No IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. CLARENCE GRIFFIN, Plaintiff-Appellant,

Transcription

1 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 1 of 75 Total Pages:(1 of 76) No IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT CLARENCE GRIFFIN, Plaintiff-Appellant, v. DEPARTMENT OF LABOR FEDERAL CREDIT UNION, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA AT ALEXANDRIA BRIEF OF AMICUS CURIAE CREDIT UNION NATIONAL ASSOCIATION IN SUPPORT OF DEFENDANT-APPELLEE Jonathan C. Sandler Brownstein Hyatt Farber Schreck, LLP 2049 Century Park East, Suite 3550 Los Angeles, CA Telephone: Fax: jsandler@bhfs.com 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 Counsel for Credit Union National Association

2 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 2 of 75 Total Pages:(2 of 76) UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORA TE AFFILIA TIO NS AND OTHER INT ERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankru ptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local governm ent in a pro se case. In mandamus cases arising from a civil or bankru ptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici cunae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. No Caption: Clarence Griffin v. Department of Labor Federal Credit Union Pursuant to FRAP 26.1 and Local Rule 26.1, Credit Union National Association (name of party/amicus) who is amicus makes the following disclosure: ( appellant/ appellee/peti ti oner /respondent/ amicus/ intervenor) 1. Is party/amicus a publicly held corporation or other publicly held entity? OYES 0NO 2. Does party/amicus have any parent corporations? DYES 0NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? DYES 0 NO If yes, identify all such owners: sec - 1 -

3 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 3 of 75 Total Pages:(3 of 76) 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1 ( a )(2)(B) )? DYES 0 NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) DYES D NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors' committee: DYES0NO Signature: w~,-::;.;;...~ =;. ~""'---- -=:, Date: ~ ~ \t> Counsel for: Credit Union National Association CERTIFICATE OF SERVICE ************************** I certify that on June 20, 2018 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 serving a true and correct copy at the addresses listed below: (signature) - 2 -

4 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 4 of 75 Total Pages:(4 of 76) 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. Appellant Lacks Standing Because He Has Not Pled That He Is Within The Field Of Membership... 8 II. Appellant s Theories Of Standing, If Applied In The Context Of Website Accessibility Claims, Would Effectively Eviscerate Constitutional Limitations CONCLUSION i-

5 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 5 of 75 Total Pages:(5 of 76) Cases TABLE OF AUTHORITIES -ii- Page(s) Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y. 2017) Carroll v. 1st Advantage Fed. Credit Union, No. 4:17-cv-00129, slip op. (E.D. Va. April 9, 2018)... 6 Carroll v. ABNB Fed. Credit Union, No. 2:17-cv-00521, slip op. (E.D. Va. Mar. 5, 2018)... 6, 9 Carroll v. Nw. Fed. Credit Union, No. 1:17-cv-01205, slip op. (E.D. Va. Jan. 26, 2018)... 7, 8, 9, 18 Carroll v. Wash. Gas Light Fed. Credit Union, No. 1:17-cv-01201, slip op. (E.D. Va. April 4, 2018)... 6 City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct (1983) Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) Griffin v. Dept. of Labor Fed. Credit Union, No. 1:17-cv-1419, slip op. (E.D. Va. Feb. 21, 2018)... 6, 9 Haynes v. Hooters of America, LLC., No , 2018 WL (11th Cir. June 19, 2018)... 14, 15 Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016) Markett v. Five Guys Enters. LLC, No. 17-cv-788-KBF, 2017 WL (S.D.N.Y. July 21, 2017) Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d 113 (3d Cir. 1998) Nanni v. Aberdeen Marketplace, Inc., 848 F.3d 447 (4th Cir. 2017)... 11

6 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 6 of 75 Total Pages:(6 of 76) Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) aff d 2004 U.S. App. LEXIS 5495 (4th Cir. 2004)... 8, 18 Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F. Supp. 2d 1005 (W.D.N.C. 2011), aff d 474 F. App x 369 (4th Cir. 2012) Parker v. Metro Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) Rendon v. Valleycrest Prods. Ltd., 294 F.3d 1279 (11th Cir. 2002) Robles v. Domino s Pizza LLC, No. CV SJO, 2017 WL (C.D. Cal. March 20, 2017) Shalala v. Guernsey Mem l Hosp., 514 U.S. 87, 115 S. Ct (1997) Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000)... 8 Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir. 1995) Thurston v. BCM Fed. Credit Union, No. 3:17-cv-3391-N (N.D. Tex. Mar. 16, 2018) Thurston v. Local 20 IBEW Fed. Credit Union, 3:18-cv S (N.D. Tex. April 11, 2018) Warth v. Seldin, 422 U.S. 490, 95 S. Ct (1975)... 8 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) Statutes 42 U.S.C (b) iii-

