Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT

U.S. DISTRiCT COURT iJISTRICl~F YERHON!
. 1.. ED

NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself, and HEIDI VIENS,
Plaintiffs,

v.

SCRIBD, INC.,

Defendant.

Docket No. '2. ': \"\ - C,V ... \ '-0'2..

COMPLAINT Plaintiffs complain of Defendant and allege herein as follows:
INTRODUCTION 1. Plaintiffs National Federation of the Blind ("NFB") and Heidi Viens seek to put an end to systemic civil rights violations committed by Scribd, Inc. ("Scribd") against blind persons who wish to access Scribd's reading subscription services in Vermont. By offering its services through an Internet website and mobile applications, or "apps," that are inaccessible to the blind, Scribd deprives blind persons access to the online services Scribd offers its sighted customers, including access to over 40 million documents. 2. Digital reading services play a crucial role in society. Excluding blind individuals from online reading services significantly impairs their access to information, reduces their research opportunities, impairs their career prospects, and unfairly hinders their pursuit of knowledge. 3. Plaintiffs, consisting of several blind individuals and the NFB, attempted to resolve this matter without a lawsuit, but were unable to obtain a commitment by Scribd to remedy these barriers to full and equal access.

629474.1

Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 2 of 9
4. Plaintiffs use the terms "blind person" or "blind people" and "the blind" to refer to all members of the NFB with visual impairments meeting the legal definition of blindness.
JURISDICTION AND VENUE 5. This Court has subject-matter jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 12188, for Plaintiffs' claims arising under the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. 6. Venue is proper in this District, pursuant to 28 U.S.C. § 1391, because a substantial part of the acts or omissions giving rise to Plaintiffs' claims have occurred in this District.
PARTIES 7. The NFB, the oldest and largest national membership organization of blind persons, is a non-profit corporation duly organized under the laws of the District of Columbia with its principal place of business in Baltimore, Maryland. It has affiliates and members in all 50 states, including Vermont. The vast majority ofthe NFB's approximately 50,000 members are blind persons who are recognized as a protected class under federal law. The NFB is widely recognized by the public, Congress, executive agencies of government, and the courts as a collective and representative voice on behalf of blind Americans and their families. 8. The purpose ofthe NFB is to promote the general welfare ofthe blind by (1) assisting the blind in their efforts to integrate themselves into society on terms of equality and (2) removing barriers and changing social attitudes, stereotypes, and mistaken beliefs that sighted and blind persons hold concerning the limitations created by blindness and that result in the denial of opportunity to blind persons in virtually every sphere of life. The NFB and many of its members have long been actively involved in promoting accessible technology for the blind, so that blind persons can live and work independently in today's technology-dependent world.
2
629474.1

Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 3 of 9
9. Many NFB members have encountered and will continue to encounter barriers due to the inaccessible Scribd website and apps at issue. The NFB sues on behalf of its members in Vermont, as well as itself in furtherance of its extensive efforts and expenditure of resources in promoting two of its principal missions: independence of the blind and equal access to technology for the blind. Scribd' s discriminatory offer of services through an inaccessible website and apps frustrates these missions of the NFB and results in the diversion of its resources to address Scribd's discriminatory practices.
10. PlaintiffHeidi Viens is blind, a member ofthe NFB, and a resident of Colchester, Vermont. Ms. Viens wants to use Scribd to, among other things, instantly access children's books to read to her 3-year-old daughter. Because Ms. Viens understands that the Scribd website and apps are inaccessible due to the lack of a non-visual means of operation, Ms. Viens has been deterred from using Scribd's services. Ms. Viens would subscribe to Scribd's services if they were accessible.
11. Scribd describes itself on its website as a "personal digital library, where you [subscribers of Scribd's service] have unlimited access to the world's largest collection of ebooks and written works." Scribd is incorporated in Delaware and headquartered in San Francisco, California. Scribd owns and/or operates reading subscription services on its website located at http://www.scribd.com and its apps for Apple, Kindle, and Android devices.
FACTUAL ALLEGATIONS Use of the Internet and Mobile Applications by the Blind 12. For sighted and blind persons, the Internet is a significant source of information and education, a place for everyday activities such as shopping and research, and a means for conducting business. The Internet offers a wealth of information, services, and products with instant availability and without the need to travel to engage in these activities.
3
629474.1

Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 4 of 9
13. The blind access the Internet from personal computers or mobile devices by using keyboards or touch-screen gestures in conjunction with screen access software, which vocalizes textual information presented visually on a computer screen or displays that information on a refreshable braille display. Such software provides the only method by which all blind persons can independently access the Internet and associated computer programs. When Internet applications and software are not designed to allow for use with screen access software, blind persons are unable to fully access the information, products, and services offered through the Internet.
14. Sighted and blind persons also extensively utilize applications on their mobile devices to do many of the same things that they could do via an Internet website. Blind persons access mobile applications using screen access software that works essentially the same as it does on a personal computer. Companies that create mobile device operating systems provide instructions to developers of mobile applications, including how to make mobile applications accessible to persons with disabilities.
Scribd's Inaccessible Internet Website and Mobile Applications 15. Described by its CEO as "the largest social publishing company in the world," Scribd offers an Internet-based "personal digital library" that allows sighted subscribers to access a collection of over 40 million titles, offering 420 billion words. Scribd has approximately 80 million subscribers around the world. 16. For a monthly fee of$8.99, sighted subscribers gain unlimited access to this large collection through its website and apps, as well as other services, privileges, advantages, and accommodations such as publishing their own work by uploading it to the Scribd collection and participating in social media features.
4
629474.1

Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 5 of 9
17. Access to information is critical to the NFB and its members. Reading facilitates the acquisition of knowledge. Blind researchers, students, teachers, writers, and entrepreneurs, like their sighted counterparts, increasingly rely on online access to digital information for their education, employment, and self-growth. When information is equally accessible to all, blind and sighted Americans alike can participate in America's celebrated marketplace of ideas. Scribd's inaccessible reading services gratuitously exclude the blind from having access to information that is critical to education, employment, and community integration.
18. Scribd's website uses an exclusively visual interface that is inaccessible to the blind. Users must visually identify reading content and interact with command icons on the screen. Blind users cannot log in to the reading service using the website. All information about books in the Scribd library, including book titles, summaries, and ratings, is only available visually.
19. Blind users cannot choose files to upload to the Scribd digital library because the buttons for uploading documents are not accessible using screen access software.
20. Scribd's reading service, including both its online reading platform and mobile apps, is completely incompatible with screen access software.
21. Because Scribd's website and apps are not programmed to be accessible through screen access software, Scribd is denying blind people access to all of the services, privileges, advantages, and accommodations that Scribd offers through its website and apps.
22. Technology exists to make graphical interfaces, such as Scribd's reading platforms, accessible to blind individuals. Screen access technology has existed for decades and numerous websites and applications have already programmed for screen access technology.
23. Other digital reading services, such as iBooks, already have accessibility features that fully include the blind in the sharing of ideas. These reading services have already
5
629474.1

Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 6 of 9
programmed for screen access compatibility, allowing blind readers to independently browse the reading collections, select titles, and read their chosen work. Screen access technology also allows access to ATMs, ticketing kiosks, smart phones, and personal computers.
24. Despite readily available technology that would render reading services accessible to blind persons, Scribd chose to design an exclusively visual interface. By failing to make their reading subscription services accessible to blind persons, Scribd violates basic equal access requirements under federal law.
25. Congress provided a clear national mandate for the elimination of discrimination against individuals with disabilities when it enacted the Americans with Disabilities Act. Such discrimination includes barriers to full integration, independent living, and equal opportunity for persons with disabilities, including those barriers created by inaccessible reading services in places of public accommodation, such as Scribd, its website, and its apps.
21. Despite this mandate, blind persons do not have equal access to Scribd' s reading collection.
22. On June 5, 2014, PlaintiffNFB notified Scribd that it was aware of the unlawful accessibility barriers at Scribd's website and apps. The NFB requested that Scribd commit to make its services accessible as required under current law.
23. Scribd has failed to make such a commitment. COUNT ONE
Violation of Title III of the Americans with Disabilities Act
(42 u.s.c. § 12182)
24. Title III of the Americans with Disabilities Act of 1990 ("ADA") guarantees that qualified individuals with disabilities shall have full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. 42 U.S.C. § 12182.
6
629474.1

Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 7 of 9
25. Heidi Viens and other members of the NFB are legally blind and, as such, are qualified individuals with disabilities under the ADA.
26. Scribd, which describes itself as a "personal digital library," is a place of public accommodation as defined by the ADA because it is, or is part of, a "place of exhibition or entertainment," a "sales or rental establishment," a "service establishment," a "library," a "gallery," and/or a "place of public display or collection." 42 U.S.C § 12181(7).
27. Scribd owns, operates, maintains, and/or leases the website located at http://www.scribd.com and the Scribd apps for Apple, Kindle, and Android devices. The website and apps are services, facilities, privileges, advantages, or accommodations of Scribd.
28. Heidi Viens and other members of the NFB cannot access Scribd's website and mobile applications. Scribd's website and apps contain barriers, including violations ofWCAG 2.0 AA, that prevent full and equal use by blind persons, including the Plaintiffs, using screen access software.
29. Scribd's website and apps deny blind users full and equal enjoyment of the services, facilities, privileges, advantages, or accommodations that Scribd makes available to the sighted public. Unless the Court enjoins Scribd from continuing to engage in these unlawful practices, Plaintiffs will continue to suffer irreparable harm.
30. As a result ofScribd's wrongful conduct, Heidi Viens and other members ofthe NFB are entitled to injunctive relief pursuant to 42 U.S.C. § 12188 requiring Scribd to remedy the discrimination.
31. Heidi Viens and other members of the NFB are also entitled to reasonable attorneys' fees and costs.
7
629474.1

Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 8 of 9
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment as follows: 32. A permanent injunction pursuant to the ADA, requiring Scribd to take the steps necessary to make the services, facilities, privileges, advantages, or accommodations it provides at the Scribd website and apps in Vermont fully accessible to and independently usable by blind persons and to maintain that accessibility; 33. A declaration that Scribd discriminates against blind persons by failing to provide blind persons with full and equal access to the services, facilities, privileges, advantages, or accommodations of Scribd and its website and apps in Vermont, in violation of Title III of the ADA. 34. An order awarding Plaintiffs reasonable attorneys' fees and costs, and 35. Such other and further relief as the Court deems just and proper.
Dated at Middlebury, Vermont, this 29th day of July, 2014.
E Ily . osels sq. James T. DeW ese, Esq. 111 South Pleas nt Street PO Drawer 351 Middlebury, VT 05753-0351 ej oselson@langrock.com j deweese@langrock.com
Ph: (802) 388-6356 IFx: (802) 388-6356
8
629474.1

Case 2:14-cv-00162-wks Document 1 Filed 07/29/14 Page 9 of 9
Daniel F. Goldstein (to seek admission pro hac vice) Gregory P. Care (to seek admission pro hac vice) BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com gpc@browngold.com Ph: (410) 962-1030 x.1314 Fx: (410) 385-0869 Laurence Paradis (to seek admission pro hac vice) Raben Girma (to seek admission pro hac vice) Rebecca Rodgers (to seek admission pro hac vice) DISABILITY RIGHTS ADVOCATES 2001 Center Street, Fourth Floor Berkeley, CA 94704-1204 lparadis@dralegal.org hgirma@dralegal.org rrodgers@dralegal.org Ph: (510) 665-8644 Fx: (510) 665-8511 TTY: (510) 665-8716 Attorney for Plaintiffs
9
629474.1

 
 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

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). Scribd argues that the
3

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. There are two main threads in the case law explored below. 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. This distinction is crucial. 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. The latter
14

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. Moreover, the
15

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.” H.R. Rep. 101-485(II), at 35 (1990). 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. H.R. Rep. 101485(III), at 54 (1990). 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.” Christensen v. Harris County, 529 U.S. 576, 587 (2000). 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.” Skidmore, 323 U.S. at 140. 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
22

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
23

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
24

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
25

 
 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. On March 19, 2015, the Court denied

Scribd’s Motion to Dismiss for Failure to State a Claim. ECF

No. 30 (the “March Order”). Pursuant to 28 U.S.C. § 1292(b)

Scribd now moves to certify the March Order for interlocutory

review and to stay the action pending a request for

interlocutory appeal to the Second Circuit. ECF No. 37. For

the reasons explained at length below, Scribd’s motion is denied

and discovery will proceed.

1

I. Legal Standard 28 U.S.C. § 1292(b) permits district courts to certify an
order for immediate interlocutory appeal when it “involves a controlling question of law as to which there is substantial ground for difference of opinion” and “an immediate appeal from the order may materially advance the termination of the litigation.” Id. Section 1292(b), however, “is a rare exception to the final judgment rule” and its use “is reserved for those cases where an intermediate appeal may avoid protracted litigation.” Kellogg v. Wyeth, 612 F. Supp. 2d 437, 439 (D. Vt. 2009) (internal quotation and citation omitted). Certification is “not intended as a vehicle to provide early review of difficult rulings in hard cases.” German by German v. Fed. Home Loan Mortgage Corp., 896 F. Supp. 1385, 1398 (S.D.N.Y. 1995).
District courts have substantial discretion in deciding whether to certify a question for interlocutory appeal. Latouche v. N. Country Union High Sch. Dist., 131 F. Supp. 2d 568, 573 (D. Vt. 2001). The Second Circuit, however, has “urge[d] the district courts to exercise great care in making a § 1292(b) certification.” Westwood Pharm., Inc. v. Nat'l Fuel Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir. 1992). There must be “exceptional circumstances justify[ing] a departure from the basic policy of postponing appellate review until after the
2

entry of a final judgment.” Transp. Workers Union of Am., Local 100, AFL-CIO v. New York City Transit Auth., 505 F.3d 226, 229 (2d Cir. 2007) (internal quotation and citation omitted.” District courts, therefore, should construe the requirements for certification strictly. Latouche, 131 F. Supp. 2d. at 573. II. Discussion
Scribd previously argued that the Plaintiffs did not sufficiently allege that it owns, leases, or operates a place of public accommodation as is required to state a claim under Title III of the ADA. The Court denied Scribd’s motion to dismiss because the text of the ADA is ambiguous and the statute’s legislative history resolved the ambiguity in the Plaintiffs’ favor. The Court further determined that the services Scribd offers fall within at least one of the general categories of public accommodations listed in the statute and that the Plaintiffs had therefore sufficiently alleged that Scribd owns, leases, or operates a place of public accommodation. ECF No. 30 at 24-25.
The proponents of an interlocutory appeal have the burden of showing that all three of the substantive criteria are met, or in other words that: 1) the order concerns a controlling question of law, 2) there is a substantial ground for difference of opinion, and 3) an immediate appeal may materially advance the ultimate termination of the litigation. In re Facebook,
3

