Seyfarth Synopsis: Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff.  Two days later, a California federal judge held that a blind plaintiff’s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery.  Now two federal judges in New York have weighed in, denying restaurant Five Guys’ and retailer Blick’s motions to dismiss lawsuits alleging that the defendants’ inaccessible websites violate the ADA and New York State and City civil rights laws. Both judges found that: (1) websites are subject to the ADA, regardless of whether the goods and services are offered online and in physical locations; and (2) courts don’t need agency regulations setting a standard for website accessibility to decide whether a website violates the ADA. The court in Five Guys additionally held that being in the process of improving a website’s accessibility is very different from having successfully completed that process to meet the mootness standard of being “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” It summarily rejected the restaurant’s mootness argument on that basis.

In the Blick putative class action, Eastern District Court Judge Weinstein issued a lengthy 38-page order on August 1 that addressed the issue of whether a nexus to a physical place of business is required to subject a website to the ADA. The opinion expressed sympathy for blind individuals who are unable to use some websites with their screen reader software and marshalled every possible argument in favor of finding that all websites that fall within the twelve types of businesses classified as “places of public accommodation” are covered by the ADA.  Judge Weinstein first surveyed relevant decisions from federal courts in other circuits.  Although the Ninth Circuit is the only appellate court that has actually addressed the coverage of a website under Title III of the ADA (all other Court of Appeals decisions have concerned other matters, mostly insurance products), he found that the Third, Sixth, and Eleventh Circuits have held that only businesses with a “nexus” to a physical location are subject to the ADA.  He characterized this interpretation of the law as “narrow” because it would mean that “a business that operates solely through the Internet and has no customer-facing physical location is under no obligation to make [its] website accessible.” The court then considered First and Seventh Circuit decisions which have held that a business does not need a physical place of business where customers go to be considered public accommodations under the ADA.

Finally, looking to its own Court of Appeals (which has not squarely addressed the question of whether a business with no physical location can be covered by Title III of the ADA or considered a website accessibility case), the Blick court relied upon an extended interpretation of the Second Circuit’s holding in Pallozzi – an insurance policy case – to hold that a business that has no physical place of business can be a covered public accommodation under the ADA.  Notably, the defendant in Pallozzi had a physical place of business where the plaintiff had purchased the allegedly discriminatory insurance product.  The Second Circuit held in Pallozzi that Title III of the ADA reaches beyond access barriers at a physical location and extends to the terms of the products sold from that physical location. It did not hold, nor even state in dicta, that a business with no physical location is covered by the ADA in the first place, or that a business’ website is covered by the ADA.

In holding that a website does not need a nexus to a physical location to be covered by the ADA, Judge Weinstein aligned himself with two other District Court judges in the Second Circuit (District of Vermont Judge William K. Sessions III and New York Southern District Judge Katherine Forrest) who reached the same conclusion in cases brought against Scribd and Five Guys, respectively.   

The Blick decision also rejects the recent Bang & Olufsen decision out of the Southern District of Florida, which followed the Target case in holding an ADA website access claim can only survive a motion to dismiss if the website’s inaccessibility has an actual nexus to the business’ physical location. The Bang & Olufsen court held that the plaintiff had not stated an ADA Title III claim because his complaint did not allege that the alleged website barriers in any way impeded his ability to shop at the physical store. The Blick court found this interpretation of the ADA “absurd,” as it would require that only select aspects of Blick’s website and online presence be accessible to the blind, such as allowing disabled individuals “a right to ‘pre-shop’ in their home, but no right to actually make a purchase in their home,” and provide disabled individuals “no right whatsoever to purchase goods or services from companies whose business models (e.g. television shopping channels, catalogs, online-only) are premised on having customers shop only from home.”

The court concluded its 22-page discussion of the issue by stating the plaintiff “has a substantive right to obtain effective access to Blick’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges the defendant’s website provides to the general public.” It also found that the plaintiff might be able to enforce his rights through a class action, but that issue would wait until after the parties’ motion(s) for summary judgment. The court also stated that it would convene a “Science Day” where experts would demonstrate web access technology to the court “to explore how burdensome it would be for the defendant to make its website compatible with available technology.”

