Court Denies Web Developer's Arbitration Bid in Restaurant Accessibility Lawsuit

On March 27, 2024, the United States District Court for the Western District of Pennsylvania issued a memorandum opinion denying without prejudice a motion to dismiss—construed as a motion to compel arbitration—filed by third-party defendant Ordering 999, LLC d/b/a Ordering 360 in an ongoing website accessibility lawsuit.

Background of the ADA Lawsuit

The dispute began on October 21, 2022, when two visually impaired plaintiffs initiated a civil action against Sultan Doner Gyro, LLC. The underlying complaint alleges that Sultan violated Title III of the Americans with Disabilities Act (ADA) by failing to maintain a restaurant website accessible to individuals who are blind or visually impaired.

Following earlier procedural filings, Sultan received leave of court and filed a third-party complaint on May 10, 2023, against Ordering 360, the entity that allegedly designed and hosted the restaurant's website. Sultan asserted claims for breach of fiduciary duty under the Uniform Partnership Code and breach of contract, alleging that Ordering 360 failed to satisfy ADA compliance requirements for the website. Sultan sought actual damages, consequential damages, and damages for emotional distress.

The Dispute Over the Arbitration Clause

On July 17, 2023, Ordering 360 moved to dismiss the third-party complaint under Rules 12(b)(1), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil Procedure. Ordering 360 argued that the claims must be resolved via binding arbitration. According to Ordering 360, when Sultan registered online for its services, Sultan assented to Terms of Use containing an arbitration clause and a class-action waiver governed by the Federal Arbitration Act. Ordering 360 stated that its registration form included the notice "By Clicking Submit, You Agree to Our Terms of Use" with a red hyperlink leading to the five-page terms.

Sultan opposed the motion, disputing that a valid agreement to arbitrate existed. Sultan argued that Ordering 360's website presented an unenforceable "browsewrap" setup, pointed out that Ordering 360 failed to submit supporting affidavits or authenticating evidence, and cited prior correspondence in which an Ordering 360 representative stated over email that "there are no contracts with our company."

Ordering 360 attached an unauthenticated printout of its generic Terms of Use and email exchanges only to its reply brief, without accompanying sworn declarations.

Court Ruling and Next Steps

District Judge W. Scott Hardy determined that Ordering 360's motion was properly construed as a motion to compel arbitration. Applying the framework established by the Third Circuit Court of Appeals in Guidotti v. Legal Helpers Debt Resolution, L.L.C., the court held that arbitrability was not apparent on the face of Sultan's complaint.

Because the third-party complaint did not rely on the Terms of Use, and because Ordering 360 failed to submit sworn declarations proving that Sultan assented to the specific generic terms presented, the court found an unresolved factual dispute regarding agreement formation.

The court denied the motion without prejudice and ordered the parties to conduct limited discovery on whether an enforceable arbitration agreement exists. Following this limited discovery phase, Ordering 360 may renew its motion under the Rule 56 summary judgment standard.