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02Feb/14
Dunkin' Donuts Hot Logo. ADA Testing

TIME TO MAKE THE WEBSITE ACCESSIBLE

COURT OF APPEALS ALLOWS ADA LAWSUIT AGAINST DUNKIN’ DONUTS TO PROCEED

The Eleventh Circuit Court of Appeals in Atlanta recently overturned a lower court’s dismissal of a website accessibility lawsuit against Dunkin’ Donuts, allowing the case to proceed to trial. The decision will likely make it easier for plaintiffs in Florida, Georgia, and Alabama to bring web accessibility lawsuits under Title III of the Americans with Disabilities Act (ADA), while making it more difficult for businesses with physical locations to have those lawsuits dismissed.Photo of a Dunkin' Donuts marquee

The case, Haynes v. Dunkin’ Donuts LLC, was filed in May 2017 by Dennis Haynes, who is blind and uses the JAWS screen reader to access the internet. In his complaint, Haynes alleged that he was unable to access the Dunkin’ Donuts website to search for store locations or purchase a prepaid, reloadable Dunkin’ Donuts Card for in-store purchases. This, Haynes claimed, violated Title III of the Americans with Disabilities Act, which prohibits discrimination against individuals with disabilities by places of public accommodation.

In December 2017, Dunkin’ Donuts moved to dismiss Haynes’ lawsuit. While Dunkin’ Donuts acknowledged its physical stores were covered under the ADA, it argued that Haynes had not demonstrated a sufficient nexus between its website and Dunkin’ Donuts stores.

Judge William P. Dimitrouleas agreed, dismissing Haynes’ lawsuit in January 2018. According to Judge Dimitrouleas, the inaccessibility of the website did not deny Haynes access to Dunkin’ Donuts’ physical stores. Judge Dimitrouleas reasoned that if Haynes could use a credit card, debit card, “or other non-cash methods of payment” to purchase a prepaid Dunkin’ Donuts card online, he could have used those same forms of payment at any physical Dunkin’ Donuts location. Judge Dimitrouleas further argued that if listing store hours and locations online was sufficient for a website to be covered by Title III, then the ADA would apply to nearly all business sites.

Haynes appealed Judge Dimitrouleas’s order to the Eleventh Circuit Court of Appeals, which reversed the dismissal in an unpublished decision.

The Eleventh Circuit decision emphasized that Title III prohibits intangible, as well as tangible, barriers, and that, “the ADA is clear that whatever goods and services Dunkin’ Donuts offers as a part of its place of public accommodation, it cannot discriminate against people on the basis of a disability, even if those goods and services are intangible.”

According to the Eleventh Circuit’s decision, the failure to allow individuals who are blind or limited vision to access information about store locations or purchase Dunkin’ Donuts cards online, when that functionality is available to individuals without disabilities, “can be said to exclude, deny, or otherwise treat blind people differently than other individuals.”

Appellate court decisions in web accessibility cases have been quite rare, though this is the second decision web accessibility decision by the Eleventh Circuit in as many months. In June, the Eleventh Circuit ruled that Haynes’ separate lawsuit against restaurant chain Hooters was not barred by Hooters’ prior settlement with a third party.

Unlike the Hooters decision, however, the Eleventh Circuit opted not to “publish” its decision in Dunkin’ Donuts, meaning it may not be binding on future cases. Unpublished decisions, which are not printed in the Federal Reporter, but are made available online, have limited precedential value, and are often used by appellate courts in areas where the law is still developing. By choosing not to publish the Dunkin’ Donuts decision, the Eleventh Circuit leaves room for a different outcome in a later case, such as the Gil v. Winn Dixie Stores, Inc. appeal that is currently pending.

The Dunkin’ Donuts decision is also limited by the fact that it was an appeal on a motion to dismiss, rather than a final decision on the merits. In a motion to dismiss, the court is required to view all allegations in the complaint in the light most favorable to the defendant. The Eleventh Circuit’s decision was thus a recognition that Dunkin’ Donuts’ website could violate the ADA, not that it did.

