Act Now Advisory: Internet Business Activities—Are They Now the Bull's-Eye for ADA Public Accommodation Lawsuits?

Two recent decisions involving Netflix again raise the question of whether all online business activities are covered by the public accommodation requirements of Title III of the Americans with Disabilities Act ("ADA") or whether a "bricks and mortar" presence is required to invoke ADA protections. In late June, in National Association of the Deaf v. Netflix, Judge Ponson of the U.S. District Court in Massachusetts denied Netflix's motion for judgment on the pleadings that challenged the application of the ADA to its video streaming website. The court found that, despite the absence of a bricks-and-mortar business, the ADA's requirement to provide goods and services accessible to the disabled still applied. Netflix has asked Judge Ponson to permit an immediate appeal of his ruling that the ADA applies to closed-captioning on Internet-supplied videos.

Showing the unsettled state of the law on the application of the ADA to Internet business activities, shortly after Judge Ponson's decision, a U.S. District Court in California reached a contrary conclusion in Cullen v. Netflix. While Cullen pursued claims only under California law, the court first looked at whether the ADA applied to the website, as both California's Disabled Persons Act ("DPA") and Unruh Act (which together bar discrimination by California businesses in, among other things, public accommodations) specify that a violation of the ADA is also a violation of the DPA and Unruh Act. In Cullen, the court held that the ADA required that, to be a place of public accommodation, an entity must have an "actual physical place." Based on that analysis, the court determined that a video streaming website is not an actual physical place and, therefore, not subject to the requirements of the ADA.