Written by: Timothy Stephen Springer

Part III: Our crystal ball is getting even clearer.

As we wrote about back in July, of the thousands of digital accessibility cases winding their way through federal courts each year, there’s one case that is getting particular attention: Domino’s Pizza LLC v. Guillermo Robles.

Why is Domino’s v. Robles important?

The reason this case is getting so much attention is that Domino’s is asking the U.S. Supreme Court to find, once and for all, that Title III of the Americans with Disabilities Act (ADA) does not require restaurants and other public accommodations, such as banks, retailers, and hotels, to make their web and mobiles apps accessible for persons with disabilities.

Will the Supreme Court hear the Domino’s case?

At least four of the nine Justices will need to agree on whether to hear the case. That decision is scheduled to occur in the first or second week of October when the Court begins its new term. The Justices will meet in Conference to determine whether Domino’s has sufficiently met the standard for the Court to review the case.

As we mentioned back in July, our crystal ball suggests this is very unlikely. A mere 2% of the 7,000 cases the Supreme Court is asked to review each year actually make it to the “merits stage” where argument is heard. Beyond this, as Mr. Robles makes clear in his recent “Brief in Opposition” to Domino’s “Petition for Certiorari” that Domino’s faces an uphill legal battle (as we predicted).

Why would the Supreme Court reject the case?

Mr. Robles points out that while there are thousands of digital accessibility cases filed in federal district court each year, this is the first case to actually result in a federal circuit court decision.

The Court should not be convinced by Domino’s argument that this case is like the few cases from the 1990s that wrestled with whether the ADA applies to insurance policies.

The tremendous uptick in web accessibility cases, Mr. Robles argues, is also not a proper reason for the Supreme Court to use its immense “cert” power. Instead, the uptick indicates that there is a real digital accessibility divide and the federal courts are the appropriate forum to fight for equal access. Mr. Robles urges the Court to let the issue percolate among the federal courts which would allow the Supreme Court to have a better, more fulsome opportunity to review in a future case.

Finally, Mr. Robles notes that most of these cases are resolved early in litigation before any attorney’s fees might need to be paid to a plaintiff under the Supreme Court’s decision in Buckhannon.

According to Mr. Robles, Domino’s case is the equivalent of stale, cold, day-after, no-other-choice pizza, and the Supreme Court should take a hard pass.

What organizations are supporting/fighting this case?

A number of influential organizations interested in this case filed amicus (aka, friend of the Court) briefs in support of Domino’s. They include: the Cato Institute, Restaurant Law Center, Retail Litigation Center, Washington Legal Foundation, and the Chamber of Commerce.

If the case proceeds to the merits stage, various disability advocacy groups are likely to file amicus briefs on behalf of Mr. Robles.

Domino’s also filed a Reply Brief, where it made many of the same pitches for the Court to hear the case and argued that web accessibility cases are limiting online business offerings. The Department of Justice has remained silent on this case but that’s likely to change if it reaches the merits stage.

We still recommend that you not hold your breath on this one. Even if the Supreme Court decides to hear Domino’s v. Robles, it is unlikely to find that Title III of the ADA does not apply to the websites and mobile apps of public accommodations.

But what if the Court rules for Domino’s?

If the Supreme Court finds that Title III does not apply to websites and mobile apps, does that mean my websites and mobile apps do not have to be accessible?

This one is easy. The answer is resoundingly a no. Here’s why:

There are already existing federal laws requiring accessibility (Section 508, CVAA, etc.);

there are existing state laws that have been applied to digital accessibility (CA’s Unruh Act);

it is a good (and necessary) business practice to be competitive in the marketplace; and

the disability community recognizes the importance of this issue and views it as critical to fully realizing independence and equality in today’s world.

We stand ready to provide you with the support you need to make your products accessible. If you are concerned that your websites and other digital resources aren’t accessible, we invite you to contact Level Access today for a free risk assessment. This assessment will let you know how your website and apps are—and, more importantly, aren’t—accessible to users with disabilities. From there, we can advise you on your best course of action.