7 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 7 of 75 Total Pages:(7 of 76) 42 U.S.C (7) U.S.C Administrative Procedure Act Americans with Disabilities Act, 42 U.S.C , et seq....passim Federal Credit Union Act, 12 U.S.C. 1751, et. seq Other Authorities 28 C.F.R , 14 Accessibility Guidelines Working Group (AG WG Project Plan), Website Accessibility Initiative, 15 What s New in WCAG 2.1, Web Accessibility Initiative, iv-

8 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 8 of 75 Total Pages:(8 of 76) FED. R. APP. P. 29(a) DISCLOSURE STATEMENT Amicus Curiae Credit Union National Association ( CUNA ) hereby furnishes the following information in accordance with Federal Rule of Appellate Procedure 29(a). Counsel for CUNA 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 Amicus Curiae sought and obtained consent from all parties for the filing of this brief. INTEREST OF AMICUS CURIAE CUNA submits 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 nearly 6,000 credit unions, which are owned by 110 million members collectively. Credit unions, which may be federally chartered or state chartered, are not-for-profit, tax-exempt organizations that are owned and operated by their members. CUNA and the credit unions it serves strongly support the goals of the Americans with Disabilities Act ( ADA ), 42 U.S.C , et

9 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 9 of 75 Total Pages:(9 of 76) seq. CUNA provides a wide range of educational information to its members, including information on the ADA. The member credit unions of CUNA have become the subject of waves of litigation brought by a handful of individuals alleging that they are being denied equal access, not to the credit unions physical locations, but to their websites. The alleged deficient website accessibility is asserted to be a 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 suits against most, if not all, credit unions within a state or judicial district, without regard to whether the plaintiff is even 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, one plaintiff sued approximately 27 credit unions in Virginia. The complaints typically were filed without regard to any of the credit unions membership eligibility criteria or whether the plaintiff was within the legally required restricted field of membership that the credit union is permitted to serve. This wave of litigation is particularly concerning because the Department of Justice ( DOJ ), the federal agency charged by Congress to implement the ADA 2

10 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 10 of 75 Total Pages:(10 of 76) (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. Notwithstanding the lack of merit of the claims, many of CUNA 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, CUNA has a substantial interest in this case. As noted, credit unions are not-for-profit financial cooperatives, whose members/consumers are also owners who have voting rights. There is thus a close and unique relationship between credit unions and their member-owners, who not 3

11 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 11 of 75 Total Pages:(11 of 76) 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 consumer-owners, who themselves may be protected by the ADA. Moreover, case-by-case litigation leads to disparate accessibility standards being imposed and disparate holdings, potentially resulting in different credit unions being subject to differing standards, or even the same credit union being subject to repeated lawsuits based on ever-evolving private sector technological developments. Thus, the Court s ruling is vital to CUNA s membership, 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 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 Thus, membership in credit unions is legally 4

12 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 12 of 75 Total Pages:(12 of 76) restricted to specific groups, defined in the credit union s charter, who must share a common bond of occupation or association, or be located within a well-defined neighborhood, community, or rural district. Id. 1759(b)(1)-(3). The FCUA bars credit unions from serving the general public. See id. The restricted group eligible for membership in a particular credit union is called a field of membership. 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. This, of course, includes valued members with disabilities. Yet, by filing these lawsuits against so many different credit unions, the plaintiffs in these cases are ignoring the membership requirements altogether, or making the implausible claim that the same plaintiff can simultaneously meet vastly different and often mutually exclusive field of membership restrictions. Moreover, many credit unions are small businesses with extremely limited staff and resources, and they often serve smaller or rural local communities that may otherwise have limited options for financial services. Some credit unions are the only federally-regulated financial institutions in underserved areas with high poverty rates. In the United States, nearly half of all credit unions employ five or 5

