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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.
UPDATE – Well, that didn’t take long. Less than nine months after the Eleventh Circuit overturned the District Court judgment in favor of the Plaintiff, Juan Carlos Gil, it granted Mr. Gil’s petition for rehearing en banc via an opinion published on December 28, 2021. In two, tersely-worded paragraphs, the per curiam decision vacated the Circuit Court’s earlier opinion along with the 2017 District Court opinion by which Mr. Gil had originally prevailed. Additionally, the appeal was dismissed and the case was remanded to the District Court to be dismissed as moot. The Circuit Court thus restored the parties to the status quo existing before Mr. Gil filed his lawsuit back in 2016.
The given reason for this latest twist in an already-circuitous litigation saga (for example, refer to my above discussion on the Eleventh’s earlier Dunkin’ Donuts opinion which appears irreconcilable with its April, 2021 (now vacated) ruling in favor of Winn-Dixie): the expiration of the injunction requiring Winn-Dixie to make its website accessible while the appeal was pending (by its terms, the injunction was to only last for three years) along with the “absence of any formal award of declaratory relief” purportedly rendered Winn-Dixie’s appeal moot.
Considering that the object of reported appellate decisions is to increase predictability for practitioners and litigants by outlining the reasoning for why a given set of facts results in a particular legal ruling, the Circuit Court’s succinct conclusion on mootness feels abrupt and unsatisfying. The vacation of both the reversal of the District Court’s judgment in favor of the Plaintiff along with the underlying judgment itself creates a precedential void within the Eleventh Circuit. For Mr. Gil and Winn-Dixie, this void engenders uncertainty with respect to the modifications already made to the grocery chain’s website. Is Winn-Dixie free to reverse the changes made to accommodate Mr. Gil and others similarly situated, and if so, what will be the outcome if Mr. Gil (or anyone else) again pursues litigation based upon the same claims of discrimination? And what if Winn-Dixie adds functionality to its website beyond that which existed at the time of Mr. Gil’s prior claims? Will the grocery chain similarly need to ensure the same level of accessibility for those new features, even in the absence of a binding injunction?
Winn-Dixie apparently disagrees with the Eleventh Circuit’s mootness conclusion as per the grocery chain’s intention to pursue its own motion for rehearing en banc, as reported by Seyfarth Shaw, LLP. Despite the span of time which has elapsed since Mr. Gil initially filed suit more than five years ago, the parties as well as interested practitioners and their clients continue to await finality in this important legal area. I will continue to update this post as further developments occur.