United States District Court, D. New Hampshire
Access Now, Inc., R. David New, John Mule, Stephen Yerardi, and Stephen Theberge
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 ...