No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. KARLA BRINTLEY, Plaintiff-Appellee,

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1 Case: Document: 24 Filed: 01/22/2019 Page: 1 No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT KARLA BRINTLEY, Plaintiff-Appellee, v. BELLE RIVER COMMUNITY CREDIT UNION, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN DISTRICT JUDGE ARTHUR J. TARNOW CIVIL ACTION NO BRIEF OF AMICI CURIAE CREDIT UNION NATIONAL ASSOCIATION AND MICHIGAN CREDIT UNION LEAGUE IN SUPPORT OF DEFENDANT-APPELLANT SEEKING REVERSAL s/patricia Corkery Patricia Corkery Michigan Credit Union League 110 W. Michigan Avenue Fourth Floor Lansing, MI Telephone: Fax: patty.corkery@mcul.org Counsel for Amicus Curiae Michigan Credit Union League s/christine A. Samsel Christine A. Samsel Brownstein Hyatt Farber Schreck, LLP 410 Seventeenth Street, Suite 2200 Denver, CO Telephone: Fax: csamsel@bhfs.com Michael H. Pryor Brownstein Hyatt Farber Schreck, LLP 1155 F Street N.W., Suite 1200 Washington, DC Telephone: Fax: mpryor@bhfs.com

2 Case: Document: 24 Filed: 01/22/2019 Page: 2 Jonathan C. Sandler Brownstein Hyatt Farber Schreck, LLP 2049 Century Park East, Suite 3550 Los Angeles, CA Telephone: Fax: jsandler@bhfs.com Counsel for Amicus Curiae Credit Union National Association 2

3 Case: Document: 24 Filed: 01/22/2019 Page: 3 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Disclosure of Corporate Affiliations and Financial Interest Sixth Circuit Case Number: No Case Name: Karla Brintley v. Belle River Com. Cr Un. Name of counsel: Christine A. Samsel, Michael H. Pryor, Jonathan C. Sandler Pursuant to 6th Cir. R. 26.1, Amicus Curiae Credit Union National Association Name of Party makes the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party: No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest: No. CERTIFICATE OF SERVICE I certify that on January 22, 2019 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. s/ Christine A. Samsel Brownstein Hyatt Farber Schreck, LLP 41 O 17th St. Ste 2200, Denver, This statement is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R on page 2 of this form. 6CA-1 8/08 Page I of 2

4 Case: Document: 24 Filed: 01/22/2019 Page: 4 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Disclosure of Corporate Affiliations and Financial Interest Sixth Circuit Case Number: No Case Name: Karla Brintley v. Belle River Community < Name of counsel: Patricia Corkery, Esq. Pursuant to 6th Cir. R. 26.1, Michigan Credit Union League Name of Party makes the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party: No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest: No. CERTIFICATE OF SERVICE I certify that on January 22, 2019 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. s/ Paulette M. Chesson, Paralegal Brownstein Hyatt Farber Schreck, LLP 41 O 17th St. Ste 2200, Denver This statement is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R on page 2 of this form. 6CA-1 8/08 Page I of 2

5 Case: Document: 24 Filed: 01/22/2019 Page: 5 TABLE OF CONTENTS Page FED. R. APP. P. 29(A) DISCLOSURE STATEMENT... 1 NOTICE OF CONSENT RECEIVED FROM ALL PARTIES... 1 INTEREST OF AMICUS CURIAE... 1 BACKGROUND OF THE CREDIT UNION SYSTEM... 4 SUMMARY OF ARGUMENT... 6 ARGUMENT... 8 I. Appellee Lacks Standing Because She Has Not Pled That She Is Within The Field Of Membership... 8 A. The District Court Erroneously Conflated The ADA s Scope With Article III Standing B. The District Court Conferred Standing Based On Purely Abstract Harms And Proffered No Factors To Gauge The Plausibility Of Future Harm CONCLUSION i-

