The U.S. District Court for the District of Vermont recently issued an opinion analyzing the applicability of the Title III of the Americans with Disabilities Act (ADA) to Scribd, a purely web-based digital library service. After an exhaustive survey of other courts’ analyses, the court ultimately found that a “place of public accommodation” does not need to be an actual, physical place. Instead, the court found that the ADA applies to goods and services that are available to the public but not necessarily at a physical place open to the public. While the court relied heavily on the opinion of the court in Nat’l Ass’n of the Deaf v. Netflix, Inc. (District of Massachusetts), its decision is inconsistent with the holdings of several district courts sitting in the Ninth Circuit that have required a “nexus” between the complained-of online service and an actual, physical place.

Further, the Ninth Circuit Court of Appeals recently issued two unpublished opinions that do not disturb precedent in the Ninth Circuit holding that the ADA only applies to services offered at, or with a nexus to, an actual, physical “place of public accommodation.” While district courts in the Ninth Circuit have generally relied on the precedent set in Weyer v. Twentieth Century Fox Film Corp. – a case concerning the applicability of the ADA to the administration of an insurance plan – in analyzing the ADA’s applicability to websites, these cases represent the first time the Ninth Circuit has taken up the issue directly. In an abbreviated analysis, the court relied squarely on Weyer in holding that neither web-based service at issue in those cases is subject to the ADA because in each case, there is no connection between the good or service being offered and an actual, physical place.

TIP: These cases illustrate a growing conflict among the federal courts with respect to the application of the ADA to e-commerce websites with no nexus to a physical “place of public accommodation.” The diverging opinions will likely continue to fuel the recent uptick in ADA litigation targeting websites in advance of the Department of Justice’s forthcoming proposed rulemaking on the issue.