Access Now, Inc. v. Blue Apron, LLC

          Edwin J. Kilpela, Esq., Kevin W. Tucker, Esq., Earl S. Carrel, Esq., Jason R.L. Major, Esq., Wilbur A. Glahn, III, Esq., Benjamin B. Folsom, Esq., Bradley J. Leimkkuhler, Esq., Gregory F. Hurley, Esq., Michael J. Chilleen, Esq.

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge.

         This motion turns on, among other issues, whether defendant Blue Apron's website, www.blueapron.com, constitutes a “public accommodation” under Title III of the Americans with Disabilities Act (ADA). Title III proscribes disability-based discrimination that prevents “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodation of any place of public accommodation . . . .” 42 U.S.C. § 12182(a). Plaintiffs Access Now, Inc., R. David New, John Mule, Stephen Yerardi, and Stephen Theberge (collectively “Access Now”) allege that Defendant Blue Apron violates Title III by not making its website sufficiently accessible to blind and visually-impaired consumers. Blue Apron has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing, inter alia, that websites are not “places of public accommodation” absent connection with a brick-and-mortar store, and that it therefore cannot be held liable under the ADA for its website's inaccessibility.

         The court has subject-matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question). After hearing oral argument, the court denies Blue Apron's motion. Under First Circuit precedent, Access now has sufficiently pleaded that Blue Apron's website is a “public accommodation.” Blue Apron's additional arguments asserting due process violations, invoking the primary jurisdiction doctrine, challenging the plaintiffs' standing and requested injunction, and asserting that its website provides effective communication for visually-impaired customers do not mandate dismissal under Rule 12(b)(6) or otherwise.

         I. Applicable legal standard

         In analyzing a complaint in the Rule 12(b)(6) context, the court accepts as true all well-pleaded facts set forth in the complaint and draws all reasonable inferences in the plaintiff's favor. See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010). The complaint, read in that light, must include “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Martinez v. Petrenko, 792 F.3d 173, 179 (1st Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). With the facts construed in this manner, “questions of law [are] ripe for resolution at the pleadings stage.” Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir. 2009).

         II. Background

         Plaintiffs Mule, New, Yerardi, and Théberege allege that they are blind and that they use screen-reader software that converts buttons, links, and text fields into audio to facilitate their engagement with websites. Blue Apron's website allows consumers to view and purchase various meal plans for home delivery. Access Now alleges that Blue Apron's website is not compatible with screen-reader software and, as a result Plaintiffs cannot fully use and enjoy Blue Apron's services. Mule, New, Yerardi, and Théberege each “attempted to access” Blue Apron's website using their screen readers but found the site to be “largely unusable due to various accessibility barriers.”^[1] Access Now claims that “Blue Apron does not have, and has never had, a corporate policy that is reasonably calculated to cause its Website to become and remain accessible.”^[2]

         Access Now's complaint^[3] alleges a violation of Title III of the ADA and requests a permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 C.F.R. § 36.504. Access Now requests that the court compel Blue Apron's compliance with Title III by providing visually-impaired and blind consumers meaningful access to its website through, for example, implementing the Web Content Accessibility Guidelines version 2.0 AA (WCAG 2.0 AA) standards developed by the Worldwide Web Consortium (W3C).^[4] Access Now also seeks a declaratory judgment that Blue Apron violated Title III, as well as payment of costs and reasonable attorneys' fees.

         III. Analysis

         Moving to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6), Blue Apron argues that: (1) its website is not a “public accommodation” under Title III of the ADA because it lacks connection to a brick-and-mortar store; (2) considerations of due process and/or the primary jurisdiction doctrine mandate dismissing or staying this action pending regulatory guidance from the Department of Justice (DOJ) on website accessibility for the blind and visually-impaired; (3) its website provides “effective communication” to its blind and visually-impaired customers, as required by the ADA, by referring them to a telephone number for assistance; (4) the plaintiffs seek an overly-broad, “comply with the law” injunction; and (5) the plaintiffs lack standing to obtain the breadth of the injunction they seek. The court denies Blue Apron's motion, concluding that: (1) a website alone may amount to a “public accommodation” under precedent in this Circuit; (2) neither due process concerns nor the primary jurisdiction doctrine warrant dismissing or staying this action; and (3) whether Blue Apron's website provides “effective communication” and the scope of any potential remedy are matters best resolved on a more developed record or at trial.

         A. Public accommodation

         Title III of the ADA prohibits discrimination in places of public accommodation operated by private entities. It provides:

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. § 12182(a). The ADA considers certain private entities as “public accommodations” for its purposes “if the operations of such entities affect commerce . . . .”^[5]Id. § 12181(7).

