Ninth Circuit Holds That ADA Is Applicable Only to “Actual, Physical Place”

April 06, 2015

The decision in Earll v. eBay finds that a website business not connected to any physical place is not a “place of public accommodation” for purposes of Title III of the ADA.

In a decision of significant importance to all businesses that engage in Internet commerce, in Earll v. eBay, the US Court of Appeals for the Ninth Circuit held that, a website not connected to any physical place, is not a “place of public accommodation” subject to the accessibility requirements of Title III of the Americans with Disabilities Act (ADA). The decision is welcome news for web-based companies. An individual with a hearing impairment sued eBay Inc.  and alleged that an eBay voice-based verification process prevented her from registering as a seller, in violation of the ADA. Although the Ninth Circuit’s decision is groundbreaking for Internet-only companies, it builds on prior cases that interpreted the ADA to apply only to “actual, physical place[s].” The same court reached a similar conclusion on the same day in Cullen v. Netflix, a case concerning closed-captioning for online video content.

Federal district courts in other circuits have decided the question differently, which may cause a split between circuits. Ultimately, this issue may be headed for Supreme Court review. In an example of a contrary view, last month, a District of Vermont federal judge held that the web-only business Scribd is subject to suit under Title III of the ADA because its digital library subscription services are alleged to not be accessible to people with vision impairments (National Federation of the Blind v. Scribd).

In related activity, the US Department of Justice (DOJ) is expected this summer to accelerate its role in making and enforcing rules regarding Internet accessibility with a notice of proposed rulemaking on the subject. The DOJ is widely expected to propose the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA, as the standard required under the ADA.

The Morgan Lewis Accessibility Law Group will continue to be at the forefront of these issues and monitor the latest developments on website and mobile app accessibility so that companies are equipped with the most up-to-date information as the case law continues to evolve and the new regulations approach.


Morgan Lewis lawyers David Salmons, Bryan Killian, and Stephanie Schuster represented eBay in the case. If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Anne Marie Estevez
Beth S. Joseph

New York
Douglas T. Schwarz

Christopher K. Ramsey

Washington, DC
David B. Salmons
Stephanie Schuster