That is cold comfort, however, for businesses hoping to escape web accessibility lawsuits at minimal cost. Instead, it is looking more and more like the best way to avoid the costs of a lawsuit is to be proactive in making your website and other digital assets accessible.

This blog post is for informational purposes only and does not constitute legal advice.

15Jan/14

Increasing Legal Scrutiny of Website Accessibility

From fair housing laws to licensing requirements, the real estate industry is accustomed to navigating various legal constraints and requirements. However, as a result of current ambiguity in the law, class action lawsuits based upon website accessibility pose an emerging threat to real estate brokers, lenders, homebuilders, and ultimately, any company that has a web presence. Today almost all companies have a website, which is often used as the primary method to provide information and to market to current and future clients. But what about clients and prospects that have disabilities? Do they have equal access to your company website?

If your company has not addressed this issue, it not only may be missing potential clients, but it also may be a target for plaintiffs’ attorneys who are eager to capitalize on the current unsettled state of the law by bringing a class action lawsuit.

A recent Washington Post article by nationally syndicated columnist Ken Harney explains that one Pittsburgh law firm alone has sent letters demanding action and threatening litigation “to as many as 25 realty and home-building companies in recent months.” While the recent focus may be in the real estate industry, web accessibility has been a hot topic across various industries, including big name companies like Netflix, eBay, eHarmony, and Ace Hardware, among others.

In a landmark class action against a major retailer in 2006, the National Federation of the Blind (“NFB”) claimed that the retailer’s website was inaccessible to blind users in a number of ways. The problems included lack of purchases that could be completed without a mouse, inaccessible image maps to show store locations, and missing headings causing navigation difficulties, among other problems. The retailer ultimately agreed to pay class damages of $6 million to settle the matter. The settlement also required that the retailer make its website accessible, the process of which would be monitored by NFB. The case serves as a warning to companies about the scope and potential cost of these types of lawsuits. The settlement also has the hallmarks of a typical settlement in these types of cases which often include: adoption of a website accessibility policy, required incorporation of website accessibility into key aspects of website development and design, training, achieving substantial compliance with specific accessibility standards, and a significant monetary component.

In part, such cases are becoming more frequent because the current state of the law is unsettled. As those in the real estate industry know, the Americans with Disabilities Act (“ADA”) can be costly in the employment arena and the Fair Housing Act also covers advertising and access to housing for those with disabilities. Website accessibility lawsuits focus on Title III of the ADA, which governs access for disabled persons to places of “public accommodation.” There is no question that this law governs physical public places like restaurants, hotels, theaters, retail stores, shopping centers, model homes, and a number of other places that are specifically addressed in the law. Title III requires those places to be accessible to persons with disabilities so that they have equal opportunity to enjoy the goods and services offered in such a place. However, a key question remains unaddressed in the law: are public websites considered places of “public accommodation” subject to the same requirements? Various courts have answered this question differently and based on differing criteria.

The Department of Justice (“DOJ”), which has promised to issue regulations clarifying what it expects and requires in terms of website accessibility, has recently delayed finalizing ruleson the topic under Title II of the ADA, which applies to state and local governments. Even though Title II does not apply to the websites of private companies, the Title II regulations would give companies insight into what the DOJ considers best practices for web accessibility. Addressing Title III applicability to websites of private companies is on the DOJ’s long-term agenda. It is expected to initiate the rule-making process with a Notice of Proposed Rulemaking in 2018.

Without formal guidance from courts or the DOJ regarding whether Title III applies to private websites and what form web accessibility should take, what can a company do to protect itself against the onslaught of potential lawsuits?

