Amicus Curiae Brief — Domino's Pizza, LLC, Petitioner v. Guillermo Robles

No. 18-1539

In the Supreme Court of the United States

__________

DOMINO’S PIZZA LLC,

Petitioner,

v.

GUILLERMO ROBLES,

Respondent.

__________

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

__________

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE SUPPORTING PETITIONER

__________

Ilya Shapiro

Counsel of Record

Sam Spiegelman

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

July 15, 2019

i

QUESTION PRESENTED

Whether the websites and smartphone applications

of brick-and-mortar businesses must comply with Title

III of the Americans with Disabilities Act, either as

standalone “places” of public accommodation, or as

means of access bearing a sufficient commercial

“nexus” to a physical place of public accommodation.

An answer to this question is of vital and immediate importance. Confusion as to Title III’s application

in the digital age has skyrocketed compliance and litigation costs—a situation the Justice Department has

exacerbated through its prevaricating guidance.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 3

I. A CIRCUIT SPLIT COMPLICATES DIGITALAGE COURTS’ EFFORTS TO FORMULATE

A MODERN TITLE III DOCTRINE...................... 3

A. The pre-internet circuit split does not provide

effective guidance on Title III’s application

to virtual platforms ........................................... 3

B. The initial circuit split has morphed into a

hodgepodge of digital-age doctrines ................. 4

II. THE JUSTICE DEPARTMENT’S SUBREGULATION OF TITLE III CAUSES UNDUE

COMPLIANCE AND LITIGATION COSTS ......... 7

III.WITHOUT THE COURT’S INTERVENTION,

THE COSTS OF “REGULATION BY

LITIGATION” WILL CONTINUE TO RISE....... 12

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Access Living of Metro. Chi. v. Uber Techs., Inc.,

351 F. Supp. 3d 1141 (N.D. Ill. 2018) ...................... 5

Carparts Distrib. Ctr., Inc. v. Automotive

Wholesaler’s Ass’n of New England, Inc.,

37 F.3d 12 (1st Cir. 1994) ........................................ 3

Del-Orden v. Bonobos, Inc., 2017 U.S. Dist.

LEXIS 209251 (S.D.N.Y. Dec. 20, 2017) ............... 14

Ford v. Schering-Plough Corp.,

145 F.3d 601 (3d Cir. 1998) ..................................... 4

Gomez v. Bang & Olufsen Am., Inc., 2017

U.S. Dist. LEXIS 15457 (S.D. Fl. Feb. 2, 2017) ... 6-7

Gorecki v. Dave & Buster’s, Inc., 2017 U.S. Dist.

LEXIS 187208 (C.D. Cal. Oct. 10, 2017) .......... 12-13

Gorecki v. Hobby Lobby Stores, Inc., 2017 U.S.

Dist. LEXIS 109123 (C.D. Cal. June 25, 2017) ..... 14

Griffin v. Dep’t of Labor Fed. Credit Union,

293 F. Supp. 3d 576 (E.D. Va. 2018) ....................... 6

Morgan v. Joint Admin. Bd.,

268 F.3d 456 (7th Cir. 2001) .................................... 3

Nat’l Ass’n of the Deaf v. Netflix, Inc.,

869 F. Supp. 2d 196 (D. Mass. 2012) ....................... 5

Pallozzi v. Allstate Life Ins. Co.,

198 F.3d 28 (2nd Cir. 2000) ..................................... 3

Parker v. Metro. Life Ins. Co.,

121 F.3d 1006 (6th Cir. 1997) .................................. 4

iv

Price v. Escalante – Black Diamond Golf Club LLC,

2019 U.S. Dist. LEXIS 76288

(M.D. Fla. Apr. 29, 2019) ....................................... 13

Rendon v. Valleycrest Productions, Ltd.,

294 F.3d 1279 (11th Cir. 2002) ................................ 4

Robles v. Yum! Brands, Inc., 2018 WL 566781

(C.D. Cal. Jan. 24, 2018) ........................................ 12

Walker v. Sam’s Oyster House, LLC, 2018 U.S.