6 Case: Document: 24 Filed: 01/22/2019 Page: 6 TABLE OF AUTHORITIES Page(s) Cases Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y. 2017)...20 Brintley v. Belle River Cmty. Credit Union, No , 2018 WL (E.D. Mich. July 20, 2018), appeal docketed, No (6th Cir. Nov. 14, 2018)... passim Carello v. Aurora Policemen Credit Union, No. 17C9346, 2018 WL (N.D. Ill. Aug. 7, 2018), appeal docketed, No (7th Cir. Aug. 29, 2018)...13 Carroll v. 1st Advantage Fed. Credit Union, No. 4:17-cv-129, 2018 WL (E.D. Va. April 9, 2018)...9 Carroll v. ABNB Fed. Credit Union, No. 2:17-cv-521, 2018 WL (E.D. Va. Mar. 5, 2018)...10, 11 Carroll v. Nw. Fed. Credit Union, No. 1:17-cv-01205, 2018 WL (E.D. Va. Jan. 26, 2018)...10 Carroll v. Roanoke Valley Cmty. Credit Union, No. 7:17cv00469, 2018 WL (W.D. Va. June 11, 2018)...11, 13 Carroll v. Wash. Gas Light Fed. Credit Union, No. 1:17-cv-1201, 2018 WL (E.D. Va. April 4, 2018)...10 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...14 Clapper v. Amnesty Int l USA, 568 U.S. 398 (2013)...14 Griffin v. Dep t. of Labor Fed. Credit Union, 293 F. Supp. 3d 576 (E.D. Va. 2018), aff d 2019 WL (4th Cir. Jan. 3, 2019)...9, 11 Griffin v. Dep t of Labor Fed. Credit Union, No , 2019 WL (4th Cir. Jan. 3, 2019)... passim Haynes v. Hooters of America, LLC. 893 F.3d 781 (11th Cir. 2018) ii-

7 Case: Document: 24 Filed: 01/22/2019 Page: 7 Houston v. Marod Supermarkets, 733 F.3d 1323 (11th Cir. 2013)...12, 14 Jones v. Savannah Fed. Credit Union, No. CV , 2018 WL (S.D. Ga. July 10, 2018)...9 Lyshe v. Levy, 854 F.3d 855 (6th Cir. 2017)...10 Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d 113 (3d Cir. 1998)...12 Mitchell v. Dover-Phila Fed. Credit Union, No. 5:18CV102, 2018 WL (N.D. Ohio June 25, 2018)...9 Mitchell v. Toledo Metro Credit Union, No. 3:18CV784, 2018 WL (N.D. Ohio Oct. 29, 2018)...9, 13 Molski v. M.J. Cable, Inc. 481 F.3d 724 (9th Cir. 2007)...12 Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447 (4th Cir. 2017)...14 Parker v. Metro Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (en banc)...19 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001)...11 Raines v. Byrd, 521 U.S. 811 (1997)...10 Scott v. Family Sec. Credit Union, No. 5:18-cv-00154, slip op. (N.D. Ala. June 25, 2018)...10 Shalala v. Guernsey Mem l Hosp., 514 U.S. 87 (1997)...17 Spokeo, Inc. v. Robins, 136 S. Ct (2016)... passim Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000)...8 Summers v. Earth Island Inst., 555 U.S. 488 (2009) iii-

8 Case: Document: 24 Filed: 01/22/2019 Page: 8 Thurston v. BCM Fed. Credit Union, No. 3:17-cv-3391-N (N.D. Tex. Mar. 16, 2018)...16 Thurston v. Local 20 IBEW Fed. Credit Union, 3:18-cv S (N.D. Tex. April 11, 2018)...16 Statutes 12 U.S.C. 1752(1) U.S.C U.S.C (a) U.S.C (b) U.S.C Americans with Disabilities Act, 42 U.S.C , et seq.... passim M.C.L.A (2)...5 Other Authorities 28 C.F.R. Part , 16 Accessibility Guidelines Working Group (AG WG Project Plan), Website Accessibility Initiative, (last visited Jan 16, 2019) (targeting the release of WCAG Version 2.2 for February 2020)...18 What s New in WCAG 2.1, Web Accessibility Initiative, (last visited Jan 16, 2019) iv-

9 Case: Document: 24 Filed: 01/22/2019 Page: 9 FED. R. APP. P. 29(a) DISCLOSURE STATEMENT Amici Curiae Credit Union National Association ( CUNA ), and the Michigan Credit Union League ( MCUL ) (collectively, the Associations ) hereby furnish the following information in accordance with Federal Rule of Appellate Procedure 29(a). Counsel for the Associations authored this amicus brief in whole. CUNA contributed money that was intended to fund preparing or submitting this brief. No other person contributed money that was intended to fund preparing or submitting this brief. NOTICE OF CONSENT RECEIVED FROM ALL PARTIES Counsel for Amici Curiae sought and obtained consent from all parties for the filing of this brief. Appellee s consent is conditioned upon obtaining an extension of time to file its response. INTEREST OF AMICUS CURIAE The Associations submit this amicus brief pursuant to Federal Rule of Appellate Procedure 29(a). CUNA is the largest trade association in the United States serving America s credit unions. With its network of affiliated state credit union associations, CUNA serves America s nearly 5,600 credit unions, which are owned by 115 million members collectively. One of its affiliated state associations is MCUL, which is the only trade association focusing exclusively on federal and state issues affecting Michigan credit unions. MCUL is an advocate for credit