         Plaintiffs allege that Blue Apron violates Title III because it “largely denies approximately 7 million Americans who are blind or visually impaired access to its Website because much of its online content and services is incompatible with screen reader programs.”^[6] Blue Apron, moving to dismiss the complaint, argues that a website does not constitute a “public accommodation” absent a nexus with a physical “brick-and-mortar” location.^[7] Though Courts of Appeals differ on what constitutes a “public accommodation” in the website context, the First Circuit Court of Appeals appears to consider websites, standing alone, as public accommodations under circumstances such as these. That authority binds this court.

         In Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England, Inc., the First Circuit Court of Appeals held that “public accommodations” are not limited to actual, physical places. 37 F.3d 12, 19 (1st Cir. 1994). Applying Title III to an insurance provider, the court concluded that Title III's plain meaning does “not require ‘public accommodations' to have physical structures for persons to enter.” Id. Title III lists twelve broad categories as examples of “public accommodation.” DOJ regulations enacted to carry out ADA's mandate define “place of public accommodation” as “a facility operated by a private entity whose operations affect commerce and fall within at least one of” the twelve broad categories enumerated in Title III. 28 C.F.R. § 36.104; 42 U.S.C. § 12181(7). Neither the statutory nor regulatory definitions expressly states whether websites are “public accommodations.” The First Circuit Court of Appeals reasoned that by including “travel services” in the statutory definition of “public accommodation, ” Title III covers “providers of services which do not require a person to physically enter an actual physical structure” because “[m]any travel services conduct business by telephone or correspondence without requiring their customers to enter an office in order to obtain their services.” Carparts, 37 F.3d at 19. The court emphasized that “[i]t would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not.” Id.

         This line of reasoning supports a conclusion that the plaintiffs have sufficiently pleaded that Blue Apron's website amounts to a public accommodation. As Judge Ponsor has explained, “Carparts's reasoning applies with equal force to services purchased over the Internet, ” as long as the website in question “falls within a general category listed under the ADA.” Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, 200-01 (D. Mass. 2012). “In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA'” in that it would prevent “‘individuals with disabilities [from] fully enjoy[ing] the goods, services, privileges and advantages, available indiscriminately to other members of the general public.'” Id. at 200 (quoting Carparts, 37 F.3d at 19). See also 42 U.S.C. § 12101(b)(1) (the purposes of the ADA as including, among others, “provid[ing] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities”).

         The Seventh Circuit Court of Appeals has similarly rejected the argument that “public accommodation” requires a physical place. Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed'n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001); see also Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (Title III covers public accommodations “whether in physical space or in electronic space”). In Morgan, the Court explained that “[a]n 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.” 268 F.3d at 459. It emphasized that an accommodation's location is irrelevant for Title III purposes; “[w]hat matters is that the good or service be offered to the public.” Id.

         Blue Apron observes, correctly, that the majority of Courts of Appeals that have addressed this issue require a “public accommodation” to be an actual, physical space or have a nexus to an actual, physical space, such that stand-alone websites may not be considered “public accommodations.”^[8] The Third, Fifth, Sixth, and Ninth Circuit Courts of Appeals have rejected, either expressly or by implication, the holding in Carparts. See Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530, 534 (5th Cir. 2016), cert. denied, 833 F.3d 530 (2017) (concluding that vending machines are not places of public accommodation because the ADA definition of public accommodation only includes actual physical spaces open to the public); Earll v. eBay, Inc., 599 Fed.Appx. 695, 696 (9th Cir. 2015) (“We have previously interpreted the term ‘place of public accommodation' to require ‘some connection between the good or service complained of and an actual physical place.'” (quoting Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000))); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-14 (3d Cir. 1998) (rejecting the reasoning in Carparts and holding that “public accommodation” does not refer to non-physical access); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1013-14 (6th Cir. 1997) (“The clear connotation of the words in § 12181(7) is that a public accommodation is a physical place.”).

         These Courts of Appeals apply the doctrine of noscitur a sociis in rejecting the First Circuit's rationale that the inclusion of “travel service” in the statute's definition necessarily extends ADA coverage beyond actual physical places. The court may “rely on the principle of noscitur a sociis -- a word is known by the company it keeps -- to ‘avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.'” Yates v. United States, 135 S.Ct. 1074, 1085, (2015) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)). Invoking this canon, these courts conclude, in essence, that “travel services” must be construed narrowly to refer to physical locations because all of the other statutory examples of “public accommodations” represent physical places.