13 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 13 of 75 Total Pages:(13 of 76) fewer full time employees. Over one-quarter of credit unions have less than $10 million in assets, and credit unions with less than $100 million in assets account for over 72% of all U.S. credit unions. SUMMARY OF ARGUMENT The district court correctly held that Appellant lacks standing. Appellant has not suffered concrete and particularized harm because he has not alleged that he meets the eligibility requirements for membership in Defendant-Appellee Department of Labor Federal Credit Union ( DOLFCU ) as set forth in its charter. Appellant s inability to enjoy the benefits, or partake in the services, of DOLFCU is in no way affected or caused by the alleged inadequacies of DOLFCU s website, but rather by Appellant s apparent ineligibility for membership in DOLFCU s restricted field of membership. Nor would any remedial action regarding the website cure his lack of eligibility to become a member. Every court that has addressed this issue has reached the same conclusion plaintiffs lack standing to assert ADA website claims where they do not qualify for membership. See, e.g., Carroll v. 1st Advantage Fed. Credit Union, No. 4:17-cv-00129, slip op. at 6 (E.D. Va. April 9, 2018); Carroll v. Wash. Gas Light Fed. Credit Union, No. 1:17-cv , slip op. at 1 (E.D. Va. April 4, 2018); Carroll v. ABNB Fed. Credit Union, No. 2:17-cv-00521, slip op. at 1 (E.D. Va. Mar. 5, 2018); Griffin v. Dept. of Labor Fed. Credit Union, No. 1:17-cv-1419, slip op. at 3-4 (E.D. Va. Feb. 21, 2018); 6

14 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 14 of 75 Total Pages:(14 of 76) Carroll v. Nw. Fed. Credit Union, No. 1:17-cv-01205, slip op. at 3-5 (E.D. Va. Jan. 26, 2018) (dismissing the plaintiff s ADA claim that the credit union s website was inaccessible, noting that the plaintiff was not a member of the credit union nor had he alleged any facts in his Complaint [regarding field of membership] to suggest he was eligible to become a member. ). Permitting Appellant to circumvent the membership restrictions by asserting standing as a tester and/or based on harm to his dignity would eviscerate constitutional limitations if extended to ADA website claims. Appellant 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. In the context of determining whether the ADA should even apply to websites at all, the majority of courts conclude that the ADA applies only to brickand-mortar locations, and have either found websites not encompassed by the ADA, or require a close nexus between the website and a physical place of public accommodation. The Fourth Circuit has not definitively ruled on whether the ADA applies to websites, but Judge Hilton has found that a website is not a place of public accommodation and cited a Fourth Circuit unpublished opinion 7

15 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 15 of 75 Total Pages:(15 of 76) interpreting the term public accommodation as persuasive in reaching this conclusion. See Carroll v. Nw. Fed. Credit Union, No. 1:17-cv-01205, slip op. at 5 (E.D. Va. Jan. 26, 2018) (citing Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 540 (E.D. Va. 2003) (Ellis, J.) aff d 2004 U.S. App. LEXIS 5495 (4th Cir. 2004)). ARGUMENT I. Appellant Lacks Standing Because He Has Not Pled That He 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 Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205 (1975). Appellee DOLFCU addresses in detail Appellant s lack of standing to assert his claims; CUNA will not reiterate those arguments here. However, it is particularly important in a case such as this, where the plaintiff seeks a positive injunction to require remedial action, 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 plaintiffs, including Appellant here. Yet each credit union has its own restricted field of membership that the plaintiff cannot meet, a 8

16 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 16 of 75 Total Pages:(16 of 76) fact that is often ignored in these complaints. To gain standing in these cases, the plaintiffs would have to implausibly claim that they can meet the very specific and limited field of membership for each of the credit unions in order to be eligible for that credit union s services. The improbability of such a claim underscores the need to curtail these types of lawsuits. As described above, credit unions such as DOLFCU are membership organizations whose charters prescribe exactly who is eligible to become a member. Without meeting the prescribed criteria, Appellant cannot avail himself 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. See Carroll v. ABNB Fed. Credit Union, No. 2:17-cv-521, slip op. at 9 (E.D. Va. Mar. 5, 2018) (dismissing plaintiff s complaint because Plaintiff has made no allegations showing that he falls within ABNB s membership field... he has not suffered a concrete injury from being unable to access information about the services available to members of ABNB ); Griffin v. Dept. of Labor Fed. Credit Union, No. 1:17-cv-1419, slip op. at 3-4 (E.D. Va. Feb. 21, 2018) ( Because plaintiff is not permitted to utilize [the credit union s] financial services, he has suffered no concrete injury as a result of being denied access to [its] website ); Carroll v. Nw. Fed. Credit Union, No. 1:17-cv-01205, slip op. at 3-5 (E.D. Va. Jan. 26, 2018) (dismissing plaintiff s ADA claim that the credit union s website was inaccessible 9

