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

B. Defendant is Covered Under Title III Because it Owns and Operates its Watch Instantly Service; Other Control Arguments Are Not Supported or Are Inappropriate for Judgment on the Pleadings.

For title III to apply, a defendant must be a “person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182. There is no dispute that Defendant owns and operates its business, including the Watch Instantly service, which provides video programming to customers via its website. FAC ¶ 13; Answer of Def. to First Am. Compl. ¶ 13 (Dec. 8, 2011) (Docket #34). Defendant also controls what video programming it offers to customers through its website, and how that programming is prepared and formatted to make it available through Internet streaming. Accordingly, Defendant exerts sufficient ownership and control of a public accommodation to be covered under the ADA.

Defendant attempts to argue that it lacks control over the ability to caption its video programming, and thus it has not violated the ADA because it does not “own[], lease[] (or lease[] to), or operate[] a place of public accommodation,” 42 U.S.C. § 12182(a). Def.’s Mem. at 6. Control over captioning, however, does not undermine Defendant’s coverage as a public accommodation, and the cases to which Defendant cites support the proposition that Netflix is covered under the ADA as an owner and operator of its website and Watch Instantly service. Each of the cases cited by Defendant involve a court trying to determine which one of multiple, intertwined entities actually operated the place of public accommodation at issue in order to determine responsibility under the ADA. See Neff. v. American Dairy Queen Corp., 58 F.3d 1063, 1066-68 (5th Cir. 1995) (affirming grant of summary judgment, ruling that Dairy Queen franchisor did not own or operate the franchisee restaurant in a suit alleging ADA architectural violations because under the franchise agreement it had almost no control over architectural issues, thereby making the franchisee the operator of the  establishment and proper defendant); Pickern v. Pier 1 Imps. Inc., 457 F.3d 963, 965-67 (9th Cir. 2006) (affirming grant of summary judgment, ruling that Pier 1 store was not liable for installing a ramp across a City-owned grassy strip between the store and the City-owned sidewalk because it did not own, operate or control the grassy strip.); Guckenberger v. Boston Univ., 957 F.Supp. 306, 321-23 (D. Mass. 1997) (on motion to dismiss, holding a former president who is the current chancellor of a university liable under title III as an operator of the university, but finding another official not to have sufficient control to be liable as an operator; the University was the primary defendant); Coddington v. Adelphi Univ., 45 F.Supp.2d 211, 217 (E.D.N.Y. 1999) (on motion to dismiss, finding no individual liability for president and other officials of a university but finding the university to be the proper defendant under title III); Cortez v. Nat’l Basketball Ass’n, 960 F. Supp. 113, 115-17 (W.D. Tex. 1997) (on motion to dismiss, ruling that the NBA does not own, operate, or lease the Alamodome so it cannot be liable under title III). There is no dispute that Netflix owns and operates its website and Watch Instantly service. Thus, there is no need to examine the issue of control for purposes of title III’s application.

Furthermore, Netflix is confusing coverage as a public accommodation under title III with liability under title III. On a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c), the court must accept the non-movant’s well-pleaded facts as true and draw all reasonable inferences in its favor. Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988). Judgment is warranted only if it appears beyond doubt that the non-movant can prove no set of facts in support of its claim which would entitle it to relief. Id. The facts pled plainly support a finding that Netflix is a public accommodation under the ADA. Netflix’s contentions regarding its level of control over captioning, in contrast, go to liability, and depend on facts not presented in the pleadings nor available in the litigation, as discovery has just begun. The court may not grant Defendant’s Motion for Judgment on the Pleadings based on unsupported factual allegations. See Mangan v. Rumo, 209 F.R.D. 29 (D. Me. 2002) (ruling that on a Motion for Judgment on the Pleadings, court may not consider unsupported factual allegations in a memorandum of law.)

Moreover, Netflix’s argument overlooks that the facts, as pled, demonstrate that there is programming in Netflix’s streaming inventory that already has been captioned by the owner and does not implicate any control issue, but for which Netflix does not show the captioning. See FAC ¶ 24, 26 (television and DVD versions of the Wizard of Oz have captions, but Netflix streamed the movie on Oct. 3, 2009 without captions). In addition, Netflix has begun creating its own programming. See “Lilyhammer” Premieres Today, Netflix US & Canada Blog (Feb. 5, 2012) http://blog.netflix.com/2012/02/lilyhammer-premieres-today.html, Ted Sarandos, Chief Content Officer, Netflix, announcing the premier on Feb. 5, 2012 of Netflix Original Series “Lilyhammer,” starring Steven Van Zandt, as “the first of many brand new, original and exclusive series to debut on Netflix.”). For Netflix’s original programming, there would be no issue of control over creating captions. In addition, Netflix clearly has control over other services offered to Netflix members such as Netflix “recommendations” and genre-sorted movie listings, to which Plaintiffs claim they are denied equal access. Thus, Netflix’s arguments that it does not exert sufficient control over its programming are irrelevant to the issue of title III coverage, unsupported by the factual record, and cannot be decided on a motion for judgment on the pleadings.