National Federation of the Blind et al v. Scribd, Inc.

Doc. 30

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

NATIONAL FEDERATION OF THE
:
BLIND, on behalf of its members :
and itself, and HEIDI VIENS,
:
:
Plaintiffs,
:
:
v.
:
:
SCRIBD INC.,
:
:
Defendant.
:

Case No. 2:14-cv-162

Opinion and Order
Plaintiffs National Federation of the Blind (“NFB”) and
Heidi Viens, a member of NFB residing in Colchester, Vermont,
brought this suit against Scribd, Inc. (“Scribd”).

The

Plaintiffs’ Complaint alleges that Scribd has violated Title III
of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12182, because its website and mobile applications (“apps”) are
inaccessible to the blind.
Scribd has moved to dismiss the Complaint with prejudice
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim.

ECF No. 13.

Scribd argues that the

Plaintiffs have not alleged facts demonstrating that it owns,
leases, or operates a place of public accommodation because the
ADA does not apply to website operators whose goods or services
are not made available at a physical location open to the

1

Dockets.Justia.com

 public.

The Court disagrees.

For the reasons discussed below,

the Court denies Scribd’s motion to dismiss.
I.

Factual Background
According to the Complaint, Scribd is a California-based

digital library that operates reading subscription services on
its website and on apps for mobile phones and tablets.

Scribd’s

customers pay a monthly fee to gain access to its collection of
over forty million titles, including e-books, academic papers,
legal filings, and other user-uploaded digital documents.
Scribd’s digital software program is accessed over the
Internet.

The Plaintiffs contend that Scribd’s website and apps

are inaccessible to the blind because they use an exclusively
visual interface and lack any non-visual means of operation.
Blind persons generally use screen reader software to convert
graphical information found on websites and apps into audio or
Braille formats, depending on the user’s preference.

According

to the Plaintiffs, because Scribd’s website and apps are not
programmed to be accessible through such software, Scribd is
denying 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.

2

 Scribd contends that it does not operate any physical
location open to the public, nor does the Complaint include such
an allegation.
II.

Legal Standard

To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) a complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).

A court evaluating a motion to dismiss must accept

the facts alleged in the complaint as true and draw all
reasonable inferences from those facts in favor of the nonmoving party.

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,

191 (2d Cir. 2007).

This assumption of truth does not apply to

legal conclusions.

Davis v. Vermont, Dep’t of Corrections, 868

F. Supp. 2d 313, 321 (D. Vt. 2012)
III. Discussion
To state a claim under Title III, a plaintiff must allege
(1) that she is disabled within the meaning of the ADA, (2) that
the defendant owns, leases, or operates a place of public
accommodation, and (3) that the defendant discriminated against
her by denying her a full and equal opportunity to enjoy the
services the defendant provides.

Camarillo v. Carrols Corp.,

518 F.3d 153, 156 (2d Cir. 2008).
3

Scribd argues that the

 Plaintiffs have not sufficiently alleged that it owns, leases,
or operates a place of public accommodation.
The question at the heart of Scribd’s motion is ultimately
one of statutory construction.

As in all such cases, the Court

must first determine whether the language at issue has “‘a plain
and unambiguous meaning with regard to the particular dispute in
the case.’”

United States v. Am. Soc’y of Composers, Authors,

Publishers, 627 F.3d 64, 72 (2d Cir. 2010) (quoting Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 450 (2002)).

If a court can

ascertain the plain meaning of the statutory text by examining
the context of the statute as a whole, it need not proceed any
further, but if the text’s meaning is ambiguous then a court may
consult other sources, including the statute’s legislative
history.

Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d

83, 108 (2d Cir. 2012).

When interpreting an ambiguous

provision a court focuses on the “broader context and primary
purpose of the statute.”

Serv. Employees Int'l, Inc. v. Dir.,

Office of Workers Comp. Program, 595 F.3d 447, 453 (2d Cir.
2010) (internal quotation and citation omitted).

The Second

Circuit has “long held” that where a statute is ambiguous, “it
should be interpreted in a way that avoids absurd results.”
Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 368 (2d
Cir. 2006) (internal quotation omitted and citation omitted).

