Does a web-based business have to comply with title III of the ADA redux

Previously, I blogged on the oral argument in Earll v. eBay and Cullen v. Netflix. On March 19, 2015, the District Court in Vermont came down with this decision in National Federation of the Blind v. ScribD. That decision bears reviewing.

I
Facts:

ScribD is a California-based digital library operating reading subscription services on its website and on applications for mobile phones and tablets. Its customers pay a monthly fee to gain access to the collection of over 40 million titles, including e-books, academic papers, legal filings, and other user uploaded digital documents. The software program is accessed over the Internet and is not accessible to users that use a visual interface exclusively and lack any nonvisual means of operation. As a result, plaintiff brought suit saying that ScribD denies blind persons access to all of the services, privileges, advantages, and accommodations that ScribD offers and is excluding them from accessing information critical to their education, employment, and community integration.

II
Court’s Reasoning for Denial of Motion to Dismiss

1. In order to make a prima facie case under title III of the ADA, a plaintiff has to show: A disability within the meaning of the ADA; defendant owns, leases, or operates a place of public accommodation; and the defendant discriminated against the plaintiff by denying the plaintiff a full and equal opportunity to enjoy the services the defendant provides. The defendant argued that the plaintiff’s had not sufficiently alleged that it owned, leased, or operated a place of public accommodation.

2. The court cited to the text of title III, which states that no individual can be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person owning, leasing, or operating a place of public accommodation. 42 U.S.C. § 12182(a).

3. The court then lists the places of public accommodation, which can be found at 42 U.S.C. § 12181(7).

4. The court then goes into detail how the courts are all over the place with respect to whether a web-based business or even the web aspect of a brick-and-mortar business must comply with title III of the ADA. It noted that in the Ninth, Third, and Sixth Circuits, courts have held that title III of the ADA did not apply because of insufficient connection between the discrimination alleged and a physical place. However, in the 11th Circuit, the court there held that title III of the ADA covered both tangible and intangible barriers. The court also noted that in the First Circuit and in the Seventh Circuit, courts there have held that places of public accommodations are not limited to physical structures.

5. In the Second Circuit, the Second Circuit has held that title III prohibits the refusal to sell merchandise by reason of discrimination against the plaintiff’s disability. That decision, to the court’s mind, would logically extend imposing barriers on a person with a disability ability to access the merchandise, which is essentially the same effect as to where a company’s refuses to sell a person with a disability merchandise on the Internet. To hold otherwise, would allow a company to refuse to sell it goods or services to a person with a disability so long as it does so online rather than within the confines of a physical office or store. Such a holding makes no sense.

6. The court cited with approval National Association of the Deaf v. Netflix, Inc., which I blogged on here, for the proposition that the ADA covers not only transactions taking place over the phone or through correspondence, but also with equal force to services purchased over the Internet, and that when the ADA was passed, Congress intended the ADA to adapt to changes in technology. Accordingly, the court agreed with Judge Ponsor in NAD v. Netflix, that a plaintiff only has to show that the website fell within one of the general categories enumerated in the statute in order to be covered by title III of the ADA as a place of public accommodation.

7. ScribD did make the argument discussed in my blog entry discussing the oral argument in eBay and Cullen before the Ninth Circuit, that if a place of public accommodation is not construed to be a physical space, then Congress using the word, “place” improperly renders the word superfluous. The court was having none of it for the following reasons:

A. The title of the relevant section is “public accommodation,” and the categories and the definition are also described as, “public accommodations.” 42 U.S.C. § 12181(7). In neither situation, does the ADA use the word place, which thereby suggests that the accommodation has to be available to the public but not necessarily at a physical place open to the public.

B. In other instances, the statute uses the word, “establishment” instead of the word, “place.” 42 U.S.C. § 12181(7)(B). That suggested to the court that the word “place,” was used because there wasn’t any less cumbersome way to describe businesses offering those particular goods or services to the public.

C. Where there are instances where the word “public,” appears, the word is modifying the types of goods or services offered rather than the word, “place.” 42 U.S.C. § 12181(7)(D).

