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Advertising, Marketing & Promotions Alert >> U.S. Court of Appeals for the Ninth Circuit Confirms that Netflix Is Not Subject to the ADA

April 20, 2015

The U.S. Court of Appeals for the Ninth Circuit, affirming a California district court’s decision, has ruled that Netflix, Inc. is not subject to the Americans with Disabilities Act (ADA) because its services are not connected to any “actual, physical place.”

Netflix Case
Donald Cullen sued Netflix, the Internet television network, objecting on behalf of disabled persons to the lack of closed captions on some of its offerings. Cullen asserted claims under California’s Disabled Persons Act, Unruh Civil Rights Act, and Unfair Competition Law. Cullen’s Disabled Persons Act and Unruh Civil Rights Act claims were predicated on the ADA, which provides that, “[n]o individual shall 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.”

The district court dismissed all of his claims, and he appealed to the Ninth Circuit.

Ninth Circuit’s Decision
The Ninth Circuit affirmed the district court’s decision. In its ruling, the circuit court explained that it has interpreted the ADA term “place of public accommodation” to require “some connection between the good or service complained of and an actual physical place.” The Ninth Circuit then stated that, because Netflix’s services were not connected to any “actual, physical place,” Netflix was not subject to the ADA.

Accordingly, the circuit court ruled that Cullen’s ADA-predicated Disabled Persons Act and Unruh Civil Rights Act claims failed as a matter of law.

The circuit court also affirmed the district court’s dismissal of Cullen’s claim under California’s Unfair Competition Law. It observed that the district court had determined that Cullen lacked “standing” to assert a claim under that law because he had not alleged “causation” – that is, he had not alleged an injury resulting from Netflix’s business practices. The Ninth Circuit found that Cullen, on appeal, had not challenged this holding and, therefore, had waived any objection to the district court’s dismissal for lack of standing.

The Bottom Line

The Cullen ruling confirms that, at least in the Ninth Circuit (which covers California and other Western states, plus Alaska and Hawaii), online companies that are “not connected to any actual, physical place” are not subject to the ADA, or to state laws modeled or based on the ADA. Online companies such as Netflix simply are not a “place of public accommodation” within the meaning of the ADA. This ruling is consistent with other decisions on the ADA which would seem to require a brick and mortar “nexus” to an online presence in order for the ADA to apply to the online component.