For over a year now, Americans with Disabilities Act (ADA) website accessibility cases in federal district courts in Florida, Georgia, and Alabama have been at a near standstill pending an appeal to the Eleventh Circuit Court of Appeals in the matter of Gil v. Winn Dixie Stores. The appeal sought review of a trial court’s judgment that Winn Dixie’s website violated the ADA by not providing sufficient technology to allow a vision-impaired customer access to the website’s virtual offerings that he would have then used in the physical store location. On April 7, 2021, the Eleventh Circuit vacated judgment, holding that under the ADA, Winn Dixie’s website was not a “place of public accommodation.” The decision at the Eleventh Circuit was reached by only a panel of three judges. The plaintiff then asked the Eleventh Circuit to rehear the case en banc, or to have all of the Eleventh Circuit judges decide the case again. On December 28, 2021, the Court granted plaintiff’s request but then dismissed the matter entirely.
In its December 28, 2021 order, the Court vacated (or cancelled) its prior holding on April 7th as well as the underlying judgment by the trial court. In so ruling, the Eleventh Circuit stated that the prior judgment and appellate rulings were “moot” as they concerned a judgment for injunctive relief by a date certain, which itself had expired. Retailers and businesses may now wonder whether they can rely on the prior holding of the Eleventh Circuit. This is a question to be tested soon in many of the pending ADA website accessibility cases and it is something we are monitoring closely in the weeks and months ahead. In the interim, businesses and their attorneys should consider closely both the trial court judgment and reasoning underpinning the vacated appellate holding as they respond to ADA website accessibility cases going forward. Most importantly though, to avoid litigation, businesses should consider taking immediate action to ensure compliance with website accessibility standards, specifically version 2.1 of the Web Content Accessibility Guidelines.