Inc., IPO Sec. & Derivative Litig., 986 F. Supp. 2d 524, 529 (S.D.N.Y. 2014).
It is unclear whether the March Order concerned a controlling question of law. If the Second Circuit were to disagree with the Court’s construction of the statute and hold that Scribd does not own, lease, or operate a place of public accommodation then the Plaintiffs’ claim likely would end. However, that would certainly not be the case if the Second Circuit were to affirm the Court’s March Order.
Moreover, the appellate court might very well remand for further discovery. Scribd argued that Title III does not apply to entities that do not operate a physical place open to the public. The Second Circuit could disagree with the Court’s conclusion but still credit the Plaintiffs’ previous argument that computer servers may be considered a physical place of public accommodation. See ECF No. 17 at 3 (“Alternatively, even if Scribd were correct that Title III’s application is constricted to operations from a physical ‘place,’ Scribd’s web servers . . . would qualify as a ‘place.’”); id. at 20-22 (arguing same). The parties might then need to conduct discovery to determine how patrons access information from Scribd’s computer server facilities.
Scribd cannot demonstrate that the other two criteria are met. The legislative history of 28 U.S.C. § 1292(b) suggests
4

that to satisfy the second prerequisite there must be “‘substantial doubt’” that the district court’s order was correct. N.F.L. Ins. Ltd. By Lines v. B&B Holdings, Inc., No. 91 Civ. 8580 (PKL), 1993 WL 255101, at *2 (S.D.N.Y. July 1, 1993) (quoting S. Rep. No. 2434, 85th Cong., 2d Sess. (1958) reprinted in 1958 U.S.C.C.A.N. 5255, 5257). The Court has no such doubt here.
The Court acknowledges that this is an issue of first impression for the Second Circuit. However, “the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion.” In re Flor, 79 F.3d 281, 284 (2d Cir. 1996). Rather, “it is the duty of the district judge to analyze the strength of the arguments in opposition to the challenged ruling when deciding whether the issue for appeal is truly one on which there is a substantial ground for dispute.” Id. (internal quotation, alterations, and citation omitted).
The Court has already considered and rejected the arguments Scribd raises in the present motion. In re Methyl Tertiary Butyl Ether Products Liab. Litig., 399 F. Supp. 2d 320, 324 (S.D.N.Y. 2005)(“[A] party that offers only arguments rejected on the initial motion does not meet the second requirement of § 1292(b).” (internal quotation and citation omitted)). Moreover there is no strong argument in opposition to its ruling. While
5

not directly on point, Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999) came closest to addressing the issue before the Court in the March Order. This Court explained that the appellate court likely would extend its reasoning in Pallozzi to conclude that Title III applies to companies like Scribd that offer its goods and services exclusively online.
The Court acknowledges that other courts have reached different conclusions about how far Title III extends. At the time it issued its March Order, however, no appellate court had ruled on the specific question the Court confronted. Those opinions that previously construed Title III narrowly were distinguishable or not applicable in the Court’s view. The Court reasoned that there is no conflict between its analysis of Pallozzi and the cases Scribd cited from the Third, Sixth, and Ninth Circuits because those courts “did not consider facts that justified a finding that Title III requires some connection to a physical place.” ECF No. 30 at 12. Few courts have considered parties that conduct business entirely online. Those opinions that did so were essentially limited to: 1) district court rulings bound by appellate precedent that this Court distinguished and 2) Judge Ponsor’s opinion in Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012). The Court agreed with Judge Ponsor’s reasoning.
6

Scribd now cites two unpublished decisions from the Ninth Circuit that were decided after the March Order. Unlike the other appellate decisions the Court considered, they expressly held that website operators with no physical place of business open to the public were not operators of a public place of accommodation under the ADA. Cullen v. Netflix, Inc., No. 1315092, __ Fed App’x __, 2015 WL 1471802 (9th Cir. April 1, 2015); Earll v. Ebay, Inc., No. 13-15134, __ Fed. App’x __, 2015 WL 1454941 (9th Cir. April 1, 2015). These cases do not change the Court’s conclusions. Putting aside the fact that they are both unpublished decisions and are expressly non-precedential under the Ninth Circuit’s Rules, see U.S. Ct. of App. 9th Cir. R. 36-3(a), the Court previously considered the district court opinions that preceded these appeals. See ECF No. 30 at 8 (citing Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1023-24 (N.D. Cal. 2012) and Earll v. eBay, Inc., No. 5:11-cv-00262-JF (HRL), 2011 WL 3955485, at *2 (N.D. Cal. Sept. 7, 2011)). Moreover both the recent Ninth Circuit decisions and their district court counterparts relied on Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) as precedent they were bound to follow. The Court considered and distinguished Weyer in the March Order. These two recent cases that rely on the same cramped reasoning do not persuade the
7