10 Case: Document: 24 Filed: 01/22/2019 Page: 10 union issues in the state of Michigan. It assists credit unions in meeting the constant challenges that cooperative financial institutions face in today s economic and regulatory environment. MCUL currently represents all 224 credit unions in Michigan, which is 100 percent affiliation. Appellant Belle River Community Credit Union ( Belle River or Appellant ) is a member of both CUNA and MCUL. Credit unions, which may be federally chartered or state chartered, are notfor-profit, tax-exempt organizations that are owned and operated by their members. The Associations and the credit unions they serve strongly support the goals of the Americans with Disabilities Act ( ADA ), 42 U.S.C , et seq. The Associations provide a wide range of educational information to their members, including information on the ADA. The member credit unions of the Associations have been subjected to threats of legal action brought by a handful of individuals alleging that they are being denied equal access to the credit unions websites in violation of Title III of the ADA. To date, more than 100 credit unions have been sued, and thousands have received demand letters in more than two dozen states, with new lawsuits filed and demand letters issued regularly. The plaintiffs (often the same plaintiff in a judicial district), have taken a scattershot approach, filing cookie-cutter complaints against many credit unions within a state or judicial district, without regard to 2

11 Case: Document: 24 Filed: 01/22/2019 Page: 11 whether the plaintiff is eligible for membership in any of the defendant credit unions, each of which has specific membership criteria with which it is required by law to comply. For example, a single plaintiff sued approximately 27 credit unions in Virginia. This wave of litigation is particularly concerning because the Department of Justice ( DOJ ), the federal agency charged by Congress with implementing the ADA (see 42 U.S.C (b)), has not promulgated any rules or guidelines to inform businesses of the standards, if any, for website ADA compliance, even in the face of the deluge of claims being asserted against a wide range of industries. The vacuum created by the DOJ s failure to act, despite having begun a proceeding in 2010 to provide clear guidance, is increasingly being filled by aggressive plaintiffs attorneys seeking to capitalize on the private right of action and attorneys fees provided by the ADA. 42 U.S.C ; see also 28 C.F.R These lawsuits violate credit unions due process rights to have notice of the standards to which they are supposed to conform. Further, many of these cases are filed against small credit unions with limited resources to defend these suits and pay any resulting attorneys fees to the plaintiffs counsel. In the United States, nearly half of all credit unions employ five or fewer full time employees. Over one-quarter of credit unions have less than 3

12 Case: Document: 24 Filed: 01/22/2019 Page: 12 $10 million in assets, and credit unions with less than $100 million in assets account for over 72% of all U.S. credit unions. Notwithstanding the lack of merit of the claims, many of amici curiae s members have been forced to enter into settlements to avoid immediate litigation, even though these settlements provide them with no protection against future ADA lawsuits regarding website accessibility, given the lack of definitive standards. Due to the number of suits, their geographic range, and the limited resources of many of the targeted credit unions, amici curiae have a substantial interest in this case. As noted, credit unions are not-for-profit financial cooperatives, whose members are also owners who have voting rights. There is thus a close and unique relationship between credit unions and their member-owners, who not only use their credit union s financial services but also participate in the governance of the credit union. As a result of this cooperative structure, litigation costs directly impact the pooled resources of the membership, resulting in settlements and attorneys fees coming out of the pockets of the member-owners, who themselves may be protected by the ADA. Thus, the Court s ruling is vital to the membership of amici curiae, and this amicus brief is appropriately interposed and considered. BACKGROUND OF THE CREDIT UNION SYSTEM Credit unions grew out of the Great Depression to address the difficulty Americans were having in obtaining credit to start a business, buy a home, or meet 4

13 Case: Document: 24 Filed: 01/22/2019 Page: 13 everyday financial needs. In response, Congress, in 1934, passed the Federal Credit Union Act ( FCUA ), which authorized the creation of federally chartered credit unions for the purpose of promoting thrift among [their] members and creating a source of credit for provident or productive purposes. 12 U.S.C. 1752(1). Pursuant to the FCUA, members of a credit union must share a common bond. Id States have also enacted legislation governing credit unions. Namely, the Michigan Credit Union Act ( MCUA ) requires that a credit union s board of directors establish a field of membership, which is the restricted group eligible for membership in a particular credit union, and that members share a common bond. The common bond must consist of one or more of the following: (a) occupation, association, or religious affiliation; (b) residence, employment, or place of religious worship within a geographic area; and (c) common interests, activities or objectives. M.C.L.A (2). By law, therefore, credit unions serve specific populations, such as employees of a specific company, union or agency, or specific geographic areas, and only those individuals who are within the field of membership may become members of the credit union. This membership structure creates strong incentives for credit unions to ensure that their members are well served, including valued members with disabilities. Yet, by filing these lawsuits against so many different credit unions, the plaintiffs in these cases are ignoring the membership 5