Dist. LEXIS 158439 (E.D. Pa. Sept. 18, 2018) ..... 5-6

Weyer v. Twentieth Century Fox Film Corp.,

198 F.3d 1104 (9th Cir. 2000) .................................. 5

Statutes

42 U.S.C. § 12181 ......................................................... 3

42 U.S.C. § 12188 ....................................................... 13

42 U.S.C. § 2000a-3(b) ............................................... 13

Cal. Civil Code § 52(a), (b) (West 2015) .................... 14

Other Authorities

Am. Hotel & Lodging Ass’n, Comment Letter on

Proposed Rule on Accessibility of Web

Information and Services of State and Local

Government Entities (Oct. 7, 2016)....................... 11

Deval Patrick, Asst. Attorney General,

Letter to Sen. Tom Harkin (D-IA),

Re: Application of the Americans with

Disabilities Act to the Internet (Sept. 9, 1996) ....... 8

Nat’l Council on Disability, Comment Letter on

Proposed Rule on Accessibility of Web

v

Information and Services of State and Local

Government Entities (Oct. 7, 2016).................. 11-12

Nondiscrimination on the Basis of Disability;

Accessibility of Web Information and Services of

State and Local Government Entities and Public

Accommodations, 75 Fed. Reg. 43,460

(July 26, 2010) ................................................ 8, 9, 10

Nondiscrimination on the Basis of Disability;

Accessibility of Web Information and Services of

State and Local Government Entities,

81 Fed. Reg. 28,658 (May 9, 2016) ........................ 11

Nondiscrimination on the Basis of Disability; Notice

of Withdrawal of Four Previously Announced

Rulemaking Actions,

82 Fed. Reg. 60,932 (Dec. 26, 2017) ......................... 9

Software & Info. Industry Ass’n, Comment Letter

on Proposed Rule on Accessibility of Web

Information and Services of State and Local

Government Entities (Oct. 7, 2016)....................... 11

Stephen E. Boyd, Asst. Attorney General,

Letter to Rep. Ted Budd (Sept. 25, 2018) ................ 9

U.S. Dep’t of Justice, Statement of Interest,

Nat’l Ass’n of the Deaf v. MIT, No. 15-300024

(D. Mass. Jun. 3, 2015) .......................................... 10

U.S. Dep’t of Justice, Statement of Interest,

Nat’l Ass’n of the Deaf v. Netflix, No. 11-30168

(D. Mass. May 15, 2012) ........................................ 10

W. Kip Viscusi, ed., Regulation Through

Litigation, (2002) .................................................... 15

Walter Olson, “ADA and the Web: The Hour Grows

Late,” Cato at Liberty Blog, Aug. 25, 2017 ........... 15

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and dedicated

to advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was established in 1989 to help restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences, and produces the annual Cato Supreme Court Review.

This case interests Cato because Americans with

Disabilities Act claims, including under Title III, have

skyrocketed in recent decades, and have resulted in a

confused jurisprudence across circuit and district

courts. Until the Department of Justice issues a clear

set of rules and regulations in this area, undue compliance and litigation costs will continue to rise.

SUMMARY OF ARGUMENT

Title III of the Americans with Disabilities Act prohibits private businesses from denying the disabled

equal access to the “goods, services, facilities, privileges, advantages, or accommodations of any place of

public accommodation.” In Cato’s view, this language

limits Title III’s authority to physical places of public

accommodations—e.g., a restaurant or a doctor’s office.

Several federal circuit courts agree with this view,

which gives priority to the words and structure of the

1 Rule 37 statement:

All parties were timely notified and consented to the filing of this brief. No part of this brief was authored

by any party’s counsel, and no person or entity other than amicus

funded its preparation or submission.

2

statute, Other courts reject this approach, based on either particular interpretations of Congress’s intent or

on policy grounds. This circuit split has fueled a recent

spike in Title III lawsuits, centered on whether it applies to websites and other virtual platforms.