17 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 17 of 75 Total Pages:(17 of 76) because plaintiff was not a member of the credit union, nor had he alleged any facts in his Complaint [regarding field of membership] to suggest he was eligible to become a member. ). Appellant argues that he need not qualify for membership because the ADA does not require a complainant to be a customer or patron of the business. The cases cited by Appellant, however, are wholly inapposite. In each of those cases, even if the plaintiff was not already a customer or patron, he or she could become a customer or otherwise had a personal interest in the defendant facility s physical premises, such as being on the medical staff of a hospital. See, e.g., Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d 113, (3d Cir. 1998) (determining whether a medical doctor with staff privileges at a hospital could sue the hospital for disability discrimination under Title III of the ADA). Here, Appellant does not plead that he was or had the qualifications to become a member of the credit union. II. Appellant s Theories Of Standing, If Applied In The Context Of Website Accessibility Claims, Would Effectively Eviscerate Constitutional Limitations. Appellant has proffered different purported bases for standing to circumvent the field of membership restrictions: He asserts standing based on his alleged role as a tester, and claims that he has suffered a concrete and particularized injury based on harm to his dignity. Putting aside for the moment that neither of these 10

18 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 18 of 75 Total Pages:(18 of 76) allegations appear in the complaint (Appellee Br. at 6), the assertion of these arguments should give the Court pause, as they highlight the expansive risk of divorcing access to physical facilities from allegations of ADA injury. Appellant attempts to rely on the Fourth Circuit s recent holding in Nanni v. Aberdeen Marketplace, Inc. to support his position that he is a tester under Title III of the ADA. 848 F.3d 447 (4th Cir. 2017); Appellant Br. at Nanni is distinguishable, though, because the Fourth Circuit held in that case that an individual in a wheelchair had standing to sue where he encountered an accessibility barrier to a marketplace, and he plausibly alleged that he intended to return to that marketplace; as a result he had standing under the ADA. 848 F.3d at 449. The plaintiff in Nanni was thus an eligible customer of an otherwise public marketplace, and intended to return, unlike Appellant in this case, who does not allege that he meets the field of membership criteria for DOLFCU. In another case, the Fourth Circuit affirmed the district court s ruling that a Title III plaintiff cannot use [his] status as a tester to satisfy the standing requirements where [he] would not have standing otherwise. Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F. Supp. 2d 1005 (W.D.N.C. 2011), aff d 474 F. App x 369 (4th Cir. 2012). 1 1 Credit unions generally may not even be subject to the requirements of Title III although place of public accommodation is interpreted broadly under the ADA, a credit union (or its website) is inherently not a place of public accommodation, because credit unions and the services they offer are not open to the general public. Credit unions have a very limited scope, serving a narrow subset of the public 11

19 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 19 of 75 Total Pages:(19 of 76) Thus, Appellant cannot possibly be a tester if under no circumstances could he avail himself of DOLFCU s services. Moreover, Appellant s complaint is inconsistent and confusing in its assertions regarding DOLFCU s website. At times, Appellant appears to assert that he was denied access to goods or services of the website, as if the website itself is the place of public accommodation. See Compl., 12. At other times, the complaint asserts that the website is a good or service of the credit union s physical locations, identifying those physical facilities as the places of public accommodation. See Compl., 11. Both assertions have startling implications for standing to pursue ADA claims if predicated on tester or harm to dignity grounds, and would place credit unions and other small businesses with websites in near constant threat of litigation. If, for example, the website itself is the place of public accommodation, appellant s tester and harm-to-dignity theories would confer standing on any disabled person to sue any company in the country without ever having to leave his or her home. This is not a theoretical concern. CUNA member credit unions in Texas, with fields of membership limited to residents of or workers located in eligible to avail themselves of the credit union s services. For example, DOLFCU is open only to employees of the U.S. Department of Labor and to employees of certain companies almost always affiliated with the Department of Labor. Clearly, the general public like Appellant would not be able to take advantage of the DOLFCU s services. 12

