) https://www.uschamber.com/sites/default/files/ctec_sme-rpt_v3.pdf.
 Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43,461 (July 26, 2010).
 Nondiscrimination on the Basis of Disability; Notice of Withdrawal of Four Previously Announced Rulemaking Actions, 82 Fed. Reg. 60,932 (Dec. 26, 2017).
 Nat’l Ass’n of the Deaf v. Harvard Univ., No. 3:15-CV-30023-KAR, 2019 WL 1409302, at *6 (D. Mass. Mar. 28, 2019).
 Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New Eng., Inc. 37 F.3d 12,19 (1st Cir. 1994); Morgan v. Joint Admin. Bd., Ret. Plan, 268 F.3d 456, 459 (7th Cir. 2001); Pallozzi v. Allstate Life Insurance Co., 198 F.3d, 28, 33 (2nd Cir. 1999).
 Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200–01 (D. Mass. 2012).
 Carparts, 37 F.3d at 19. Accord Pallozzi, 198 F.3d at 32–33; Mut. of Omaha Ins. Co., 179 F.3d at 558–59.
 E.g., Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019); Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1115 (N.D. Cal. 2011); Peoples v. Discover Financial Services, Inc., 387 F. App’x 179, 183 (3d Cir. 2000).
 See Harvard Univ., 2019 WL 1409302, at *6.
 The Supreme Court denied certiorari in an order on October 7, 2019.
 913 F.3d at 905-06.
 Domino’s Pizza LLC v. Robles, Petition for a Writ of Certiorari, at 2.
 Id. at 34.
 See Domino’s Pizza LLC v. Robles,Brief in Opposition ofPetition for a Writ of Certiorari.
 Shawn Lawton Henry, W3C Accessibility Standards Overview, W3C Web Accessibility Initiative, https://www.w3.org/WAI/standards-guidelines/#intro (last updated Mar. 13, 2019).
 See Press Release, Justice Department Enters into a Settlement Agreement with Peapod to Ensure that Peapod Grocery Delivery Website is Accessible to Individuals with Disabilities, The United States Department of Justice (Nov. 17, 2014), https://www.justice.gov/opa/pr/justice-department-enters-settlement-agreement-peapod-ensure-peapod-grocery-delivery-website.
 Shawn Lawton Henry, Web Content Accessibility Guidelines (WCAG) Overview, W3C Web Accessibility Initiative, https://www.w3.org/WAI/standards-guidelines/wcag/#versions (last updated June 22, 2018).
 Daimler AG v. Bauman, 571 U.S. 117, 126-27 (2014).
 Schwarzenneger v. Fred Martin Motor Co., 374 F.3d 797, 803 (9th Cir. 2004).
 Walden v. Fiore, 571 U.S. 277, 284-85 (2014).
 CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1075 (9th Cir. 2011) (internal quotations removed).
 Walden, 571 U.S. at 285-86.