The first step is examining whether your website is accessible to disabled persons. For example,

  • Do you have audio content that is not accompanied by a text alternative or captioning? Such content is not accessible to persons with hearing impairments.
  • Are links on your website signified by a different color text only – or are they also underlined? Links marked only by a change in the color of the text may be hard for color blind or other visually impaired users to differentiate from non-linked text.
  • Does your site have the option for text to be increased in size without losing content?
  • Can the user use the keyboard to navigate if the user is not able to use a mouse due to Parkinson’s disease or other disability?

These are just some of the inquiries you should undertake when analyzing accessibility.

The World Wide Web Consortium, through its Web Accessibility Initiative, has published accessibility principles. These are amplified by its more technical guidelines that address accessibility issues and offer standards for remediating accessibility problems. The guidelines, or “WCAG 2.0” as they are called, are a comprehensive playbook for website developers offering varying levels (A, AA and AAA) of conformance with the standard. Compliance with WCAG 2.0 generally requires that all sites comply with the Level A standards, and most should comply with Level AA. Level AAA is generally considered “optional.” Despite the lack of formal regulations regarding web accessibility, the DOJ has signaled that it supports the use of WCAG 2.0 a standard. In 2014, it entered into a consent decree with the tax preparation company H&R Block regarding the company’s website accessibility. According to the DOJ, under the terms of the five-year decree, “H&R Block’s website, tax filing utility and mobile apps will conform to the Level AA Success Criteria of the WCAG 2.0.”

In light of the recent legal focus on web accessibility, and in the real estate industry specifically, companies in the industry are wise to address the issue now, even without formal instructions from the DOJ.

The best course is to conduct a thorough accessibility audit of your company’s website, based on the principles and guidelines of the Web Accessibility Initiative either internally, if you already have a robust technical team able to take on the task, or through a third party company. Once the audit is conducted, you will have a much better idea of where the company’s vulnerabilities lie as well as the scope of the project to remediate any issues. It may make sense to combine an accessibility overhaul with a redesign or other update to your website in order to make the process of development, testing and publishing more efficient. External legal counsel should be involved both to preserve confidentiality, under the attorney-client privilege, of your audit and plans for remediation, and to offer strategic advice on how to minimize the chance of a lawsuit and to maximize the defense.

In short, due to a lack of clarity from courts and the DOJ regarding web accessibility requirements and standards, the legal challenges to real estate companies’ websites under Title III of the ADA are only likely to increase in the coming months. If you have not thought about the accessibility of your website – now is the time to do so.

If you become a target of an accessibility lawsuit or receive a demand letter from a plaintiffs’ law firm such as the type discussed above, don’t panic. While many of the most prolific Plaintiff’s firms are becoming very experienced in pursuing litigation in this area, there are many procedural and substantive defenses that outside legal counsel with experience in combating these lawsuits can use to protect you. The best course is to be prepared.

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Disclaimer

This blog is made available for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. PF Web Design makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. PF Web Design expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall PF Web Design or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.
15Jan/14
custom-website-vs-template-based 1

5 Reasons Why a Custom Designed Website is Better Than Website Templates

Without further ado, here are 5 reasons why custom web designs is better than website templates:

  1. Custom designs gives your business credibility

Although you might always be looking for ways to save money, as a business owner, and increase your profitability, buying a website template might do your business a great disservice. With a website template it is impossible to differentiate your business and create an online presence unique to your business. Remember, your website is your shop front; it is your marketing and should project your professional image. The more professional image you project the more credible you look. Keep in mind that you need your business to stand out in the crowd and a website template might not be able to give you that.

  1. Customized web designs minimize limitations

Website templates are a one-size-fits-all. For example, they may not be equippedand ready with all ecommerce functionalities. That means they may have some limitations which cannot be removed. Custom web design on the other hand won’t have such limitations. Custom web design allows you to choose what you want and how you like it.

  1. Custom design creates a website that is compatible to all browsers
Many people overlook this feature, yet it can make or break your website. Not everyone uses the most recent browser to browse the net. Some even use different browsers to access the same site. The only way to guarantee that your website will properly display on Mozilla, Internet Explorer, Google Chrome, Opera and Safari is to hire a custom web designer.
  1. Custom web design ensures your site is search engine friendly

A professional web designer will ensure your website is search engine optimized. It is critical to get the CSS and HTML code right and build your website that will give you a head start when it comes to search engine rakings. There are no such assurances in website templates.

