Judge Rejects Due Process Argument And Denies Dismissal in CVS ADA Case

Responding to request to dismiss the case of Reed v. CVS Pharmacy, Inc., on Oct 3, 2017 Judge Michael Fitzgerald sided with plaintiffs alleging the company is in violation of the American Disabilities Act for not making their website and mobile app accessible to blind users. The case will move forward. 

Interesting here is how attorneys for CVS attempted to use the Due Process argument that was recently used in the Robles vs. Dominos case earlier this spring, but failed. The argument is that the government is required to "provide citizens and other actors with sufficient notice as to what behavior complies with the law", and because the Department of Justice has still failed to define the rules of compliance, they can therefore not violate them. Similarly, the cops can't just post a "No Speeding" sign, and then arrest someone for speeding without posting what the speed limit is. The Dominos case is still under appeal, so we'll see if it holds. However in this case, the Judge has rejected this argument because the CVS team claimed that "forcing it to comply with the Web Content Accessibility Guidelines of the Web Accessibility Initiative of the World Wide Web Consortium, when no DOJ guidelines or other official papers require as much, would violate CVS’ right to have advance notice as to how it should construct its website to comply with the ADA".

The judge's response was that "CVS’ argument puts the cart before the horse, and fundamentally misconstrues Plaintiff’s Complaint. The Complaint does not mention the Web Content Accessibility Guidelines once. Nor does the Complaint allege that CVS otherwise violated the ADA by failing to meet any other extra-governmental set of guidelines. Rather, the Complaint alleges that, as currently built, CVS’ website and mobile app are inaccessible to people with visual impairments because it is not compatible with two of the most common screen reading software programs available. Therefore, whether or not CVS’s digital offerings must comply with the Web Content Accessibility Guidelines, or any other set of noncompulsory guidelines, is a question of remedy, not liability.

We will also wait to see whether the DOJ responds to the request by District Judge Otis Wright in the Pizza Hut ADA case to weigh in and clarify the regulations for web accessibility under the ADA. In July, the DOJ under Jeff Sessions formally took this issue off the board. It will be interesting to see if growing pressure from Courts to define these rules will be heard. Otherwise this flood of suits and demand letters will not stop.