Sean Gorecki v. Dave And Buster S, Inc., et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to the Complaint

C.D. Cal.June 16, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:17-cv-01138-PSG-AGR SMRH:483167431.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendant, DAVE & BUSTER’S, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION SEAN GORECKI, an individual, Plaintiff, v. DAVE & BUSTER’S , INC., a Missouri corporation; and DOES 1-10, inclusive, Defendant. Case No. 2:17-cv-01138-PSG-AGR Honorable Philip S. Gutierrez DEFENDANT DAVE & BUSTER’S, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Hearing Date: August 7, 2017 Hearing Time: 1:30 p.m. Courtroom: 6A Action Filed: February 13, 2017 Trial Date: February 13, 2018 Case 2:17-cv-01138-PSG-AGR Document 21 Filed 06/16/17 Page 1 of 3 Page ID #:84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 2:17-cv-01138-PSG-AGR SMRH:483167431.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 7, 2017 at 1:30 p.m. in Courtroom 6A of the above-entitled Court located at 350 W. 1st Street, Los Angeles, CA 90012, Defendant Dave & Buster’s, Inc. (“Defendant” or “Dave & Buster’s”) will, and hereby does, move the Court for summary judgment on the grounds that there is no genuine issue as to any material fact and that Defendant is entitled to judgment as a matter of law. In the alternative, Plaintiff Sean Gorecki’s (“Plaintiff”) claims should be dismissed or stayed because the Department of Justice has not promulgated any accessibility regulations governing the websites and/or mobile websites of private businesses. Defendant’s motion should be granted for the following, independent reasons. First, on March 20, 2017, U.S. District Judge S. James Otero from the Central District of California dismissed an identical lawsuit filed by Plaintiff’s counsel against Domino’s Pizza, LLC pursuant to the primary jurisdiction doctrine and because plaintiff’s lawsuit violated the defendant’s fundamental right to due process of law. Robles v. Domino’s Pizza, LLC, 2017 WL 1330216 (C.D. Cal. 2017). In addition, Plaintiff’s claims fail for several, independent reasons. First, Defendant’s website offers a staffed telephone line which the DOJ has stated constitutes compliance with the ADA. Second, Plaintiff must but cannot show that any enforceable accessibility standards have been violated. Third, Plaintiff’s claims fail for lack of fair notice. Finally, Plaintiff’s claims under the Unruh Act also fail because he has not adequately pled that Defendant intentionally discriminated against him. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on May 17, 2017. This motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Statement of Uncontroverted Facts and Conclusions of Law, the Declaration of Kerri Walters and attached exhibits, the Declaration of Bradley J. Leimkuhler and attached exhibits, Case 2:17-cv-01138-PSG-AGR Document 21 Filed 06/16/17 Page 2 of 3 Page ID #:85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 2:17-cv-01138-PSG-AGR SMRH:483167431.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT the records and files herein, and such other evidence as may be admitted at the time of hearing of the motion. Dated: June 16, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Gregory F. Hurley GREGORY F. HURLEY Attorneys for Defendant YUM! BRANDS d/b/a PIZZA HUT Case 2:17-cv-01138-PSG-AGR Document 21 Filed 06/16/17 Page 3 of 3 Page ID #:86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal. Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendant DAVE & BUSTER’S, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION SEAN GORECKI, an individual, Plaintiff, v. DAVE & BUSTER’S , INC., a Missouri corporation; and DOES 1-10, inclusive, Defendant. Case No. 2:17-cv-01138-PSG-AGR Honorable Philip S. Gutierrez DEFENDANT DAVE & BUSTER’S, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Hearing Date: August 7, 2017 Hearing Time: 1:30 p.m. Courtroom: 6A Action Filed: February 13, 2017 Trial Date: February 13, 2018 Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 1 of 25 Page ID #:87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................. 1 II. FACTUAL BACKGROUND ........................................................................... 1 A. Plaintiff’s Allegations. ............................................................................ 1 B. The Domino’s Pizza Decision. ............................................................... 2 III. ARGUMENT .................................................................................................... 4 A. Plaintiff’s Lawsuit Violates Defendant’s Right To Due Process And Should Be Dismissed Pursuant To The Primary Jurisdiction Doctrine. .................................................................................................. 4 1. Due Process Demands That Parties Know, In Advance, What Conduct Complies With The Law. ..................................... 4 2. The Lack Of Objective Standards Violates Due Process. ............ 6 3. The Court Should Dismiss Or Stay This Lawsuit Pursuant To the Primary Jurisdiction Doctrine. .......................................... 8 4. Plaintiff Cannot Make An End-Run Around The DOJ’s Rulemaking Authority. ............................................................... 10 B. Plaintiff Cannot Show That An Enforceable Standard Has Been Violated. ................................................................................................ 14 C. Defendant’s Website Is Compliant With The ADA. ............................ 16 D. Plaintiff’s Complaint Fails To Provide “Fair Notice” Of The Alleged Barriers On Defendant’s Website. .......................................... 16 E. Plaintiff’s Unruh Act Claim Fails Because The Complaint Does Not Adequately Allege That Defendant Intentionally Discriminates Against Him. .................................................................. 18 IV. CONCLUSION ............................................................................................... 20 Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 2 of 25 Page ID #:88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY TABLE OF AUTHORITIES Cases Page(s) Ala. Prof’l Hunters Ass’n v. FAA 177 F.3d 1030 (D.C. Cir. 1999) .............................................................................. 5 Blackwell v. City and County of San Francisco 506 Fed. Appx. 585 (9th Cir. 2013) ..................................................................... 15 Botosan v. Paul McNally Realty 216 F.3d 827 (9th Cir. 2000) .......................................................................... 5, 6, 7 Chapman v. Pier 1 Imports (U.S.), Inc. 631 F.3d 939 (9th Cir. 2011) .............................................................................. 7, 8 Clark v. Time Warner Cable 523 F.3d 1110 (9th Cir. 2008) ........................................................................ 4, 8, 9 Coates v. City of Cincinnati 402 U.S. 611 (1971) ............................................................................................... 7 Coronado v. Cobblestone Village Community Rentals 163 Cal. App. 4th 831 (2008) ............................................................................... 15 Cullen v. Netflix, Inc. 880 F. Supp. 2d 1017 (N.D. Cal. 2012), aff’d, 600 Fed. Appx. 508 (9th Cir. 2015) ...................................................................................................... 19 Disabled Americans for Equal Access, Inc. v. Compra Hospital Pavia, Inc. 2004 WL 5568603 (D. Puerto Rico 2004) ........................................................... 15 Earll v. eBay, Inc. 2011 WL 3955485 (N.D. Cal. Sept. 7, 2011), aff’d 599 Fed. Appx. 695 (9th Cir. 2015) ......................................................................................... 18, 19 Ferrare v. IDT Energy, Inc. 2015 WL 3622883 (E.D. Pa. 2015) ........................................................................ 9 Forbes v. Napolitano 236 F.3d 1009 (9th Cir. 2000) ................................................................................ 4 Fortyune v. Am. Multi-Cinema, Inc. 364 F.3d 1075 (9th Cir. 2004) ................................................................................ 7 Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 3 of 25 Page ID #:89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Gray v. County of Kern 2015 WL 7352302 (E.D. Cal. Nov. 19, 2015) ..................................................... 17 Gray v. JP Morgan Chase Bank 2012 WL 1340315 (C.D. Cal. 2012) .............................................................. 15, 18 Grayned v. City of Rockford 408 U.S. 104 (1972) ............................................................................................... 4 Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc. 742 F.3d 414 (9th Cir. 2014) ................................................................................ 19 Indep. Living Res. v. Or. Arena Corp. 982 F. Supp. 698 (D. Or. 1997) .............................................................................. 8 Lara v. Cinemark USA, Inc. 1998 WL 1048497 (W.D. Tex. Aug. 21, 1998), rev’d, 207 F.3d 783 (5th Cir. 2000) ........................................................................................................ 5 Lara v. Cinemark USA, Inc. 207 F.3d at 789 ..................................................................................................... 13 Marsh v. Edwards Theatres Circuit, Inc. 64 Cal. App. 3d 881 (1975) ............................................................................ 13, 15 MCI Comm. Corp. v. American Tel. & Tel. Co. 496 F.2d 214 (3d Cir. 1974) ................................................................................... 9 Munson v. Del Taco, Inc. 46 Cal. 4th 661 (2009) .......................................................................................... 18 Norkunas v. Seahorse NB, LLC 444 Fed. Appx. 412 (11th Cir. 2011) ................................................................... 14 Oliver v. Ralphs Grocery Co. 654 F.3d 903 (9th Cir. 2011) ................................................................................ 16 Pascuiti v. N.Y. Yankees 87 F. Supp. 2d 221 (S.D.N.Y. 1999) ...................................................................... 8 Paulick v. Starwood Hotels & Resorts Worldwide, Inc. 2012 WL 2990760 (N.D. Cal. 2012) .................................................................... 17 PHH Corporation v. Consumer Fin’l Prot. Bureau 839 F.2d 1 (D.C. Cir. 2016) .................................................................................... 4 Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 4 of 25 Page ID #:90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iv- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Resnick v. Magical Cruise Co. 148 F. Supp. 2d 1298 (M.D. Fla. 2001) ............................................................... 14 Robles v. Domino’s Pizza, LLC 2017 WL 1330216 (C.D. Cal. 2017) ...................................................................... 2 Shalala v. Guernsey Memorial Hosp. 514 U.S. 87 (1997) ............................................................................................... 13 Strong v. Walgreen Co. 2009 WL 3711930 (C.D. Cal. 2009) .................................................................... 17 Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc. 307 F.3d 775 (9th Cir. 2002) .................................................................................. 9 U.S. Hoyts v. Cinema Corp. 380 F.3d 558 (1st Cir. 2004) ................................................................................ 13 United States v. AMC Entertainment, Inc. 549 F.3d 760 (9th Cir. 2008) .............................................................. 3, 4, 5, 10, 13 Wilson v. Pier 1 Imports (US), Inc. 439 F. Supp. 2d 1054 (E.D. Cal. 2006) ................................................................ 14 Young v. Facebook 790 F. Supp. 2d 1110 (N.D. Cal. 2011) ................................................................ 19 Statutes 42 U.S.C. § 12186(b) ................................................................................................. 10 Americans with Disabilities Act (“ADA”) ......................................................... passim California Unruh Civil Rights Act ...................................................................... passim Other Authorities 28 CFR 36.401(a) ...................................................................................................... 12 Defendant’s website, www.daveandbusters.com ........................................................ 1 https://www.w3.org/TR/UNDERSTANDING-WCAG20 .......................................... 6 Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 5 of 25 Page ID #:91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Defendant Dave & Buster’s, Inc. (“Defendant” or “Dave & Buster’s”) hereby submits its memorandum of points and authorities in support of its motion for summary judgment or, in the alternative, dismissal or stay. I. INTRODUCTION Plaintiff Sean Gorecki (“Plaintiff”) brings this form lawsuit alleging that Defendant’s website, www.daveandbusters.com, is not accessible to him as a visually-impaired individual. Plaintiff and his counsel have filed a myriad of identical lawsuits against other businesses despite the fact that no website standards have been adopted by the Department of Justice (“DOJ”). Plaintiff seeks injunctive relief pursuant to the Americans with Disabilities Act (“ADA”) and statutory damages pursuant to the California Unruh Civil Rights Act (“Unruh Act”) based on his alleged attempts to use Defendant’s website. On March 20, 2017, U.S. District Judge S. James Otero from the Central District of California dismissed an identical lawsuit filed by Plaintiff’s counsel against Domino’s Pizza, LLC (“Domino’s”) pursuant to the primary jurisdiction doctrine because the DOJ has yet to adopt any website standards. A true and correct copy of this opinion is attached as Exhibit A. This lawsuit is no different and should also be dismissed. In addition, Plaintiff’s claims fail for several, independent reasons. First, Defendant’s website offers a staffed telephone line which the DOJ has stated constitutes compliance with the ADA. Second, Plaintiff must but cannot show that any enforceable accessibility standards have been violated. Third, Plaintiff’s claims fail for lack of fair notice. Finally, Plaintiff’s claims under the Unruh Act also fail because he has not adequately pled that Defendant intentionally discriminated against him. II. FACTUAL BACKGROUND A. Plaintiff’s Allegations. Plaintiff alleges that he is a “blind” and “visually-impaired” person who uses Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 6 of 25 Page ID #:92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY screen-reading software to use the internet on his computer. (Complaint at ¶ 1). Plaintiff does not describe his visual impairment other than to say he meets the legal definition of blindness. (Id.). As in the Domino’s lawsuit, the premise of Plaintiff’s lawsuit is that Defendant’s website fails to comply with version 2.0 of the Web Content Accessibility Guidelines (“WCAG”), created by a non-governmental organization called W3C. (Id. at ¶¶ 18, 30, 33). Based on the alleged failure to comply with these standards, Plaintiff claims that Defendant has violated the ADA and the Unruh Act. (Id.). Plaintiff “seeks a permanent injunctive requiring Defendant…to comply with the ADA by making the website accessible, using the success criteria outlined in the WCAG 2.0 guidelines.” (Id. at ¶ 33). B. The Domino’s Pizza Decision. On March 20, 2017, U.S. District Judge S. James Otero for the Central District of California granted Domino’s motion to dismiss pursuant to the doctrines of due process and primary jurisdiction. Robles v. Domino’s Pizza, LLC, 2017 WL 1330216 (C.D. Cal. 2017). In a well-reasoned and thorough decision, Judge Otero addressed whether Plaintiff’s counsel’s claim that Domino’s website violated the ADA could proceed in light of the absence of any required technical standards for private websites. The Court found they could not and dismissed the plaintiff’s case. As noted by Judge Otero, the Department of Justice (“DOJ”) is the agency tasked with promulgating regulations to provide concrete guidance for businesses on how they should provide access to the disabled community. In 2010, the DOJ issued a Notice of Proposed Rulemaking (“NOPR”) wherein it announced it was “considering revising the regulations implementing Title III of the ADA in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the [web], accessible to individuals with disabilities.” Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 7 of 25 Page ID #:93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460-01, 2010 WL 2888003 (July 26, 2010). In that same NOPR, the DOJ expressly noted that “a clear requirement that provides the disability community consistent access to Web sites and covered entities clear guidance on what is required under the ADA does not exist.” Id. at *43464 (emphasis added). Despite the DOJ’s announcement in 2010 that it was planning to issue regulatory guidance, after public review and comment, it has thus far failed to do so. As a result of this backdrop, many businesses across the country have been sued under the ADA (and related state law) for injunctive relief, damages, and attorneys’ fees for their allegedly inaccessible websites. Judge Otero found, correctly, that such an approach “flies in the face of due process.” Id. at *5. In doing so, the Court relied on the Ninth Circuit’s decision in United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008). In AMC, the Ninth Circuit considered whether the ADA obligated theater owners to retroactively incorporate a comparable viewing angle requirement in movie theaters where the language of the regulation was ambiguous and the DOJ had yet to announce its formal position. Id. at 762-70. The Ninth Circuit, noting the absence of clear guidance, declined to require AMC to determine the precise meaning of the regulation when the government itself had failed to do so. Id. at 769. Judge Otero found the Ninth Circuit’s decision to be “squarely on point” and described in detail the conflicting statements from the DOJ on the subject and the resulting vagueness from the lack of formal guidance in this complex regulatory arena. Specifically, the Court observed that it placed “those subject to Title III in the precarious position of having to speculate which accessibility criteria their websites and mobile applications must meet.” Id. at *7. Therefore, Judge Otero dismissed Plaintiff’s complaint on due process grounds and pursuant to the primary Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 8 of 25 Page ID #:94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY jurisdiction doctrine1: “[DOJ] regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual institution must abide by in order to comply with Title III. Moreover, the Court finds that the issue of web accessibility obligations to require both expertise and uniformity in administration, as demonstrated by the DOJ’s multi-year campaign to issue a final rule on this subject.” Id. at *8. Judge Otero concluded his opinion calling for executive and/or legislative action to set minimum standards for web accessibility for the benefit of the disabled community, covered entities, and the judiciary. Id. III. ARGUMENT A. Plaintiff’s Lawsuit Violates Defendant’s Right To Due Process And Should Be Dismissed Pursuant To The Primary Jurisdiction Doctrine. 1. Due Process Demands That Parties Know, In Advance, What Conduct Complies With The Law. “Due process requires that the government provide citizens and other actors with sufficient notice as to what behavior complies with the law. Liberty depends on no less.” U.S. v. AMC Entertainment, Inc., 549 F.3d 760, 768 (9th Cir. 2008); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“Because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”); Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000) (“The due process clause ... guarantees individuals the right to fair notice of whether their conduct is prohibited by law.”); PHH Corporation v. 1 As discussed in section III(A)(3) below, the primary jurisdiction doctrine “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 9 of 25 Page ID #:95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Consumer Fin’l Prot. Bureau, 839 F.2d 1, 46 (D.C. Cir. 2016) (due process requires agencies to “provide regulated parties fair warning of the conduct a regulation prohibits or requires.”); Ala. Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030, 1035 (D.C. Cir. 1999) (“Those regulated by an administrative agency are entitled to know the rules by which the game will be played.”). As discussed above, the Ninth Circuit’s decision in AMC is instructive. In AMC, the Ninth Circuit was confronted with the question of whether the ADA required theater owners to retroactively incorporate a comparable viewing angle requirement in movies theaters. At issue was the interpretation of a regulation that required “lines of sight comparable to those for members of the general public.” That regulation was ambiguous and it was unclear whether “lines of sight” simply referenced an unobstructed view of the screen or whether that similarly required comparable viewing angles. This issue was litigated in courts throughout the country. However, the first time that the DOJ announced its position on the issue was in an amicus brief in the District Court for the Western District of Texas in a matter entitled Lara v. Cinemark USA, Inc., 1998 WL 1048497, at *2 (W.D. Tex. Aug. 21, 1998), rev’d, 207 F.3d 783 (5th Cir. 2000). Ultimately, the Ninth Circuit, in another opinion, announced that the regulation did require comparable viewing angles for disabled patrons (the Fifth Circuit in Lara disagreed). As the courts grappled with the issue, the DOJ brought a lawsuit against AMC arguing that AMC was required to retrofit several theaters, including those built before the DOJ announced its interpretation of the regulation in the Lara amicus brief. The Ninth Circuit reversed the District Court’s injunction on due process grounds. The AMC Court observed: “In other words, the capacity of in-house counsel or others to read correctly legislative tea leaves does not alleviate the government from its obligation to fashion coherent regulations that put citizens of ‘ordinary intelligence’ on notice as to what the law requires of them.” Id. at 770; see also Botosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir. 2000) (“The Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 10 of 25 Page ID #:96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY ADA would be vague only if it is so indefinite in its terms that it fails to articulate comprehensible standards to which a person’s conduct must conform.”). 2. The Lack Of Objective Standards Violates Due Process. This lawsuit, like Plaintiff’s suit against Domino’s, is a classic example of overreach that is fundamentally unfair and violates important due process principles. Plaintiff’s case is exclusively premised upon Defendant’s alleged failure to comply with WCAG 2.0, a set of vague guidelines that have been published by private parties. These guidelines were never intended to be “regulations” and no public review or rulemaking procedure was undertaken for the WCAG. The consortium that publishes the WCAG is free to amend or change this guidance at any time, and has in fact, done so several times. The WCAG standards were never intended as law and are intentionally and inherently vague. To see this the Court need only look at the WCAG 2.0 guidelines, for example: “3.1.6 Pronunciation: A mechanism is available for identifying specific pronunciation of words where meaning of the words, in context, is ambiguous without knowing the pronunciation.” See also 1.3.2 Meaningful Sequence: When the sequence in which content is presented affects its meaning, a correct reading sequence can be programmatically determined. See https://www.w3.org/TR/UNDERSTANDING-WCAG20. The DOJ has never stated that the ADA requires that private businesses that operate a website for the public to use must comply with these standards. Whatever the merits of these standards, it is fundamentally unfair to Defendant to be hauled into federal court and sued for injunctive relief, damages, and attorneys’ fees, due to its alleged failure to meet them. In effect, Plaintiff is attempting to seamlessly apply the law that has developed for construction-related accessibility lawsuits to websites. However, there are fundamentally stark differences – there are clear, enforceable guidelines for construction-related ADA claims, but none for websites. In Botosan, the Ninth Circuit denied a due process challenge to the ADA because of the detailed and Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 11 of 25 Page ID #:97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY comprehensive regulations that had been issued. 216 F.3d at 836-37. The Court found that the ADA was not vague as to its requirements precisely because DOJ has printed a detailed handbook containing “numerous diagrams and specifications explaining the types of modifications and auxiliary aids (e.g., handrails, grab bars, ramps) that a building must install to be ADA compliant.” Id. at 836-37. The Court found that, taking the ADA “together with administrative regulations and interpretations” the readily achievable requirement was “sufficiently specific to put the owner of a public accommodation on notice of what is required by Title III.” Id. at 836; citing U.S. v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir. 1992), cert denied, 507 U.S. 921 (1993) (explaining that administrative regulations and interpretations may provide sufficient clarification to save an otherwise vague statute). As there are no standards, there are no specific and demonstrable means by which Defendant can hope to meet. In other words, the law, as it currently stands, “fails to articulate comprehensible standards to which a person’s conduct must conform.” Botosan, 216 F.3d at 836 (observing ADA would be vague if “so indefinite in its terms that it fails to articulate comprehensible standards to which … to conform.”); see also Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (A statute is vague not when it prohibits conduct according “to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.”). Case-law consistently re-affirms the basic principle. See e.g., 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 ADA Accessibility Guidelines (‘ADAAG’). See 28 C.F.R. § 36.406(a); 28 C.F.R. pt. 36, app. A. Promulgated by the Attorney General to ‘carry out the provisions’ of the ADA, 42 U.S.C. § 12186(b), these guidelines ‘lay out the technical structural requirements of places of public accommodation.”); Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 12 of 25 Page ID #:98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY 1080-81 (9th Cir. 2004); see also Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 714 (D. Or. 1997) (“The regulations establish a national standard for minimum levels of accessibility in all new facilities.”). The Ninth Circuit has explained “[t]he ADAAG provides the objective contours of the standard that architectural features must not impede disabled individuals’ full and equal enjoyment of accommodations.” Chapman, 631 F.3d at 945 (emphasis added); see also Pascuiti v. N.Y. Yankees, 87 F. Supp. 2d 221, 225 (S.D.N.Y. 1999) (quoting a letter where the DOJ stated it “consider[ed] any element in a facility that does not meet or exceed the requirements set forth in the [ADAAG] to be a barrier to access”). Here, it is undisputed that there are no objective standards by which Defendant’s conduct can be adjudged. Until there is a specific and adopted accessibility standard that the DOJ requires compliance with, there can be no finding that a private entity violates the ADA (or the Unruh Act). To hold otherwise would violate bedrock principles of due process of law and fundamental fairness. 3. The Court Should Dismiss Or Stay This Lawsuit Pursuant To the Primary Jurisdiction Doctrine. “The primary jurisdiction doctrine allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008) (affirming dismissal of case referring issue of “slamming” – a novel and technical question of federal telecommunications policy – to Federal Communications Commission for consideration in the first instance). “The doctrine is a ‘prudential’ one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” Id. Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 13 of 25 Page ID #:99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Primary jurisdiction is appropriately used if a claim “requires regulation of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency” and “if protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.” Id. citing Brown v. MCI WorldCom Network Servs., 277 F.3d 1166 (9th Cir. 2002); see also Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 782 (9th Cir. 2002) (referral to Copyright Office to determine extent of available remedy where no detailed rules by office had been created for copyright cancellation); MCI Comm. Corp. v. American Tel. & Tel. Co., 496 F.2d 214, 222 (3d Cir. 1974) (granting stay and deferral to the agency under primary jurisdiction doctrine because determining the issues involved “the comparative evaluation of complex technical, economic, and policy factors, as well as consideration of the public interest” that should be made by the agency); Ferrare v. IDT Energy, Inc., 2015 WL 3622883, at *3-4 (E.D. Pa. 2015) (granting stay under primary jurisdiction doctrine because the agency promulgated the controlling regulations and had the relevant technical expertise, and the issues pending before the agency overlapped with the claims in the lawsuit). While there is no fixed formula for applying the doctrine, the Ninth Circuit traditionally applies the doctrine when four factors are met: “(1)[a] need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration.” Clark, 523 F.3d at 1115. Here, each of these factors applies. The fundamental issue in this case, website accessibility, is something that needs to be resolved and is currently in the process of being evaluated by the DOJ. Congress expressly charged the Attorney General with the task of promulgating regulations clarifying how public accommodations must meet its statutory obligations of providing access to the Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 14 of 25 Page ID #:100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY public. AMC, 549 F.3d at 763; 42 U.S.C. § 12186(b). The ADA comprehensively regulates public accommodations. There is no doubt that website accessibility is a subject that requires significant expertise in establishing and uniformity in administration. Otherwise, covered entities will be forced to defend their websites on a case-by-case basis in varying jurisdictions and subject to duplicative and inconsistent decisions. Plaintiff’s case is premised upon the idea that the WCAG has established comprehensive guidelines for regulating websites and those guidelines should be elevated to the force of law entitling her to injunctive relief, damages, and attorneys’ fees. Left unsaid is that the DOJ has been evaluating the appropriateness of doing so for several years – a testament to the complexity of the problem. This question is better left to the DOJ given its nationwide impact on the standards for web accessibility. Therefore, the Court should dismiss or stay this case in favor of application of the primary jurisdiction doctrine until such time as the DOJ has finalized rules for website accessibility. 