The immediate cause of this disparity is lower

courts’ struggle to grapple with a pre-internet circuit

split in an age of widespread internet use. As businesses increasingly integrate their goods and services

onto digital platforms, plaintiffs, many of them dubious, have brought a deluge of claims arguing that Title

III, which was enacted in 1990, extends to websites

and smartphone applications of brick-and-mortar establishments. Some courts go so far as to extend Title

III’s requirements to website-only businesses, while

others limit it to virtual platforms that bear a commercial “nexus” to a physical location. Whatever the answers to these questions, the current state of “regulation by litigation” is untenable. The legal status quo

provides no clear blueprint for how, or even whether,

certain businesses must comply with Title III.

Inconsistent Department of Justice “sub-regulations”—guidance that does not rise to the commonlyunderstood meaning of a “rule” or “regulation”—have

only compounded the skyrocketing litigation and compliance costs resulting from uneven rulings, as businesses struggle to avoid unpredictable liability standards. In the absence of clear and consistent rules and

regulations from the Justice Department, courts and

the business world are adrift as to what the ADA actually mandates—and how businesses are to comply.

3

ARGUMENT

I. A CIRCUIT SPLIT COMPLICATES DIGITALAGE COURTS’ EFFORTS TO FORMULATE A

MODERN TITLE III DOCTRINE

A. The pre-internet circuit split does not

provide effective guidance on Title III’s

application to virtual platforms.

Title III of the Americans with Disabilities Act

(“ADA”) provides, in clear and unambiguous language:

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.

42 U.S.C. § 12181. The statute then provides an extensive list of the types of “public accommodations” of “entities [that] affect commerce” to which this prohibition

against discrimination applies. Id.

The First, Second, and Seventh Circuit Courts coalesced around the rule, expressed in Carparts Distrib.

Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc., that the plain meaning of “public accommodation” is “not limited to physical structures for people

to enter.” 37 F.3d 12, 19 (1st Cir. 1994); Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2nd Cir. 2000); Morgan

v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001)

(“An insurance company can no more refuse to sell a

policy to a disabled person over the Internet than a

furniture store can refuse to sell furniture to a disabled

person who enters the store.”).

4

The Third, Sixth, and Eleventh Circuits have held,

in contrast, that the term “place” preceding “public accommodation,” combined with the types of “accommodations” listed in the statute, limits Title III’s prohibition against discrimination to physical places, and not

to virtual ones. Parker v. Metro. Life Ins. Co., 121 F.3d

1006, 1011 (6th Cir. 1997) (“The prohibitions of Title

III are restricted to ‘places’ of public accommodation,”

with “place” defined as “a facility, operated by a private entity, whose operations affect commerce and fall

within at least one of the twelve ‘public accommodation’ categories.”) (cleaned up); Ford v. ScheringPlough Corp., 145 F.3d 601, 613 (3d Cir. 1998) (“Goods,

services, facilities, privileges, advantages, or accommodations . . . are not free-standing concepts but rather all refer to the statutory term ‘public accommodation’ and thus to what these places of public accommodation provide . . . . [Petitioner] cannot point to these

terms as providing protection from discrimination unrelated to places”) (cleaned up); Rendon v. Valleycrest

Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002)

(finding that Title III bans offsite screenings for disabled persons that impede their access to a service—a

gameshow—“tak[ing] place at a public accommodation

(a studio) within the meaning of [Title III] (covering

theaters and other places of entertainment)”).

B. The initial circuit split has morphed into

a hodgepodge of digital-age doctrines.

This pre-internet circuit split over whether the

ADA applies to non-physical spaces has engendered

great confusion during the digital age. Faced with multiple frameworks in different jurisdictions, regulated

entities are left without any meaningful guidance.

5

In Weyer v. Twentieth Century Fox Film Corp., the

Ninth Circuit set forth an approach that reflects a middle path between applying Title III to all (even website-only) private businesses that provide goods or services and limiting Title III’s access requirements to

discrete physical locations. 198 F.3d 1104 (9th Cir.

2000). The Weyer court held that, while Title III did

not extend to website-only businesses, it could apply to

websites that bore a sufficient commercial “nexus” to a

discrete physical location in which goods or services

are rendered. Id. at 1115.