14 Case: Document: 24 Filed: 01/22/2019 Page: 14 requirements altogether, or making the implausible claim that the same plaintiff can simultaneously meet vastly different and often mutually exclusive field of membership restrictions. SUMMARY OF ARGUMENT As in a number of credit union cases, Appellee makes broad arguments regarding the need to ensure that persons with disabilities have access to the internet. (See RE 36, Am. Compl., 9-18). The Fourth Circuit recently noted in an identical case, however, that the question before the Court in the context of credit unions is much narrower: [W]hether this plaintiff who is barred by law from making use of defendant s services may sue under the ADA for an allegedly deficient website. Griffin v. Dep t of Labor Fed. Credit Union, No , 2019 WL 80704, at *2 (4th Cir. Jan. 3, 2019) (emphasis in original) (hereinafter Griffin ). This Court should reach the same answer as the Fourth Circuit no. Id. The district court erred in holding that Appellee has standing. Appellee has not suffered concrete and particularized harm because she has not alleged that she meets the eligibility requirements for membership in Belle River as set forth in its charter. Appellee s inability to enjoy the benefits, or partake in the services, of Belle River is in no way affected or caused by the alleged inadequacies of Belle River s website, but rather by Appellee s ineligibility for membership in Belle 6

15 Case: Document: 24 Filed: 01/22/2019 Page: 15 River s restricted field of membership. Nor would any remedial action regarding the website cure her lack of eligibility to become a member. The vast majority of courts that have addressed this issue have reached the same conclusion plaintiffs lack standing to assert ADA website claims against credit unions where they do not qualify for membership. The minority of cases in which district courts have denied motions to dismiss on standing grounds conflate the statutory right for any individual to sue, 42 U.S.C (a), with the constitutional requirement of standing. Courts have also specifically rejected dignity harm or tester status as grounds for standing. Permitting Appellee to circumvent credit unions membership restrictions by asserting standing on these grounds would eviscerate constitutional limitations if extended to ADA website claims. Appellee s arguments completely divorce allegations of harm from any tie to a physical, brickand-mortar location and would subject credit unions and other businesses to lawsuits from any disabled person located anywhere in the country, no matter how far removed from brick-and-mortar sites. Most courts, however, have refused to extinguish the need to tie ADA relief to a physical location. The district court also erred in adopting a nexus theory to find that the ADA applies to websites. See Brintley v. Belle River Cmty. Credit Union, No , 2018 WL , at *6 (E.D. Mich. July 20, 2018), appeal docketed, No. 7

16 Case: Document: 24 Filed: 01/22/2019 Page: (6th Cir. Nov. 14, 2018). The nexus theory as applied by the district court not only contravenes Sixth Circuit precedent, it is irreconcilable with its standing analysis. The district court makes actionable only those claims against websites that interfere with the ability to use the credit union s services offered at its physical locations, yet confers standing on plaintiffs that have no lawful ability to use those services. ARGUMENT I. Appellee Lacks Standing Because She Has Not Pled That She Is Within The Field Of Membership. The jurisdiction of federal courts is limited to actual cases and controversies, which requires a plaintiff to demonstrate standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). It is particularly important in a case such as this, where the plaintiff seeks a positive injunction to require remedial action on the part of smaller businesses, that the Court rigorously assess standing and avoid the concern articulated by those who supported enactment of the ADA that the statute not lead to an explosion of litigation, inflicting crippling uncertainties and costs on the small businesses. Steger v. Franco, Inc., 228 F.3d 889, 895 (8th Cir. 2000) (Loken, J., concurring in part and dissenting in part). CUNA has witnessed many of its affiliated credit unions being sued by the same plaintiff, including Appellee here. Yet each credit union has its own restricted field of membership, a fact that is often ignored in these complaints. To gain standing in these cases, the plaintiff 8

