National Association of the Deaf, Western Massachusetts Association of the Deaf and Hearing Impaired, and Lee Nettles, Plaintiffs v. NETFLIX, INC., Defendant - Statement of Interest

1. Carparts Held That Public Accommodations are Not Limited to Physical Structures

Netflix, which operates its website and Watch Instantly service through computer servers and the Internet, is a public accommodation subject to title III of the ADA, even if it has no physical structure where customers come to access its services. In Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc., 37 F.3d 12 (1st Cir. 1994), the First Circuit held that a public accommodation under title III of the ADA is not limited to physical structures. 37 F.3d at 19. The Court specifically analyzed a “travel service,” which is identified in the statute as a public accommodation, and concluded that Congress clearly intended to “include providers of services which do not require a person to physically enter an actual physical structure.” Id. The Court also found that its conclusion was consistent with the legislative history of the ADA, given “Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.” Id. at 19, 20.

Defendant’s discussion of Carparts in support of its assertion that it is not a public accommodation is inaccurate and misleading. Defendant argues that Carparts “came to the narrow conclusion that a place of public accommodation ‘might, in some circumstances,’ include things that are not ‘actual, physical structures.’” Def.’s Mem. at 10. First, the qualifying language that Defendant attributes to the case – “might, in some circumstances” – does not appear in the decision. Second, Defendant misleads by claiming that subsequent First Circuit and District Court cases have failed to follow Carparts, conveniently ignoring that those subsequent cases had nothing to do with the issue at hand. Def.’s Mem. at 10, citing to Barton v. Clancy, 632 F.3d 9, 19 (1st Cir. 2011) (considering whether an entity would be an employer under the ADA if it exercised control over an important aspect of the plaintiff’s employment); Lopez v. Massachusetts, 588 F.3d 69, 88 (1st Cir. 2009) (same); and Iwata v. Intel Corp., 349 F.Supp.2d 135, 144 n. 3 (D. Mass. 2004) (stating, in a title I and ERISA action, that title III might apply to health benefit plans).³

Although the First Circuit has not addressed specifically whether an entity like Netflix, which provides a subscription video service via its website, is a public accommodation, the analysis in Carparts clearly compels such a result. Under the Carparts analysis, a web-based service like Netflix, whose customers pay for a video service through its website but has no physical structure for customers to enter, should be considered a public accommodation just like a travel service that has no physical structure for customers to enter, but conducts business by telephone. As the First Circuit said in Carparts, “Congress could not have intended such an absurd result” as to cover services offered at a store, but not those same services offered through the telephone, or likewise, the Internet. Carparts, 37 F.3d at 19; see also Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (“The core meaning of [title III’s nondiscrimination provision, 42 U.S.C. § 12182(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons . . .”) (internal citation omitted); Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., 268 F.3d 456, 459 (7th Cir. 2001) (rejecting that public accommodation must be a physical site).⁴

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³ In fact, First Circuit and District Courts have cited approvingly to Carparts’ holding that a public accommodation need not have a physical structure. See Tompkins v. United Health Care of New England, 203 F.3d 90, 95 n.4 (1st Cir. 2000); Fletcher v. Tufts Univ., 367 F. Supp. 2d 99, 115 (D. Mass. 2005); Conners v. Maine Med. Ctr., 42 F. Supp. 2d 34, 46 (D. Me. 1999); Boots v. Northwestern Mutual Life Ins., 77 F. Supp. 2d 211, 215 (D.N.H. 1999); Doukas v. Metropolitan Life Ins. Co., 950 F. Supp. 422, 425-27 (D.N.H. 1996).

⁴ While some courts in other circuits have held that title III does not apply to web-only services, this conclusion does not comport with the First Circuit’s ruling in Carparts, the ADA’s legislative history, or the Department of Justice’s interpretation of title III. See Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) finding a Website is only covered if it affects access to a physical place of public accommodation); see also Weyer v.