Although Weyer potentially narrowed the precedential landscape, it has not produced anything resembling a universal doctrine. Some courts have moved beyond Weyer completely, citing Carparts or Morgan to

hold that even a website-only business (e.g., Facebook

or Netflix) must be Title III-compliant. See Access Living of Metro. Chi. v. Uber Techs., Inc., 351 F. Supp. 3d

1141, 1156 (N.D. Ill. 2018) (Although Uber does not

have a physical site attached to its smartphone application, “[a] ‘place of public accommodation’ does not

have to be a physical space, and plaintiffs have plausibly alleged that Uber operates a place of public accommodation.”); See also Nat’l Ass’n of the Deaf v. Netflix,

Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (“Carparts’s reasoning applies with equal force to services

purchased over the Internet, such as video programming offered through [Netflix’s] web site”).

Other courts adopted the “nexus” doctrine but emphasize that a brick-and-mortar business’s maintaining a website is not, alone, sufficient to place it under

Title III’s authority, or to confer standing through “dignitary harm” to anyone who cannot access it. Walker

v. Sam’s Oyster House, LLC, 2018 U.S. Dist. LEXIS

6

158439, at *5 (E.D. Pa. Sept. 18, 2018) (“A mere inability to access information on the Website, without

more, is not cognizable under the ADA as a matter of

law.”); Griffin v. Dep’t of Labor Fed. Credit Union, 293

F. Supp. 3d 576, 579 (E.D. Va. 2018) (rejecting standing where plaintiff is not eligible for membership in a

credit union, the website for which he claims he could

not access; “if a dignitary harm. . . were sufficient to

confer standing . . . then any disabled person who

learned of any barrier to access would automatically

have standing to challenge the barrier”). The U.S. District Court for the Southern District of Florida recently

summarized the prevailing view of those courts that

follow Weyer’s “nexus” precedent:

Based on the text of the ADA, the Eleventh Circuit’s reasoning in Rendon and the rationale

employed by other courts who have construed

the ADA in the context of commercial websites,

the Court concludes that a website that is

wholly unconnected to a physical location is

generally not a place of public accommodation

under the ADA. However, if a plaintiff alleges

that a website’s inaccessibility impedes the

plaintiff’s ‘access to a specific, physical, concrete space[,]’ and establishes some nexus between the website and the physical place of

public accommodation, the plaintiff’s ADA

claim can survive a motion to dismiss.

Gomez v. Bang & Olufsen Am., Inc., 2017 U.S. Dist.

LEXIS 15457, at *10 (S.D. Fla. Feb. 2, 2017). The court

in Gomez continued:

While there is some disagreement amongst district courts on this question, it appears that the

7

majority of courts agree that websites are not

covered by the ADA unless some function on the

website hinders the full use and enjoyment of a

physical space.

Id. at *8.

As the foregoing discussion reveals, courts are

adrift, filling in regulatory gaps with a smorgasbord of

assumptions about how a pre-internet law ought to apply to the digital age. Businesses (and potential plaintiffs) thus lack a consistent legal framework for determining whether a website or smartphone application

is (or even must be) Title III-compliant.

II. THE

JUSTICE

DEPARTMENT’S

SUBREGULATION OF TITLE III CAUSES UNDUE

COMPLIANCE AND LITIGATION COSTS

The DOJ has never provided a clear set of rules on

Title III’s application to web-based access, instead offering a slipshod selection of sub-regulatory guidance

that has only sown confusion and allowed professional

plaintiffs to fill the void, increasing compliance and litigation costs in the process. Without clear compliance

rules, courts are not obligated to accord these sub-regulations the deference judges typically give regulators

in the interpretation of their statutory mandate.

Of course, this question is only relevant if this

Court sustains the Ninth Circuit’s judgment that Title

III indeed applies to web-based access with a commercial “nexus” to physical places of public accommodation. But given that Title III could be read to prohibit

discrimination in all forms of web-based access, the

question warrants a deeper analysis.

8

How, then, should the courts treat the DOJ’s existing sub-regulations? Well, for now, and until the DOJ

promulgates official and consistent regulations, the

soundest approach from an institution-preserving perspective is for the Court to restrict Title III to the most

expansive reading that its text allows, treating the

DOJ’s sub-regulations the same as, say, amicus

briefs—as recommendations and nothing more. Until

courts can ground liability in actual rules instead of

confusing regulatory guidance, outcomes from an explosion of Title III litigation will continue to be inconsistent, with at least some courts adopting the Carparts doctrine in the virtual context, while others hew

to Weyer’s “nexus” argument.