Both the Blick and Five Guys decisions rejected the argument that Justice Department regulations setting website accessibility requirements are necessary for a finding that a defendant has violated the ADA by having an inaccessible website. Like the District of Massachusetts in denying MIT and Harvard’s motions to dismiss, and the Central District of California in denying Hobby Lobby’s motion (contrary to a different decision out of that same district) the Blick court rejected the primary jurisdiction argument on the basis that it is the court’s job to interpret and apply statutes and regulations and the risk of inconsistent rulings is outweighed by plaintiff’s right to prompt adjudication of his claim. The court discussed the long history of the Justice Department’s website accessibility rulemaking efforts before concluding that “t[]he court will not delay in adjudicating [plaintiff’s] claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Both courts rejected the defendants’ due process arguments, stating no standard set by statute or regulation for is needed for the ADA’s requirements of “reasonable modifications,” “auxiliary aids and services,” and “full and equal enjoyment” to apply to website accessibility. In rejecting Five Guys’ argument that there are no regulations setting forth accessibility standards for websites, the Five Guys court noted that there are steps defendant could take, such as using the Web Content Accessibility Guidelines.

Finally, the Blick decision addressed the coverage of website accessibility claims under the New York State Human Rights Law, New York State Civil Rights Law, and New York City Human Rights Law, and found that such claims were covered to the same extent as they are under Title III of the ADA.

While there is no way of knowing whether other federal judges in New York will agree with the holdings of District Judges Weinstein and Forrest, more lawsuits will likely be filed in New York after these decisions.

Seyfarth Synopsis:  A federal judge in the Central District of California has allowed a blind plaintiff to continue his lawsuit about the accessibility of a public accommodation’s website under Title III of the ADA, despite the diametrically opposite views of his Central District colleague.

Within a week after a Florida federal judge handed down a trial verdict finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California ruled that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website.  The retailer had asked the court to dismiss the case on various grounds, all of which were rejected by the judge.  The case will now move forward.

This decision is significant for several reasons:

  • The decision illustrates that two judges in the same United States District Court can have diametrically opposite views on the very same issue. In March of this year, U.S. District Judge James Otero dismissed a lawsuit brought by a blind plaintiff against Domino’s Pizza about its allegedly inaccessible website.  Judge Otero found that Domino’s had met its obligations under the law by providing telephonic access via a customer service hotline, and that requiring Domino’s to have an accessible website at this time would violate its constitutional right to due process.  On the due process point, Judge Otero noted that neither the law nor the regulations require websites to be accessible, and that the Department of Justice (DOJ) had failed to issue regulations on this topic after seven years.  As further evidence that covered entities have not been given fair notice of their obligations under the ADA, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website.  Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”
  • In stark contrast, U.S. District Judge John Walter in the Hobby Lobby case rejected the due process argument and held that the “primary jurisdiction” doctrine did not apply. With regard to the due process argument, Judge Walter stated that “[f]or over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation” and that “Hobby Lobby had more than sufficient notice in 2010 to determine that its website must comply with the ADA.”  Judge Walter also held that the “primary jurisdiction” doctrine did not apply because it only applies to cases whose resolution require the “highly specialized expertise” of a federal agency.  Judge Walter found that this case is a “relatively straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website.”
  • Judge Walter reserved judgment on what Hobby Lobby would have to do to make its website accessible until after a decision on the merits. The Court specifically noted that the plaintiff was not asking for conformance with a specific technical rule such as the Website Content Accessibility Guidelines 2.0.

Because Judge Walter’s decision was on a motion to dismiss and not a final judgment, Hobby Lobby does not have the right to appeal the decision at this time.  We predict that the case will settle before the court reaches the merits of the case.

Seyfarth Synopsis: Two recent decisions by federal judges to dismiss website accessibility lawsuits may cause more public accommodations to fight instead of settle these suits, but businesses must continue to weigh many factors before making that decision.

The litigation tide might be turning for public accommodations choosing to fight lawsuits brought by blind individuals claiming that the businesses’ websites violate Title III of the Americans with Disabilities Act (ADA) by not being accessible to them.  As we have previously reported, about a dozen or so plaintiffs’ firms have filed hundreds of lawsuits and sent thousands of demand letters to businesses asserting this type of claim on behalf of blind clients in the past two years.  Most of these matters have settled quickly and confidentially, and the relatively few defendants who chose to litigate rarely had success in getting the cases dismissed.  However, two recent decisions from California and Florida federal judges do provide encouragement for businesses that are willing to spend the money to litigate.