20 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 20 of 75 Total Pages:(20 of 76) certain counties in Texas, have been sued by a California resident claiming unequal access to those credit unions websites, with no indication/allegation that the plaintiff could satisfy the field of membership requirements. 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). Consider the implications of accepting Appellant s theory for the long line of precedent that requires evidence of the likelihood of repeat harm to confer standing for injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S. Ct (1983). In the brick-and-mortar context, this requires some reasonable evidence that a plaintiff has plans to return to the offending location, and often revolves around facts such as the plaintiff s distance from the location and his or her past history of visiting the site. If the website is the place of public accommodation, revisiting the location is trivial, merely requiring typing in the URL of the site, and the repeat visit may be accomplished from anywhere with internet access. The limitations on standing to obtain injunctive relief developed by the courts and required by the Constitution become meaningless if this were to be the rule. 13

21 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 21 of 75 Total Pages:(21 of 76) 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, 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 what they are required to do. Once remedied, businesses can feel secure that they will be relatively free of further litigation. 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 construct new facilities or perform substantial modifications as contemplated by the regulations. 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. 2 This is 2 This is not a hypothetical concern. In fact, on June 19, 2018, the 11th Circuit issued its opinion in Haynes v. Hooters of America, LLC. No , 2018 WL (11th Cir. June 19, 2018). In that case, the issue on appeal was 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. Id. at *1. In vacating and 14

22 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 22 of 75 Total Pages:(22 of 76) despite the fact that these are third-party-created guidelines that have never been subject to administrative review or adoption, and do not have the force of law. 3 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 seventeen (17) new criteria. What s New in WCAG 2.1, Web Accessibility Initiative, (last visited June 18, 2018). This means, applying Appellant s theories, that a Virginia 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 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 *2. 3 Additionally, the DOJ 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, 115 S. Ct. 1232, 1239 (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. 15

23 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 23 of 75 Total Pages:(23 of 76) Accessibility Initiative, (last visited June 18, 2018) (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. None of this is intended to denigrate the laudable goals of the ADA or the real harms that the disabled may suffer from lack of equal access. But unbounded theories of standing reinforce the need to maintain a tie between the alleged injury and a physical place of public accommodation. Although not in the standing context, courts have been grappling with this question. Several courts that have addressed whether websites are places of public accommodations have concluded that they are not. See, e.g., Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530, (5th Cir. 2016); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998) (holding that the litany of terms found in the ADA including auditorium, bakery, laundromat, museum, park, nursery, food bank, and gymnasium indicates unequivocally that the ADA does not apply to nonphysical access; [W]e do not find the term public accommodation or the terms in 42 U.S.C (7) to refer to non-physical access or even to be ambiguous as to their meaning. ); Parker v. Metro Life Ins. Co., 121 F.3d 1006, (6th Cir. 1997) ( As is evident by 12187(7), a public accommodation is a physical 16

24 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 24 of 75 Total Pages:(24 of 76) place and this Court has previously so held. ) (citing Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir. 1995)). Some courts have simply concluded that the ADA does not apply to websites. See, e.g., Robles v. Domino s Pizza LLC, No. CV SJO, 2017 WL , at *8 (C.D. Cal. March 20, 2017). Others have found that the ADA only applies to physical locations, but have permitted ADA suits where there was a strong and verifiable nexus between any deficiencies in the website and an actual physical place of accommodation such that the website s infirmities prevented equal enjoyment of the physical location. See, e.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000) (ADA applies to physical locations, but websites may be subject to ADA if there is a sufficient nexus to a physical location); Rendon v. Valleycrest Prods. Ltd., 294 F.3d 1279, (11th Cir. 2002) (requiring a strong nexus between the intangible offsite barrier and a physical location that has the effect of precluding use of a privilege held at that physical place of public accommodation). A minority of courts have concluded that websites themselves are places of public accommodation a holding that seems divorced from the statutory language and intent. See, e.g., Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017); Markett v. Five Guys Enters. LLC, No. 17-cv-788-KBF, 2017 WL , at *2 n.3 (S.D.N.Y. July 21, 2017). 17