D. Reading the statute to extend beyond physical places open to the public, does not eliminate the need to demonstrate inclusion in one of the broad categories of public accommodations listed in title III of the ADA.

E. Relying on Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, the court noted that Carparts mentioned that travel services were included as an example of a service establishment considered a place of public accommodation, and even back in 1990, it was entirely possible that a travel service might operate without a physical location open to the public and conduct business directly by phone or by mail. Thus, by logical extension, “place,” or “establishment,” could refer to services provided off-site, including the Internet.

F. Requiring a physical structure has some connection to a physical threshold results in arbitrary treatment. To the court, it made little sense for the law to allow for discrimination against a person with a disability where the defendant sells policies door-to-door but to not allow discrimination against a person with a disability if the parent company’s office was covered. The court found it very unlikely that Congress could’ve intended such an inconsistent result.

G. Citing to PGA Tour v. Martin, the 12 categories of public accommodations should be construed liberally in order to for persons with disabilities to have equal access to the wide variety of establishments available to those without disabilities. Further, the court found support for construing public accommodations liberally in legislative history.

H. The committee reports suggest that the important quality public accommodations share is the offering of goods or services to the public and not that they offer goods or services to the public at a physical location. What matters is membership in one of the general categories.

I. The Department of Justice final regulations implementing title III of the ADA, 28 C.F.R. § 36.104, define facility as all or any portion of buildings, structures, sites, complexes, equipment, rolling stock for other conveyances, roads, walks, passageways, parking lot, or other real or personal property, including the site where the building, property, structure, or equipment is located.” The plain language of that regulation does not require that an entity’s facility be open to the public.

J. DOJ in several different ways, which has been discussed numerous times in this blog, has interpreted their regulation to apply to the Internet, and is in the process of promulgating regulations codifying the position that the ADA does apply to the Internet. The court says that the DOJ interpretation of the regulation is entitled to deference.

K. The fact that Congress did not amend the ADA to include Internet accessibility when it enacted the amendment to the ADA is of no significance since there could be a lot of reasons why Congress did not do that.

L. Representative Nadler in 2010 said that Congress when it enacted the ADA understood that the world around them would change and believed that nondiscrimination against persons with disabilities needed to be broad and flexible enough to keep pace.

M. Since the Internet plays a critical role in the personal and professional lives of Americans, excluding persons with disability from accessing covered entities that use it as the principal means of reaching the public defeats the purpose of the ADA.

8. ScribD could fall into any of several categories of public accommodations, including: exhibition or entertainment; sales or rental establishments; service establishment; library; gallery; or a place of public display or collection.

III
My Thoughts

1. First, in the interest of full disclosure, this whole blog entry has me very conflicted. My law practice and this blog are devoted to understanding the ADA. On the other hand, I have to use voice dictation technology in order to use the computer. None of my blog entries would’ve happened without it. For that matter, nor would anything that has anything to do with the computer happen without it. Also, I can’t tell you how many times I have tried to use a product on the Internet that is not accessible to voice dictation technology. Some of those products have not been accessible to voice dictation technology as well as to screen readers. However, I have run into a situation where product was accessible to screen readers but not to voice dictation technology. Being unable to use voice dictation technology with respect to the Internet, is extremely frustrating and makes things more inefficient for me than they need to be. That said, my blog is about understanding the ADA and not about advocating a particular point of view. Therefore, what follows is focused on that and does not necessarily reflect my personal opinion (my personal opinion would be that the ADA should apply to the Internet and that businesses should do it anyway because they are cutting down their customer base if they fail to do so). That said, that doesn’t mean the law gets you to the same place unless Congress amends it. Let’s discuss further.