On March 20, 2017, federal District Judge James Otero of the Central District of California dismissed a lawsuit by a blind plaintiff who claimed that he could not order pizza from the Domino’s website because it could not be accessed using his screen reader.  The plaintiff claimed that by having an inaccessible website, Domino’s had violated Title III of the ADA and various California laws that prohibit discrimination against individuals with disabilities by public accommodations.

Dominos made three arguments as to why the case should be dismissed.  First, websites are not covered by Title III of the ADA.  Second, in the absence of regulations requiring public accommodations to have accessible websites, such entities can choose how they provide access to individuals with disabilities.   Dominos submitted evidence that it provided access for blind individuals through a 24-hour toll-free phone number where live agents would provide assistance with using the website, as well as direct phone access to stores for placing orders.  Third, holding Dominos liable for not having an accessible website would violate due process principles because the Department of Justice (DOJ) has not issued any regulations specifying whether and to what extent websites must be accessible or the legal standard to be applied in determining accessibility.

Judge Otero rejected the argument that the ADA does not cover websites of public accommodations. However, he agreed that Dominos had met its obligations under the law by providing telephonic access, and that requiring Dominos to have an accessible website at this time would violate its constitutional right to due process.  Judge Otero pointed out that neither the law nor the regulations require websites to be accessible, and that the DOJ had failed to issue regulations on this topic after seven years.  As further evidence that covered entities have not been given fair notice of their obligations, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website.  Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”  This is the first time a court has dismissed a website accessibility case based on “due process” grounds and a welcome rebuke of the DOJ’s regulatory and enforcement activities to date.

On February 2, 2017, Florida District Judge Joan Lenard dismissed serial plaintiff Andres Gomez’s ADA Title III website lawsuit claim with leave to amend because he had failed to allege that his ability to use the defendant retailer’s website prevented him from accessing its stores.  Judge Lenard held that “[a]ll the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.  To survive a motion to dismiss, Plaintiff must claim an actual (not hypothetical) impediment to the use of Defendant’s retail location.”  Gomez had alleged that he could not purchase products online, but did not claim that the website’s inaccessibility impeded his ability to go to a store.  Judge Lenard explicitly rejected the argument that the ADA requires a website to provide the same online-shopping experience as non-disabled persons, stating that “the ADA does not require places of public accommodations to create full-service websites.”

Practical Takeaways.  Here are some takeaways from these recent decisions:

  • All businesses that do not have an accessible website should have a 24/7 toll-free telephone number serviced by live customer service agents who can provide access to all of the information and functions on the website. The phone number should be identified on the website and be accessible using a screen reader.
  • Just because the judges in these cases ruled for the defendants does not mean that all defendants in future website accessibility cases will get the same outcome. These district court decisions are not binding on any other judges who may reach different conclusions.

These decisions do not change the analysis that a defendant must conduct in considering whether to fight or settle a particular case.  Defendants must consider many factors, including (1) the facts (e.g., is access to the goods and services on the website provided through some alternative channel, such as the telephone?), (2) the law in the circuit where the case is pending, (3) the judge, (4) the plaintiff, (5) the plaintiff’s law firm, (6) the cost of settlement, and (7) the cost of litigation.  The fact is that many of these cases can be settled for considerably less than what it would cost to file a motion to dismiss, and it is very difficult for prevailing defendants to recover their fees.  Defendants can only recover fees when the lawsuit was frivolous.

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years.  In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013.  In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)
ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions.  Here are the numbers for the top ten states:

  1. CA: 2468
  2. FL: 1663
  3. NY: 543
  4. AZ: 335
  5. TX: 267
  6. GA: 193
  7. UT: 124
  8. PA: 102
  9. MN: 96
  10. CO: 92
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits.  Other states that experienced significant increases include Arizona, California, Colorado, and Georgia.  Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers?  While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits.  There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps.   This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105).  We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility.  Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit.  Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation.  There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.


