PHILADELPHIA – A visually impaired man who sued Herr Foods for allegedly not making its website accessible for himself and other blind individuals has lost his case on the grounds that the website is not “a place of public accommodation.”
On April 24, U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson granted the dismissal of plaintiff John Mahoney’s case against Herr Foods, without prejudice - meaning, he can re-file the case at a later date.
“John Mahoney is blind and visually impaired. To use the Internet, he requires screen-reading software. Plaintiff alleged that Herr Foods, Inc. violated Title III of the Americans with Disabilities Act, because it has not made its website compatible with computer screen reading technology. Plaintiff sought declaratory and injunctive relief on behalf of himself and all others who are similarly situated,” Baylson said.
In response to Mahoney’s lawsuit brought on Dec. 6, Herr Foods filed a motion to dismiss for failure to state a claim on Jan. 14 – based on the premise that its website is not “a place of public accommodation” and therefore, the company could not have violated the ADA.
Baylson explained that court have been divided on the point of whether or not a website is a place of public accommodation, or if there also needs to be a connection to a physical location.
“Courts in the Eastern District of Pennsylvania have interpreted the U.S. Court of Appeals for the Third Circuit’s instruction that public accommodations are limited to physical places (or services with a nexus to a physical location) to mean that a website, on its own, is not a public accommodation within the meaning of the ADA,” Baylson said.
Baylson added the Third Circuit’s decisions in Ford v. Schering-Plough Corp. and Peoples v. Discover Financial Services, Inc. cemented that perception.
“The unmistakable language of the Third Circuit’s decisions in Ford and Peoples compels the conclusion that defendant’s website, on its own, is not a public accommodation under the ADA. The law of this Circuit is that a physical place or location (or a nexus to a physical place or location) is required. Applying that principle means defendant’s website, on its own, is not a public accommodation.”
When asked how often defendants win cases on the grounds cited in Mahoney, Minh N. Vu, a partner at Seyfarth Shaw in Washington, D.C. and its team leader for litigation involving Title III of the ADA, agreed with Baylson that where the case is litigated is key.
“Yes, if the case is brought in a federal circuit where a public accommodation under the ADA has to be a physical place. The Third Circuit Court of Appeals is one such circuit. In this circuit, as in the Ninth and Eleventh circuits, the plaintiff would have to allege that the barriers on the website prevented him from accessing the goods and services of a physical place of public accommodation,” Vu said.
Vu added given the track record of similar cases in the Third Circuit, plaintiffs such as Mahoney making an appeal in this jurisdiction would be difficult.
“He can appeal as his right, but it would be an uphill battle given the existing precedent in the Third Circuit,” Vu said.
Baylson specified that for the ADA to apply to the defendant’s website, there needed to be a “nexus” to a physical location and the plaintiff was likewise required to make this connection.
“Plaintiff fails to satisfy the nexus requirement because he does not identify any place of public accommodation associated with defendant. Aside from vague references to defendant’s ‘branches’ and to defendant’s ‘store locations’, the complaint does not pinpoint any actual location maintained by defendant that plaintiff seeks to utilize,” Baylson stated.
“Because the complaint does not identify Herr’s Snack Factory or any other physical location, plaintiff has not alleged a public accommodation. Without an allegation of a physical place or location, there can be no ‘nexus’ with defendant’s website.”
Due to the absence of such a nexus, Baylson ruled the case must be dismissed. Though due to the dismissal being without prejudice, Mahoney was given 30 days in which to amend his complaint to cure that deficiency.
Large sums of money are at stake in cases like Mahoney’s, both for plaintiffs and their counsel.
In one similar, previous action filed against the Winn-Dixie supermarket chain, a federal judge in Florida authorized the payment of legal fees totaling $105,000 to a pair of firms who successfully sued the business for not making its website accessible to the visually impaired.
The plaintiff was represented by David S. Glanzberg, of Glanzberg Tobia & Associates, in Philadelphia.
The defendant was represented by Jason Confair of Kegel Kelin Almy & Lord, in Lancaster.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05759
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com