4. Plaintiff Cannot Make An End-Run Around The DOJ’s Rulemaking Authority. Instead of deferring to the expertise of the administrative agency, Plaintiff is attempting to short-circuit the DOJ’s public notice and comment period for establishing technical standards and rules for website accessibility. It is inappropriate for Plaintiff to substitute his own judgment about what constitutes a broadly applicable minimum standard for accessibility in place of the rigorous rulemaking process, which brings together a variety of stakeholders, in fashioning rules to which all can agree. As discussed above, the DOJ, in July of 2010, announced it was considering developing regulations that would apply to private websites to ensure an appropriate level of accessibility to disabled individuals. See NOPR, 2010 WL 2888003. In making that announcement, the DOJ solicited public comments from the disabled Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 15 of 25 Page ID #:101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY community and industry groups in the hopes of developing technical standards for websites. Given the DOJ’s position that the internet is a place of public accommodation subject to coverage by the ADA, the DOJ expressly acknowledged a need for government action because “the Internet ha[d] been governed by a variety of voluntary standards or structures developed through nonprofit organizations using multinational collaborative efforts” including the WCAG. Id. at *43463. The DOJ recognized the necessity of a “clear requirement that provides the disability community consistent access to Web sites and covered entities clear guidance on what is required under the ADA.” Id. Frustratingly, even the WCAG contains three conformance levels: A, AA, and AAA, which define different levels of success. Id. at *43465. Therefore, the DOJ decided to solicit comments from the general public as to whether it should adopt WCAG, and if so, what level of success criteria it should require. Id. The DOJ also requested feedback on whether to adopt section 508 standards instead of the WCAG, how it should address the ongoing changes to the WCAG and section 508 standards, and whether the DOJ should adopt performance standards instead of specific technical standards given the ever-changing nature of websites. Id. The need for public comment and input on these questions is self-evident, along with the complexity of the issue. The DOJ further recognized that, once it publishes a final rule, it needed to set an effective date for the application of any new regulations requiring websites covered by the ADA to be accessible. Id. The DOJ’s initial proposal was six months for new websites and two years for existing websites – recognizing that Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 16 of 25 Page ID #:102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY businesses would be entitled to a fair notice period before they would be held to that standard. Id.2 To illustrate the problem with the WCAG’s inherent vagueness and lack of utility as a regulation, screen shots from different online web accessibility tools demonstrate the different ways in which a website can fail WCAG 2.0 AA compliance. Attached as Exhibit B is a screenshot of the DOJ website homepage that shows 10 “errors,”, 19 “alerts”, and “7” contrast errors (among other things). Attached as Exhibit C is a screenshot of the same website through Google Chrome accessibility tool, that shows 28 “severe” errors, and 20 “warnings.” As another example, Exhibit D shows Plaintiff’s counsel’s website (which presumably has been offline for months because of this precise issue) through the WAVE tool, which shows 3 “errors” and 2 “alerts” – even though it has very little text. For comparison’s sake, Google’s accessibility audit for the same website shows 4 “warnings.” (Exh. E). Despite this acknowledgement of the problems the lack of standards has created, the DOJ has thus far failed to issue a final rule. The latest development for regulation of Title III websites is that, on July 28, 2016, the DOJ announced an extension until October 7, 2016 for the public to submit comments for Title II (state and local government) websites. As part of the announcement, the DOJ stated that “further delays in this Title II rulemaking will, therefore, have the effect of hindering Title III Web rulemaking’s timeline as well.” This aptly demonstrates that attempting to enforce web accessibility through litigation when no enforceable standards exist is inappropriate. Courts, including the Ninth Circuit, have criticized the DOJ for attempting to regulate through litigation – rather than through the tough work of crafting regulations. For example, 2 For instance, under the 1991 regulations, new construction under Title III had to comply with the new design standards within eighteen months after the ADA standards were first published. See 28 CFR 36.401(a). Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 17 of 25 Page ID #:103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY in U.S. Hoyts v. Cinema Corp., 380 F.3d 558, 569 (1st Cir. 2004), the First Circuit explained that while “the [DOJ] is free to interpret reasonably an existing regulation without formally amending it; but where . . . the interpretation has the practical effect of altering the regulation, a formal amendment – almost certainly prospective and after notice and comment – is the proper course.” accord U.S. v. AMC, 549 F.3d at 769 (sharing First Circuit’s frustration that “the government could have solved the [interpretation] problem, without time-and cost consuming litigation, by merely clarifying . . . through amendment or some other public announcement”); Lara v. Cinemark USA, Inc., 207 F.3d at 789 (holding that in the absence of more specific regulations, the Court would not side with the DOJ’s “litigating position”); see also Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 100 (1997) (explaining that APA rulemaking would be required if a new agency position effected substantive change in the regulations). Judicial fiat is, quite simply, the inappropriate method by which businesses should be compelled to modify their websites to a particular set of technical standards. As explained aptly by the California Court of Appeal in Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881 (1975): “The varied and distinctive nature of the numerous handicaps from which so many people suffer suggests, however, that the problem is one which the legislative branch of government is uniquely equipped to solve. It is in the legislative halls where the numerous factors involved can be weighed and where the needs can be properly balanced against the economic burdens which of necessity will have to be borne by the private sector of the economy in providing a proper and equitable solution to the problem.” Id. at 888 (denying disabled plaintiff’s claim where defendant’s conduct was not prohibited by any adopted guideline). Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 18 of 25 Page ID #:104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY B. Plaintiff Cannot Show That An Enforceable Standard Has Been Violated. One of the bedrock principles of disability access litigation is that, where a plaintiff contends that the defendant’s facility violates the ADA, the plaintiff must establish the existence of a standard, its applicability, and a violation. Courts repeatedly and consistently dismiss claims when the plaintiff cannot meet his burden. In White v. Divine Investments, Inc., the Ninth Circuit addressed a claim by a Plaintiff that she “may maintain a discrimination claim under Title III of the ADA for a violation of her ‘full and equal enjoyment’ of River Mart, irrespective of the ADAAG.” 286 Fed.Appx. 344, 346 (9th Cir. 2007). Plaintiff argued that the ADA contained an independent cause of action that turned on “whether she subjectively enjoyed her visit” to the store. The Ninth Circuit disagreed. It reasoned: “No court has ever held that a Title III discrimination action based on the design of a public accommodation may be maintained in the absence of an ADAAG violation, nor does the text of the statute support such a reading. In Title III design cases, the ADAAG defines the discrimination, and absent an ADAAG violation, no discrimination has occurred.” Id. at 346. Other cases are in accord. See, e.g., Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1066 (E.D. Cal. 2006) (holding that “the ADAAG constitutes the exclusive standards under Title III of the ADA”); Norkunas v. Seahorse NB, LLC, 444 Fed. Appx. 412, 416 (11th Cir. 2011) (affirming grant of summary judgment where district court properly found federal scoping regulations existed for alleged barrier and observing “it is not necessary for [defendant] to bring the dune walkover into compliance with the ADA, for regulations governing beach walkways do not exist”); Resnick v. Magical Cruise Co., 148 F. Supp. 2d 1298, 1305 (M.D. Fla. 2001) (granting defendant’s motion for summary judgment because there was Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 19 of 25 Page ID #:105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY “no basis under the current ADA scheme for a plaintiff to bring a claim that a cruise ship has failed to adhere to guidelines which have been declared inapplicable to cruise ships by the departments charged with promulgation of such guidelines;” as a result, “builders, owners, and proprietors of cruise ships have not been afforded notice of the standards with which they are required to comply, and absent such standards may not be subjected to abstract suits”); Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881, 888-889 (1976) (no cause of action under Unruh Act unless alleged barrier to access also violates a structural access standard); Coronado v. Cobblestone Village Community Rentals, 163 Cal. App. 4th 831, 841, 844 (2008), overruled on other grounds by Munson v. Del Taco, Inc., 46 Cal. 4th 661 (2009) (cause of action for disability access based on existence of structural barrier dependent on whether violation constituted a violation of access standard). Indeed, even when a specific access standard does exist, courts still require plaintiffs to show that the access standard actually applies to the subject property in light of its construction and alteration history. See, e.g. Blackwell v. City and County of San Francisco, 506 Fed. Appx. 585, 587 (9th Cir. 2013) (“The metal elevator cover, which was installed sometime before the late 1970’s, predates the adoption in 1981 of new regulations concerning requirements for handicapped accessibility…For that reason, it is not required to comply with the accessibility standards in that title.”); Disabled Americans for Equal Access, Inc. v. Compra Hospital Pavia, Inc., 2004 WL 5568603 (D. Puerto Rico 2004) (denying unopposed motion for summary judgment where plaintiff failed to establish construction/alteration history which would yield applicable standard); Gray v. JP Morgan Chase Bank, 2012 WL 1340315, *3 (C.D. Cal. 2012) (dismissing disability access claims because plaintiff failed to allege facts showing what building code applied). In this case, Plaintiff’s allegations fail to show a violation of any applicable access standard. Thus, all of his claims must be dismissed. Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 20 of 25 Page ID #:106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY C. Defendant’s Website Is Compliant With The ADA. Given the absence of any website standards, the DOJ has stated: “The Department has taken the position that covered entities with inaccessible websites may comply with the ADA’s requirement 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.” NOPR, 2010 WL 2888003, at*43466 (July 26, 2010). In this case, Defendant provides access to its visually impaired customers through a staffed telephone line. Indeed, Defendant’s website contains accessibility banners that direct users with the following statement: “If You Are Using A Screen Reader And Are Having Problems Using This Website, Please Call 1-888-300-1515 For Assistance.” (UMF 1). Dave & Buster’s provides customer support with a live, customer service representative through that number. If a blind or visually impaired individual calls that number, Dave & Buster’s representative can provide assistance with the Website. (UMF 2). Customers may also directly call a Dave & Buster’s restaurant to order food, purchase goods, and/or ask questions. (UMF 3). D. Plaintiff’s Complaint Fails To Provide “Fair Notice” Of The Alleged Barriers On Defendant’s Website. As discussed above, Plaintiff’s Complaint alleges that Defendant’s website contains “barriers” to access. Plaintiff generally identifies the barriers on the website as lack of alternative text, empty links that contain no text, redundant links, and linked images missing alternative text. (Complaint ¶ 24). These sorts of vague allegations utterly fail for lack of fair notice. In Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir. 2011), the Ninth Circuit confirmed that a plaintiff must identify all alleged access barriers in his complaint in order to give the defendant fair notice. There, the plaintiff attempted to hide the injunctive relief he was seeking to increase the nuisance value of his ADA lawsuit and prevent the defendant from actually remedying the barriers and mooting his claims at summary Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 21 of 25 Page ID #:107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY judgment. The plaintiff identified some barriers in his complaint, others in a proposed amended complaint, others in an ENE statement, and still others in his expert report. The Ninth Circuit chastised the plaintiff and adopted a bright-line rule that all barriers must be identified in the complaint: “Plaintiff’s counsel later explained that his delays in identifying the barriers at the facility were part of his legal strategy: he purposefully ‘forces the defense to wait until expert disclosures (or discovery) before revealing a complete list of barriers,’ because otherwise a defendant could remove all the barriers prior to trial and moot the entire case. . . a plaintiff must identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair notice of barriers identified elsewhere.” Id. at fn. 7, 909. Courts routinely dismiss lawsuits when the alleged barriers are not identified with enough specificity to allow the defendant to investigate the claims. Without this specific information, defendants are left to speculate regarding what is allegedly wrong with their websites and where the alleged barriers are located. See Gray v. County of Kern, 2015 WL 7352302 (E.D. Cal. Nov. 19, 2015) (granting summary judgment to defendant in part due to lack of fair notice because plaintiff’s complaint had scant details regarding the alleged barriers leaving defendant to “guess their location and specific barriers related to plaintiff’s disability”); Paulick v. Starwood Hotels & Resorts Worldwide, Inc., 2012 WL 2990760, *12-13 (N.D. Cal. 2012) (requiring that specific barriers had to be identified in the complaint and holding that “allegations listing general categories of barriers simply are not enough to provide a defendant with fair notice regardless of what may be included in a plaintiff’s expert report”); Strong v. Walgreen Co., 2009 WL 3711930, *4 (C.D. Cal. 2009) (same). Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 22 of 25 Page ID #:108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Here, Plaintiff’s Complaint does not identify the specific images Plaintiff contends lack alternative text, the specific links that Plaintiff contends are inaccessible, or the specific problems he claims to have encountered on the website. It is not clear that any of these alleged items constitute “barriers” to access even if they were true. For instance, a decorative image that has no impact on the function of a website would be confusing to a blind individual if it was picked up by screen reading software and spoken aloud. The generalized description of Plaintiff’s allegations forces Defendant to guess at the nature of Plaintiff’s specific complaints. Does Plaintiff contend a single image lacks equivalent text or 500 images? Which images? Defendant’s website is complex and multilayered, making specific notice crucial – just as the Gray court did not require defendant to hunt down what specific showers were inaccessible and determine what restroom facilities were unusable. As a result, Plaintiff’s claims fail because he has failed to provide fair notice of the specific barriers he alleges exist. E. Plaintiff’s Unruh Act Claim Fails Because The Complaint Does Not Adequately Allege That Defendant Intentionally Discriminates Against Him. Unless an Unruh Act claim is premised exclusively upon the ADA, it may be maintained only if Plaintiff pleads and proves “intentional discrimination in public accommodations in violation of the terms of the Act.” Munson v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009) quoting Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1175 (1991). The case of Earll v. eBay, Inc., 2011 WL 3955485 (N.D. Cal. Sept. 7, 2011), aff’d 599 Fed. Appx. 695 (9th Cir. 2015) is instructive. There, the plaintiff alleged that defendant eBay affirmatively discriminated against the deaf because (1) “eBay has gone out of its way to design a system that deaf and hard of hearing persons cannot use,” (2) eBay refused to implement “easy and inexpensive” solutions, and (3) that she had multiple communications with eBay wherein she was suggested to Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 23 of 25 Page ID #:109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY “enlist the help of a hearing person.” Id. at *3. The district court found that these allegations were either conclusory, and therefore, lacked the requisite factual support to make out a claim for intentional discrimination, or, even if true, did not imply that eBay was unwilling or unable to remedy the situation. Id. The Ninth Circuit agreed and found that eBay’s “failure to provide a deaf- accessible alternative to its aural identification system does not amount to willful, affirmative misconduct sufficient to constitute intentional discrimination under the Unruh Act.” 599 Fed. Appx. at 696; see also Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (broadly applicable policy of displaying online video without closed captioning applied equally to all visitors and, therefore, did not constitute intentional discrimination); Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012), aff’d, 600 Fed. Appx. 508 (9th Cir. 2015) (plaintiff failed to allege Unruh Act claim because failure to caption ‘meaningful amount’ of streaming library not ‘willful, affirmative misconduct’); Young v. Facebook, 790 F. Supp. 2d 1110 (N.D. Cal. 2011) (no Unruh Act claim because Facebook’s system treated all users in the same cold, automated way). Here, as demonstrated above, Plaintiff’s Unruh Act claim cannot be premised upon violations of the ADA and thus he was required to plead facts showing intentional discrimination. However, Plaintiff merely alleges that “Defendant’s actions constitute intentional discrimination against Plaintiff on the basis of a disability, in violation of the Unruh Act, Civil Code §51 et seq., because Defendant has constructed a website that is inaccessible to Plaintiff, Defendant maintains the website in an inaccessible form, and Defendant has failed to take actions to correct these barriers.” (Complaint ¶ 48). Under the above authority, these conclusory allegations are patently inadequate to show intentional discrimination. / / / / / / / / / Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 24 of 25 Page ID #:110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- Case No. 2:17-cv-01138-PSG-AGR SMRH:483163163.1 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY IV. CONCLUSION For all of the foregoing reasons, Defendant respectfully requests that the Court grant Defendant’s motion and dismiss Plaintiff’s case, or in the alternative, dismiss or stay Plaintiff’s case pursuant to the doctrine of primary jurisdiction. Dated: June 16, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Gregory F. Hurley GREGORY F. HURLEY Attorneys for Defendant DAVE & BUSTER’S, INC. Case 2:17-cv-01138-PSG-AGR Document 21-1 Filed 06/16/17 Page 25 of 25 Page ID #:111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendant DAVE & BUSTER’S, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION SEAN GORECKI, an individual, Plaintiff, v. DAVE & BUSTER’S , INC., a Missouri corporation; and DOES 1-10, inclusive, Defendant. Case No. 2:17-cv-01138-PSG-AGR Honorable Philip S. Gutierrez SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT DAVE & BUSTER’S, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Hearing Date: August 7, 2017 Hearing Time: 1:30 p.m. Courtroom: 6A Action Filed: February 13, 2017 Trial Date: February 13, 2018 Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 1 of 18 Page ID #:112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS Defendant Dave & Buster’s, Inc. (“Defendant” or “Dave & Buster’s”) hereby submits its Statement of Uncontroverted Facts and Conclusions of Law in support of its Motion for Summary Judgment or, in the Alternative, Dismissal or Stay. STATEMENT OF UNCONTROVERTED FACTS UNCONTROVERTED FACTS SUPPORTING EVIDENCE 1. Dave & Buster’s Website, www.daveandbusters.com, (the “Website”) contains an accessibility banner that directs users who access the Website with a screen reader with the statement: “If You Are Using A Screen Reader And Are Having Problems Using This Website, Please Call 1-888-300- 1515 For Assistance.” Declaration of Kerri Walters (“Walters Decl.”) ¶ 2-3, Exh. 1. 2. Dave & Buster’s provides customer support with a live, customer service representative through that number. If a blind or visually impaired individual calls that number, Dave & Buster’s representative can provide assistance with the Website. Walters Decl. ¶2 3. Customers may also directly call their local Dave & Buster’s restaurant to order food, purchase goods, and/or ask questions. Walters Decl. ¶ 4 Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 2 of 18 Page ID #:113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS CONCLUSIONS OF LAW I. ARGUMENT A. Plaintiff’s Lawsuit Violates Defendant’s Right To Due Process And Should Be Dismissed Pursuant To The Primary Jurisdiction Doctrine. 1. Due Process Demands That Parties Know, In Advance, What Conduct Complies With The Law. “Due process requires that the government provide citizens and other actors with sufficient notice as to what behavior complies with the law. Liberty depends on no less.” U.S. v. AMC Entertainment, Inc., 549 F.3d 760, 768 (9th Cir. 2008); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“Because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”); Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000) (“The due process clause ... guarantees individuals the right to fair notice of whether their conduct is prohibited by law.”); PHH Corporation v. Consumer Fin’l Prot. Bureau, 839 F.2d 1, 46 (D.C. Cir. 2016) (due process requires agencies to “provide regulated parties fair warning of the conduct a regulation prohibits or requires.”); Ala. Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030, 1035 (D.C. Cir. 1999) (“Those regulated by an administrative agency are entitled to know the rules by which the game will be played.”). As discussed above, the Ninth Circuit’s decision in AMC is instructive. In AMC, the Ninth Circuit was confronted with the question of whether the ADA required theater owners to retroactively incorporate a comparable viewing angle requirement in movies theaters. At issue was the interpretation of a regulation that required “lines of sight comparable to those for members of the general public.” That regulation was ambiguous and it was unclear whether “lines of sight” simply referenced an unobstructed view of the screen or whether that similarly required comparable viewing angles. This issue was litigated in courts throughout the Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 3 of 18 Page ID #:114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS country. However, the first time that the DOJ announced its position on the issue was in an amicus brief in the District Court for the Western District of Texas in a matter entitled Lara v. Cinemark USA, Inc., 1998 WL 1048497, at *2 (W.D. Tex. Aug. 21, 1998), rev’d, 207 F.3d 783 (5th Cir. 2000). Ultimately, the Ninth Circuit, in another opinion, announced that the regulation did require comparable viewing angles for disabled patrons (the Fifth Circuit in Lara disagreed). As the courts grappled with the issue, the DOJ brought a lawsuit against AMC arguing that AMC was required to retrofit several theaters, including those built before the DOJ announced its interpretation of the regulation in the Lara amicus brief. The Ninth Circuit reversed the District Court’s injunction on due process grounds. The AMC Court observed: “In other words, the capacity of in-house counsel or others to read correctly legislative tea leaves does not alleviate the government from its obligation to fashion coherent regulations that put citizens of ‘ordinary intelligence’ on notice as to what the law requires of them.” Id. at 770; see also Botosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir. 2000) (“The ADA would be vague only if it is so indefinite in its terms that it fails to articulate comprehensible standards to which a person’s conduct must conform.”). 2. The Lack Of Objective Standards Violates Due Process. This lawsuit, like Plaintiff’s suit against Domino’s, is a classic example of overreach that is fundamentally unfair and violates important due process principles. Plaintiff’s case is exclusively premised upon Defendant’s alleged failure to comply with WCAG 2.0, a set of vague guidelines that have been published by private parties. These guidelines were never intended to be “regulations” and no public review or rulemaking procedure was undertaken for the WCAG. The consortium that publishes the WCAG is free to amend or change this guidance at any time, and has in fact, done so several times. The WCAG standards were never intended as law and are intentionally and inherently vague. To see this the Court need only look at the WCAG 2.0 guidelines, for example: “3.1.6 Pronunciation: A mechanism is Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 4 of 18 Page ID #:115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS available for identifying specific pronunciation of words where meaning of the words, in context, is ambiguous without knowing the pronunciation.” See also 1.3.2 Meaningful Sequence: When the sequence in which content is presented affects its meaning, a correct reading sequence can be programmatically determined. See https://www.w3.org/TR/UNDERSTANDING-WCAG20. The DOJ has never stated that the ADA requires that private businesses that operate a website for the public to use must comply with these standards. Whatever the merits of these standards, it is fundamentally unfair to Defendant to be hauled into federal court and sued for injunctive relief, damages, and attorneys’ fees, due to its alleged failure to meet them. In effect, Plaintiff is attempting to seamlessly apply the law that has developed for construction-related accessibility lawsuits to websites. However, there are fundamentally stark differences – there are clear, enforceable guidelines for construction-related ADA claims, but none for websites. In Botosan, the Ninth Circuit denied a due process challenge to the ADA because of the detailed and comprehensive regulations that had been issued. 216 F.3d at 836-37. The Court found that the ADA was not vague as to its requirements precisely because DOJ has printed a detailed handbook containing “numerous diagrams and specifications explaining the types of modifications and auxiliary aids (e.g., handrails, grab bars, ramps) that a building must install to be ADA compliant.” Id. at 836-37. The Court found that, taking the ADA “together with administrative regulations and interpretations” the readily achievable requirement was “sufficiently specific to put the owner of a public accommodation on notice of what is required by Title III.” Id. at 836; citing U.S. v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir. 1992), cert denied, 507 U.S. 921 (1993) (explaining that administrative regulations and interpretations may provide sufficient clarification to save an otherwise vague statute). Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 5 of 18 Page ID #:116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS As there are no standards, there are no specific and demonstrable means by which Defendant can hope to meet. In other words, the law, as it currently stands, “fails to articulate comprehensible standards to which a person’s conduct must conform.” Botosan, 216 F.3d at 836 (observing ADA would be vague if “so indefinite in its terms that it fails to articulate comprehensible standards to which … to conform.”); see also Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (A statute is vague not when it prohibits conduct according “to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.”). Case-law consistently re-affirms the basic principle. See e.g., 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 ADA Accessibility Guidelines (‘ADAAG’). See 28 C.F.R. § 36.406(a); 28 C.F.R. pt. 36, app. A. Promulgated by the Attorney General to ‘carry out the provisions’ of the ADA, 42 U.S.C. § 12186(b), these guidelines ‘lay out the technical structural requirements of places of public accommodation.”); Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir. 2004); see also Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 714 (D. Or. 1997) (“The regulations establish a national standard for minimum levels of accessibility in all new facilities.”). The Ninth Circuit has explained “[t]he ADAAG provides the objective contours of the standard that architectural features must not impede disabled individuals’ full and equal enjoyment of accommodations.” Chapman, 631 F.3d at 945 (emphasis added); see also Pascuiti v. N.Y. Yankees, 87 F. Supp. 2d 221, 225 (S.D.N.Y. 1999) (quoting a letter where the DOJ stated it “consider[ed] any element in a facility that does not meet or exceed the requirements set forth in the [ADAAG] to be a barrier to access”). Here, it is undisputed that there are no objective standards by which Defendant’s conduct can be adjudged. Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 6 of 18 Page ID #:117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS Until there is a specific and adopted accessibility standard that the DOJ requires compliance with, there can be no finding that a private entity violates the ADA (or the Unruh Act). To hold otherwise would violate bedrock principles of due process of law and fundamental fairness. 