4

 A. The Text of the ADA is Ambiguous
The general rule of Title III states 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 by any person who owns, leases (or leases to), or
operates a place of public accommodation.”

42 U.S.C. § 12182.

The statute defines “public accommodation” as follows:
The following entities are considered public accommodations
for purposes of this subchapter if the entities affect
commerce-A) an inn, hotel, motel, or other place of lodging, except
for an establishment located within a building that
contains not more than five rooms for rent or hire and that
is actually occupied by the proprietor of such
establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food
or drink;
(C) a motion picture house, theater, concert hall, stadium,
or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or
other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware
store, shopping center, or other sales or rental
establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty
shop, travel service, shoe repair service, funeral parlor,
gas station, office of an accountant or lawyer, pharmacy,
insurance office, professional office of a health care
provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified
public transportation;
5

 (H) a museum, library, gallery, or other place of public
display or collection;
(I) a park, zoo, amusement park, or other place of
recreation;
(J) a nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless
shelter, food bank, adoption agency, or other social
service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or
other place of exercise or recreation.
42 U.S.C. § 12181(7).
Scribd argues that the meaning of “place of public
accommodation” is clear and unambiguous, but the fact that
reasonable jurists have reached different conclusions about how
far Title III extends reveals some measure of ambiguity in the
text of the statute.
explored below.

There are two main threads in the case law

Briefly, some courts have reasoned that because

all of the examples listed in Section 12181(7) are physical
places, Title III only applies to discrimination occurring at a
physical place or somewhere with a sufficient nexus to a
physical place, while others have interpreted the statute more
broadly.
On the narrow end, the Ninth, Third, and Sixth Circuits
each considered ADA claims brought by an employee who received
benefits through his or her employer that were issued by a third

6

 party insurance company.

All three courts held that Title III

did not apply because there was not a sufficient connection
between the discrimination the plaintiffs alleged and a physical
place.

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d

1104, 1114 (9th Cir. 2000) (explaining that “some connection
between the good or service complained of and an actual physical
place is required”); Ford v. Schering-Plough Corp., 145 F.3d
601, 613 (3d Cir. 1998) (holding “public accommodation” and the
list of examples in the statute were not ambiguous and did not
refer to non-physical access); Parker v. Metropolitan Life Ins.
Co., 121 F.3d 1006, 1011 (6th Cir. 1997) (en banc) (noting that
“a public accommodation is a physical place” and a benefit plan
offered by an employer is not a good offered by a place of
public accommodation).
In a related but somewhat more expansive vein the Eleventh
Circuit held that Title III covers both tangible barriers (e.g.,
physical barriers preventing a disabled person from entering an
accommodation’s facilities) and intangible barriers (e.g.,
eligibility requirements or discriminatory policies) to a
physical place.

Rendon v. Valleycrest Productions, Ltd., 294

F.3d 1279, 1283 (11th Cir. 2002).

The Eleventh Circuit

explained that Weyer, Parker, and Ford do not stand for the
broad proposition that a place of public accommodation may
exclude persons with disabilities as long as the discrimination
7

 occurs offsite or over the telephone.

Id. at 1284 n.8.

At most

those three cases can be read to require a “nexus” between the
challenged service and the premises of the public accommodation.
Id.
Several district courts bound to follow the precedent of
the Ninth Circuit have concluded that Title III does not apply
to various internet-based retailers or service providers.

See,

e.g., Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387DOC (RNBx), 2014 WL 1920751, at *8-9 (C.D. Cal. May 14, 2014)
(holding a website was not a place of public accommodation
because it was not a physical place and there was not a
sufficient nexus between the website and physical kiosks);
Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1023-24 (N.D.
Cal. 2012) (holding websites are not places of public
accommodation because they are not physical places); Oullette v.
Viacom, No. CV 10-133-M-DWM-JCL, 2011 WL 1882780, at *4-5 (D.
Mont. Mar. 31, 2011) (holding a website by itself is not a
physical place and the plaintiff did not allege a sufficient
connection between the website and a physical structure); Young
v. Facebook, Inc., 790 F. Supp. 2d 1110, 1114-16 (N.D. Cal.
2011) (explaining that a website is not a physical structure and
plaintiff had not alleged a sufficient nexus to a physical place
of public accommodation); Earll v. eBay, Inc., No. 5:11-cv00262-JF (HRL), 2011 WL 3955485, at *2 (N.D. Cal. Sept. 7, 2011)
8