         Blue Apron's statutory interpretation argument does not lack merit. Yet, the holdings cited by Blue Apron, however convincing in their own right, do not bind this court. Carparts binds this court. It is therefore not free to depart from clear First Circuit precedent, and therefore cannot adopt the construction of the ADA propounded by the Third, Fifth, Sixth, and Ninth Circuits as urged by Blue Apron.

         Applying the reasoning of Carparts to this case, the court cannot conclude, at the Rule 12(b)(6) stage, that the plaintiff's complaint falls short of pleading that Blue Apron's website is a “public accommodation” under Title III of the ADA. Though true that websites are not specifically mentioned in the twelve enumerated categories of “public accommodations, ” the plaintiffs “must show only that the web site falls within a general category listed under the ADA.” Netflix, 869 F.Supp.2d at 201. Here, as Access Now argues, Blue Apron may amount to an online “grocery store, ” which is listed under Title III's definition of “public accommodation, ” 42 U.S.C. § 12181 (7) (E), or at the very least may fall within the general “other sales” or “other service establishment” categories, id. § 12181 (7) (E)-(F). This suffices at the 12(b)(6) stage to prevent dismissal.^[9]

         B. Due process and primary jurisdiction

         Blue Apron next moves to dismiss this action under two theories connected to the lack of DOJ regulations governing website accessibility. Congress empowered the Attorney General to “promulgate regulations . . . that implement” the provisions of Title III. 42 U.S.C. § 12134(a); id. at § 12186(b). Pursuant to that authority, the DOJ has promulgated, for example, a set of ADA Accessibility Guidelines (ADAAG), see 28 C.F.R. § 36.406 (a); 28 C.F.R. pt. 36, app. A, that “lay out the technical structural requirements of places of public accommodation, ” Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (“Whether a facility is ‘readily accessible' is defined, in part, by the [ADAAG], ” which was “[p]romulgated by the Attorney General to ‘carry out the provisions' of the ADA . . . .”).

         Recognizing that structural barriers may prevent individuals with disabilities from accessing and fully engaging with websites, the DOJ has construed websites as “places of public accommodation” under Title III of the ADA for over 20 years. The DOJ “first made this position public in a 1996 letter from Assistant Attorney General Deval Patrick responding to an inquiry by Senator Tom Harkin regarding the accessibility of Web sites to individuals with visual disabilities.” Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460, 43464 (July 26, 2010) (reciting history of the DOJ's application of Title III to websites). After maintaining this position through a variety of briefs and congressional hearings for over a decade, the DOJ in 2010 issued an Advanced Notice of Proposed Rulemaking (“ANPRM”), seeking public comment on whether it should adopt, among others, the WCAG 2.0 AA guidelines established by W3C as a standard for website accessibility. Id. at 43464-65. It never promulgated final regulations, however. Blue Apron argues that holding it accountable for failing to comply with Title III of the ADA in the absence of such regulations would violate its right to due process. It further contends that the court should decline to adjudicate this matter under the primary jurisdiction doctrine until the Department of Justice takes action. Neither argument compels the court to stay or dismiss this case.

         1. Due process

         “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” Fed. Commc'ns Comm. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). Blue Apron argues that to hold it liable for violating Title III in the absence of regulations imposing more specific website-accessibility standards would violate its right to due process.^[10]Absent such regulations, it contends, it lacked sufficient notice of what Title III requires of its website. Though such regulations may provide Blue Apron and other website operators with a greater level of certainty about compliance with Title III, Blue Apron must still comply with Title III's more general prohibition on disability-based discrimination in their absence.

         The ADA -- which, notably, Blue Apron does not challenge as impermissibly vague -- itself provides sufficient notice to alleviate due process concerns. As set forth supra, Title III of the ADA prohibits discrimination “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. § 12182(a). It requires public accommodations, among other things, “to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, ” and to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services . . . .” Id. § 12182 (b) (2) (A) (ii)-(iii). It further explains that public accommodations do not discriminate if those modifications are unreasonable or “would fundamentally alter the nature” of the good, service, or accommodation, or if providing auxiliary aids or services “would fundamentally alter the nature of the good, service, or accommodation or would result in an undue burden.” Id.

         Whether a modification is “reasonable, ” too burdensome, or a fundamental alteration to the nature of the service or accommodation “will vary depending on a plaintiff's disability and a defendant's goods, services, accommodations, and resources -- a modification that works for a certain plaintiff may not work for all plaintiffs and may not be a reasonable request to make of every defendant.” Andrews v. Blick Art Materials, LLC, No. 17-CV-767, 2017 WL 3278898, at *18 (E.D.N.Y. Aug. 1, 2017). Whether the particular accommodations requested by the plaintiffs to permit their equal enjoyment of Blue ...