Court that there is a substantial ground for difference of opinion sufficient to warrant certification.
Finally, an immediate appeal will not materially advance the litigation. No discovery has yet occurred. While the Court appreciates that a contrary decision from the Second Circuit could end the case and save the parties the time and expense of discovery, there is no reason to believe that discovery will be especially lengthy or burdensome in this case. An immediate appeal would not obviate the need for discovery, however, if the appellate court were to remand for further discovery concerning how users access Scribd’s servers as described above.
Scribd has also challenged the Plaintiffs’ standing with respect to an Article III case and controversy analysis. The Plaintiffs argue that if Scribd’s challenge is successful, the Court’s March Opinion would be vacated because the issue of standing is central to the Court’s jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). While the Court has not yet considered Scribd’s standing argument, it is possible that its ruling on the preliminary legal question in the March Order might disappear in light of the complete record if the case is dismissed for lack of standing. Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 864 (2d Cir. 1996) (“It does not serve § 1292(b)'s intended purpose to rule on an ephemeral question of law that may disappear in the light of a complete
8

and final record.”). This would only come to pass if the Second Circuit were to affirm the March Order. Nevertheless, the Court holds that certification at this early stage of the litigation will not materially advance its termination and could very well lengthen it considerably.
Scribd’s suggestion that it would be in a better position to consider alternative resolution once there is a controlling appellate opinion on this issue does not undermine the Court’s conclusion. More definitive appellate rulings always yield more information for the parties to consider in negotiations, but that consideration does not outweigh the Court’s judgment that an interlocutory appeal is presently inappropriate.
The intended purpose of Section 1292(b) would not be well served by certification. Simply put, the Court does not find that this case presents the “exceptional circumstances” required to justify a deviation from the normal course of postponing appellate review until after final judgment. Transp. Workers Union, 505 F.3d at 229.
Because the Court denies Scribd’s motion for certification, its request for a stay pending a request for interlocutory appeal is denied as moot.
9

DATED at Burlington, in the District of Vermont, this 29th day of May, 2015.
/s/ William K. Sessions III William K. Sessions III District Court Judge
10

 
 Case 2:14-cv-00162-wks Document 73 Filed 11/19/15 Page 1 of 3

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, TNC.,

Defendant.

Docket No. 2: 14-cv-001 62-wks

STIPULATED/JO MOTION TO DISMISS PURSUANT TO F.R.C.P. 4l ratøl
Pursuant to Fed. R. Civ. P. al@)(2), Plaintiffs National Federation of the Blind ("NFB") and Heidi Viens (ooViens"), by their undersigned attorneys, and Defendant Scribd, Inc. ("Scribd"), by its undersigned attomeys, having reached a global settlement of all pending issues, hereby stipulate and jointly move this Court to dismiss this litigation with prejudice, while expressly retaining jurisdiction to enforce the terms of the parties' settlement agreement.
MEMORANDUM OF LAW
By a Settlement Agreement and Release and accompanying Confidential Rider (collectively, the "Agreement") signed by Scribd, on November 10, 2015, by Plaintiff NFB on November 16,2015, and by Plaintiff Viens on November 17,2015, the parties have reached a comprehensive resolution of the claims pending in the above-captioned litigation. The Agreement includes contractual obligations to address accessibility concerns raised by the Plaintiffs, provides a full release to Defendant, and provides that no Party admits wrongdoing or shall assert the Agreement as an admission of wrongdoing, fault or liability.
The Agreement provides that the Plaintiffs will dismiss this lawsuit with prejudice within
fìve (5) business days after the execution of the Agreement, oosubject to the Court retaining

Case 2:14-cv-00162-wks Document 73 Filed 11/19/15 Page 2 of 3

jurisdiction to enforce the Settlement Agreement for the term of the Settlement Agreement. The Parties shall retain their rights to specifically enforce this Settlement Agreement." Agreement
fl 7. The Agreement further provides for a dispute resolution procedure, including notice and an
opportunity to cure, followed by mediation, in the event of any claim of a material breach of the
Agreement . Id.. nl0. In the event such a dispute is not resolved by that process,
the parties have agreed that Plaintiffs will have the sole, contractual remedy of an order by the Court for specific performance of the term of the Agreement alleged to have been breached. Id.
,11 10(b).
CONCLUSION Therefore, the parties jointly move this Court to dismiss this action with prejudice, while retaining jurisdiction over this case for the purpose of specifically enforcing the parties'
Settlement Agreement.
Dated at Burlington in the District of Vermont, this 19th day of November, 20t5.