 (noting that places of public accommodation are limited to
physical places); see also National Fed’n of the Blind v. Target
Corp., 452 F. Supp. 2d 946, 954 (N.D. Cal. 2006) (holding
plaintiffs had alleged sufficient facts to state a claim because
the website was heavily integrated with brick-and-mortar stores
and operated as a gateway to the stores); Access Now, Inc. v.
Southwest Airlines, Co., 227 F. Supp. 1312, 1319-21 (S.D. Fla.
2002) (rejecting the application of Title III to a website
because it was not a physical location nor a means of accessing
a concrete space).1
On the broad end, other circuit courts have read Title III
to apply even in the absence of some connection to a physical
place.

In Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s

Ass’n of New England, 37 F.3d 12, 19 (1st Cir. 1994), the First
Circuit explained that public accommodations are not limited to
physical structures.

The court reasoned that by including

“travel service” on the list of examples in the definition,
Congress clearly contemplated that “service establishments”
could include providers of services that do not require a person

1

It is important to note that although the Eleventh Circuit
dismissed the appeal before it in Access Now, it did so only
because the plaintiffs presented a new theory that the district
court had no opportunity to consider. The plaintiffs argued for
the first time on appeal that Southwest Airlines as a whole is a
place of public accommodation because it operates a “travel
service.” Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d
1324, 1328-29 (11th Cir. 2004).
9

 to physically enter a structure or site but may instead conduct
their business by telephone or correspondence.

Id.

It would be

“absurd” to conclude people who enter an office to purchase a
service are protected by the ADA but people who purchase the
same service over the telephone or by mail are not.

Id.

Likewise, two Seventh Circuit cases confirm that court’s
view that the ADA applies to more than physical spaces.

In Doe

v. Mutual Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) then
Chief Judge Posner noted that facilities that exist in
electronic space, including a website, are covered by Title III.
He confirmed this position in Morgan v. Joint Admin. Bd., Ret.
Plan of the Pillsbury Co. and Am. Fed’n of Grain Millers, AFLCIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001) by noting:
The defendant asks us to interpret “public accommodation”
literally, as denoting a physical site, such as a store or
hotel but we have already rejected that interpretation. An
insurance company can no more refuse to sell a policy to a
disabled person over the Internet than a furniture store
can refuse to sell furniture to a disabled person who
enters the store.
Accordingly, the site of the sale is irrelevant.

All that

matters is whether the good or service is offered to the public.
Id.

The Northern District of Illinois recently followed suit

and concluded that even though the American Bar Association does
not offer its services at a physical site such as a store it
nevertheless could be a public accommodation for purposes of the

10

 ADA.

Straw v. Am. Bar Ass’n, No. 14 C 5194, 2015 WL 602836, at

*6 (N.D. Ill. Feb. 11, 2015).
The Second Circuit has also reasoned that the statute was
meant to guarantee more than mere physical access to particular
types of businesses.

Pallozzi v. Allstate Life Ins. Co., 198

F.3d 28, 32-33 (2d Cir. 1999).

In Pallozzi, the plaintiffs

alleged that an insurance company had discriminated against them
on the basis of their mental disabilities by refusing to issue
them a joint life insurance policy.

Id. at 29.

The court held

that an entity covered by Title III “is not only obligated by
the statute to provide disabled persons with physical access,
but is also prohibited from refusing to sell them its
merchandise by reason of discrimination against their
disability.”

Id.

The Pallozzi court also noted that Parker and

Ford were not to the contrary.

Rather, their reasoning required

a nexus to a place of public accommodation but such a nexus was
obvious in Pallozzi because the insurance company operated an
insurance office, which is explicitly mentioned in the statute.
Id. at 32 n.3.