25 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 25 of 75 Total Pages:(25 of 76) The Fourth Circuit has not definitively ruled on whether Title III of the ADA applies to websites. In Carroll v. Northwest Federal Credit Union, Judge Hilton concluded that websites are not places of public accommodation under the ADA. See No. 1:17-cv-01205, slip op. at 5 (E.D. Va. Jan. 26, 2018) (decision upheld after amended complaint was filed in Carroll v. Nw. Fed. Credit Union, No. 1:17-cv , slip op. at 2 (E.D. Va. April 16, 2018) (hereinafter Northwest FCU II )). Judge Hilton noted that the Fourth Circuit affirmed in an unpublished opinion that, under Title II of the Civil Rights Act, chat rooms and other online services do not constitute a place of public accommodation. Nw. Fed. Credit Union, No. 1:17-cv-01205, slip op. at 5 (quoting Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 540 (E.D. Va. 2003) (Ellis, J.) aff d 2004 U.S. App. LEXIS 5495 (4th Cir. 2004)). Considered in the context of standing, the summary provided above reinforces that need to demonstrate concrete and particularized injury from lack of equal enjoyment of the physical location, and not merely abstract deficiencies of a company s website. And in the particular context of credit unions with very specific, discrete fields of membership, a concrete and particularized injury must be suffered by an individual who is actually eligible to enjoy the goods and service of the credit union; otherwise, there is simply no injury, and no standing to assert a claim. 18

26 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 26 of 75 Total Pages:(26 of 76) CONCLUSION For the foregoing reasons, the district correct correctly held that Appellant lacks standing to bring an ADA claim against DOLFCU. Appellant is not within DOLFCU s field of membership, and is not eligible to become a member of DOLFCU in the future. Therefore, CUNA respectfully requests that this Court affirm the district court s ruling dismissing Appellant s complaint against DOLFCU on standing grounds. Respectfully submitted, this 20 th day of June, 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 19

27 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 27 of 75 Total Pages:(27 of 76) CERTIFICATE OF COMPLIANCE 1. This brief or other document complies with type-volume limits because, excluding the parts of the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table of contents, table of citations, statement regarding oral argument, signature block, certificates of counsel, addendum, attachments) this brief contains 4,445 words. 2. This brief complies with the typeface and type style requirements because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman. Dated: June 20, 2018 By: /s/ Christine Samsel Counsel for Amicus Curiae 20

28 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 28 of 75 Total Pages:(28 of 76) CERTIFICATE OF SERVICE I hereby certify that on June 20, 2018, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit using the appellate CM/ECF system. All participants in the case are registered CM/ECF users and service will be accomplished by the CM/ECF system. Dated: June 20, 2018 By: /s/ Kate Meade Paralegal 21

29 Appeal: Doc: 29-1 Filed: 06/20/2018 Pg: 29 of 75 Total Pages:(29 of 76) ADDENDUM 1 UNPUBLISHED DISPOSITIONS

30 Appeal: Case 4:17-cv AWA-RJK Doc: 29-1 Filed: Document 06/20/ Filed Pg: 04/09/18 30 of 75 Page 1 of 6 Total PageID# Pages:( of 76) UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Newport News Division APR KEITH CARROLL, Plaintiff, V. Civil No.4:17-cv-129 1ST ADVANTAGE FEDERAL CREDIT UNION, Defendant. ORDER Pending before the Court is a Motion to Dismiss brought by Defendant 1st Advantage Federal Credit Union ("Defendant" or "1st Advantage"). ECF No. 8.' For the reasons stated herein, the Motion is GRANTED. I. PROCEDURAL AND FACTUAL BACKGROUND Plaintiff Keith Carroll ("Plaintiff") is a permanently blind resident of Virginia. Compl. ^ 3, ECF No. 1. To accommodate his visual impairment, Plaintiff uses a screen reader to access websites on the Internet. Id. Defendant is a community credit union chartered by the federal goverimient under 12 U.S.C. 1759(b)(3), which requires that membership be restricted only to those "[p]ersons or ' Defendant also filed two Motions for Leave to File Notice of Supplemental Authority. ECF Nos. 21, 25. Plaintiff filed an objection to Defendant's First Motion (ECF Nos. 22, 23). The Court, finding that the proposed supplemental filing would potentially assist the Court in resolving the pending Motion to Dismiss, granted the First Motion (ECF No. 26) and gave Plaintiff leave to file a response addressing the supplemental authority. For the same reasons, the Court also granted the Second Motion (ECF No. 27), and gave Plaintiff leave to file a supplemental response. On April 2, 2018, Plaintiff filed responses, arguing that the supplemental authorities filed were not binding upon this Court. Plaintiff also cited cases from the United States Courts of Appeals for the Third and Ninth Circuits, as well as the District Court for the Western District of Pennsylvania. See ECF Nos. 28, 29. The supplemental authorities and Plaintiffs responses have been offered to assist the Court in resolving the pending Motion to Dismiss, and the Court has considered them.