Respectfully submitted,

/s/ Laurence Qaralk

DISABILITY RIGHTS ADVOCATES

LAURENCE PARADIS (pro hac vice)

lparadis@drale gal.org

HABEN GIRMA (pro hac vice)

hgirma@dralegal.org

2001 Center Street, Fourth Floor

Berkeley, CA 94704-1204

Telephone: (510)665-8644

Facsimile: (510) 665-851 I

TTY:

(s10) 66s-8716

FENV/ICK & WEST, LLP LAURENCE PULGRAM(Pro hac vice)
I nulsramfD.fenwi ck. com
LIWEN MAH Qtro hac vice) lmah@fenwick.com 555 Califomia Street, 12th Floor San Francisco, CA 94104
T: 415.875.2300
F: 415.281.1350

2

Case 2:14-cv-00162-wks Document 73 Filed 11/19/15 Page 3 of 3

F,
BROWN, GOLDSTEIN & LEVY, LLP DANIEL F. GOLDSTEIN Qtro hac vice)
clfg@browngold.com GREGORY P. CARE (pro hac vice)
sncla).brownsoid.com
120 E. Baltimore Street. Suite 1700 Baltimore, MD 21202
Telephone: (410)962-1030 xl314
Facsimile: (410) 385-0869

REBECCA RODGERS (pro hac vice)

rrodgers@dralegal.org

40 Worth Street, 1Oth Floor

New York, NY 10013

Telephone: (212)644-8644

Facsimile: (212) 644-8636

TTY:

(510) 665-8716

/s/ Gan lF. Kørnel:v PRIMMER PIPER EGGLESTON &
CRAMER GARY F. KARNEDY Professional Corporation 150 South Champlain Street Burlington, Vermont 0540 I (s02) s64-0880/FAX (802) 864-0328 Email: gkamedy@primmer.com
Counsel for Defendant Scribd, Inc.

LANGROCK SPERRY & V/OOL, LLP EMrLY J. JOSELSON (VT BAR NO. 683)

ei oselson@.lansrock. com

MICHELE B. PATTON

mnatton (rD I an srock. com
11 I S. Pleasant Street

PO Drawer 351

Middlebury, VT 05753-035 1

Telephone: (802) 388-6356

Fax:

(802) 388-6149

Attorneys for Plaintffi

662416.1

2

 
 Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 1 of 25

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.

Docket No. 2:14-cv-00162-wks ORAL ARGUMENT REQUESTED

PLAINTIFFS’ MEMORANDUM OF LAW OPPOSING MOTION TO DISMISS The Americans with Disabilities Act (“ADA”) is remarkable for its breadth of purpose
and scope. See Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33 (2d Cir. 1999). The Second Circuit has explained that, under Title III of the ADA, public accommodations must provide equal access to their goods and services, however and wherever they are offered. Id. at 32-33. This mandate effectuates the ADA’s “sweeping purpose [to] . . . forbid[ ] discrimination against disabled individuals in major areas of public life.” Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 160 (2d Cir. 2013).
In this era of ubiquitous technology, Internet websites and mobile applications on smartphones and tablets are major areas, if not fixtures, of public life. E.g., Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460, 43461 (July 26, 2010) (“Today the Internet, most notably the sites of the Web, plays a critical role in the daily personal, professional, civic, and business life of Americans.”). Because Congress foresaw the technology

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 2 of 25
boom and the promise of equality it could bring, it declared that the ADA “should keep pace with the rapidly changing technology of the times” and that its categories of public accommodations must be read expansively. H.R. Rep. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 391; H.R. Rep. 101-485 (III), 54 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 477. Likewise, the United States Department of Justice has steadfastly required businesses that provide services exclusively on the Internet to make those services accessible to individuals with disabilities. See infra Part I.E.
Binding case law is in full accord. The Second Circuit held in Pallozzi that Title III applies to a business engaging in the kind of activity that would make it a public accommodation, regardless of whether that business also has a brick-and-mortar location that patrons can visit. 198 F.3d at 32-33 (holding that the ADA, which should be read broadly, “was meant to guarantee [the plaintiffs] more than mere physical access” and therefore covered the sale of insurance even if the transaction was entirely concluded by phone and mail). Other courts had already reached similar conclusions. Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 20 (1st Cir. 1994); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999). These, in turn, led to a recent decision holding that Title III applies to an Internet-based business that provides services very similar to Defendant Scribd, Inc. (“Scribd”). Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012).
Pallozzi’s reasoning applies fully to businesses that, like Scribd, operate exclusively on the Internet. Scribd offers its patrons access to digital reading material that can be viewed on Scribd’s website or through its mobile applications. Compl. ¶ 15. Thus, Scribd fits squarely within several categories of public accommodations listed in Title III: a “place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,” and a “library,
2

