David Ferleger (left), and Susan V. Warner (right) of FisherBroyles. Courtesy photos.
Winn-Dixie Stores Inc. on Oct. 4 asked the U.S. Court of Appeals for the Eleventh Circuit to reverse a key 2017 ruling involving the rights of blind internet users, paving the way for a host of similar website accessibility lawsuits.
The original case was brought by legally blind Miami resident Juan Carlos Gil, a Winn-Dixie rewards member and regular customer who claimed that the store’s website blocked his access to certain goods and services.
Gil had tried to use Winn-Dixie’s site to refill prescriptions and access coupons, but found that its features weren’t compatible with the computer screen reading program he used to browse the internet, JAWS (Job Access With Speech), which converts text to speech or uses a refreshable Braille display.
On Jun. 12. 2017, after a two-day nonjury trial, federal judge for the Southern District of Florida Robert N. Scola found that Winn-Dixie had violated the Americans With Disabilities Act (ADA) by having a website that was inaccessible to Gil. Scola ordered the store render its website within ADA compliance requirements and to pay attorney fees.
On Oct. 4, counsel to Winn-Dixie, Susan V. Warner of FisherBroyles in Naples, fought for reversal of that ruling while co-counsel to Gil, solo practitioner David Ferleger of Pennsylvania, claimed it should be upheld.
According to Scola’s ruling, websites may be classified as public accommodations if they operate as a “gateway” to physical store locations.
Warner argued that websites are not places of public accommodation and that the supermarket is in compliance with ADA.
Warner did not wish to comment on pending litigation but pointed readers toward a recording of the oral argument.
Ferleger, however, told the Daily Business Review that the prior ruling ”just makes sense.”
“A blind person needs to be able to do on a website everything a sighted person can do,” Ferleger said. “If you go to the Winn-Dixie website and you are not blind, you can, for example, order medication delivered. You can do a lot of things. If you’re blind, you can’t order your medication delivered, you can’t even get into the website to see what’s there.”
The way Ferleger sees it, a website with “unequal access” is what the ADA is set up to guard against. To Winn-Dixie, which he claimed spent $7 million to set up its rewards program and roughly $2 million to create its website, the cost of meeting the ADA specifications is ”peanuts.”
“This is the modern era. Being able to use your digital rights and be able to act in digital ways is at the core of modern day life and commerce,” said Scott R. Dinin, a Miami solo practitioner who also represents Gil and has litigated the case since its inception.
“I think [the court will] affirm that the ADA, which has been around for almost three decades, is a broad statute that encompasses almost anything a company is going to offer.”
‘I Wish I Had a Crystal Ball’
Whether this proves to be the case is something many attorneys that have worked on ADA cases are curious to see, says Scott J. Topolski of Cole Schotz in Boca Raton.
“I wish I had a crystal ball,” said Topolski, a defense attorney who has worked on ADA disputes for more than 30 years. ”All of us, defense and plaintiffs attorneys, are very interested to see what happens, because it could have a very significant impact on the landscape of these website accessibility cases.”
According to Topolski, the 2017 Gil ruling was great for plaintiffs attorneys, but not so great for attorneys like him. “Right now, because it’s the only case we know of that went to trial, plaintiffs and their counsel have been relying heavily on these cases when filing and looking to negotiate settlements on website accessibility cases.”
Indeed, in Topolski’s experience, Gil‘s benefit to plaintiffs attorneys has already proven beneficial. He noted that in a recently settled case in the Middle District of Florida, ”Plaintiffs counsel certainly wasn’t shy in bringing up the Gil case in our discussions.”
However, Topolski points out that because the ADA was set up in 1990 and predates websites, Scola’s ruling in Gil relied on guidelines rather than concrete law. And, if the ruling were to be reversed, the remaining precedents would be “favorable” to defendants rather than plaintiffs.
But such an outcome might not be one worth banking on. Topolski added, “Statistics show the vast majority of appeals are unsuccessful, both in state court and federal court. Most decisions are affirmed, so my guess is that’s probably the most likely outcome here, but I think there are some avenues for reversal here that can at least give some cautious optimism to the defense attorney and Winn-Dixie, and defense attorneys everywhere.”