31 Appeal: Case :17-cv AWA-RJK Doc: 29-1 Filed: Document 06/20/ Filed Pg: 04/09/18 31 of 75 Page 2 of 6 Total PageID# Pages:( of 76) organizations within a well-defined local community, neighborhood, or rural district." Pursuant to 12 U.S.C. 1759(b)(3), Defendant limits its membership by providing banking services only to "anyone who lives, works, worships or attends school in Hampton Roads and parts of North Carolina, and to any immediate family members ofcurrent 1st Advantage members." ECF No. 9 at 12. Defendant defines its geographic eligibility requirement to include the Virginia cities of Chesapeake, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach, and Williamsburg, as well as the counties of Gloucester, Isle of Wight, James City, Mathews, and York. In North Carolina, geographic eligibility is restricted to individuals in the counties ofcurrituck and Gates. Id. Plaintiff alleges that he has made several attempts to access Defendant's website to learn about Defendant's locations, amenities, services, privileges, advantages, and accommodations, but has been barred from doing so because Defendant's website does not include certain accommodations for visually impaired viewers. Compl , ECF No. 1. Plaintiff alleges specifically that three barriers prevent visually impaired users from accessing the website: (1) linked images that are missing alternative text, which would otherwise permit the screen reader to provide an oral description of a picture and its linked services to the visually impaired user; (2) redundant links that send users to the same location as other links on the website, forcing users to take additional steps to reach the content that the user actually intends to use; and (3) missing formal labels, which prevent the screen reader from communicating to the visually impaired user information that the user needs to enter into a field on the webpage. Id. H13. Plamtiff contends that Defendant in permitting these three alleged barriers to exist on its website and by failing to make reasonable modifications to its policies and practices to make its services accessible to the visually impaired has violated and continues to violate the

32 Appeal: Case 4:17-cv AWA-RJK Doc: 29-1 Filed: Document 06/20/ Filed Pg: 04/09/18 32 of 75 Page 3 of 6 Total PageID# Pages:( of 76) Americans with Disabilities Act ("ADA"), 42 U.S.C et seq. Id Defendant moves to dismiss Plaintiffs Complaint on four bases, including an assertion that Plaintiff lacks standing. ECF No. 9 at9? II. LEGAL STANDARD Although Defendant purports to challenge Plaintiffs standing under Federal Rule of Civil Procedure 12(b)(6), ECF No. 9 at 8, a challenge to standing must be made pursuant to Rule 12(b)(1), which permits challenges on the basis of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Accordingly, to the extent Defendant challenges Plaintiffs standing to bring the suit, the Court construes Defendant's Motion as one filed pursuant to Rule 12(b)(1). See Mims v. Kemp, 516 F.2d 21, 22 (4th Cir. 1975); see also Griffin v. Department oflabor Federal Credit Union, No. I:17cvl419, slip op. at 2 n.2 (E.D. Va. Feb. 21, 2018); KCEProperties, Inc. v. Holy Mackerel, Inc., No. 4:16cv42,2017 WL , at *1 (E.D. Va. 2017). Article III of the United States Constitution requires that a plaintiff have standing to bring a case or controversy before a federal court. The standing inquiry "ensures that a plaintiff has a sufficient personal stake in a dispute to render judicial resolution appropriate." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153 (4th Cir. 2000). Otherwise, the absence of standing deprives a federal court of the power to adjudicate anything further about the case. Warth v. Seldin, 422 U.S. 490,498 (1975). To demonstrate standing, a plaintiff must allege that he or she suffered an injury in fact that (1) is "concrete and particularized," rather than "conjectural or hypothetical;" (2) is fairly traceable to the defendant's conduct; and (3) will likely prove redressible via a favorable ruling ^ Because this Court finds the standing challenge dispositive, it lacks jurisdiction to reach the other asserted grounds for dismissal: Defendant's website is not a "place of public accommodation" subject to the ADA's provisions, id. at 14; the information on the website is accessible to Plaintiff through other auxiliary aids and services, id. at 19; and because of the primary jurisdiction doctrine, id. at 22.