Neither Parker nor Ford held that Title III

ensures only physical access.

Id.

The Pallozzi court’s reading of Parker and Ford is
consistent with the Seventh Circuit’s reasoning.

In those two

cases, as well as Weyer, the Circuit Courts all considered the
same facts: an employer providing insurance benefits to its
11

 employees through a third party rather than an insurance company
offering policies directly to the public.
crucial.

This distinction is

The fact that no goods or services were offered to the

public means that the Third, Sixth, and Ninth Circuits did not
consider facts that justified a finding that Title III requires
some connection to a physical place.

This minimizes the weight

their reasoning should be given.
The Second Circuit has not yet considered a case in which a
defendant operated no physical space open to the public but
nevertheless provided goods or services to the public.

However,

Pallozzi arguably could be extended to a company’s refusal to
sell a disabled person its merchandise on the Internet and, by
extension, imposing barriers that have essentially the same
effect.

Otherwise, a company could freely refuse to sell its

goods or services to a disabled person as long as it did so
online rather than within the confines of a physical office or
store.
Along these same lines, the District of Massachusetts
extended the reasoning of Carparts and held that Title III
covers entities providing exclusively web-based services to the
public.

Judge Ponsor explained that the ADA covers not only

transactions taking place over the phone or through
correspondence but also “applies with equal force to services
purchased over the Internet.”

Nat’l Ass’n of the Deaf v.
12

 Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012).

The

fact that the ADA does not include web-based services as a
specific example of a public accommodation is irrelevant because
such services did not exist when the ADA was passed and because
Congress intended the ADA to adapt to changes in technology.
Id. at 200-01.

Notably, Congress did not intend to limit the

ADA to the specific examples listed and the catchall categories
must be construed liberally to effectuate congressional intent.
Id. at 201.

Judge Ponsor concluded that the plaintiffs,

therefore, needed only to show that the website fell within one
of the general categories enumerated in the statute, which it
did.
While no circuit court has directly addressed whether a
website with no physical retail outlet or building open to the
public can be a place of public accommodation under Title III,
clearly there is more than one reasonable interpretation of the
language at issue here.2

Therefore, the Court may go beyond the

2

When Congress heard testimony on whether the ADA applies to
private websites, several lawyers, professors, and other
educated commentators reached different conclusions about how
far Title III extends. See generally Applicability of the
Americans with Disabilities Act (ADA) to Private Internet Sites:
Hearing before the H. Subcomm. on the Constitution of the House
Comm. on the Judiciary, 106th Cong., 2d Sess. 65-010 (2000).
Clearly there is ambiguity in the statute sufficient for
reasonable minds to debate.
13

 text and context of the text to understand the statute’s
meaning.

See Louis Vuitton, 676 F.3d at 108.

B. The Canons of Statutory Construction Do Not Resolve the
Issue
Scribd argues that canons of statutory construction resolve
any ambiguity in its favor for two reasons.

See Frank G., 459

F.3d at 368 (explaining that if the terms of the statute are
ambiguous a court should resort to the canons of statutory
construction to resolve the ambiguity).

First, Scribd argues

that if “place of public accommodation” is not construed as a
physical space that is open to the public then Congress’s use of
the word “place” is improperly rendered superfluous.

Reiter v.

Sonotone Corp., 442 U.S. 330, 339 (1979) (“In construing a
statute we are obliged to give effect, if possible, to every
word Congress used.”).

Otherwise any business that offers goods

or services to the public would be subject to the ADA and if
that were the case Congress would not have bothered to delimit
the categories Title III covers in such detail.
Second, Scribd argues that the canons of noscitur a sociis
and ejusdem generis compel the Court to conclude that Congress
did not intend to cover businesses unconnected to any physical
space open to the public under Title III.

The former doctrine

permits the meaning of doubtful terms and phrases to be
determined by reference to other associated phrases.

14

The latter

 suggests that where general words are accompanied by a specific
enumeration of persons or things, the general words should be
limited to the persons or things similar to those specifically
enumerated.