  1. Custom web design ensures your website is tailored to your audience

If you have very specific requirements, then you need a custom web designer. It is critical to have a website that reflects the needs of your customers. Generic templates might not be able to take this into consideration.

However, there are situations where a website template may do. For example, if you don’t have the time, money and resources to hire a custom designer, a website template may come in handy. But once you have built brand and online presence, custom web design is critical.

Here are additional pros and cons of custom web design vs. website templates.

PF Web Design - custom-web-design-vs-website-templates.

PF Web Design – custom-web-design-vs-website-templates.

15Jan/14

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15Jan/14

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A sodales lectus ultricies. Aenean consectetur diam vitae augue tincidunt fermentum eget id felis. Integer sed ligula eu erat pharetra rutrum. Sed id scelerisque velit. Nam non pharetra turpis, nec malesuada massa. Nunc venenatis turpis quis ante sodales mollis. Aenean quis leo risus. Duis felis mi, pharetra a mauris sit amet, suscipit egestas mi.

Nullam vitae justo vitae massa aliquet vestibulum. Aliquam suscipit nec felis quis porttitor. Aliquam tristique tempus libero, sit amet porta erat convallis eget. Mauris pretium, odio ut rhoncus congue, odio massa fringilla arcu, lacinia commodo mauris ipsum sed augue. Aenean ac viverra odio. Nunc velit dolor, tristique in convallis eu, vulputate sit amet felis. Aliquam faucibus ligula metus, nec ultrices sem consectetur non. Nulla eleifend velit vel pellentesque suscipit.

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Nulla facilisi. Cras ac mauris sit amet tortor luctus semper. Maecenas pulvinar magna libero, at accumsan dui porttitor quis. Nullam nisi ligula, pharetra sed metus quis, iaculis bibendum orci. Fusce sollicitudin nibh ut lacus feugiat, eget vehicula neque rhoncus. Duis in nulla in mauris tristique condimentum. Cum sociis natoque penatibus et magnis dis parturient montes, nascetur ridiculus mus. Aliquam semper, massa sed molestie lacinia, lorem quam laoreet orci, a euismod velit lectus nec est.

31Dec/13

America’s Best value cars of 2013

Most savvy car buyers are aware that as soon as a new car gets driven off a dealer’s lot it immediately takes a dip in value. However, not all vehicles depreciate at the same pace over time. Wouldn’t it be great to know which new cars were likely to be worth the most when it’s time to sell? Automotive Lease Guide has been forecasting automotive residual values for more than 50 years, and is considered an industry benchmark for this calculation. For the past 13 years, ALG has been giving Residual Value Awards to vehicles and brands likely to retain the most value after three years of ownership. Let’s take a look at the winners for 2014.

Best cars 2013

Best cars 2013

The Jaguar F-TYPE is a cool-looking car, and the Convertible S model is even cooler — especially when it’s road-tested in the middle of winter, the way I did.

The car’s sleek exterior lines shouldn’t be marred by something as mundane as ordinary door handles. So the Jaguar F-TYPE uses what the British automaker calls “deployable door handles” that retract into the body of the car when not in use and pop out when needed.

If the car has keyless entry and push-button start like the Convertible S model I tested, you can just press the front of the recessed door handle and the doors will unlock and the handles will pop out. Pushing the rear of one of the handles locks the doors and causes the handles to retract. The handles also retract and become flush with the car at a certain speed.

For an F-TYPE without keyless entry, pressing the unlock button on the key fob causes the doors to unlock and the handles to pop out, and pressing it again locks the doors and hides the handles. On the car I tested, the side mirrors also fold in when the doors are locked since Jaguar hasn’t yet figured out a way to make those disappear — though that could be next.