17 Case: Document: 24 Filed: 01/22/2019 Page: 17 would have to implausibly claim that he or she can meet the limited and often mutually exclusive field of membership for each of the credit unions in order to be eligible for that credit union s services. 1 The improbability of such a claim underscores the need to curtail these types of lawsuits. As described above, credit unions such as Belle River are membership organizations whose charters prescribe exactly who is eligible to become a member. Without meeting the prescribed criteria, Appellee cannot avail herself of the credit union s financial services, and thus can suffer neither a concrete nor particularized injury due to any alleged lack of website access, a conclusion confirmed by the vast majority of courts that have addressed the issue. See, e.g., Griffin v. Dep t. of Labor Fed. Credit Union, 293 F. Supp. 3d 576, 580 (E.D. Va. 2018), aff d 2019 WL 80704, at *6 (4th Cir. Jan. 3, 2019) (hereinafter Dep t of Labor Fed. Credit Union ); Mitchell v. Toledo Metro Credit Union, No. 3:18CV784, 2018 WL , at *3 (N.D. Ohio Oct. 29, 2018); Jones v. Savannah Fed. Credit Union, No. CV , 2018 WL , at *5 (S.D. Ga. July 10, 2018); Mitchell v. Dover-Phila Fed. Credit Union, No. 5:18CV102, 2018 WL , at *5 (N.D. Ohio June 25, 2018); Carroll v. 1st Advantage Fed. Credit Union, No. 4:17-cv-129, 2018 WL , at *3-4 (E.D. Va. April 9, 1 As noted, fields of membership are often defined by places of employment or residence. The same plaintiff filing suits against multiple credit unions would thus have the courts believe they are simultaneously employed by multiple enterprises or reside in multiple locations. 9

18 Case: Document: 24 Filed: 01/22/2019 Page: ); Carroll v. Wash. Gas Light Fed. Credit Union, No. 1:17-cv-1201, 2018 WL , at *4 (E.D. Va. April 4, 2018); Carroll v. ABNB Fed. Credit Union, No. 2:17-cv-521, 2018 WL , at *4 (E.D. Va. Mar. 5, 2018); Carroll v. Nw. Fed. Credit Union, No. 1:17-cv-01205, 2018 WL , at *2 (E.D. Va. Jan. 26, 2018); Scott v. Family Sec. Credit Union, No. 5:18-cv-00154, slip op. at 6 (N.D. Ala. June 25, 2018). A. The District Court Erroneously Conflated The ADA s Scope With Article III Standing In finding that eligibility for membership in the credit union is not a prerequisite for standing, the district court conflated the scope of Title III with the constitutional requirement of standing. See Belle River Cmty. Credit Union, 2018 WL , at *2. Even assuming the statute does not impose a requirement that one be a patron in order to bring a lawsuit, a statutory right to sue does not automatically confer Article III standing. Spokeo, 136 S. Ct. at ( Injury in fact is a constitutional requirement and [i]t is settled that Congress cannot erase Article III s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing ) (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)); Spokeo, 136 S. Ct. at 1549 (a plaintiff does not automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. ); Lyshe v. Levy, 854 F.3d 855, 858 (6th Cir. 2017). Under the Spokeo 10

19 Case: Document: 24 Filed: 01/22/2019 Page: 19 analysis, simply being among the class of persons entitled to bring a suit does not, without an additional showing of particularized and concrete harm, suffice to confer Article III standing. Applying Spokeo to ADA website suits, courts have found that simply alleging an inability to access a credit union website where the plaintiff is ineligible for membership constitutes a bare procedural violation of the ADA that is insufficient to demonstrate an injury in fact. See Dep t of Labor Fed. Credit Union, 293 F. Supp. 3d at ; Carroll v. Roanoke Valley Cmty. Credit Union, No. 7:17cv00469, 2018 WL , at *2 (W.D. Va. June 11, 2018); ABNB Fed. Credit Union, 2018 WL , at *4 ( While Plaintiff asserts that he has suffered a statutory injury by being denied access to the ABNB website, this is not sufficient to establish injury-in-fact. ) (internal citation omitted). The district court s reliance on PGA Tour, Inc. v. Martin is misplaced because Martin did not address standing at all, nor did it decide whether Title III of the ADA (in relevant part) includes a customer or client limitation. PGA Tour, Inc. v. Martin, 532 U.S. 661, (2001) (even if Title III of the ADA were limited to clients and customers, which the court did not decide, plaintiff, a professional golfer, would qualify as a customer or client potentially able to compete in the golf tournament). Other decisions routinely cited by plaintiffs in these ADA website cases are similarly inapposite, as they all involve places open to the general public. 11