In honor of the 26th anniversary of the ADA, we are sharing our mid-year count of ADA Title III lawsuits for 2016 and it’s newsworthy:  The number of lawsuits filed in federal court is already at 3,435, up 63% from last year’s mid-year number of 2,114.  If the pace continues, the 2016 total may top 7,000.  To put the numbers into perspective, more lawsuits were filed in the past six months than were filed in all of 2013 when there were a mere 2,722 lawsuits.  The three states with most lawsuits continue to be California, Florida, and New York, but there is a shake-up in the fourth position.  Arizona, with 230 lawsuits, has beaten out Texas.  Based on our own practice, most lawsuits continue to be about physical access barriers but there has been a steady increase in lawsuits about websites that are allegedly not accessible to individuals with disabilities.  We will be provide more analysis at the end of 2016, which promises to be another record-breaking year.

Florida is one of the top states for ADA Title III filings.  As we previously reported, in 2015, California, Florida, New York, Texas, and Arizona had 3,847 ADA Title III lawsuits.  This accounts for 80% of the lawsuits filed nationwide.  Businesses are complaining, and the news media is paying attention.  Miami Local 10 News, an ABC affiliate, reported on the surge of ADA Title III lawsuits nationwide and three local small businesses that were sued by a serial plaintiff who filed more than a hundred and thirty lawsuits in 2015.  Seyfarth’s ADA Title III Team Leader, Minh Vu, provided legal commentary for the story in an interview with reporter Christina Vazquez.

Our research department has crunched the numbers from the federal court docket and the verdict is that the ADA Title III plaintiff’s bar and their clients are still busy filing lawsuits.  Here are the findings:

  • In 2015, 4,789 ADA Title III lawsuits were filed in federal court, as compared to 4,436 in 2014.  That 8% increase is modest compared to the surge we saw, and reported in 2014.  In 2014, the number of ADA Title III lawsuits increased 63% over the 2,722 lawsuits filed nationwide in 2013.

chart1

  • California, Florida, New York, Texas, and Arizona had the most ADA Title III lawsuits —  a total of 3,847 cases.  This accounts for 80% of the lawsuits filed nationwide.
  • Although California and Florida continue to be the most popular venues for ADA Title III lawsuits, the number of cases filed in those states in 2015 decreased by 11% and 14% respectively.
  • Arizona experienced a surge in lawsuits.  Plaintiffs in Arizona filed 25 times more cases in 2015 than they did in 2014, for a total of 207 lawsuits in 2015.  Other states with substantial increases in the number of lawsuits were Georgia (from 20 to 96), Illinois (from 29 to 84), New York (212 to 366).

chart2

  • Federal courts in Alaska, Montana, North Dakota, South Dakota, and Wyoming had no ADA Title III lawsuits.
  • Who are the plaintiffs filing these suits? Our docket review revealed the top filers in 2015 were:
    • Howard Cohan (FL/IL/LA) – 429
    • Martin Vogel (CA) – 198
    • Theresa Brooke (AZ/CA) – 175
    • Patricia/Pat Kennedy (FL) – 173
    • Tal Hilson (FL) – 136
    • Jon Deutsch (TX) – 113
    • Michael Rocca (CA) – 102
    • Shirley Lindsay (CA) – 83

We do wish to add a disclaimer:  Our research involved a painstaking manual process of going through all federal cases that were coded as “ADA-Other” and culling out the ADA Title II cases in which the defendants are state and local governments.  In other words, there is always the possibility of some human error and we hope you’ll forgive us if the numbers are slightly off.  And, we only counted federal filings.  Some plaintiffs — such as those in California, which has ADA Title III-corollary state statutes — may file lawsuits in state court that never make it to federal court, and thus, are not included in our numbers.

We’ve done the review and crunched the numbers:  It appears that the surge of ADA Title III lawsuits we saw from 2013 to 2014 is holding strong, though possibly leveling off.

Slide2

You may recall that there was a 60% increase in the number of ADA Title III lawsuits between 2013 and 2014 (2479 vs. 4436).  In the first six months of 2015, 2114 Title III lawsuits were filed.  While we think that the number of lawsuits filed in the second half of 2015 will be slightly greater than the first half, the total will not likely be much different from the 2014 total.  This means that the 2014 surge was probably not an aberration but, more likely, the new normal.  Although we did not analyze the types of ADA Title III lawsuits filed in 2015 (e.g. architectural barriers, operational issues, or digital accessibility), our practice has seen a surge of private litigant claims based on allegedly inaccessible websites.