To see how, it is worth sampling the various rulemaking proposals, guidance letters, statements of interest, and amicus briefs that together make up the

DOJ’s current position(s) on Title III’s application to

virtual platforms.

In 1996, DOJ in an advisory letter wrote that

“[c]overed entities that use the Internet for communications regarding their programs, goods, or services

must be prepared to offer those communications

through accessible means as well.” Deval Patrick,

Asst. Attorney General, Letter to Sen. Tom Harkin (DIA), Re: Application of the Americans with Disabilities

Act

to

the

Internet

(Sept.

9,

1996),

https://bit.ly/2JvOr1E.

In 2010, DOJ announced in an Advanced Notice of

Proposed Rulemaking (the “2010 ANPRM”) that it was

exploring whether to promulgate official rules regarding Title III’s application to web-based access. Nondiscrimination on the Basis of Disability; Accessibility of

9

Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed.

Reg. 43,460, 43,461 (July 26, 2010). In this same

ANPRM, the DOJ recognized the need for it to step in

and formulate a coherent regulatory framework:

[I]nconsistent court decisions, differing standards for determining Web accessibility, and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to Web sites of entities covered

by Title III.

Id. at 43,464. DOJ also claimed that it “ha[d] been

clear that the ADA applies to Web sites of private entities that meet the definition of ‘public accommodations’”—i.e., brick-and-mortar businesses. Id. That

statement, however, is not entirely true. If DOJ had

been clear, then why the need to explore the formulation of an official rule? The “inconsistent court decisions” predating the 2010 ANPRM alone are telling.

In 2017, the DOJ confirmed it was no longer considering the adoption of official rules, advising businesses not to “rely upon” its 2010 ANPRM “as presenting the [DOJ]’s position on these issues.” Nondiscrimination on the Basis of Disability; Notice of Withdrawal

of Four Previously Announced Rulemaking Actions, 82

Fed. Reg. 60,932, 60,932, 60,933 (Dec. 26, 2017). But

then, in 2018, the DOJ again reversed itself, stating

“the ADA applies to public accommodations’ websites.”

Stephen E. Boyd, Asst. Attorney General, Letter to

Rep. Ted Budd (Sept. 25, 2018). Well, which is it?

The 2010 ANPRM reiterated DOJ’s apparent position that “Web sites may comply with the ADA’s re-

10

quirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals

to access the information, goods, and services of their

Web site.” 75 Fed. Reg. at 43,466. The 2010 ANPRM

then specified what is required to make that alternative actually “accessible”—specifications that sound an

awful lot like those of Domino’s alternative telephone

access line. Id. at 43,466. If this does not outright support petitioner’s argument, it at least demonstrates

that in the absence of clear and consistent rules, it is

fairly easy to cherry-pick from the hodgepodge of DOJ

utterances to support one’s chosen position.

DOJ nearly parodied its confused positions when it

held in one amicus brief that Netflix’s video-streaming

website was a standalone public accommodation, while

in another brief argued that M.I.T.’s online streaming

videos were not (and thus not subject to Title III’s access requirements). Statement of Interest at 5-7, Nat’l

Ass’n. of the Deaf v. Netflix, No. 11-30168 (D. Mass.

May 15, 2012); U.S. Dep’t of Justice, Statement of Interest at 18, Nat’l Ass’n. of the Deaf v. MIT, No. 15300024 (D. Mass. Jun. 3, 2015).

We might parse this distinction as the difference

between a website-only business not contemplated in

the pre-internet ADA and a website that provides access to a brick-and-mortar establishment—i.e., an expansive Carparts reading versus the Weyer “nexus”

doctrine. And, as a legal matter, there is certainly daylight between the two. But this split-hair legal distinction can have substantial real-life costs on the ground

and in the courthouse. Even if that is where the line

should be drawn, it is better for DOJ to draw it than

for courts to doodle haphazardly.