33 Appeal: Case 4:17-cv AWA-RJK Doc: 29-1 Filed: Document 06/20/ Filed Pg: 04/09/18 33 of 75 Page 4 of 6 Total PageID# Pages:( of 76) from the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992). "Threatened injury must be certainly impending to constitute injury in fact," and "[ajllegations of possible future injury" are insufficient to fulfill the requirement of injury in fact. Clapper v. Amnesty Int 7 USA, 568 U.S. 398, 409 (2013); see also Friends ofthe Earth, 204 F.3d at 154 (noting the injury in fact element "requires that a plaintiffsuffer an invasion ofa legally protected interest which is... actual or imminent"). The burden falls on the party invoking jurisdiction to establish that he or she has standing. Spokeo Inc. i'. Robbins, 136 S. Ct. 1540, 1547 (2016). Furthermore, a plaintiff does not automatically fulfill 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." Id. at "Divorced from any concrete harm," a statutory violation is insufficient to meet the injury in fact requirements for Article III standing. Id. A plaintiff seeking injunctive reliefmust demonstrate that there is a non-speculative, imminent threat of repeated future injury to establish injury in fact sufficient to support injunctive relief O'Shea v. Littleton, 414 U.S. 488,495 (1974). III. ANALYSIS The Court agrees that the question of whether Plaintiff has sufficiently established standing is dispositive. In the context of ADA claims, "courts have held that a plaintiff must establish a genuine likelihood of returning to the defendant's business[] in order to demonstrate a real threat offuture harm." Carroll v. Northwest Federal Credit Union, No. I:17cvl205, slip op. at 2-3 (E.D. Va. Jan. 26, 2018) (citing Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000); Pickern v. Holiday Quality Foods, Inc., , (9th Cir. 2002)). In Daniels v. Arcade, LLP, All Fed. App'x 125, 129 (4th Cir. 2012), the United States Court of Appeals for the Fourth Circuit concluded that where the plaintiff could plausibly claim that the market allegedly in violation of the ADA was (1) close to his residence, (2) one he had previously and

34 Appeal: Case 4:17-cv AWA-RJK Doc: 29-1 Filed: Document 06/20/ Filed Pg: 04/09/18 34 of 75 Page 5 of 6 Total PageID# Pages:( of 76) regularly visited, and (3) a place he intended to continue to visit, the plaintiff had sufficiently established injury in fact and likelihood of future harm. Here, by contrast, Plaintiff has failed to establish injury in fact and likelihood of future harm. Defendant is a credit union whose field of membership is limited to (1) individuals who live, work, worship, or attend school in specified counties and cities in Hampton Roads and parts of North Carolina, and (2) any immediate family members of Defendant's current members. ECF No. 9 at 12. Plaintiff is not included in this membership field, nor has he alleged any facts in his Complaint to suggest that he falls or will fall within this membership field. His Complaint notes simply that he "is an adult resident of this District" that is, the Eastern District of Virginia but does not allege that he is a resident of any of the above-listed cities or coimties that would qualify him for membership. Compl. ^ 3, ECF No. 1. The Complaint also fails to allege that he works, worships, or attends school in the above-listed cities or counties. Similarly, he does not allege that he is an immediate family member of a current Union member. Finally, the civil cover sheet filed with this matter lists Fairfax County as Plaintiffs county of residence. ECF No. 9 at 12. Given that Plaintiffhas not alleged facts sufficient to establish that he is eligible for membership at 1st Advantage Credit Union, he has also failed to establish that he is able to deposit money in or receive any other services from Defendant. It is Plaintiffs burden to demonstrate that he is suffering a concrete and particularized injury that is both fairly traceable to Defendant's conduct and redressible by this Court. Because Plaintiff cannot demonstrate that he (1) is a member of 1st Advantage Credit Union; (2) within 1st Advantage's limited field of membership; or (3) would ever be entitled to participate in any of 1st Advantage's services, he cannot establish that he has suffered an actual or imminent