Recently, the Ninth Circuit issued a noteworthy opinion as part of the changing environment for ADA litigation involving wheelchair-accessible ridesharing options. The court ruled that plaintiffs do not need to download the Uber app to have standing to bring claims for a lack of ADA-friendly options in their city. While the case centers on wheelchair accessibility, the final outcome will likely have a wider legal impact, including on website accessibility cases.
Namisnak v. Uber Technologies, Inc.
On August 24, 2020, in Namisnak v. Uber Technologies, Inc., a three-judge panel for the US Court of Appeals for the Ninth Circuit affirmed the district court’s order denying in part Uber’s motion to compel arbitration of claims arising under the ADA. In a 13-page opinion, Circuit Judge Ryan Nelson, writing for the majority, along with Ninth Circuit Judge J. Clifford Wallace and US District Judge Frederic Block of the Eastern District of New York, sitting by designation, held that plaintiffs who did not download the Uber app were not compelled to arbitrate their ADA claims against Uber since they never agreed to the arbitration agreement in the company’s terms of service.
Uber offers a wheelchair-accessible rideshare option, referred to as UberWAV, in several cities, including San Francisco, Portland, and Washington, DC, but not New Orleans, where the plaintiffs reside. Because this disability-friendly option is not available where plaintiffs live, they never downloaded the app. So, plaintiffs filed a lawsuit against Uber alleging the company discriminated against them for not providing wheelchair-friendly ride options in New Orleans, to which Uber filed a motion compelling arbitration for all three plaintiffs. On April 13, 2018, the district court granted Uber’s motion in part with respect to the plaintiff who downloaded the app and signed the arbitration agreement and denied with respect to the other two plaintiffs.
Plaintiffs Who Did Not Download or Use App Have Standing Under ADA
Almost a month later, on May 11, 2018, Uber brought an appeal arguing for the first time in the case that the plaintiffs who did not download the app lacked standing. To establish standing, a plaintiff must demonstrate (1) a concrete and particularized injury that is actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the defendant’s challenged conduct; and (3) a likelihood that a favorable decision will remedy that injury. The Ninth Circuit held that the plaintiffs satisfied the first prong because of the deterrent effect doctrine. The court found that since the plaintiffs were aware UberWAV was not offered in New Orleans, they were ultimately deterred from using Uber’s services. The court distinguished an opinion from the US Court of Appeals for the Seventh Circuit, Access Living v. Uber Technologies, Inc., 958 F.3d 604 (7th Cir. 2020), decided earlier this year. The Seventh Circuit found that the plaintiff, who had not downloaded the Uber app or created an account, lacked standing to sue Uber over alleged ADA violations in Chicago because UberWAV was offered there but not on equivalent terms as non-UberWAV rideshare options. Addressing the other two prongs, the Ninth Circuit found that the plaintiffs’ alleged injury is directly traceable to Uber’s refusal to offer UberWAV in New Orleans and that an injunction would redress that injury.
Plaintiffs’ lawyers are likely already running to file suit against Uber and other ridesharing companies for violations of the ADA in other cities that do not offer wheelchair-accessible rides. While the case is going back to the district court to determine whether the injunction should be granted, the impact of this opinion will be significant for both wheelchair accessibility and website accessibility lawsuits. In our previous coverage of the evolving landscape of ADA website accessibility litigation, we discussed how the question remains unanswered for whether the ADA applies to websites for e-commerce businesses that lack a corresponding brick-and-mortar presence in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019). It will be interesting to see whether the court’s holding in Namisnak helps answer that question.