wooden gavel on laptopFailure to Provide an Accessible Alternative Is Not Intentional Discrimination Sufficient to Establish an ADA-Independent Unruh Act Claim

By Kristina M. Launey and Minh N. Vu

On April 1, 2015, the Ninth Circuit became the first federal appellate court in the country to hold that web-only businesses are not places of public accommodation under the

(Photo) Online ShoppingBy Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.

Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.

Does Title III of the ADA apply to web-only businesses?
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