2. The United States Supreme Court when trying to figure out what a statute means, often goes to dictionaries. So, I decided to do the same thing by looking up the word, “place” on the Internet. It is interesting what I found. When I asked Siri to define the word, I got, “a portion of space whether definite or indefinite.” When I asked Merriam-Webster to define the word, all of the possibilities clearly denoted a physical space. When I asked the free dictionary to define the word, I got, “a particular portion of space occupied by a person or thing.’ I also got a business establishment. When I asked the Oxford dictionary how to define the word, I got, “a particular position or point in space.” So, reviewing the possible definitions. The dictionary.com definition suggest that a place of public accommodation could be physical or otherwise. Merriam-Webster suggests it has to be physical. The free dictionary.com definitions are very interesting in two respects. First, a place could be a particular portion of space occupied by a person or thing. If you think about the Internet, when you are on the Internet a strong argument can be made that the person is occupying that space and it therefore, is in a place. Even if you can argue that the person is not in that place, a thing, namely your mouse (which is being controlled by that person), most certainly is. Also, nothing in this case suggests that the court looked to free dictionary.com to define the term, but it is interesting that this particular dictionary defines a place as a business establishment thereby supporting the reasoning of the ScribD court. The Oxford dictionary definition suggest that a physical place is not required for it to be a place. In short, the United States Supreme Court loves to go to the dictionary (from reading a biography of Justice Scalia, he has a particular dictionary that he likes to use), but here the dictionary definitions are all over the place, though the majority of them seem to suggest a place does not have to be physical.

3. I didn’t go into detail as to which decisions, with few exceptions, were cited by the ScibD court because I discussed many of those decisions in my book, where I have a section of chapter 13 devoted to the Internet and title III of the ADA.

4. We know that a particular product does not have to be accessible to a person with a disability. However, it is ingenious as to how this complaint was phrased. That is, the complaint says that persons with visual impairments are being denied services, privileges, advantages, and accommodations of ScribD. ScribD is most likely a product in the genre of, “software as a service,” which is a huge industry. That leads to the question as to whether ScribD is a product or a service. Services, privileges, and advantages have to be accessible but products do not. Therefore, expect a lot of discovery trying to determine whether ScribD is a product or a service.

5. ScribD is a California outfit and yet the case was brought in Vermont (no doubt due to favorable court decisions within that Circuit). If “place,”
is found to include the Internet, ScribD could be facing substantial damages under California law.

6. Much of this decision is a policy decision , but not all judges are persuaded by policy. It becomes a matter of judicial approach. For example, I certainly do not want to put words in Justice Breyer’s mouth and so if I am not getting it quite right forgive me, but I did have a chance to hear him in person once. The way I understood what he said is that when it comes to his judicial philosophy, he looks at a situation, and then asks how does it play out in a way that makes sense, which necessarily leaves room for some degree of policy. On the other hand, some justices are very focused on plain meaning and to them how “place,” is defined by the dictionary is going to be critical. Unfortunately, for justices that would use that approach, the word, “place” has different meanings depending upon the dictionary that is consulted.

7. There is a line of cases too numerous to recount that says a statute should not be interpreted in a way that lends absurdities to the statute.

8. Again, a matter of judicial approach. There are judges that will not even consider legislative history unless the term itself is vague. Considering the variety of definitions offered by different dictionary, this may well be such a situation. If so, that bodes favorably for persons with disabilities.

9. The Department of Justice final regulations refer to equipment. I think it likely that the final regulations would be given Chevron deference (though, in my opinion, there is a very good possibility that the Department of Justice interpretations of the regulations will not be given deference as I discussed in this blog entry). One wonders if an argument can be made that equipment includes the server that makes the website go. If so, a plaintiff could argue that failure to have the website accessible means they are being denied access to certain equipment, i.e. the server aka web site.

10. There is also a line of cases too numerous to recount that says Congress is presumed to know what is doing when it amends a law and doesn’t change it. The court here ignores that line of cases when it says that Congress could have a zillion reasons as to why it doesn’t amend the law, and therefore, the fact that it did not amend the law should not be given consideration. I don’t look for that statement to prevail in the end because, as mentioned above, that particular rule puts the burden on the defense when a long line of cases put the onus on the plaintiff to show that failure to amend the law should not be given consideration.