20 Case: Document: 24 Filed: 01/22/2019 Page: 20 See, e.g., Houston v. Marod Supermarkets, 733 F.3d 1323, 1326 (11th Cir. 2013) (addressing access to a supermarket open to the public); Molski v. M.J. Cable, Inc. 481 F.3d 724, 733 (9th Cir. 2007) ( Molski was plainly a customer of Cable s Restaurant ); see also Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d 113, (3d Cir. 1998) (determining whether the ADA grants a cause of action to a medical doctor with staff privileges at a hospital). B. The District Court Conferred Standing Based On Purely Abstract Harms And Proffered No Factors To Gauge The Plausibility Of Future Harm The district court concluded that an inability to browse a website to learn about the credit union s services, locations, and eligibility criteria constitutes a concrete, albeit intangible, harm even where the plaintiff legally is ineligible to use any of the credit union s goods, services or amenities. See Belle River Cmty. Credit Union, 2018 WL , at *2-3. Precluded from any opportunity by Appellee to make use of the information sought by virtue of her legal ineligibility to become a member, the harm identified by the court is purely abstract a bare procedural violation. Spokeo, 136 S. Ct. at As the Fourth Circuit recently ruled on similar facts, the [i]nability to obtain information is sufficiently concrete to constitute injury in fact only when the information has some relevance to the litigant. Griffin, 2019 WL 80704, at *3 (emphasis added) No such relevance 12

21 Case: Document: 24 Filed: 01/22/2019 Page: 21 exists where the plaintiff is barred by law from enjoying the credit union s services. Id. The Fourth Circuit also concluded that dignitary harm is purely abstract where legal barriers preclude the plaintiff from using the credit union s services. Id. The court analogized the inability to use services to geographic separation between the challenged conduct and the stigmatic injury, which can reduce the personal impact of the injury and render it too abstract to constitute an injury in fact. Id. The Fourth Circuit joined a number of other courts finding that dignity harm is not a cognizable concrete injury in ADA website cases involving plaintiffs ineligible for a credit union s services. See, e.g., Toledo Metro Credit Union, 2018 WL , at *3 (Having failed to allege eligibility to be a member of the credit union, the dignitary harm he suffered when trying unsuccessfully to use the website does not confer standing ); Roanoke Valley Cmty. Credit Union, 2018 WL , at *4 ( [D]ignitary harm would be insufficient to confer standing when Carroll does not allege plausibly that he plans, or is even eligible, to use [the credit union s] services or visit a physical [credit union] location. ); Carello v. Aurora Policemen Credit Union, No. 17C9346, 2018 WL , at *2-3 (N.D. Ill. Aug. 7, 2018), appeal docketed, No (7th Cir. Aug. 29, 2018). Geographic separation also plays a critical role in assessing the likelihood of future harm, which is an irreducible requirement to obtain standing for injunctive 13

22 Case: Document: 24 Filed: 01/22/2019 Page: 22 relief. Griffin, 2019 WL 80704, at *4 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) and Clapper v. Amnesty Int l USA, 568 U.S. 398, 409 (2013)). In the context of Title III ADA cases, courts have assessed future harm by considering the likelihood of the plaintiff returning to the offending location based on the proximity of the litigant s residence to the place of public accommodation and the factors indicating a likelihood to return in light of that proximity. See, e.g., Houston, 733 F.3d at 1328 (noting that the plaintiff lived 30 miles from the store, and the store was on the route to the plaintiff s attorney s office, which he visited often); Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 453 (4th Cir. 2017) (plausibility of returning to location premised on proximity). Although the district court here failed to assess this aspect of standing (itself reversible error), the clear implication from the court s analysis is that future harm would be assessed based on the likelihood that the plaintiff would return to the website. Belle River Cmty. Credit Union, 2018 WL , at *3 ( the harm for which Plaintiff seeks relief is her inability to access Defendant s website. ). 2 However, where the offending location is the website, a proximity-based analysis is of little help. Unlike a physical location that requires some effort to visit, and where plausibility can be assessed based on factors such as proximity, any person 2 The district court cites to Appellee s allegation that she has been deterred from visiting the credit union s brick-and-mortar locations, but never assesses the plausibility of such visits where Appellee has no ability to utilize any of the goods and services available at those locations. 14

23 Case: Document: 24 Filed: 01/22/2019 Page: 23 with Internet access can visit any website at any time from any location, including the comfort of their own home, and test its accessibility. The Fourth Circuit effectively addressed this problem by replacing geographic proximity with an assessment of the plausibility of returning to the credit union s website by a plaintiff ineligible to use the credit union s services. See Griffin, 2019 WL 80704, at *4. The Court found it objectively implausible that an individual would return to a website describing services that she had no hope of ever using. Id. Here, the district court s analysis eliminates the possibility of using either a proximity or usefulness constraint, leaving the question of standing unbounded. Appellee here is also likely to argue that she would return to the website, despite her own ineligibility to use the credit union s services, in order to act as tester. However, tester status, in and of itself, does not create standing. Griffin, 2019 WL 80704, at *5. The tester must still suffer a concrete injury. Under the district court s approach below, where a plaintiff suffers a concrete injury simply by accessing an allegedly inaccessible website, a website tester will always have standing, and lawsuits will continue to proliferate, because it requires virtually no effort to pull up a website for any business located anywhere in the world. This is not a theoretical concern. CUNA member credit unions in Texas, with fields of membership limited to residents of or workers located in certain counties in Texas, have been sued by a California resident claiming unequal access 15

