By Todd C. Hunt 

On the heels of Cullen v. Netflix, Inc., reported here last month, two other federal judges in the U.S. District Court for the Northern District of California followed the lead established by the Ninth Circuit more than a decade ago in ruling in a putative class action that websites not connected to “physical spaces” are not covered by the ADA [click here for order].  Initially, in refusing to accept the deaf plaintiff’s proposed amended complaint that included an ADA claim that deaf people cannot use a telephonic verification/registration process used by the online auction company, Judge Fogel found that “the ADA could not afford a remedy to [the plaintiff] in this case because [the defendant’s website] is not a place public accommodation.”  However, the denial was without prejudice, and plaintiff tried again.  The case was reassigned to Judge Davila before eBay brought a motion to dismiss the new complaint, and, in ruling on the motion, Judge Davila reinforced Judge Fogel’s finding and dismissed the ADA claim, despite the plaintiff’s effort to allege that the defendant had a “brick and mortar” presence through the company’s recently launched initiative that offered online customers the ability to search for items in local stores. 

Both judges also emphasized the heightened burden and factual showings required for a plaintiff to establish claims under the Unruh Civil Rights Act and the Disabled Persons Act (DPA) when those claims are not based on underlying ADA violations.  Regarding the DPA, the court held that to establish a violation the plaintiff would have to allege “a particular provision or regulation under California law that requires higher standards of website accessibility than the ADA.”  As for the Unruh Act, the court held that the plaintiff needed to make specific allegations that would establish intentional discrimination.  Plaintiff’s allegation that the defendant had created an inaccessible process and refused to implement “easy and inexpensive” solutions used by other companies in response to her request, in the court’s view, was not enough to support a claim of intentional discrimination, even at the motion to dismiss stage.  While acknowledging that the plaintiff’s allegations may raise an issue of disparate impact, Judge Davila found the defendant’s online processes to be facially neutral and that the plaintiff did not sufficiently allege that the defendant treated her differently “because of her disability” or that the website feature “target[ed] individuals with disabilities.”