City of New York v. Berretta U.S.A. Corp., 524 F.3d

384, 401 (2d Cir. 2008).

Scribd argues that because all of the

specific examples in the statute operate at concrete physical
locations open to the public, the statute must be construed to
apply only to such places.
The Court has several reactions to these arguments.

First,

the title of the relevant section is “public accommodation” and
the categories in the definition are also described as “public
accommodations.”

42 U.S.C. § 12181(7).

In those two instances

the statute does not use the word place, which suggests that the
accommodation must be available to the public but not
necessarily at a physical place open to the public.

Moreover,

in other instances the statute uses the word “establishment”
instead of “place.”

See 42 U.S.C. § 12181(7)(B) (“other

establishment serving food or drink”); id. § 12181(7)(E) (“other
sales or rental establishment”); id § 12181(7)(F) (“other
service establishment”); id. § 12181(7)(K) (“other social
service center establishment”).

This suggests that Congress

likely used the word “place” because there was no other less
cumbersome way to describe businesses that offer those
particular goods or services to the public.
15

Moreover, the

 instances in which the word “public” appears, it modifies the
types of goods or services offered rather than “place.”

See Id.

§ 12181(7)(D) (“other place of public gathering,” not public
place of gathering); id. § 12181(7)(H) (“other place of public
display or collection,” not other public place of display or
collection).

Reading the statute to extend beyond physical

places open to the public would not eliminate the need to
demonstrate inclusion in one of the broad categories.
Next, as the court in Carparts noted, “travel service” is
included as an example of a “service establishment.”

Even in

1990 it was entirely plausible that a travel service might
operate no physical location open to the public but instead
would conduct all business over the phone or by mail.

Therefore

“place” or “establishment” could, in context, refer to services
provided offsite and, by logical extension, the Internet.
Finally, and perhaps most importantly, reading the statute
as Scribd argues the Court should read it would lead to absurd
results.

Requiring a physical structure or some connection to a

physical threshold would result in arbitrary treatment.

For

example, it would make little sense if a customer who bought
insurance from someone selling policies door to door was not
covered but someone buying the same policy in the parent
company’s office was covered.

It is highly unlikely Congress

intended such inconsistent results.
16

 C. The Statute’s Legislative History Resolves the Ambiguity
in the Plaintiffs’ Favor
Finding that the canons of statutory construction do not
conclusively resolve the ambiguity in the statute, the Court
turns to external sources to better understand congressional
intent.

Congress enacted the ADA in 1990.

The purpose of the

ADA is clear: to end widespread discrimination against disabled
individuals.

When studying the need for such legislation,

Congress found that “historically, society has tended to isolate
and segregate individuals with disabilities, and, despite some
improvements, such forms of discrimination against individuals
with disabilities continue to be a serious and pervasive social
problem.”

42 U.S.C. § 12101(2).

After a thorough

investigation, Congress concluded that there was a “compelling
need” for a “clear and comprehensive national mandate” to
eliminate discrimination against disabled individuals, and to
integrate them “into the economic and social mainstream of
American life.”

PGA Tour, Inc. v. Martin, 532 U.S. 661, 675

(2001) (internal quotation omitted).
As a remedial statute, “the ADA must be broadly construed
to effectuate its purpose of providing a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.”

Mary Jo C. v. New York State

and Local Retirement System, 707 F.3d 144, 160 (2d Cir. 2013).

17

 The twelve categories of public accommodations in particular
also “should be construed liberally” to afford people with
disabilities equal access to the wide variety of establishments
available to the nondisabled.

PGA Tour, 532 U.S. at 676-77;

H.R. Rep. 101-485(II), at 100 (1990) (“The Committee intends
that the ‘other similar’ terminology should be construed
liberally, consistent with the intent of the legislation that
people with disabilities should have equal access to the array
of establishments that are available to others who do not
currently have disabilities.”).
This liberal approach is confirmed by the Committee
Reports.

It was “critical” to define places of public

accommodation more broadly than the Civil Rights Act of 1964
because “discrimination against people with disabilities is not
limited to specific categories of public accommodations.”
Rep. 101-485(II), at 35 (1990).