3. The Court Should Dismiss Or Stay This Lawsuit Pursuant To the Primary Jurisdiction Doctrine. “The primary jurisdiction doctrine allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008) (affirming dismissal of case referring issue of “slamming” – a novel and technical question of federal telecommunications policy – to Federal Communications Commission for consideration in the first instance). “The doctrine is a ‘prudential’ one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” Id. Primary jurisdiction is appropriately used if a claim “requires regulation of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency” and “if protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.” Id. citing Brown v. MCI WorldCom Network Servs., 277 F.3d 1166 (9th Cir. 2002); see also Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 782 (9th Cir. 2002) (referral to Copyright Office to determine extent of available remedy where no detailed rules by office had been created for copyright cancellation); MCI Comm. Corp. v. American Tel. & Tel. Co., 496 F.2d 214, 222 (3d Cir. 1974) (granting stay and deferral to the agency under primary jurisdiction doctrine because determining the issues involved “the comparative evaluation of complex technical, economic, and policy factors, as well as consideration of the public interest” that Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 7 of 18 Page ID #:118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS should be made by the agency); Ferrare v. IDT Energy, Inc., 2015 WL 3622883, at *3-4 (E.D. Pa. 2015) (granting stay under primary jurisdiction doctrine because the agency promulgated the controlling regulations and had the relevant technical expertise, and the issues pending before the agency overlapped with the claims in the lawsuit). While there is no fixed formula for applying the doctrine, the Ninth Circuit traditionally applies the doctrine when four factors are met: “(1)[a] need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration.” Clark, 523 F.3d at 1115. Here, each of these factors applies. The fundamental issue in this case, website accessibility, is something that needs to be resolved and is currently in the process of being evaluated by the DOJ. Congress expressly charged the Attorney General with the task of promulgating regulations clarifying how public accommodations must meet its statutory obligations of providing access to the public. AMC, 549 F.3d at 763; 42 U.S.C. § 12186(b). The ADA comprehensively regulates public accommodations. There is no doubt that website accessibility is a subject that requires significant expertise in establishing and uniformity in administration. Otherwise, covered entities will be forced to defend their websites on a case-by-case basis in varying jurisdictions and subject to duplicative and inconsistent decisions. Plaintiff’s case is premised upon the idea that the WCAG has established comprehensive guidelines for regulating websites and those guidelines should be elevated to the force of law entitling her to injunctive relief, damages, and attorneys’ fees. Left unsaid is that the DOJ has been evaluating the appropriateness of doing so for several years – a testament to the complexity of the problem. This question is better left to the DOJ given its nationwide impact on the standards for web Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 8 of 18 Page ID #:119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS accessibility. Therefore, the Court should dismiss or stay this case in favor of application of the primary jurisdiction doctrine until such time as the DOJ has finalized rules for website accessibility. 4. Plaintiff Cannot Make An End-Run Around The DOJ’s Rulemaking Authority. Instead of deferring to the expertise of the administrative agency, Plaintiff is attempting to short-circuit the DOJ’s public notice and comment period for establishing technical standards and rules for website accessibility. It is inappropriate for Plaintiff to substitute his own judgment about what constitutes a broadly applicable minimum standard for accessibility in place of the rigorous rulemaking process, which brings together a variety of stakeholders, in fashioning rules to which all can agree. As discussed above, the DOJ, in July of 2010, announced it was considering developing regulations that would apply to private websites to ensure an appropriate level of accessibility to disabled individuals. See NOPR, 2010 WL 2888003. In making that announcement, the DOJ solicited public comments from the disabled community and industry groups in the hopes of developing technical standards for websites. Given the DOJ’s position that the internet is a place of public accommodation subject to coverage by the ADA, the DOJ expressly acknowledged a need for government action because “the Internet ha[d] been governed by a variety of voluntary standards or structures developed through nonprofit organizations using multinational collaborative efforts” including the WCAG. Id. at *43463. The DOJ recognized the necessity of a “clear requirement that provides the disability community consistent access to Web sites and covered entities clear guidance on what is required under the ADA.” Id. Frustratingly, even the WCAG contains three conformance levels: A, AA, and AAA, which define different levels of success. Id. at *43465. Therefore, the DOJ Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 9 of 18 Page ID #:120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS decided to solicit comments from the general public as to whether it should adopt WCAG, and if so, what level of success criteria it should require. Id. The DOJ also requested feedback on whether to adopt section 508 standards instead of the WCAG, how it should address the ongoing changes to the WCAG and section 508 standards, and whether the DOJ should adopt performance standards instead of specific technical standards given the ever-changing nature of websites. Id. The need for public comment and input on these questions is self-evident, along with the complexity of the issue. The DOJ further recognized that, once it publishes a final rule, it needed to set an effective date for the application of any new regulations requiring websites covered by the ADA to be accessible. Id. The DOJ’s initial proposal was six months for new websites and two years for existing websites – recognizing that businesses would be entitled to a fair notice period before they would be held to that standard. Id.1 To illustrate the problem with the WCAG’s inherent vagueness and lack of utility as a regulation, screen shots from different online web accessibility tools demonstrate the different ways in which a website can fail WCAG 2.0 AA compliance. Attached as Exhibit B is a screenshot of the DOJ website homepage that shows 10 “errors,”, 19 “alerts”, and “7” contrast errors (among other things). Attached as Exhibit C is a screenshot of the same website through Google Chrome accessibility tool, that shows 28 “severe” errors, and 20 “warnings.” As another example, Exhibit D shows Plaintiff’s counsel’s website (which presumably has been offline for months because of this precise issue) through the WAVE tool, which shows 3 “errors” and 2 “alerts” – even though it has very little text. For 1 For instance, under the 1991 regulations, new construction under Title III had to comply with the new design standards within eighteen months after the ADA standards were first published. See 28 CFR 36.401(a). Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 10 of 18 Page ID #:121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS comparison’s sake, Google’s accessibility audit for the same website shows 4 “warnings.” (Exh. E). Despite this acknowledgement of the problems the lack of standards has created, the DOJ has thus far failed to issue a final rule. The latest development for regulation of Title III websites is that, on July 28, 2016, the DOJ announced an extension until October 7, 2016 for the public to submit comments for Title II (state and local government) websites. As part of the announcement, the DOJ stated that “further delays in this Title II rulemaking will, therefore, have the effect of hindering Title III Web rulemaking’s timeline as well.” This aptly demonstrates that attempting to enforce web accessibility through litigation when no enforceable standards exist is inappropriate. Courts, including the Ninth Circuit, have criticized the DOJ for attempting to regulate through litigation – rather than through the tough work of crafting regulations. For example, in U.S. Hoyts v. Cinema Corp., 380 F.3d 558, 569 (1st Cir. 2004), the First Circuit explained that while “the [DOJ] is free to interpret reasonably an existing regulation without formally amending it; but where . . . the interpretation has the practical effect of altering the regulation, a formal amendment – almost certainly prospective and after notice and comment – is the proper course.” accord U.S. v. AMC, 549 F.3d at 769 (sharing First Circuit’s frustration that “the government could have solved the [interpretation] problem, without time-and cost consuming litigation, by merely clarifying . . . through amendment or some other public announcement”); Lara v. Cinemark USA, Inc., 207 F.3d at 789 (holding that in the absence of more specific regulations, the Court would not side with the DOJ’s “litigating position”); see also Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 100 (1997) (explaining that APA rulemaking would be required if a new agency position effected substantive change in the regulations). Judicial fiat is, quite simply, the inappropriate method by which businesses should be compelled to modify their websites to a particular set of technical Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 11 of 18 Page ID #:122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS standards. As explained aptly by the California Court of Appeal in Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881 (1975): “The varied and distinctive nature of the numerous handicaps from which so many people suffer suggests, however, that the problem is one which the legislative branch of government is uniquely equipped to solve. It is in the legislative halls where the numerous factors involved can be weighed and where the needs can be properly balanced against the economic burdens which of necessity will have to be borne by the private sector of the economy in providing a proper and equitable solution to the problem.” Id. at 888 (denying disabled plaintiff’s claim where defendant’s conduct was not prohibited by any adopted guideline). B. Plaintiff Cannot Show That An Enforceable Standard Has Been Violated. One of the bedrock principles of disability access litigation is that, where a plaintiff contends that the defendant’s facility violates the ADA, the plaintiff must establish the existence of a standard, its applicability, and a violation. Courts repeatedly and consistently dismiss claims when the plaintiff cannot meet his burden. In White v. Divine Investments, Inc., the Ninth Circuit addressed a claim by a Plaintiff that she “may maintain a discrimination claim under Title III of the ADA for a violation of her ‘full and equal enjoyment’ of River Mart, irrespective of the ADAAG.” 286 Fed.Appx. 344, 346 (9th Cir. 2007). Plaintiff argued that the ADA contained an independent cause of action that turned on “whether she subjectively enjoyed her visit” to the store. The Ninth Circuit disagreed. It reasoned: “No court has ever held that a Title III discrimination action based on the design of a public accommodation may be maintained in the absence of an ADAAG violation, nor does the text of the statute Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 12 of 18 Page ID #:123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS support such a reading. In Title III design cases, the ADAAG defines the discrimination, and absent an ADAAG violation, no discrimination has occurred.” Id. at 346. Other cases are in accord. See, e.g., Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1066 (E.D. Cal. 2006) (holding that “the ADAAG constitutes the exclusive standards under Title III of the ADA”); Norkunas v. Seahorse NB, LLC, 444 Fed. Appx. 412, 416 (11th Cir. 2011) (affirming grant of summary judgment where district court properly found federal scoping regulations existed for alleged barrier and observing “it is not necessary for [defendant] to bring the dune walkover into compliance with the ADA, for regulations governing beach walkways do not exist”); Resnick v. Magical Cruise Co., 148 F. Supp. 2d 1298, 1305 (M.D. Fla. 2001) (granting defendant’s motion for summary judgment because there was “no basis under the current ADA scheme for a plaintiff to bring a claim that a cruise ship has failed to adhere to guidelines which have been declared inapplicable to cruise ships by the departments charged with promulgation of such guidelines;” as a result, “builders, owners, and proprietors of cruise ships have not been afforded notice of the standards with which they are required to comply, and absent such standards may not be subjected to abstract suits”); Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881, 888-889 (1976) (no cause of action under Unruh Act unless alleged barrier to access also violates a structural access standard); Coronado v. Cobblestone Village Community Rentals, 163 Cal. App. 4th 831, 841, 844 (2008), overruled on other grounds by Munson v. Del Taco, Inc., 46 Cal. 4th 661 (2009) (cause of action for disability access based on existence of structural barrier dependent on whether violation constituted a violation of access standard). Indeed, even when a specific access standard does exist, courts still require plaintiffs to show that the access standard actually applies to the subject property in light of its construction and alteration history. See, e.g. Blackwell v. City and County of San Francisco, 506 Fed. Appx. 585, 587 (9th Cir. 2013) (“The metal Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 13 of 18 Page ID #:124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS elevator cover, which was installed sometime before the late 1970’s, predates the adoption in 1981 of new regulations concerning requirements for handicapped accessibility…For that reason, it is not required to comply with the accessibility standards in that title.”); Disabled Americans for Equal Access, Inc. v. Compra Hospital Pavia, Inc., 2004 WL 5568603 (D. Puerto Rico 2004) (denying unopposed motion for summary judgment where plaintiff failed to establish construction/alteration history which would yield applicable standard); Gray v. JP Morgan Chase Bank, 2012 WL 1340315, *3 (C.D. Cal. 2012) (dismissing disability access claims because plaintiff failed to allege facts showing what building code applied). In this case, Plaintiff’s allegations fail to show a violation of any applicable access standard. Thus, all of his claims must be dismissed. C. Defendant’s Website Is Compliant With The ADA. Given the absence of any website standards, the DOJ has stated: “The Department has taken the position that covered entities with inaccessible websites may comply with the ADA’s requirement 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.” NOPR, 2010 WL 2888003, at*43466 (July 26, 2010). In this case, Defendant provides access to its visually impaired customers through a staffed telephone line. Indeed, Defendant’s website contains accessibility banners that direct users with the following statement: “If You Are Using A Screen Reader And Are Having Problems Using This Website, Please Call 1-888-300-1515 For Assistance.” (UMF 1). Dave & Buster’s provides customer support with a live, customer service representative through that number. If a blind or visually impaired individual calls that number, Dave & Buster’s representative can provide assistance with the Website. (UMF 2). Customers may also directly call a Dave & Buster’s restaurant to order food, purchase goods, and/or ask questions. (UMF 3). Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 14 of 18 Page ID #:125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS D. Plaintiff’s Complaint Fails To Provide “Fair Notice” Of The Alleged Barriers On Defendant’s Website. As discussed above, Plaintiff’s Complaint alleges that Defendant’s website contains “barriers” to access. Plaintiff generally identifies the barriers on the website as lack of alternative text, empty links that contain no text, redundant links, and linked images missing alternative text. (Complaint ¶ 24). These sorts of vague allegations utterly fail for lack of fair notice. In Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir. 2011), the Ninth Circuit confirmed that a plaintiff must identify all alleged access barriers in his complaint in order to give the defendant fair notice. There, the plaintiff attempted to hide the injunctive relief he was seeking to increase the nuisance value of his ADA lawsuit and prevent the defendant from actually remedying the barriers and mooting his claims at summary judgment. The plaintiff identified some barriers in his complaint, others in a proposed amended complaint, others in an ENE statement, and still others in his expert report. The Ninth Circuit chastised the plaintiff and adopted a bright-line rule that all barriers must be identified in the complaint: “Plaintiff’s counsel later explained that his delays in identifying the barriers at the facility were part of his legal strategy: he purposefully ‘forces the defense to wait until expert disclosures (or discovery) before revealing a complete list of barriers,’ because otherwise a defendant could remove all the barriers prior to trial and moot the entire case. . . a plaintiff must identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair notice of barriers identified elsewhere.” Id. at fn. 7, 909. Courts routinely dismiss lawsuits when the alleged barriers are not identified with enough specificity to allow the defendant to investigate the claims. Without Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 15 of 18 Page ID #:126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS this specific information, defendants are left to speculate regarding what is allegedly wrong with their websites and where the alleged barriers are located. See Gray v. County of Kern, 2015 WL 7352302 (E.D. Cal. Nov. 19, 2015) (granting summary judgment to defendant in part due to lack of fair notice because plaintiff’s complaint had scant details regarding the alleged barriers leaving defendant to “guess their location and specific barriers related to plaintiff’s disability”); Paulick v. Starwood Hotels & Resorts Worldwide, Inc., 2012 WL 2990760, *12-13 (N.D. Cal. 2012) (requiring that specific barriers had to be identified in the complaint and holding that “allegations listing general categories of barriers simply are not enough to provide a defendant with fair notice regardless of what may be included in a plaintiff’s expert report”); Strong v. Walgreen Co., 2009 WL 3711930, *4 (C.D. Cal. 2009) (same). Here, Plaintiff’s Complaint does not identify the specific images Plaintiff contends lack alternative text, the specific links that Plaintiff contends are inaccessible, or the specific problems he claims to have encountered on the website. It is not clear that any of these alleged items constitute “barriers” to access even if they were true. For instance, a decorative image that has no impact on the function of a website would be confusing to a blind individual if it was picked up by screen reading software and spoken aloud. The generalized description of Plaintiff’s allegations forces Defendant to guess at the nature of Plaintiff’s specific complaints. Does Plaintiff contend a single image lacks equivalent text or 500 images? Which images? Defendant’s website is complex and multilayered, making specific notice crucial – just as the Gray court did not require defendant to hunt down what specific showers were inaccessible and determine what restroom facilities were unusable. As a result, Plaintiff’s claims fail because he has failed to provide fair notice of the specific barriers he alleges exist. E. Plaintiff’s Unruh Act Claim Fails Because The Complaint Does Not Adequately Allege That Defendant Intentionally Discriminates Against Him. Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 16 of 18 Page ID #:127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS Unless an Unruh Act claim is premised exclusively upon the ADA, it may be maintained only if Plaintiff pleads and proves “intentional discrimination in public accommodations in violation of the terms of the Act.” Munson v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009) quoting Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1175 (1991). The case of Earll v. eBay, Inc., 2011 WL 3955485 (N.D. Cal. Sept. 7, 2011), aff’d 599 Fed. Appx. 695 (9th Cir. 2015) is instructive. There, the plaintiff alleged that defendant eBay affirmatively discriminated against the deaf because (1) “eBay has gone out of its way to design a system that deaf and hard of hearing persons cannot use,” (2) eBay refused to implement “easy and inexpensive” solutions, and (3) that she had multiple communications with eBay wherein she was suggested to “enlist the help of a hearing person.” Id. at *3. The district court found that these allegations were either conclusory, and therefore, lacked the requisite factual support to make out a claim for intentional discrimination, or, even if true, did not imply that eBay was unwilling or unable to remedy the situation. Id. The Ninth Circuit agreed and found that eBay’s “failure to provide a deaf- accessible alternative to its aural identification system does not amount to willful, affirmative misconduct sufficient to constitute intentional discrimination under the Unruh Act.” 599 Fed. Appx. at 696; see also Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (broadly applicable policy of displaying online video without closed captioning applied equally to all visitors and, therefore, did not constitute intentional discrimination); Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012), aff’d, 600 Fed. Appx. 508 (9th Cir. 2015) (plaintiff failed to allege Unruh Act claim because failure to caption ‘meaningful amount’ of streaming library not ‘willful, affirmative misconduct’); Young v. Facebook, 790 F. Supp. 2d 1110 (N.D. Cal. 2011) (no Unruh Act claim because Facebook’s system treated all users in the same cold, automated way). Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 17 of 18 Page ID #:128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166807.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS Here, as demonstrated above, Plaintiff’s Unruh Act claim cannot be premised upon violations of the ADA and thus he was required to plead facts showing intentional discrimination. However, Plaintiff merely alleges that “Defendant’s actions constitute intentional discrimination against Plaintiff on the basis of a disability, in violation of the Unruh Act, Civil Code §51 et seq., because Defendant has constructed a website that is inaccessible to Plaintiff, Defendant maintains the website in an inaccessible form, and Defendant has failed to take actions to correct these barriers.” (Complaint ¶ 48). Under the above authority, these conclusory allegations are patently inadequate to show intentional discrimination. Dated: June 16, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Gregory F. Hurley GREGORY F. HURLEY Attorneys for Defendant YUM! BRANDS d/b/a PIZZA HUT Case 2:17-cv-01138-PSG-AGR Document 21-2 Filed 06/16/17 Page 18 of 18 Page ID #:129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:17-cv-01138-PSG-AGR SMRH:483165539.1 DECLARATION OF WALTERS ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendant, DAVE & BUSTER’S, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION SEAN GORECKI, Plaintiff, v. DAVE & BUSTER’S , INC., a Missouri corporation; and DOES 1-10, inclusive, Defendant. Case No. 2:17-cv-01138-PSG-AGR Honorable Philip S. Gutierrez DECLARATION OF KERRI WALTERS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Hearing Date: August 7, 2017 Hearing Time: 1:30 p.m. Courtroom: 6A Action Filed: February 13, 2017 Trial Date: February 13, 2018 Case 2:17-cv-01138-PSG-AGR Document 21-3 Filed 06/16/17 Page 1 of 2 Page ID #:130 Case 2:17-cv-01138-PSG-AGR Document 21-3 Filed 06/16/17 Page 2 of 2 Page ID #:131 Exhibit 1 Case 2:17-cv-01138-PSG-AGR Document 21-4 Filed 06/16/17 Page 1 of 2 Page ID #:132 Case 2:17-cv-01138-PSG-AGR Document 21-4 Filed 06/16/17 Page 2 of 2 Page ID #:133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:17-cv-01138-PSG-AGR SMRH:483166422.1 DECLARATION OF LEIMKUHLER ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendant, DAVE & BUSTER’S, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION SEAN GORECKI, an individual, Plaintiff, v. DAVE & BUSTER’S , INC., a Missouri corporation; and DOES 1-10, inclusive, Defendant. Case No. 2:17-cv-01138-PSG-AGR Honorable Philip S. Gutierrez DECLARATION OF BRADLEY J. LEIMKUHLER IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Hearing Date: August 7, 2017 Hearing Time: 1:30 p.m. Courtroom: 6A Action Filed: February 13, 2017 Trial Date: February 13, 2018 Case 2:17-cv-01138-PSG-AGR Document 21-5 Filed 06/16/17 Page 1 of 3 Page ID #:134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166422.1 DECLARATION OF LEIMKUHLER ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY DECLARATION OF BRADLEY J. LEIMKUHLER I, Bradley J. Leimkuhler, declare as follows: 1. I am an attorney duly admitted to practice before this Court. I am an associate with Sheppard, Mullin, Richter & Hampton LLP, attorneys of record for Defendant Dave & Buster’s, Inc. (“Defendant” or “Dave & Buster’s”). If called as a witness, I could and would competently testify to all facts within my personal knowledge except where stated upon information and belief. 2. This declaration is submitted in support of Defendant’s Motion for Summary Judgment Or, in the Alternative, Dismissal or Stay. 3. Attached to this Declaration as Exhibit A is a true and correct copy of an order dated March 20, 2017 from the matter entitled Robles v. Domino’s Pizza, LLC, Case No. CV-16-06599-SJO-(SPx), 2017 WL 1330216 (C.D. Cal. Mar. 20, 2017). 4. Attached to this Declaration as Exhibit B is a true and correct copy of a screenshot taken from the United States Department of Justice’s Website homepage on February 13, 2017 using the WAVE accessibility evaluation tool (found at wave.webaim.org). According to the WAVE website (wave.webaim.org), “WAVE is a tool to help web developers make their web content more accessible. WAVE cannot tell you if your web content is accessible. Only a human can determine true accessibility. But, WAVE can help you evaluate the accessibility of your web content. WAVE is easy to use. Using the form at the top of any page, simply enter the web page address of your page and submit the form.” 5. Attached to this Declaration as Exhibit C is a true and correct copy of a screenshot taken from the United States Department of Justice’s Website homepage on February 13, 2017 using Google’s web accessibility audit that is built-in to the Chrome web browser. Case 2:17-cv-01138-PSG-AGR Document 21-5 Filed 06/16/17 Page 2 of 3 Page ID #:135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 2:17-cv-01138-PSG-AGR SMRH:483166422.1 DECLARATION OF LEIMKUHLER ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY 6. Attached to this Declaration as Exhibit D is a true and correct copy of a screenshot taken from Plaintiff Sean Gorecki’s counsel’s website on February 13, 2017 using the WAVE web accessibility evaluation tool. 7. Attached to this Declaration as Exhibit E is a true and correct copy of a screenshot taken from Plaintiff Sean Gorecki’s counsel’s website on February 13, 2017 using Google’s web accessibility audit that is built-in to the Chrome web browser. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed June 13, 2017, at Costa Mesa, California. /s/ Bradley J. Leimkuhler Bradley J. Leimkuhler Case 2:17-cv-01138-PSG-AGR Document 21-5 Filed 06/16/17 Page 3 of 3 Page ID #:136 Exhibit A Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 1 of 13 Page ID #:137 Send Enter Closed JS-5/JS-6 Scan Only CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 TITLE: Robles v. Dominos Pizza LLC ======================================================================== PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE Victor Paul Cruz Courtroom Clerk Not Present Court Reporter COUNSEL PRESENT FOR PLAINTIFF: Not Present COUNSEL PRESENT FOR DEFENDANT: Not Present ======================================================================== PROCEEDINGS (in chambers): ORDER GRANTING DEFENDANT'S ALTERNATIVE MOTION TO DISMISS OR STAY [Docket No. 32] This matter is before the Court on Defendant Domino's Pizza, LLC's ("Defendant") Motion for Summary Judgment or, in the Alternative, Dismissal or Stay ("Motion"), filed February 22, 2017. Plaintiff Guillermo Robles ("Plaintiff") opposed the Motion ("Opposition") on March 6, 2017, and Defendant replied ("Reply") on March13, 2017. The Court found this matter suitable for disposition without oral argument and vacated the hearing scheduled for January 27, 2017. See Fed. R. Civ. P. 78(b). For the following reasons, the Court GRANTS Defendant's Motion to Dismiss. I. FACTUAL AND PROCEDURAL BACKGROUND This case, which commenced on September 1, 2016, centers on allegations that Defendant has failed "to design, construct, maintain, and operate its website [and mobile application] to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people" using "screen-readers." (See Compl. ¶¶ 2-3, ECF No. 1.) In particular, Plaintiff contends Defendant's website, Dominos.com, does not permit a user to complete purchases using a particular screen-reading software program, Job Access With Speech ("JAWS") . (Compl. ¶¶ 18, 27-29.) Plaintiff also contends Defendant's mobile application ("Mobile App") does not permit him to access the menus and applications on his iPhone using the iPhone's "VoiceOver" software program. (Compl. ¶¶ 30-33.) Plaintiff alleges neither Dominos.com nor the Mobile App are in compliance with version 2.0 of W3C's Web Content Accessibility Guidelines ("WCAG 2.0"), and further alleges that "simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access" to these access portals. (Compl. ¶ 36.) Plaintiff asserts the following four causes of action against Defendant: (1) violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12181 et seq. (Dominos.com); (2) violation of the ADA, 42 U.S.C. § 12181 et seq. (Mobile App); (3) violation of the Unruh Civil Rights Act ("UCRA"), California Civil Code § 51 et seq. (Dominos.com); and (4) violation of the UCRA, California Civil Code § 51 et seq. (Mobile App). (See generally Compl.) Plaintiff seeks, among MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 1 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 2 of 13 Page ID #:138 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 other things, preliminary and permanent injunctive relief, an award of statutory minimum damages of $4,000 per violation, and attorneys' fees and expenses. (See Compl. at 18-19.) Defendant filed its Answer on September 29, 2016, and the Court held a scheduling conference on November 28, 2016, setting a discovery cutoff deadline of May 29, 2017, a motion cutoff deadline of June 26, 2017, and a trial date of August 29, 2017. (See Answer, ECF No. 15; Minutes of Scheduling Conference, ECF No. 26.) The following facts are undisputed. Since February 20, 2017 at the latest, both Defendant's website, www.dominos.com, and its mobile website have included accessibility banners that direct users who access the website using a screen reader with the following statement: "If you are using a screen reader and are having problems using this website, please call 800-254-4031 for assistance." (See Pl.'s Statement of Genuine Disputes of Materials Facts ("Pl.'s Response") ¶¶ 1-2, ECF No. 35.) This phone number, 800-252-4031, is staffed by a live representative who can provide blind or visually impaired individuals with assistance using Defendant's websites, although callers may experience delays and be placed on hold. (Pl.'s Response ¶¶ 3-4.) Customers may also directly call their local Domino's Pizza restaurant to order food, purchase goods, or ask