A New York federal court has denied Five Guys Enterprises' motion to dismiss a lawsuit alleging a blind woman’s inability to access the restaurant chain’s website violates the Americans with Disabilities Act (ADA), ruling “the text and purposes of the ADA, as well as the breadth of federal appellate decisions, suggest that defendant’s website is covered under the ADA, either as its own place of public accommodation or as a result of its close relationship as a service of defendant’s restaurants, which indisputably are public accommodations under the statute.” Marett v. Five Guys Enters., No. 17-0788 (S.D.N.Y., July 21, 2017). The court rejected Five Guys’ argument that the plaintiff failed to state a claim under the ADA, finding the law’s purpose is to prevent discrimination against disabled individuals in major areas of public life. “The statute explicitly covers twelve categories of entities, which includes establishments that ‘serv[e] food or drink (e.g.,…
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Food and beverage companies offering retail sales on the web are facing a wave of lawsuits filed by visually impaired plaintiffs alleging that the companies’ failure to design websites that work with adaptive screen-reading software violates the Americans with Disabilities Act (ADA). In “Because of ‘Winn-Dixie’?: Uncertainty over ADA’s Applicability to Websites Deepens,” Shook Partner Frank Cruz-Alvarez and Associate Rachel Canfield examine a recent ruling in the Southern District of Florida holding that a grocery chain violated Title III of the ADA because its website was inaccessible. Cruz-Alvarez and Canfield summarize Gil v. Winn-Dixie Stores, No. 16-23020 (S.D. Fla. June 12, 2017), and explain that federal courts are split on the issue of whether the ADA applies to non-physical spaces, leaving “a whole new host of legal challenges. . . . There is very little structure, and even less clarity, in this emerging area of the law.” In the interim, the authors say,…
Five Guys has moved to dismiss an Americans with Disabilities Act (ADA) complaint from a blind plaintiff allegedly unable to use the burger chain’s website, arguing that the plaintiff cannot prove she was denied access to a “place of public accommodation” because the statute is limited to physical facilities. Marett v. Five Guys Enters, No. 17-0788 (S.D.N.Y., memorandum filed May 15, 2017). The plaintiff points to a federal circuit split on the issue and has asked a New York federal court to follow the Second Circuit, which has held that the ADA guarantees “more than mere physical access” and that the “website is a service of the physical location.” The plaintiff claims that Five Guys’ website, which allows online ordering in addition to general restaurant and menu information, is inaccessible to blind patrons despite the existence of “readily available technological solutions.” Issue 635
A California federal court has determined that Safeway is liable for $30 million in damages for claims alleging that the company charged different prices for products sold online despite a contractual agreement that in-store and online prices would be the same. Rodman v. Safeway Inc., No. 11-3003 (N.D. Cal., order entered August 31, 2015). The court granted partial summary judgment to the plaintiffs in December 2014, finding that Safeway breached the contract. Details about the decision appear in Issue 549 of this Update. The court arrived at the damages amount by calculating the sum that Safeway earned from the concealed markup between April 2010 and December 2012. The court also rejected the plaintiffs’ attempt to expand the class to include purchases before 2006, when Safeway switched from paying a third party to manage online sales to running the website in-house. Issue 578
Yale University’s Rudd Center for Food Policy and Obesity has published a paper criticizing the use of food and beverage advertising on websites directed at children. A.E. Ustjanauskas, et al., “Food and beverage advertising on children’s web sites,” Pediatric Obesity, July 2013. Using data provided by comScore, researchers evaluated a total of 3.4 billion food and beverage advertisements shown over a one-year period on 72 popular children’s sites, including Nick.com, NeoPets.com and CartoonNetwork.com. Of the 254 different food products advertised, cereals apparently accounted for 45 percent of ad impressions, followed by fast food restaurants (19 percent) and prepared foods and meals (8 percent). The study singled out companies committed to the Children’s Food and Beverage Advertising Initiative (CFBAI), reporting that signatories were responsible for 89 percent of all food and beverage advertisements on children’s sites. In particular, the authors claimed that CFBAI companies “placed 320 million impressions for brands not…