III
Conclusion

1. I absolutely believe this statement of the court mentioned above:

Since the Internet plays a critical role in the personal and professional lives of Americans, excluding persons with disability from accessing covered entities that use it as the principal means of reaching the public defeats the purpose of the ADA.

Unfortunately, for me, and consistent with the purpose of my law practice and this blog, just because this is absolutely true doesn’t necessarily mean that it is supported by the law.

2. Before the NCAA tournament started, it was a given that the University of Kentucky would win it all. After the Notre Dame game, that may or may not be true. I can say with virtual certainty that United States Supreme Court will be faced with the question whether web-based businesses are subject to title III of the ADA if not with eBay and Cullen, perhaps with ScribD.

Sheehan Oral Argument; This one is Wild

Yesterday, the United States Supreme Court heard oral argument (the transcript can be found here), in Sheehan v. City and County of San Francisco, which I discussed in this blog entry. I’ve got to admit that this argument did not go anyway along the lines that I thought it would and here is why:

I
City’s Argument

1. The question that the United States Supreme Court granted cert. on was this:

Does title II of the ADA require law enforcement officers to provide accommodation to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody?

But here is the thing. Before the attorney for the City and County of San Francisco could even begin talking, Justice Scalia was all over her. In particular, he noted that the argument made in their principal brief did not address the question on which the Supreme Court granted cert. Justice Sotomayor then chimed in by saying that nowhere in their brief do they raise the argument that the ADA stops at direct threat.

2. Under questioning from Justice Alito, the attorney for San Francisco conceded that under title II of the ADA failure to make an accommodation for disability is discrimination and that being arrested was an activity of the state subject to title II of the ADA.

This is interesting because Justice Alito seems to be asking whether discrimination under the ADA meant something different than discrimination in ordinary parlance. Justice Alito’s point is a very important one. It is my view that the ADA set up is such that discrimination with respect to disability discrimination is very different than discrimination in the ordinary parlance because of the mandate of reasonable accommodations and reasonable modifications. I have certainly seen other attorneys make the assumption that discrimination means the same as it does in ordinary parlance, and so Justice Alito is not alone on that score. However, Justice Alito’s point was never really addressed, but will undoubtedly have to be addressed in the future. For reasonable accommodations and reasonable modifications to survive, the answer to this question must be that discrimination is not the same in the typical sense as it is under the ADA.

3. The attorney for the City and County of San Francisco conceded that the ADA imposes vicarious liability on the entity for the actions of its employees.

4. The attorney for the City and County of San Francisco also conceded that under title II of the ADA, the City is liable for damages if it engages in intentional conduct, which the “Ninth Circuit has expanded that to include deliberate indifference as well.” This concession by the attorney for the City and County of San Francisco seems to imply that intentional conduct may include deliberate indifference as well as other things. This concession assumes that title II applies in the first place, which Justice Scalia pointed out was not an argument set forth in their petition. In response to Justice Scalia’s question, the attorney for the City and County of San Francisco said that title II applies but that accommodations were not required where the individual was armed and dangerous. The attorney uses the term, “significant threat.”

5. Since the City and County of San Francisco was arguing something along the lines of direct threat, Justice Sotomayor wondered why that wasn’t a question for the jury. In response, the attorney for the City and County of San Francisco claimed that no reasonable jury could conclude that there was no significant danger here.

I am not sure that is correct. As pointed out by Justice Sotomayor, the regulations make clear that direct threat must be based upon an individualized assessment using a reasonable judgment relying on current medical knowledge or the best available objective evidence to ascertain the nature, duration, severity of the risk, the probability that the potential injury will occur, and whether reasonable modifications will mitigate the risk. The evidence would have to be fairly overwhelming to decided this as a matter of law, which doesn’t seem to be the case here. Also, it is interesting that the words “significant danger/threat,” are being used, since direct threat under the applicable Department of Justice regulations, as pointed out by Justice SotoMayor, means something else entirely.