11

Further, in 2016, DOJ solicited public comments on

whether to extend Title II of the ADA to web-based access. Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State

and Local Government Entities, 81 Fed. Reg. 28,658

(May 9, 2016). Titles II and III impose similar requirements, the former on state and local governments, the

latter on private businesses. The two are otherwise

analogous, and comments on rulemaking for Title II

strongly indicate positions commenters would take

with respect to Title III’s application to virtual platforms. Several commenters were trepidatious. Although they tended to support the formulation of some

official rule, they worried about DOJ’s potential use of

the Web Content Accessibility Guidelines (“WCAG”)

2.0 as the benchmark for compliance, and also urged

that existing alternatives, such as telephone lines,

could meet Title II’s access requirements.2 Of course,

other commenters, mostly those advocating the rights

of disabled persons, wholeheartedly endorsed strong

regulations, including adoption of WCAG 2.0 as the

standard for Title II compliance.3 This dynamic might

2 Software & Info. Industry Ass’n, Comment Letter on Proposed

Rule on Accessibility of Web Information and Services of State

and Local Government Entities (Oct. 7, 2016),

https://bit.ly/2NV5Ftz (“SIAA has significant concerns with the

department’s expectations for a public entity’s level of conformance with the WCAG 2.0.”); Am. Hotel & Lodging Ass’n, Comment Letter on Proposed Rule on Accessibility of Web Information and Services of State and Local Government Entities

(Oct. 7, 2016), https://bit.ly/2JyPmyg (“[T]elephonic customer

service—available during most times of the day—can be just as

effective as having a website that conforms to WCAG 2.0.”).

3 See, e.g., Nat’l Council on Disability, Comment Letter on Pro-

posed Rule on Accessibility of Web Information and Services of

12

speak to the need for the DOJ, in formulating a rule,

to also craft its own compliance standards, instead of

adopting one that many in the industry do not support.

The mixed response to the 2016 Title II rulemaking

proposal might explain the quiet withdrawal in 2017

of the agency’s earlier rulemaking proposal. See Robles

v. Yum! Brands, Inc., 2018 WL 566781 at *6 (C.D. Cal.

Jan. 24, 2018) (“The DOJ’s recent Notice of Withdrawal is a strong indication that the DOJ currently

lacks an interest in specific requirements for website

accessibility under the ADA.”). Whatever the actual

cause (or causes), for the foreseeable future, there will

be no official rules regarding Title III in the virtual

space. Until then, courts and businesses are adrift. To

avoid further undue litigation and compliance costs it

is imperative that DOJ draw a coherent roadmap.

III. WITHOUT THE COURT’S INTERVENTION,

THE COSTS OF “REGULATION BY LITIGATION” WILL CONTINUE TO RISE

Until the DOJ promulgates official rules that are

clear and actionable, businesses cannot be expected,

reasonably, to use non-binding, incomplete, and vacillating guidance as a blueprint for achieving Title III

compliance. See Gorecki v. Dave & Buster’s, Inc., 2017

U.S. Dist. LEXIS 187208, at *6 (C.D. Cal. Oct. 10,

2017) (quoting defendant’s motion: “it notes—correctly—that the Department of Justice . . . has ‘failed

State and Local Government Entities (Oct. 7, 2016),

https://bit.ly/2GcgNM2 (“NCD strongly supports DOJ’s adoption

of WCAG 2.0 . . . as the baseline standard of accessibility . . . .

NCD urges DOJ to adopt an aggressive timeframe for the effective date of a final rule.”).

13

to issue standards or provide any guidance for what

constitutes an ‘accessible’ website’”).

In one recent case analogous to this one, the court

put it this way:

Recently, there have [sic] been an explosion of

cases—under both Title II and III—alleging

that websites violate the ADA . . . . Courts have

struggled to apply traditional principles of

standing to these website cases and have disagreed about what features a website must have

to comply with the ADA. The latter is largely

due to a complete lack of rules and regulations

being promulgated by the Department of Justice despite being aware of this issue for years.

Price v. Escalante – Black Diamond Golf Club LLC,

2019 U.S. Dist. LEXIS 76288, at *9-10 (M.D. Fla. Apr.

29, 2019). Amicus discussed this problem in Part II,

above, but mentions it here to emphasize the uneven

outcomes that result when the plaintiffs’ bar, instead

of a centralized agency like DOJ, construct Title III

“regulations” through piecemeal litigation.

