UPDATE 2 – As reported by Seyfarth Shaw, LLP, the Eleventh Circuit denied Winn-Dixie’s petition for rehearing en banc via order entered on March 2, 2022. The per curiam ruling is utterly opaque, giving no reasoning for its rejection of Winn-Dixie’s arguments against the Circuit Court’s mootness finding by which it both vacated its earlier reversal of the District Court judgment in favor of Mr. Gil as well as dismissed the appeal and remanded the case to be dismissed at the trial level. As a result of this latest development, the Gil case is now conclusively over.
While many Title III plaintiff’s attorneys are likely celebrating this outcome, clear guidance as to when public accommodation website accessibility can be actionable under the ADA remains elusive within the Eleventh Circuit. Plaintiffs and defendants alike suffer under these circumstances because the absence of clear guidance facilitates inconsistent and excessive litigation. Take the Gil case itself as an example: the voluminous fees no doubt incurred both by Mr. Gil and Winn-Dixie have ultimately resulted in absolutely zero change to the status quo that existed when the case was initially filed back in 2016 – hardly a meaningful justification for the significant time and expense incurred throughout this marathon litigation. Perhaps a similar fate awaits the next set of intrepid litigants willing to roll the website accessibility dice under Title III.
The strange progression of the Gil case upon its arrival at the Eleventh Circuit is also troubling. In stark contrast to the brisk pace of the District Court litigation (filed on July 12, 2016 with final judgment entered less than a year later, on July 5, 2017), the appeal festered for nearly five years before the Circuit Court completely erased its earlier decision in Winn-Dixie’s favor and dismissed the case in its entirety. This surprise flip-flop is reminiscent of any plot-twist found in a movie, television show or novel. Particularly with such a high-profile case being carefully watched by public accommodations, would-be plaintiffs and the attorneys who are willing to represent either side, the appeal has been a roller coaster with Winn-Dixie’s initially overwhelming appellate victory snatched from it in the end, and merely because the appeal took so long that the injunction being challenged expired during the interim. It’s almost as if the Eleventh Circuit’s initial split decision in favor of the public accommodation was determined to be politically inconvenient, and so prevailing interests within the appellate court opted to undo it in breathtaking fashion.
The takeaway? Contrary to the topic title, the error represented by the Gil case may be only just beginning.