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 3 of 25
gallery, or other place of public display or collection.” 42 U.S.C. § 12127(7)(C), (E), (F), (H). Alternatively, even if Scribd were correct that Title III’s application is constricted to operations from a physical “place,” Scribd’s web servers (the computers that store and transmit the digital information Scribd’s patrons request via the Internet) would qualify as a “place.”
The ADA addresses the exclusion of persons with disabilities from equal participation in the important aspects of public life, whether the exclusion is intentional or the result of “benign neglect.” See 42 U.S.C. § 12101; Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 597 (S.D.N.Y. 2013). The ADA’s remedy for that exclusion does not depend on whether a person purchases an insurance policy at an insurance office or, as in Pallozzi, by phone and mail. So, too, the ADA protects both the disabled consumer who purchases digital information from Scribd over the Internet and the one who buys a print book at a local store; in each instance, a member of the public is obtaining the goods and services of a public accommodation. Any contrary interpretation of the ADA would do violence to its purposely expansive reach and would impose restrictions the Second Circuit has rejected, Congress never intended, and the Department of Justice has refuted.
The NFB and Ms. Viens are advancing the ADA’s purpose of ensuring that those who are blind have an equal opportunity to access the millions of digital written works that Scribd provides to the sighted public. There is no basis to dismiss their pursuit of that equality.
FACTS Scribd provides reading and self-publishing services to the public through its website and mobile applications (“mobile apps”) for Apple, Android, and Kindle smartphone and tablet devices. Compl. ¶ 15. Patrons pay $8.99 per month for unlimited access to Scribd’s “digital library” of over 40 million documents. Id. ¶¶ 15-16. Scribd also provides self-publishing services
3

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 4 of 25
that allow users to upload documents to Scribd’s library. Id. ¶ 16. Scribd’s entire “library” is stored on Scribd’s computer servers. Mot. at 10.
To make use of computers, many blind individuals must use screenreader software that converts graphical information found on websites and mobile apps into audio or braille formats, depending on the blind user’s preference. Compl. ¶¶ 13-14. Although technological solutions exist to make its services accessible, Scribd programs its website and mobile apps so that its services are inaccessible to blind consumers using screen reader software. Id. ¶¶ 18-23.
LEGAL STANDARD A court assessing a motion to dismiss must accept the facts alleged in the complaint as true and then draw all reasonable inferences from those facts in favor of the plaintiffs. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The motion must be denied “unless it appears beyond a reasonable doubt that the [nonmovant] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” N. Sec. Ins. Co. v. Mitec Telecom, Inc., 38 F. Supp. 2d 345, 347 (D. Vt. 1999). The Second Circuit is particularly “mindful of the care exercised . . . to avoid hastily dismissing complaints of civil rights violations.” Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). Motions to dismiss for failure to state a claim are “generally viewed with disfavor, and the standard for dismissal under Rule 12(b)(6) is quite narrow.” Jackson v. New York, 381 F. Supp. 2d 80, 84 (N.D.N.Y. 2005).
ARGUMENT The ADA is a remedial statute that is construed liberally to “effectuate its sweeping purpose [to] . . . forbid[ ] discrimination against disabled individuals in major areas of public life.” Mary Jo C., 707 F.3d at 160; see also Henrietta D. v. Bloomberg, 331 F.3d 261, 279 (2d Cir. 2003); see generally Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). Access to information
4

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 5 of 25
and the social and economic opportunities that flow therefrom is one of the major areas of public life that the ADA sought to open for persons with disabilities. Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 102 (2d Cir. 2014). Requiring Scribd’s online reading services to be made accessible to all of the public fulfills the ADA’s promise. I. Scribd is a public accommodation subject to Title III of the ADA.
Title III broadly prohibits discrimination by public accommodations: “[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. A list of 12 categories of entities, grouped according to the goods and services they offer, are defined as public accommodations. Id. § 12181(7). As with the rest of the ADA, that list “should be construed liberally to afford people with disabilities equal access to the wide variety of establishments available to the nondisabled.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 676-77 (2001) (internal quotation marks omitted).
Scribd places its hope for dismissal on the premise that Title III requires a public place that consumers may visit. However, a plain reading of the ADA, its legislative history, cases construing the statute, and the Department of Justice’s interpretation of the law all support that it is the nature of the services Scribd provides that makes it a public accommodation under Title III of the ADA.
A. In Pallozzi v. Allstate Life Insurance Co., the Second Circuit held that Title III covers an entity like Scribd even when it does not provide its goods and services in a brick-and-mortar location.
The Second Circuit has authoritatively addressed the core issue in this case, holding that a “public accommodation” that provides the goods or services listed in the 12 statutory categories is covered by Title III of the ADA, even when those goods or services are not offered
5

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 6 of 25
at a public location. Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32-33 (1999). This decision is controlling here and confirms that Title III applies to businesses like Scribd that provide the services of a public accommodation via the Internet.
The Pallozzis sued Allstate Life Insurance Company for rejecting their application for a joint policy because of their disabilities. Id. at 30. As Allstate emphasized to the Second Circuit, the Pallozzis never visited an Allstate office to obtain a policy;1 instead, they apparently engaged Allstate’s underwriting services through either telephone or written correspondence. Allstate’s Brief at 13 n.8; Allstate’s Response Brief to Amicus Curiae Brief of United States of America at 4 n.2.2
Allstate had moved to dismiss, in pertinent part, on the ground that Title III defines the term “public accommodation” to mean an “insurance office” consumers visit, but not an insurance company that performs the underwriting in question in some location off-limits to customers. Pallozzi, 198 F.3d at 32. The Second Circuit rejected this argument and held that “the statute was meant to guarantee [the plaintiffs] more than mere physical access.” Id. (citing Carparts Distrib. Ctr., Inc., 37 F.3d at 20). Pallozzi thus stands for the proposition that the operation of an office open to the public is not a prerequisite for coverage under Title III. . Id. at 32 & n.3.
The Pallozzi Court further warned against attempts to read a public place requirement into the ADA when it explained Title III’s mandate regarding the “full and equal enjoyment of
1 Mr. Pallozzi was diagnosed with agoraphobia, 198 F.3d at 30, an anxiety disorder that often causes a fear of public places. Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 432-33 (4th ed. text rev. 2000). 2 The NFB and Ms. Viens attach as an Appendix all briefs they cite from the record in Pallozzi.
6