24 Case: Document: 24 Filed: 01/22/2019 Page: 24 to those credit unions websites, with no indication/allegation that the plaintiff could satisfy the field of membership requirements, or that she would ever actually be in Texas. See, e.g., Thurston v. Local 20 IBEW Fed. Credit Union, 3:18-cv S (N.D. Tex. April 11, 2018) (voluntarily dismissed after motion to dismiss and amicus brief filed); Thurston v. BCM Fed. Credit Union, No. 3:17-cv-3391-N (N.D. Tex. Mar. 16, 2018) (voluntarily dismissed after motion to dismiss and amicus brief filed). Standing to assert injury based on tester status or dignity harm due to alleged inequalities of website access would be unbounded for another reason. Unequal access to physical locations typically involves one-time corrections. Widening aisles, building wheelchair ramps, and constructing accessible restrooms are the type of one-time architectural corrections that the ADA was intended to foster, and the applicable specifications are set forth in painstaking detail in DOJ regulations. See e.g., 28 C.F.R. Part 36. Companies have little doubt as to what they are required to do. Once remedied, businesses can feel secure that they will be free of further litigation with respect to those alleged barriers. It is unlikely that the wheelchair ramp specifications will continually evolve, and even if they do evolve, companies would not be held to the new standards unless they constructed new facilities or performed substantial modifications as contemplated by the regulations. 16

25 Case: Document: 24 Filed: 01/22/2019 Page: 25 Not so for websites. Technology is constantly evolving, as are the voluntary and non-binding standards outlined in the Web Content Accessibility Guidelines ( WCAG ) that the DOJ, in the absence of its own regulations, and some courts have adopted in litigation as the standards to attain website accessibility. 3 This is despite the fact that these are third-party-created guidelines that have never been subject to administrative review or adoption, and that do not have the force of law. 4 Moreover, these standards are not static. The World Wide Web Consortium s Web Accessibility Initiative just released Version 2.1 of the Guidelines, which contains 17 new criteria. What s New in WCAG 2.1, Web Accessibility Initiative, (last visited Jan. 3 That companies may be subject to repeated suites to update websites is not a hypothetical concern. In Haynes v. Hooters of America, LLC, the court assessed whether the plaintiff s claims for declaratory and injunctive relief pursuant to Title III of the ADA were moot due to the fact that, in settlement of a similar lawsuit brought by another plaintiff, the defendant had undertaken a remediation plan that addressed all of the same alleged deficiencies in its website. 893 F.3d 781, 782 (11th Cir. 2018). In vacating and remanding the judgment to the district court, the Court of Appeal noted that the relief being sought in Haynes included a request for an order directing Hooters to continually update and maintain its website going forward, which was different from the relief sought in the prior matter. Id. at 783 (emphasis in original). 4 The DOJ s endorsement of the WCAG in court proceedings and other venues violates the Administrative Procedure Act because it effectively constitutes a substantive change to the ADA regulations without engaging in formal rulemaking. See Shalala v. Guernsey Mem l 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). The DOJ has also been abdicating its responsibility to promulgate guidelines, as required by Title III. 17

26 Case: Document: 24 Filed: 01/22/2019 Page: 26 16, 2019). This means, applying Appellee s theories, that a Michigan credit union that has just updated its website to comply with existing Version 2.0 Guidelines may now find itself subject to new litigation based on the results of a tester sitting in California who has found some failure to adhere to Version 2.1 of the Guidelines, and/or alleges a new or further harm to dignity. The Web Accessibility Initiative has announced that an even more thorough overhaul of voluntary website access guidelines will be released in the next few years. See Accessibility Guidelines Working Group (AG WG Project Plan), Website Accessibility Initiative, (last visited Jan. 16, 2019) (targeting the release of WCAG Version 2.2 for February 2020). The cycle is likely unending, and cries out for guidance from Congress or the DOJ on how industries will be expected to comply if websites are, in fact, deemed to be subject to the ADA. II. The District Court s Standing Analysis Is Irreconcilable With Its Decision On the Merits The clear implication of the district court s standing analysis is that the credit union s website is the place of public accommodation at which the alleged discrimination occurred. The court found concrete harm based solely on the alleged inability of Appellee to browse the website and obtain information. Belle River Cmty. Credit Union, 2018 WL , at *3 (Appellant mistakenly assumes that the harm [Appellee] seeks to remedy is her inability to use 18