II
U.S. Argument

With respect to the United States position in this case, it was a bit odd and here is why:

1. United States view is that the ADA does apply to arrests because title II of the ADA applies broadly to any department or agency of the local government, including police. It also applies broadly to activities, services, and programs, which also includes arrests. Further, there is no circuit split on that issue and the ADA contains no exemption for police activities.

2. United States agrees that vicarious liability exists for the entity for the actions of its employees that occur in violation of title II of the ADA.

3. The United States was of the view that when it comes to arrests, the police should be given the benefit of the doubt. That is, the court should adopt the view that is adopted in Barnett (a case in which the United States Supreme Court said that given a seniority system, in the run of cases a transfer will not be allowed unless a showing of special circumstances is made). Similarly, the United States argued that when it comes to arrests, a title II violations should not occur in the run of cases unless the plaintiff could show special circumstances.

The problem here is that as far as I know, nobody knows what in the run of cases means. Also, special circumstances doesn’t offer much guidance, a point made by Justice Kennedy.

III
Sheehan’s Argument

1. Sheehan’s attorney argued that the principal dispute in this case is a factual and not a legal one. Justice Scalia’s response is very telling: “exactly. I don’t know why we took the case.” In response, Sheehan’s attorney says that the court should consider dismissing the case as improvidently granted, which basically means the United States Supreme Court said that it was mistake to take the case in the first place. The result of which is the decision below would stand.

2. Sheehan’s attorney argued that under the title II regulations, danger to self is not a part of the direct threat defense. Accordingly, even assuming that a person was a direct threat to self, since the regulations don’t encompass that, the duty to accommodate still exists.

This is interesting because it is the flipside of what the United States Supreme Court faced in Chevron v. Echazabal, where the United States Supreme Court held that the EEOC was within its rights to find that direct threat included a danger to self as well as to others. Now, it is essentially being argued that the Department of Justice is within its rights to say that direct threat does not include a danger to self. As pointed out earlier by Justice Sotomayor, nowhere in the papers below did the City and County of San Francisco raise the direct threat argument.

3. Barnett worked in the union situation but doesn’t work here. That is, in the union situation, there was a direct conflict between the proposed accommodation (transferring the employee), and the employer’s seniority rules. Therefore, it made sense for the United States Supreme Court to add an additional burden to the plaintiff. However, Sheehan’s attorney argued that the symmetry was completely different here. That is, there was a symmetry between the proposed accommodation and the way that the City trains its officers as a universally accepted means for dealing with persons with mental health issues. Further, the concept of direct threat is very analogous to the concept of reasonable force that the police have to use under the fourth amendment and they are used to dealing with that every day.

4. While it is true that one Circuit has said that the ADA does not apply if a person is armed and dangerous, that issue is not before the court since nobody was arguing that.

5. The special circumstances test proposed by the United States violates and undermine the regulatory framework of the ADA. Further, the test proposed by the United States government puts their from on the scale in addition to changing the regulatory framework without having given the lower court opportunity to develop the issue.

6. The standard proposed by Sheehan’s attorney was that if the direct threat defense is not satisfied, a person with a disability must be accommodated.

7. Sheehan’s attorney argued that if a police officer knows or could reasonably determine (knew or should have known), that an individual is suffering from a mental disability, then the ADA reasonable accommodation requirements apply.

This particular argument led to a very interesting discussion, and which a very important point was missed somehow. That is, the question of whether it matters why a person is acting in a dangerous and violent way (is it because of a disability or is it because of something else?) Sheehan’s attorney says that the difference matters because of when ADA liability occurs, though for fourth amendment purposes, reasonable force doesn’t make those distinctions-though it does take into account diminished capacity. Here is my problem. The ADA also protects someone who is regarded as having a disability. It wouldn’t be hard to show that in “the run of cases “in this situation, a police officer could well regard a person acting in such a way as having a disability. It would’ve been interesting to see what would have happened if the regarded as argument had been made.

8. Both Sheehan and the City and County of San Francisco agree that the direct threat regulations of the DOJ apply to this case; it is only the United States that has a different standard.