H.R.

It would make “no sense” for

the law to say people with disabilities cannot be discriminated
against if they want a sandwich at a deli but can be
discriminated against next door at the pharmacy where they need
to fill a prescription.

Id.

The goal is “full participation in

and access to all aspects of society.”

Id. (quoting Statement

of John Thornburgh, Att’y Gen. of the United States before the
H. Subcomm. on Civil and Constitutional Rights, Ser. No. 58,
October 11, 1989, at 192).

Although the list of the twelve
18

 categories in the statute is “exhaustive” it includes only “a
representative sample of the types of entities covered under
this category.”

H.R. Rep. 101-485(III), at 54 (1990).

This

suggests the Court should read the catchall categories broadly
to give effect to congressional intent.
Scribd argues that only physical places open to the public
can be public accommodations.

However, the Committee Reports

suggest that the important quality public accommodations share
is that they offer goods or services to the public, not that
they offer goods or services to the public at a physical
location.

A person alleging discrimination does not have to

prove that the entity being charged with discrimination is
similar to the examples in the definition.
485(III), at 54 (1990).

H.R. Rep. 101-

Rather what matters is membership in

one of the general categories.

As an example, it is not

necessary to show a jewelry store is like a clothing store but
rather “it is sufficient that the jewelry store sells items to
the public.”

Id.

Here the Report does not say something like

“it is sufficient that the store sells items at a place open to
the public.”

See also S. Rep. 101-116, at 54 (1990)

(“Similarly, although not expressly mentioned, bookstores, video
stores, stationary stores, pet stores, computer stores, and
other stores that offer merchandise for sale or rent are
included as retail sales establishments.” (emphasis added)).
19

 The Reports suggest that the location of the discrimination is
not as important in assessing the reach of Title III as the
context in which it is occurring.
The Committee Reports also make it clear that Congress
intended that the statute be responsive to changes in
technology, at least with respect to available accommodations.
H.R. Rep. 101-485(II), at 108 (1990) (“[T]he Committee intends
that the types of accommodation and services provided to
individuals with disabilities . . . should keep pace with the
rapidly changing technology of the times.”).

Specifically, the

Report notes that an important area of concern is information
exchange and although there were “still substantial barriers,”
that “great strides are being made.”

Id.

Information exchange

is exactly the service that Scribd provides.

It seems likely

that making websites compatible with screen reader software is
the kind of advanced technology Congress was envisioning.
The Department of Justice (“DOJ”) is responsible for
enforcing Title III.

Its regulations define “place of public

accommodation” as “a facility operated by a private entity whose
operations affect commerce and fall within at least one of the
following categories.”

28 C.F.R. § 36.104.

The categories in

the regulation are essentially the same as those in the statute.
“Facility” is defined as “all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other
20

 conveyances, roads, walks, passageways, parking lots, or other
real or personal property, including the site where the
building, property, structure, or equipment is located.”

Id.

The plain language of the regulation does not require that an
entity’s facility be open to the public.
Importantly, in other contexts, the DOJ has taken the
position that the ADA applies to the Internet and web-based
goods and service providers.

See, e.g., Letter from Deval L.

Patrick, Assistant Att’y Gen., to Senator Tom Harkin (Sept. 9,
1996) (“Covered entities under the ADA are required to provide
effective communication, regardless of whether they generally
communicate through print media, audio media, or computerized
media such as the Internet.”); Applicability of the Americans
with Disabilities Act (ADA) to Private Internet Sites: Hearing
before the House Subcommittee on the Constitution of the House
Committee on the Judiciary, 106th Cong., 2d Sess. 65-010 (2000)
(“It is the opinion of the Department of Justice currently that
the accessibility requirements of the Americans with
Disabilities Act already apply to private Internet Web sites and
services.”); 75 Fed. Reg. 43460-01 (July 6, 2010) (“The
Department believes that title III reaches the Web sites of
entities that provide goods or services that fall within the 12
categories of ‘public accommodations,’ as defined by the statute
and regulations.”).