And the plaintiffs’ bar has good reason—or, rather,

bad reason but good incentive—to pursue these claims.

Title III provides for injunctive relief—an order to

comply—but does not allow for damages. Title III does

provide for the collection of attorney’s fees, however,

which can motivate unscrupulous lawyers to pursue

plaintiffs. 42 U.S.C. § 12188; 42 U.S.C. § 2000a-3(b).

And litigation motivated by attorneys’ profit motive is

unlikely to reflect an actual need for litigation-driven

reform. A few states permit collecting actual damages

for Title III violations. California’s Unruh Civil Rights

Act is a notable example, permitting up to $4,000 in

14

actual damages, as well as punitive damages. Cal.

Civil Code § 52(a), (b) (West 2015). More broadly, it appears the plaintiffs’ bar is the driving force behind the

recent explosion in Title III litigation.

In the face of this onslaught, some defendant-businesses have argued that they should not face liability

for non-compliance until the primary agency responsible for enforcing the ADA—the Justice Department—

had promulgated clear rules on how to comply. See

Gorecki v. Hobby Lobby Stores, Inc., 2017 U.S. Dist.

LEXIS 109123, at *6 (C.D. Cal. June 25, 2017).

Courts have mostly rejected this “primary jurisdiction” doctrine in the Title III context, and amicus

agrees that the costs of continued can-kicking are too

great to let this doctrine prevent courts from answering this question. See Del-Orden v. Bonobos, Inc., 2017

U.S. Dist. LEXIS 209251, at *42-43 (S.D.N.Y. Dec. 20,

2017). See also Gorecki v. Hobby Lobby Stores, Inc.,

2017 U.S. Dist. 109123, at *20 (“The fact that the DOJ

has announced it may issue specific technical requirements at some point in the future does not necessitate

invoking primary jurisdiction.”).

Yet without a clear set of rules for compliance, businesses will continue to struggle to meet Title III requirements, the substance of which may differ across

circuits and district courts. The dangers of uncertainty

are already in view. As petitioner warns:

If this Court fails to act, the alternative is de

facto regulation by the plaintiffs’ bar. Plaintiffs

filed over 10,000 Title III cases last year. Several thousand of those suits involved web accessibility—nearly triple the number from 2017,

and almost ten times the amount filed in 2016.

15

Pet. Br. at 26, Domino’s Pizza, LLC v. Robles (No. 181539) (internal citations omitted). Petitioner’s brief includes citations to cases and articles predicting the

“floodgates” will open ever wider as long as litigation

continues to serve as the primary means of regulating

Title III compliance. Id. at 27-31.

The costs of this sort of “de facto regulation” skyrocket in other contexts as well and can be more expensive than first formulating a regulatory blueprint

for how to avoid liability. Regulation through litigation

imposes more than just damages or, in the ADA context, attorney’s fees. Courts could also order defendant-businesses to adopt more stringent regulations

than an agency might have required. See W. Kip Viscusi, ed., Regulation Through Litigation, 3 (2002) (explaining how “litigation about products such as tobacco, guns, and lead paint . . . was being used as the

financial lever to force companies to accept negotiated

regulatory policies as part of the litigation”). See also

Walter Olson, “ADA and the Web: The Hour Grows

Late,” Cato at Liberty Blog, Aug. 25, 2017,

https://bit.ly/2vkREeU (noting that, until Congress or

this Court clears up lower courts’ confused treatment

of the ADA’s application to websites, “entrepreneurial

lawyers” will continue to “fil[e] hundreds of lawsuits

against local and national businesses over their websites, many of which settle for money out of court, and

on the current momentum will soon be suing thousands more”).

Amicus anticipates that the Court appreciates the

potential costs of this kind of “regulation”—of the costs

society bears when compliance rules emanate ad hoc

from multiple benches, instead of from a centralized

agency that can design rules to be applied nationally.

16

CONCLUSION

For the foregoing reasons, and those expressed by

the petitioner, the Court should grant certiorari.

Respectfully submitted,

July 15, 2019

Ilya Shapiro

Counsel of Record

Sam Spiegelman

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org