9. Sheehan’s attorney went on to address the issue of qualified immunity, but the entire discussion reads as an afterthought (just consuming four pages of the 56 pages of transcript). That said, there was some discussion about whether the standard involved the law in general or just that in the controlling jurisdiction.

10. In summing up, Sheehan’s attorney said that the use of deadly force on people with mental illness was a real problem in society and that officers and public entities would only change when they are held accountable for those actions. Living here in Atlanta, just within the last couple of weeks, we had a situation where an officer shot and killed a naked veteran with mental health issues.

IV
So what is going to happen:

1. Reading tea leaves with the United States Supreme Court, especially in ADA matters, is impossible. True, with respect to employment, persons with disabilities frequently do not fare well. However, persons with disabilities do much better with United States Supreme Court when it comes to matters outside of employment. Also, here the case got argued in one way but the petition for cert. and the City and County of San Francisco’s brief suggested it would be argued another way. Thus, it wouldn’t surprise me to see the United States Supreme Court decide that the petition was improvidently granted. Keep in mind, Justice Breyer is not participating in this case because his brother was the District Court judge in this case. I suspect that there may be four votes and possibly more for improvidently granting cert.

2. The special circumstances test proposed by the United States government is probably not likely to be adopted, assuming the United States Supreme Court doesn’t say that Certiorari was improvidently granted, since Justice Kennedy did not like the test at all.

3. All parties agreed, except for the United States as amicus, that the direct threat regulations applied, though they differed in how the regulation should be interpreted.

4. Not before the court was whether the Department of Justice has the authority with respect to direct threat to exclude direct threat to self. That is the complete reverse of Chevron v. Echazabal, where as mentioned above, the United States Supreme Court held that the EEOC was within its rights to say that direct threat included threat to self.

Earll v. eBay and Cullen v. Netflix before the 9th Circuit: Perez matters NOW though nobody seemed to see it

This week is a two fer. At 11 AM Eastern time, the United States Supreme Court will hear argument in Sheehan (my blog entry on that case can be found here). I promise that I will read the transcript of the argument and post my analysis this week.

This particular blog entry involves two different cases questioning whether the ADA applies to web-based only businesses, both of which were argued to the Ninth Circuit on March 13, 2015, four days AFTER Perez.

Earll involves the situation where a deaf individual wanted to be an eBay vendor but could not be because the certification that she had to do in order to become an eBay vendor involved having to listen over the phone, and she of course could not do that since she was deaf. Cullen is the California version of the case discussed in this blog entry.

Here is how the argument before Judges McKeown, Murguia, and Friedland went (interesting that I could not find a way to read the transcript or a way to view the oral argument with closed captioning. Not sure if that was my technical skills or the ways don’t exist…:-).

Plaintiff (Earll)

1. The statement of interest from the Department of Justice saying that the ADA applies to web only based businesses is entitled to Chevron deference.

A. The Department of Justice specifically says that they are interpreting regulations of the ADA in reaching this conclusion.

2. Weyer v. 20th Century Fox Film Corporation, 198 F.3d 1104 (9th Cir. 2000), is no longer good law in light of Spector v. Norwegian Cruise Line, Limited, 545 U.S. 119 (2005).

A. Quite a bit of debate ensued between the judges and the appellant as to whether Spector even applied.

3. The appellant never cited to either National Association of the Deaf v. Netflix , 869 F. Supp. 2d 196 (D. Mass. 2012), or to Doe v. Mutual of Omaha, 179 F.3d 557 (7th Cir. 1999), though the judges did in response to the appellee’s arguments.

4. A very technical discussion ensued as to whether certain arguments could be made in light of the way the documents were filed and the arguments made in those documents.

eBay (Appellee)

1. Weyer is the law in the Ninth Circuit and it insists on an actual physical place.

2. National Association of the Deaf v. Netflix is simply not good law and should not be persuasive to the Ninth Circuit because it relied on Carparts Distribution Center, Inc. v. Automated Wholesaler’s Association of New England, 37 F.3d 12 (1st Cir. 1994), which was a policy driven decision and not a decision based upon statute. That is, the plain meaning of title III of the ADA is that places of public accommodations are subject to its requirements. The emphasis is on the term, “place.”

3. Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557 (7th Cir. 1999), statement that the ADA applies to electronic space is dicta.

4. Attorney for eBay conceded essentially that it goes too far to say that any website is not subject to the ADA, but it is consistent with the ADA to say that web-based only businesses are not subject to the ADA. In other words, in essence, the attorney for eBay was essentially saying that National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946 (N.D. Cal. 2006), is good law.

5. The attorney for eBay actually argued the Spector case before the United States Supreme Court, and he said the issue was not whether the ship was a place of public accommodation as a ship is most certainly a place. Rather, the issue there concerned foreign flag vessels and whether they were subject to the ADA.

Cullen v. Netflix

Appellant (Cullen)

1. The ADA contains gaps that could be filled in by the appropriate federal agency and those gaps should be given Chevron deference.

2. The Department of Justice interpretation of the regulations trumps Weyer

3. The Department of Justice interpretation of the regulations may be found in an appendix. A considerable debate ensued about whether the appendix was interpretation or whether it was a regulation. The attorney for Cullen eventually had to say under intense questioning by one of the judges on the panel that the interpretation was not a regulation but rather an interpretation codified as part of a regulation.

Appellee (Netflix)

Cullen waived an independent disabled persons act claim but not the state law claims based upon the ADA.

My thoughts:

1. There was an awful lot of argument about whether the Department of Justice interpretation of what the ADA requires and its regulations should be entitled to Chevron deference. Bottom Line here is that the United States Supreme Court will not have to wait until the Department of Transportation regulation discussed in Perez makes its way through the court system before deciding the level of deference interpretation of regulations if this case gets a hearing before the United States Supreme Court after the Ninth Circuit decides it. If the Ninth Circuit finds that the interpretation of the regulations is entitled to deference, then the issue is squarely before the United States Supreme Court per Perez. Therefore, if the Ninth Circuit Court of Appeals holds that the Department of Justice interpretations of the regulations contained in their statement of interest and in the appendix are entitled to Chevron deference (as Perez makes clear, Chevron deference may not be the appropriate term since it is the agency’s interpretation of regulations that are involved here), then the issue will be squarely before the United States Supreme Court. While Perez did not come up by any of the attorneys or the judges in the argument, one has to believe that it will be a critical feature of the panel decision in this case. It is curious that none of the attorneys or the judges brought up Perez as that case, admittedly decided only four days prior to this argument, was very much lurking in this oral argument.

2. It is a pretty powerful argument when an attorney that has argued a case before the United States Supreme Court comes back with a statement saying that a particular case the appellant is arguing does not stand for what the appellant says because I argued that case and I was there. I am inclined to agree with that attorney. The issue in Spector was the foreign flag question and not whether the ship was a place.

3. The statement in Doe v. Mutual of Omaha Insurance Company that the ADA applies to electronic space is most certainly dicta as the case had nothing to do with that particular statement. That said, the fact that Judge Posner made that statement is an important consideration.

4. National Federation of the Blind v. Target got a big shot in the arm from this argument when eBay essentially says that it is good law. That is, eBay essentially conceded that a website if it is a gateway to a brick-and-mortar store, then that website must be in compliance with the ADA.

5. The attorney for eBay argument that Carparts was a policy driven decision and not a statutory based decision could have been made even stronger by saying that Congress amended the ADA with the ADAAA and they did not take the opportunity at that time to make it clear that the Internet was a place of public accommodations when they made those amendments to the ADA.

6. If EBay and Netflix lose, expect an appeal to the United States Supreme Court where the concerns of the concurring opinion in Perez will be squarely presented. If eBay and Netflix win and Earll and Cullen appeal, Perez will be the key there as well. If Cullen and Earll lose, there will be a real thing to consider as to whether they should even apply for cert. to the Supreme Court as it is entirely possible that by appealing, the United States Supreme Court will be given the opportunity to turn administrative law upside down and that is a risk that the plaintiffs may not want to take with respect to what it might mean for future cases.