Where are the lawsuit hotspots?  The favorites remain the same:  California, Florida, and New York.  That said, a few states are seeing more action than before.  For example, Idaho had four lawsuits in the first half of 2015 even though it had none for 2013 and 2014.  Arizona had 19 lawsuits filed during this six month period even though it only had 8 in all of 2014.  Minnesota had 42 lawsuits in the first six months of 2015 as compared to the 14 it had in all of 2014.  Wyoming, Dakota, Montana, and Nebraska continue to be ADA Title III lawsuit-free.

We’ll keep tracking the filings and update our findings for all of 2015 in January 2016.

Review of Disabled Persons Act Applicability to Websites Withdrawn; California Agency Issues Guidance on CASp Benefits; and Novel New Serial Lawsuits Filed Against Car Dealerships

By Kristina Launey

As we’ve discussed previously, California is a hotbed for disability access suits – both based upon alleged physical accessibility violations of California law and the ADA and based upon alleged inaccessible websites.  Three recent developments on this front merit mention:

First, the California Division of the State Architect recently posted useful information regarding its interpretation of why a business may want to hire a Certified Access Specialist to inspect and certify a property at: Why is it Beneficial to Hire a CASp? And Other Frequently Asked Questions.  The page explains the law in California which authorizes private plaintiffs to receive statutory damages of up to $4,000 per occurrence of violation as well as the legal benefits and protections a CASp consultant’s evaluation can provide a business when faced with such a lawsuit.

Second, we had expected some guidance from the California Supreme Court regarding whether the Disabled Persons Act applies to businesses’ websites after the Ninth Circuit in Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc. certified the issue to that Court.  On October 10, the Ninth Circuit withdrew its request for review after GLAAD agreed to dismiss its action with prejudice in exchange for CNN’s promise not to seek attorneys’ fees and costs and CNN voluntarily dismissed its appeal in the Ninth Circuit.  Despite the lack of judicial and regulatory guidance, lawsuits, demand letters, and enforcement actions over alleged inaccessible websites continues.

Finally, in the category of what new serial lawsuit trend is hot in California right now, we’ve seen a wave of lawsuits filed against car dealerships by one firm in California alleging violations of law based upon the car dealerships’ failure to offer and refusal to install vehicle hand controls on vehicles for persons with disabilities to test drive the vehicles.

As always, we’ll continue to monitor disability access developments in California and nationwide to keep you up to date.

Edited by Minh Vu

By Minh N. Vu

On June 22, we reported on the U.S. District Court for the District of Massachusetts’ ruling that Netflix’s video streaming website is a “place of public accommodation” covered under Title III of the ADA, even though the website has no nexus to a physical place.  This ruling was not surprising given First Circuit precedent that dictated the district court’s decision.  The U.S. District Court for the Northern District of California reached the opposite conclusion this month in  Cullen v. Netflix, Inc.  Following Ninth Circuit precedent, the California federal court held that a “place of public accommodation” must be an “actual physical place.”  It found that a video streaming website is not an actual physical place and therefore is not covered by the ADA.

Although Cullen had only asserted claims under California law and not the ADA, the court first analyzed whether the ADA covered the website because both California’s Unruh Act (Unruh Act) and Disabled Persons Act (DPA) state that a violation of the ADA is also a violation of the Unruh Act and DPA.  Having determined that there was no violation of the ADA, the court next analyzed whether the video streaming website’s lack of captioning nonetheless constituted violations of these California statutes. 

The court found that under the Unruh Act, a plaintiff must prove “intentional discrimination” based on allegations of “willful, affirmative misconduct.”  Allegations of Netflix’s failure to caption all its streaming videos were not enough, in the court’s view, to establish intentional discrimination, particularly in light of its ongoing and expanding effort to affirmatively add captions to its video streaming library.  The court granted Cullen leave to amend the complaint to add allegations of intentional discrimination. 

The court held that to establish a DPA claim that is independent of the ADA, a plaintiff would have to make “a showing that accessibility regulations promulgated under California law exceed those set by the ADA.”  Since Cullen had not alleged a violation of any such regulations, the court gave Cullen leave to amend his complaint to correct this deficiency.