27 Case: Document: 24 Filed: 01/22/2019 Page: 27 [Appellant s] services. But, the harm for which [Appellee] seeks relief is her inability to access [Appellant s] website. ). There is no indication that the district court would require Appellee to ever visit the credit union s physical locations or even use any of the credit union s services available at those locations. Consistent with the plain language of Title III of the ADA, however, the Sixth Circuit has held that a public accommodation is physical place. Parker v. Metro Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997) (en banc). By assessing harm based solely on access to the website, which must then be the place of public accommodation, the district court has contravened binding Sixth Circuit precedent. Despite the implications of its standing analysis, the district court, in addressing the merits of the claim, concluded that the place of public accommodation is the credit union s physical location. The website claim is actionable, according to the district court, because there is a nexus between the services and amenities available on the website and the credit union s physical sites. Even assuming that the Sixth Circuit would apply a nexus theory, the district court s application of the theory is irreconcilable with its conclusion that Appellee has standing even though she cannot use any of the credit union s services. The harm that confers standing must bear some relationship to the claim that may be asserted. See Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) 19

28 Case: Document: 24 Filed: 01/22/2019 Page: 28 ( deprivation of a procedural right without some concrete interest that is affected by the deprivation... is insufficient to create Article III standing. ). Here, the district court concluded that Appellee stated an ADA claim because the website s inaccessibility interferes with the full and equal enjoyment of the goods and services offered at the physical store. Belle River Cmty. Credit Union, 2018 WL , at *5 (quoting Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 389 (E.D.N.Y. 2017)) (emphasis added). However, if that is the basis for the ADA claim, Appellee lacks standing to pursue it because she has no ability to enjoy the goods and services offered at the credit union s physical locations. The substantive claim an inability to enjoy the goods and services available at the physical location due to an allegedly inaccessible website does not apply to Appellee here, because she is legally ineligible to avail herself of the services offered at the physical location. Cf. Spokeo, 136 S. Ct. at 1548 (standing requires that the harm be particularized and concrete). The district court s ruling that Appellee has stated an ADA claim because the website facilitates access to the services available at the physical location is simply irreconcilable with its determination that the ability to access the services offered at the physical location is unnecessary to demonstrate harm. CONCLUSION 20

29 Case: Document: 24 Filed: 01/22/2019 Page: 29 For the foregoing reasons, the district court erroneously held that Appellee has standing to bring an ADA claim against Belle River. Appellee is not within Belle River s field of membership, and is not eligible to become a member of Belle River in the future. Therefore, amici curiae respectfully request that this Court reverse the district court s ruling and find that Appellee does not have standing to pursue her claim against Belle River. Respectfully submitted, this 22 nd day of January, s/patricia Corkery Patricia Corkery Michigan Credit Union League 110 W. Michigan Avenue Fourth Floor Lansing, MI Telephone: Fax: patty.corkery@mcul.org Counsel for Amicus Curiae Michigan Credit Union League s/christine A. Samsel Christine A. Samsel Brownstein Hyatt Farber Schreck, LLP 410 Seventeenth Street, Suite 2200 Denver, CO Telephone: Fax: csamsel@bhfs.com Michael H. Pryor Brownstein Hyatt Farber Schreck, LLP 1155 F Street N.W., Suite 1200 Washington, DC Telephone: Fax: mpryor@bhfs.com Jonathan C. Sandler Brownstein Hyatt Farber Schreck, LLP 2049 Century Park East, Suite 3550 Los Angeles, CA Telephone: Fax: jsandler@bhfs.com Counsel for Amicus Curiae 21

30 Case: Document: 24 Filed: 01/22/2019 Page: 30 Credit Union National Association 22

31 Case: Document: 24 Filed: 01/22/2019 Page: 31 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limits of Federal Rule of Appellate Procedure 32(a)(7) and Federal Rule of Appellate Procedure 29(a)(5) because it contains 4,989 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). 2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief was prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman. Dated: January 22, 2019 By: /s/ Christine A. Samsel Counsel for Amicus Curiae Credit Union National Association 23

32 Case: Document: 24 Filed: 01/22/2019 Page: 32 CERTIFICATE OF SERVICE I hereby certify that on January 22, 2019, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. Dated: January 22, 2019 By: /s/ Christine A. Samsel Counsel for Amicus Curiae Credit Union National Association 24