questions. (Pl.'s Response ¶ 5.) II. DISCUSSION Defendant, not pleased with having to defend against what it characterizes on the first page of its Motion as both a "form lawsuit" and a "nuisance lawsuit[ ]," moves for summary judgment as to each of Plaintiff's four causes of action, submitting that dismissal is warranted for a bevy of reasons. (See Mot. 1, ECF No. 32.) First, Defendant asks the Court to find that neither Dominos.com nor the Mobile App are "places of public accommodation" within the meaning of the ADA. (Mot. 3-7.) Second, it contends that the instant lawsuit violates fundamental principles of due process because the ADA, its implementing regulations, and the DOJ's accessibility guidelines not only are silent with respect to the standards that apply to private and public websites, but also fail to indicate whether compliance with the WCAG or the Apple Standards is tantamount to compliance with the statute. (Mot. 7-16.) Third, Defendant argues Plaintiff cannot establish violations of any applicable accessibility standards. (Mot. 16-19.) Fourth, it submits that Plaintiff's UCRA claims should be denied because Plaintiff cannot prove that Defendant intentionally discriminated against him. (Mot. 19-20.) Fifth, Defendant contends Plaintiff's UCRA claims fail because Defendant lacks fair notice of the barriers Plaintiff claims exist. (Mot. 20-23.) Finally, Defendant argues that, in the alternative, Plaintiff's claims should be stayed because the Department of Justice ("DOJ") has not promulgated any accessibility regulations governing the website or mobile applications of private businesses. (Mot. 23-25.) Plaintiff responds by challenging procedural, evidentiary, and substantive aspects of Defendant's Motion. First, Plaintiff argues the Court should deny the Motion because of the following two procedural shortcomings: (1) Defendant's failure to meet and confer regarding the instant motion; Page 2 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 3 of 13 Page ID #:139 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 and (2) Defendant's filing of an oversized memorandum of points and authorities. (Opp'n 1-2, ECF No. 33.) Second, Plaintiff contends that because Defendant's evidence only establishes the websites at issue bore the "accessibility banner" in February of this year, this "banner" cannot support Defendant's claim of "effective communication" in 2016 and does not necessarily render this case moot. (Opp'n 4-7.) Third, Plaintiff argues that even if the "banner" had been present on Defendant's websites in 2016, there would still be triable issues as to whether Defendant's websites violate the ADA given regulations concerning effective communication titled "auxiliary aids and services." (Opp'n 7-10.) A. Legal Standard Federal Rule of Civil Procedure 56(a) mandates that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). Once the moving party meets its initial burden, the "party asserting that a fact cannot be or is genuinely disputed must support the assertion." Fed. R. Civ. P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [nonmoving party]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) ("[O]pponent must do more than simply show that there is some metaphysical doubt as to the material facts."). Further, "[o]nly disputes over facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment [and f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. At the summary judgment stage, a court does not make credibility determinations or weigh conflicting evidence. See id. at 249. A court is required to draw all inferences in a light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587. /// /// /// /// B. Analysis MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 3 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 4 of 13 Page ID #:140 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 1. Whether and to What Extent the ADA Regulates Web Accessability The central question Defendant asks the Court to answer is whether and to what extent the ADA, a statute enacted before the widespread adoption of the Internet, regulates the manner in which companies can permissibly engage in e-commerce. Before attempting to answer this difficult question, the Court must provide some background. The ADA "as a whole is intended 'to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.'" Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589, 119 S. Ct. 2176, 144 L.Ed.2d 540 (1999) (citing 42 U.S.C. § 12101(b)(1)). Title III of the ADA, which Plaintiff claims covers this case, provides that, as a general rule, "[n]o 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 statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute." Nat'l Fed'n of the Blind v. Target Corp. ("Target"), 452 F. Supp. 2d 1148, 953 (N.D. Cal. 2006) (emphasis in original) (citations omitted).1 Moreover, Title III of the ADA, in a section entitled "specific prohibitions," defines discrimination to include: a failure 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, unless the entity can demonstrate that taking such steps would fundamentally 1 In light of this authority, the Court rejects Defendant's argument that the Court should dismiss this action because "the ADA was simply not drafted with the specific regulation of virtual spaces in mind," which relies on a bevy of Eleventh Circuit authority. (Cf. Mot. 4- 7.) The Court also finds this case distinguishable from those that have determined that Title III does not apply to internet-based retailers or service providers, as Defendant operates a chain of brick-and-mortar pizza stores. Cf. Young v. Facebook, Inc., 790 F. SUpp. 2d 1110, 1114-16 (N.D. Cal. 2011) (explaining that a website is not a physical structure and plaintiff had not alleged a sufficient nexus to a physical place of public accommodation). Indeed, Defendant does not challenge the existence of a "nexus" between its websites and its pizza franchises. (Mot. 5.) MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 4 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 5 of 13 Page ID #:141 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 alter the nature of the goods, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(a)(2)(A)(iii) (emphasis added). "This section explicitly exempts public accommodations from the obligation to provide auxiliary aids or services if doing so would fundamentally change the nature of the good or service, or result in an undue burden." Target, 452 F. Supp. 2d at 955 (citation omitted). "In regulations implementing this section, the Department of Justice has explained that the ADA obligates public accommodations to communicate effectively with customers who have disabilities concerning hearing, vision, or speech." Id. (citing 28 C.F.R. § 36.303(c)). Moreover, regulations provide "examples" of "auxiliary aids and services," including "screen reader software" and "other effective methods of making visually delivered materials available to individuals who are blind or have low vision[.]" 28 C.F.R. § 36.303(b)(2). Notwithstanding the above, Defendant contends the Court must either dismiss or stay this action because the DOJ has not promulgated concrete guidance regarding the accessibility standards an e-commerce webpage must meet, much less required that companies operating such webpages comply with the specific standards Plaintiff references in his Complaint. In support of this position, Defendant places great weight on the fact that the United States Department of Justice ("DOJ") has not yet issued a formal adjudication or rule on the subject. In order to address the merits of Defendant's contention, the Court must review the DOJ's position on the issue of web accessibility. As a threshold matter, the DOJ has consistently stated its view that the ADA's accessibility requirements apply to websites belonging to private companies. See, e.g., Applicability of the Americans with Disabilities Act (ADA) to Private Internet Sites: Hearing before the House Subcommittee on the Constitution of the House Committee on the Judiciary, 106th Cong., 2d Sess. 65-010 (2000) ("It is the opinion of the Department of Justice currently that the accessibility requirements of the Americans with Disabilities Act already apply to private Internet Web sites and services."); 75 Fed. Reg. 43460-01 (July 6, 2010) ("The Department believes that title III reaches the Web sites of entities that provide goods or services that fall within the 12 categories of 'public accommodations,' as defined by the statute and regulations."). Contrary to Plaintiff's suggestion, however, this realization does not end the inquiry, for the Court must analyze whether the DOJ has issued guidance regarding the type of access at issue in this case. (Cf. Mot. 19-20.) On July 26, 2010, the DOJ issued a Notice of Proposed Rulemaking ("NOPR"), stating it was "considering revising the regulations implementing title III of the [ADA] in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the [web], accessible to individuals with disabilities." Nondiscrimination on the Basis of Disability; Accessibility of Web MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 5 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 6 of 13 Page ID #:142 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 Information and Services of State and Local Government Entities and Public Accommodations ("NOPR"), 75 Fed. Reg. 43460-01, 2010 WL 2888003 (July 26, 2010). In the section of this NOPR titled "Need for Department Action," the DOJ explains that "[t]he Internet has been governed by a variety of voluntary standards or structures developed through nonprofit organizations using multinational collaborative efforts," including the W3C's "develop[ment] [of] a variety of technical standards and guidelines ranging from issues related to mobile devices and privacy to internationalization of technology," as well as the "creat[ion] of the [WCAG]." Id. at *43463 (emphasis added). A few paragraphs down, the DOJ notes that For years, businesses and individuals with disabilities alike have urged the Department to provide guidance on the accessibility of Web sites of entities covered by the ADA. While some actions have been brought regarding access to Web sites under the ADA that have resulted in courts finding liability or in the parties agreeing to a settlement to make the subject Web sites accessible, a clear requirement that provides the disability community consistent access to Web sites and covered entities clear guidance on what is required under the ADA does not exist. Id. at *43464 (emphasis added). The NOPR concludes with the DOJ stating its "interest[ ] in gathering other information or data relating to the Department's objective to provide requirements for Web accessibility under titles II and III of the ADA" and soliciting feedback and public comment. Id. at *43467. Although the NOPR issued in July 2010, the DOJ has yet to issue a final rule regarding web access. In light of this undisputed fact, Defendant argues that Plaintiff's request to impose liability under the ADA for Defendant's alleged failure to abide by certain accessibility standards would violate Defendant's constitutional right to due process. In so arguing, Defendant relies on United States v. AMC Entertainment, Inc., a Ninth Circuit Court of Appeals decision in which the court considered whether the ADA obligated theater owners to retroactively incorporate a comparable viewing angle requirement in movie theaters. 549 F.3d 760 (9th Cir. 2008). The district court had held that AMC's existing facilities violated a particular standard, § 4.33.3, awarded summary judgment in favor of the government, and issued a comprehensive remedial order. Id. at 762. The Ninth Circuit reversed, holding that "[b]ecause the injunction requires modifications to multiplexes that were designed or built before the government gave fair notice of its interpretation of § 4.33.3, the injunction violates due process[.]" Id. In reaching this conclusion, the Ninth Circuit surveyed the history of litigation involving § 4.33.3, which primarily turned on different possible interpretations of the phrase "lines of sight comparable." Id. at 764-67. After noting that its sister circuits had reached different conclusions regarding the meaning of this phrase, the court emphasized that "[a]ll circuits considering § 4.33.3 found common ground on the proposition that the regulation was vague or ambiguous." Id. at 767 (citation omitted). MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 6 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 7 of 13 Page ID #:143 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 After examining these decisions, the Ninth Circuit stated " it is clear that the text of § 4.33.3 did not even provide our colleagues, armed with exceptional legal training in parsing statutory language, a 'reasonable opportunity to know what is prohibited'—let alone those of 'ordinary intelligence.'" Id. at 768 (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). Moreover, the court "share[d] the First Circuit's frustration that the government could have solved this problem [of vagueness], without time- and cost-consuming litigation, by merely clarifying § 4.33.3 through amendment or some other form of public pronouncement[.]" Id. at 769 (citation omitted). "The government has had ample opportunity throughout the stadium-seating era to update the regulation to respond to the overhaul of the nation's movie-theaters." Id. Notwithstanding being provided with "ample opportunity" to update or clarify this provision, the government had not done so: As late as 1999, the Access Board indicated that it was still "considering whether to include specific requirements in the final rule that are consistent with DOJ's interpretation of 4.33.3 to stadium-style movie theaters." . . . No new rule was forthcoming. Again, in April of 2002, the Access Board published a new proposed draft regulation that included a viewing angle requirement. . . . This proposal was never formally accepted. When Regal Cinemas sought certiorari from the Supreme Court to resolve the circuit split between the Ninth and Fifth Circuits, the Solicitor General of the United States represented to the Supreme Court that review was not necessary because the DOJ planned to issue new regulations to resolve the split: "There is no need for this Court to exercise its certiorari jurisdiction to address an issue of regulatory interpretation that is presently being addressed directly by the relevant regulatory bodies themselves." . . . . Despite this representation to the Court, made now over four years ago, § 4.33.3 has not been replaced with something more specific. We decline to require AMC to have determined the precise meaning of the regulation when the government did not do so. Id. (emphasis added) (internal citations omitted). A similarly lengthy timeline of DOJ inaction exists in this case, leaving "in-house counsel [and] others to read correctly legislative tea-leaves . . ." Id. at 770. The phrase "due process" does not appear once in Plaintiff's Opposition, and Plaintiff's sole citation to AMC is couched in a footnote for an inapposite point of law. (See Opp'n 20 n. 9.) Whether inadvertent or purposeful, this omission is telling, and the Court is independently authorized to grant summary judgment on this conceded issue. See Garrett v. City of Los Angeles, No. CV 12-1670 FMO (SSx), 2014 WL 11397949, at *11 (C.D. Cal. Mar. 3, 2014) (granting summary judgment in favor of defendant on a particular claim where plaintiff failed to address defendant's arguments regarding this claim); Silva v. U.S. Bancorp, No. 5:10-cv-01854- MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 7 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 8 of 13 Page ID #:144 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 JHN-PJWx, 2011 WL 7096576, at *3 ("In addition, the Court finds that Plaintiff concedes his recordkeeping claim should be dismissed by failing to address Defendants' arguments in his Opposition."). In any event, the Court finds Defendant's due process challenge to be meritorious, largely because it finds AMC to be squarely on point. In AMC, the Ninth Circuit was troubled by the inclusion of ambiguous language in a particular guideline and by the DOJ's quest to have its late- announced interpretation of this language—offered for the first time in an amicus brief—apply to movie theaters that had already invested substantial sums in building their theaters under a particular set of operating assumptions. Here, too, Plaintiff seeks to impose on all regulated persons and entities a requirement that they "compl[y] with the WCAG 2.0 Guidelines" without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic. (Cf. Compl. ¶ 36.) This request flies in the face of due process. Notwithstanding his failure to address Defendant's four-page argument regarding AMC and due process, Plaintiff appears to argue that because the DOJ has issued several "Statements of Interest" and has entered into consent decrees and settlements obligating entities to abide by particular WCAG 2.0 success criteria, this lawsuit cannot be dismissed. (See Opp'n 19-20.) This argument does not hold water. As a threshold matter, the Ninth Circuit "has declined to give deference to Access Board guidelines that have not yet been adopted by the DOJ." Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 674 (9th Cir. 2010). "Moreover, [the Ninth Circuit] ha[s] refused to defer to a proposed regulation published by the DOJ itself." Id. (citing Cal. Rural Legal Assistance v. Legal Servs. Corp., 917 F.2d 1171, 1173 (9th Cir. 1990)). Furthermore, "[t]he DOJ's interpretation in a notice of proposed rulemaking is similarly unpersuasive." Id. Given the Ninth Circuit's decision not to give deference to these categories of concrete, public statements made in the ADA context, the Court concludes that little or no deference is owed to statements made by the DOJ through documents filed in the course of litigation with regulated entities. Even if the Court were to give deference to the cited Statements of Interest, consent decree, or settlement, it would nevertheless conclude that imposing the requirements urged by Plaintiff would violate Defendant's right to due process. First, the Statements of Interest cited by Plaintiff were filed in connection with cases that are materially distinct from the case at bar, and even suggest that Domino's provision of a telephone number for disabled customers satisfies its obligations under the ADA. In the first of these Statements of Interest, attached as Exhibit A to Plaintiff's Request for Judicial Notice ("RJN"), the DOJ asked a court in the Southern District of Florida not to be persuaded by defendant Lucky Brand's arguments (1) that because the ADA contains no specific requirement mandating that point-of-sale ("POS") devices have tactile key pads, it has no obligation to ensure that customers who are blind can make purchases using it's debit payment MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 8 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 9 of 13 Page ID #:145 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 option; or (2) that because disabled individuals can purchase items using cash, credit, or by processing their debit card as a credit card, there was no discrimination under the ADA. (See RJN, Ex. A at 1-2, ECF No. 7.)2 The DOJ was primarily concerned that Lucky Brand's use of a touch-screen POS device, for which Plaintiff alleged there was a readily available substitute, required blind customers either to divulge their personal identification number ("PIN") to a third party, violating the ADA's mandate that companies "protect the privacy and independence of" individuals with disabilities, see 28 C.F.R. Section 36.303(c)(1)(ii), or to use a different form a payment. (See generally RJN, Ex. A.) The DOJ began by rejecting Lucky Brand's argument that POS devices did not fall within the scope of the ADA, analogizing its consistently expressed view that "websites [are] covered by title III despite the fact that there are no specific technical requirements for websites currently in the regulation or ADA Standards." (RJN, Ex. A at 7.) The DOJ then noted, however, that until the process of establishing specific technical requirements for a particular technology is complete, "public accommodations have a degree of flexibility in complying with title III's more general requirements of nondiscrimination and effective communication—but they still must comply." (RJN, Ex. A at 8-9 [emphasis added].) Plaintiff has failed to articulate why either Defendant's provision of a telephone hotline for the visually impaired or it's compliance with a technical standard other than WCAG 2.0 does not fall within the range of permissible options afforded under the ADA. The Statements of Interest attached as Exhibits B and C to the RJN offer similarly little help to Plaintiff. In these two cases, the plaintiffs sought to require Harvard University and Massachusetts Institute of Technology ("MIT") to provided closed captions on their free online programming and the universities moved to stay or dismiss these cases. (See generally RJN, Exs. B, C.) No "due process" challenge was raised in connection with these motions, perhaps because the plaintiffs requested a particular auxiliary aid that the universities simply had not been providing. Indeed, in her Report and Recommendation, the assigned Magistrate Judge noted the "DOJ has identified the 'auxiliary aid requirement [a]s a flexible one,' insofar as the 'public accommodation can choose among various alternatives as long as the result is effective communication.'" R. & R. Regarding Defs.' Mot. to Stay or Dismiss, Nat'l Ass'n of the Deaf v. Harvard Univ., No. 3:15-cv-30023-MGM, at *24 (D. Mass. February 9, 2016), ECF No. 50 (quoting Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544, 35566 (July 26, 1991)). She went on to note that "[t]he flexibility to choose an appropriate auxiliary aid does not extend so far as to allow a public accommodation to choose to provide no auxiliary aid when one is required for effective communication if a reasonable one exists." Id. (emphasis added). Here, by contrast, Plaintiff asks the Court to require Defendant to comply with a 2 The Court takes judicial notice of this publicly filed litigation document pursuant to Rule 201(b) of the Federal Rules of Evidence. MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 9 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 10 of 13 Page ID #:146 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 particular—but not fully identified—web accessibility standard issued by a non-government entity that is subject to modification. The Court thus finds the Harvard and MIT cases to be inapposite. The consent decree and settlement proffered by Plaintiff offer him less assistance. Plaintiff has submitted evidence indicating the DOJ has, at least twice, required entities subject to Title III to adopt measures to ensure that their websites and mobile applications conform to, at a minimum, certain WCAG 2.0 success criteria. For example, Plaintiff points to a settlement agreement between the DOJ and Peapod LLC, America's leading Internet grocer, under which Peapod was obligated, among other things, to "ensure that www.peapod.com and its mobile applications conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), except for certain third party content[.]" See Press Release, Justice Department Enters into a Settlement Agreement with Peapod to Ensure that Peapod Grocery Delivery Website is Accessible to Individuals with Disabilities, THE UNITED STATES DEPARTMENT OF JUSTICE (Nov. 17, 2014), available at https://www.justice.gov/opa/pr/justice-department-enters-settlement- agreement-peapod-ensure-peapod-grocery-delivery-website. Plaintiff also points to a consent decree reached in National Federation of the Blind, et al. v. HRB Digital LLC, et al., under which the defendants would, inter alia, ensure that their website, www.hrblock.com, and their Online Tax Preparation Product "conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria[.]" Consent Decree, No. 1:13-cv-10799-GAO, at *5 (D. Mass. Mar. 24, 2014), ECF No. 60. These two examples highlight, rather than dispel, the vagueness concern that forms the basis of Defendant's Motion, and demonstrate why a lack of formal guidance in this complex regulatory arena places those subject to Title III in the precarious position of having to speculate which accessibility criteria their websites and mobile applications must meet. In the Peadpod case, the DOJ required the defendants to fashion their website and mobile applications to conform with WCAG 2.0 Level AA Success Criteria. In HRB, by contrast, the DOJ obligated the defendants to instead comply with WCAG 2.0 Level AA or Level A Success Criteria. In its own NOPR, the DOJ noted that "the WCAG 2.0 contains 12 guidelines addressing Web accessability" and requires that a "Web page must satisfy the criteria for all 12 guidelines under one of three conformance levels: A, AA, or AAA," which "indicate a measure of accessability and feasability." 75 Fed. Reg. at *43465. Moreover, immediately below this discussion, the DOJ sought feedback regarding the following difficult-to-answer questions: Question 1. Should the Department adopt the WCAG 2.0's "Level AA Success Criteria" as its standard for Web site accessability for entities covered by titles II and III of the ADA? Is there any reason why the Department should consider adopting another success criteria level of the WCAG 2.0? Please explain your answer. MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 10 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 11 of 13 Page ID #:147 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 Question 2. Should the [DOJ] adopt the section 508 standards instead of the WCAG guidelines as its standard for Web site accessability under titles II and III of the ADA? Is there a difference in compliance burdens and costs between the two standards? Please explain your answer. Question 3. How should the [DOJ] address the ongoing changes to WCAG and section 508 standards" and "[s]hould covered entities be given the option to comply with the latest requirements? Question 4. Given the ever-changing nature of many Web sites, should the Department adopt performance standards instead of any set of specific technical standards for Web site accessibility? . . . . Id. (emphasis added). Almost seven years have transpired since the DOJ first posed these questions to the interested public, but the public has yet to receive a satisfactory answer.3 Indeed, the Court, after conducting a diligent search, has been unable to locate a single case in which a court has suggested, much less held, that persons and entities subject to Title III that have chosen to offer online access to their goods or services must do so in a manner that satisfies a particular WCAG conformance level. The Court therefore GRANTS Defendant's Motion and DISMISSES each of Plaintiff's causes of action without prejudice pursuant to the primary jurisdiction doctrine, which "allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency." Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008) (affirming dismissal of a case referring the issue of "slamming," a question of federal telecommunications policy, to the Federal Communications Commission for consideration in the first instance). Congress has vested the Attorney General with promulgating regulations clarifying how places of public accommodation must meet their statutory obligations of providing access to the public under the comprehensive ADA. Congress has further provided that the DOJ's mandate with respect to Title III of the ADA is "to issue implementing regulations, see 42 U.S.C. § 12186(b), to render technical assistance explaining the responsibilities of covered individuals and institutions, § 12206(c), and to enforce Title III in court, § 12188(b)." Bragdon v. Abbott, 524 U.S. 624, 646 (1998). Such regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III. Moreover, the Court finds the issue of web accessibility obligations to 3 Even more problematic to Plaintiff's case is the apparent absence of any discussion by the DOJ regarding whether a mobile website or mobile application must conform with "Apple's iOS accessibility guidelines." (Cf. Compl. ¶ 31.) MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 11 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 12 of 13 Page ID #:148 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL CASE NO.: CV 16-06599 SJO (SPx) DATE: March 20, 2017 require both expertise and uniformity in administration, as demonstrated by the DOJ's multi-year campaign to issue a final rule on this subject. See Clark, 523 F.3d at 1115. The Court concludes by calling on Congress, the Attorney General, and the Department of Justice to take action to set minimum web accessibility standards for the benefit of the disabled community, those subject to Title III, and the judiciary. III. RULING For the foregoing reasons, the Court GRANTS Defendant Domino's Pizza, LLC's Alternative Motion to Dismiss or Stay. This matter shall close. IT IS SO ORDERED. MINUTES FORM 11 : CIVIL GEN Initials of Preparer Page 12 of 12 Case 2:17-cv-01138-PSG-AGR Document 21-6 Filed 06/16/17 Page 13 of 13 Page ID #:149 Exhibit B Case 2:17-cv-01138-PSG-AGR Document 21-7 Filed 06/16/17 Page 1 of 3 Page ID #:150 Case 2:17-cv-01138-PSG-AGR Document 21-7 Filed 06/16/17 Page 2 of 3 Page ID #:151 Case 2:17-cv-01138-PSG-AGR Document 21-7 Filed 06/16/17 Page 3 of 3 Page ID #:152 Exhibit C Case 2:17-cv-01138-PSG-AGR Document 21-8 Filed 06/16/17 Page 1 of 2 Page ID #:153 Case 2:17-cv-01138-PSG-AGR Document 21-8 Filed 06/16/17 Page 2 of 2 Page ID #:154 Exhibit D Case 2:17-cv-01138-PSG-AGR Document 21-9 Filed 06/16/17 Page 1 of 3 Page ID #:155 Case 2:17-cv-01138-PSG-AGR Document 21-9 Filed 06/16/17 Page 2 of 3 Page ID #:156 Case 2:17-cv-01138-PSG-AGR Document 21-9 Filed 06/16/17 Page 3 of 3 Page ID #:157 Exhibit E Case 2:17-cv-01138-PSG-AGR Document 21-10 Filed 06/16/17 Page 1 of 2 Page ID #:158 Case 2:17-cv-01138-PSG-AGR Document 21-10 Filed 06/16/17 Page 2 of 2 Page ID #:159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:17-cv-01138-PSG-AGR SMRH:483167172.1 [PROPOSED] JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendant DAVE & BUSTER’S, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION SEAN GORECKI, an individual, Plaintiff, v. DAVE & BUSTER’S , INC., a Missouri corporation; and DOES 1-10, inclusive, Defendant. Case No. 2:17-cv-01138-PSG-AGR Honorable Philip S. Gutierrez [PROPOSED] JUDGMENT GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, DISMISSAL OR STAY Hearing Date: August 7, 2017 Hearing Time: 1:30 p.m. Courtroom: 6A Action Filed: February 13, 2017 Trial Date: February 13, 2018 Case 2:17-cv-01138-PSG-AGR Document 21-11 Filed 06/16/17 Page 1 of 2 Page ID #:160 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 2:17-cv-01138-PSG-AGR SMRH:483167172.1 [PROPOSED] JUDGMENT Defendant Dave & Buster’s, Inc.’s (“Defendant” or “Dave & Buster’s”) Motion for Summary Judgment or, in the Alternative, Dismissal or Stay (“Motion”) came on for hearing on August 7, 2017 at 1:30 p.m. in the above-titled Court. After considering the papers, the evidence, and the arguments of counsel, the Court ORDERS as follows: There are no disputed issues of material fact. Defendant’s motion is GRANTED in its entirety and Plaintiff Sean Gorecki’s Complaint is hereby dismissed with prejudice. IT IS SO ORDERED. DATED: ____________, 20__ HONORABLE PHILIP S. GUTIERREZ UNITED STATES DISTRICT JUDGE Case 2:17-cv-01138-PSG-AGR Document 21-11 Filed 06/16/17 Page 2 of 2 Page ID #:161