Small Victory for Netflix in Cullen v. Netflix

BY HAYLEY KOTEEN

In August, Netflix moved to dismiss the case for a number of reasons, one being that Netflix is not covered under Title III of the ADA because it is not a physical place, thus not a “place of public accommodation” as defined by the law. Because this assertion was correct Mr. Cullen filed a second amended complaint on September 5, and removed the allegation that Netflix violated the ADA. Instead, Mr. Cullen’s claims are only related to California’s consumer protection laws. Unfortunately, Netflix was correct in its assertion that the Ninth Circuit Court of Appeals (which is where the Northern District of California is located) has previously held that virtual places are not considered places of public accommodation. Netflix will likely file a motion to dismiss in the upcoming month or so.

Here are the upcoming relevant dates:

• Motion to Dismiss Hearing: December 2, 2011
• Class Certification Hearing Cut-Off: June 11, 2012
• Discovery Cut-Off: October 1, 2012
• Summary Judgment Motions: October 29, 2012
• Summary Judgment Hearing: December 17, 2012
• Pretrial Conference: January 7, 2013
• Trial: February 19, 2013

Litigation is of course an important tool in enforcing civil rights laws, but in this case the plaintiffs did not have the law on their side. Litigation is also time consuming and expensive. As you can see above, if the case goes to trial, it won’t be until 2013!
Regulatory and statutory change is needed here if the Deaf community wants equal access to programming on the Internet. Last fall, the Department of Justice promulgated an Advanced Notice of Proposed Rulemaking that would change the ADA regulations and include Internet Websites as places of public accommodations under the law. Television is moving to the Internet at a rapid pace. For example, Facebook is going to start airing televisions shows, which will be available on Facebook.com and not on cable TV. As television moves to the Internet, the DOJ must change the ADA regulations so that Websites are required to caption. If the DOJ promulgates a new rule, any previous litigation about Web access under ADA Title III will no longer be relevant and plaintiffs like Mr. Cullen can be more successful in court.

ABOUT HAYLEY KOTEENHayley Koteen graduated from Towson University with a B.A. in Deaf Studies and Social Science. As an undergrad, she worked for the Maryland Governor's Office of the Deaf and Hard of Hearing as well interned one semester at the Maryland General Assembly with Delegate Kirill Reznik of District 39. Currently a second year law student at Yeshiva University's Benjamin N. Cardoza School of Law in New York, she hopes to pursue a career in deaf law after graduation. As a future attorney for the deaf community, she aspires to advocate to better implement laws such as the ADA, and to improve access to interpreters in courts and social service agencies.