Appellate Flashcards
What is the intro
May it please the court? As my co-counsel stated, my name is Alexandria Wernsing, and I, too, represent Mr. Elias Ybarra in this proceeding.
Roadmap Summary Argument
Your honors, the district court properly found that even if websites are not places of public accommodation under the ADA, TarynsTreasures.store is covered under the ADA because:
1. The district court used the broad nexus approach rather than the intangible barriers test to determine whether a website is a “service of” a place of public accommodation; and
- Under either test, TarynsTreasures.store is “service of” a place of public accommodation.
Main Argument
- the broad nexus approach, rather than the intangible barriers test, is the correct approach to deem a website a “service of” a place of public accommodation because courts adopting the broad nexus approach construe the statute in a way that demonstrates Congress’s purpose to provide a national mandate for the elimination of discrimination against individuals with disabilities.
Plain Language
a. Courts adopting the broad nexus approach interpret the ordinary meaning of “services of” inclusively to mean services offered by a place of public accommodation. A “service” is defined as “useful labor that does not produce a tangible commodity.” Therefore, a service in its original meaning is a service regardless of the outcome. It’s a service regardless of whether the product is picked up in stores or delivered. The intangible barriers test contradicts the plain language of the statute because the test places requirements on where and how the service transaction is completed. However, the broad nexus approach stays true to the plain language of the statute because it does place requirements on where service transactions are completed.
Text in Context
a. Courts adopting the broad nexus approach align their interpretation with the broader purpose of the statute in context to the overall statutory scheme. Courts adopting the broad nexus approach interpret the phrase “services of” a place of public accommodation broadly because the ADA is a broad remedial statute meant to eliminate discrimination on a large scale. However, Courts adopting the intangible barriers test give “services of” a place of public accommodation a narrow interpretation without considering Congress’s purpose.
Legislative History
a. Courts adopting either test consider the legislative history in the statutory construction. Both interpretations consider the inaction of Congress and the DOJ to resolve the interpretive challenges that courts face. However, the broad nexus approach balances the different interpretations while preserving Congress’s purpose of Title III without breaching separation of powers principles. In other words, as long as the court’s interpretation is aligned with the plain language, then the court is within its constitutional bounds regarding the separation of powers.
Second Point Nexus
- Moving to my second point, TarynsTreasures.store is a service of a place of public accommodation under the broad nexus approach because the website is heavily integrated with and operates as a gateway to the physical store because it provides a store locator, information about sales and allows online purchasing. Specifically, the website provides the dates and locations that Taryn’s Treasures will be at The Markets. The website also lists the items available at the markets and offers coupons for in-store use.
Second Point Intangible Barriers
- The website also qualifies as a “service of” a place of public accommodation under the intangible barriers test because the website serves as an intangible barrier to Mr. Ybarra’s ability to communicate with the physical store, which resulted in Mr. Ybarra being treated differently in the physical store. Specifically, Mr. Ybarra could not find out when Taryn’s Treasures would be at The Markets and could not communicate with the store after emailing and calling Ms. Mann with no response.
Request for More Time
o Your honor I see my time has expired, may I [briefly answer your question and] briefly conclude?
Short Conclusion
for the foregoing reasons this court should reverse the district courts finding that The Markets was an improper defendant and affirm that TarynsTreasures.store is a place of public accommodation or a service of a place of public accommodation under title III of the ADA.
Broad Nexus Approach
Websites are subject to the ADA if a plaintiff can establish a nexus between the website and the physical store.
A website is covered if its heavily integrated with and operates as a gateway to the physical store.
Intangible Barriers Test
The website must serve as an intangible barrier to communication with the physical store and result in different treatment than others in the physical stores.
- Does it matter if Mr. Ybarra enters the Markets?
o Not at this point in the litigation no. (that would be an injury issue)
- Do all the services contemplated in nexus have to be impeded?
o No, that is a question regarding discrimination. (Gomez)
- What is an intangible barrier?
Intangible barriers are discriminatory policies and procedures