The DOJ is currently in the process of
21

 promulgating regulations that would codify the position it has
taken in order to establish requirements for making websites
accessible.

See 75 Fed. Reg. 43460-01.

An agency interpretation contained in something akin to an
opinion letter rather than a formal adjudication or notice-andcomment rulemaking is “entitled to respect” per Skidmore v.
Swift & Co., 323 U.S. 134 (1944) but only to the extent an
interpretation has “the power to persuade.”
Harris County, 529 U.S. 576, 587 (2000).

Christensen v.

The amount of

deference an agency’s opinion is owed depends on “the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.”
140.

Skidmore, 323 U.S. at

Given the DOJ’s body of experience, the Court will give

some deference to its conclusion that the ADA applies to
websites covered by one of the categories in the statute.
Scribd argues the Court should infer that Congress could
have amended the ADA to more explicitly cover internet-only
businesses but deliberately chose not to.

Congress amended the

ADA in 2008, after some of the narrower circuit court decisions
discussed above were decided, but did not make any significant
change to Title III.

Therefore, Scribd contends, the Court

should infer that Congress has assented to the narrow
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 interpretations of the Third, Sixth, and Ninth Circuits.

There

are many reasons why Congress may not have acted to amend the
ADA, including perhaps that it was not necessary in light of the
DOJ’s interpretation of the statute.

The Court declines to give

any significant weight to congressional inaction in this
context.
The ADA was the most sweeping civil rights legislation
since the Civil Rights Act of 1964.

When it was enacted

Congress had no conception of how the Internet would change
global commerce.

As Representative Nadler put it, when the ADA

was enacted in 1990:
[W]e were not communicating by e-mail, blog, or tweet; we
were not filling virtual shopping carts with clothes,
books, music, and food; we weren't banking, renewing our
driver's licenses, paying taxes or registering for and
taking classes online. Congress could not have foreseen
these advances in technology. Despite Congress’ great
cognitive powers, it could not have foreseen these advances
in technology which are now an integral part of our daily
lives. Yet Congress understood that the world around us
would change and believed that the nondiscrimination
mandate contained in the ADA should be broad and flexible
enough to keep pace.
Achieving the Promises of the Americans with Disabilities Act in
the Digital Age –- Current Issues, Challenges and Opportunities:
Hearing before the H. Subcomm. on the Constitution, Civil
Rights, and Civil Liberties of the House Comm. on the Judiciary,
111th Cong., 2d Sess. 111-95 (2010).

Now that the Internet

plays such a critical role in the personal and professional

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 lives of Americans, excluding disabled persons from access to
covered entities that use it as their principal means of
reaching the public would defeat the purpose of this important
civil rights legislation.
Taking into account all of the relevant background
information explored above, the Court finds Judge Ponsor’s
reasoning in Netflix persuasive.

The Internet is central to

every aspect of the “economic and social mainstream of American
life.”

PGA Tour, 532 U.S. at 675.

In such a society,

“excluding businesses that sell services through the Internet
from the ADA would ‘run afoul of the purposes of the ADA and
would severely frustrate Congress’s intent that individuals with
disabilities fully enjoy the goods, services, privileges, and
advantages available indiscriminately to other members of the
general public.”

Netflix, 869 F. Supp. 2d at 200 (quoting

Carparts, 37 F.3d at 20).
The Court must therefore determine whether the services
Scribd offers properly fall within any of the general categories
of public accommodations listed in the statute.

Construing the

list of categories liberally, Plaintiffs have persuasively
argued that Scribd’s services fall within at least one of the
following categories: “place of exhibition or entertainment,” a
“sales or rental establishment,” a “service establishment,” a
“library,” a “gallery,” or a “place of public display or
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 collection.”

Complaint ¶ 26 (citing 42 U.S.C. § 12181(7)).

Therefore, the Court finds that Plaintiffs have sufficiently
alleged that Scribd owns, leases, or operates a place of public
accommodation.

Accordingly, Scribd’s motion to dismiss is

denied.
Dated at Burlington, in the District of Vermont, this 19th
day of March, 2015.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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