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 7 of 25
the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” 42 U.S.C. § 12182. The Court said it found
no merit in Allstate’s contention that, because insurance policies are not used in places of public accommodation, they do not qualify as goods or services “of a place of public accommodation.” The term “of” generally does not mean “in,” and there is no indication that Congress intended to employ the term in such an unorthodox manner. Pallozzi, 198 F.3d at 33. Pallozzi’s reasoning applies with equal force to Scribd. Because the ADA covers the services “of” (not “in”) a public accommodation, id., it does not matter how or where a Scribd patron accesses Scribd’s services (i.e., via website or mobile apps). Like Allstate’s underwriting activities, Scribd’s services are not offered at an office or store that a patron could visit. Just as Pallozzi found that Allstate’s underwriting activities fell within the analogous “insurance office” example provided in the definition of “public accommodation,” id. at 32-33, so, too, Scribd’s online services equate to a “library, gallery, or other place of public display or collection,” among other examples provided by the statute. Scribd does not deny that it considers itself to be a form of “library.” Compl. ¶ 26; Mot. at 6; see infra Part I.B.1. Pallozzi also forecloses one of Scribd’s central arguments by distinguishing two of the principal cases Scribd cites: Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (6th Cir. 1997), and Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998). 198 F.3d at 32 n.3. The Second Circuit noted that the plaintiffs in Parker and Ford obtained the policies through their employers. Id. Title III was thus inapplicable to complaints by employees who lacked any “nexus” to a public accommodation. Id. Accordingly, in a companion case to Pallozzi, the Second Circuit found the insurance company was not a public accommodation when the employer was an intermediary in the purchase of the subject insurance policy. Leonard F. v.
7

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 8 of 25
Israel Disc. Bank of N.Y., 199 F.3d 99, 107-08 (1999).3 But in Pallozzi, and in this case, the plaintiffs seek services directly from the public accommodation. Compl. ¶¶ 15-16. Therefore, the required “nexus” exists and Title III applies.
Scribd ignores the irrational and impermissible result its argument would produce— making discriminatory conduct lawful when it is conducted online. Under Scribd’s view, because a subsidiary of Allstate’s called “esurance” offers insurance solely over the Internet rather than in offices, see https://www.esurance.com/commercials (touting the advantages of having been “born online”), it could engage in the very conduct that the Second Circuit found was forbidden to its parent Allstate. Pallozzi’s focus, properly, was on whether the services the entity offered brought it within the ambit of Title III, not the locus from which the services are offered, and thus would allow neither such an absurd result nor Scribd’s exemption from the statute.
B. Statutory construction of the ADA confirms that the statute applies to a public accommodation that offers services exclusively over the Internet. 1. Read broadly and plainly, Title III covers Scribd’s business activities.
Statutory construction of Title III supports Pallozzi’s holding and independently mandates denial of Scribd’s motion. Scribd meets the ADA’s “liberally” construed definition of “public accommodation” in every way. PGA Tour, Inc., 532 U.S. at 676-77. First, a public accommodation must be a “private entit[y],” id., which is defined broadly as “any entity other than a public entity” covered by Title II. 42 U.S.C. § 12181(6). An “entit[y]” is a place-less concept that focuses on a distinct existence for tax purposes, such as a corporation or other 3 With the exception of an unpublished district court opinion that preceded Pallozzi and that limited the ADA to physical places, Rome v. MTA/N.Y.C. Transit, No. 97-CV-2945 (JG), 1997 WL 1048908 (E.D.N.Y. Nov. 18, 1997), Scribd relies on decisions from outside of the Second Circuit. Mot. at 8, 13, 15-17. The majority of the cases to which Scribd refers are make-weight citations to district-level decisions bound to follow appellate decisions in the 9th and 11th Circuits that are contrary to Pallozzi. Id. at 15-17.
8

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 9 of 25
business form. Black’s Law Dictionary 532 (1990).4 Scribd, Inc., satisfies that criterion. Compl. ¶ 11.
The definition next requires an entity to “affect commerce.” 42 U.S.C. § 12181(7). The ADA defines “commerce” as including “trade . . . commerce . . . or communication.” Id. § 12181(1). Thus, Congress regarded “communication,” which does not require a brick-and-mortar location that can be visited by patrons, as commerce. Plaintiffs have alleged that Scribd communicates written works to patrons in the form of digital information over the Internet. Id.; Compl. ¶¶ 15-24. As Congress contemplated, Scribd affects commerce under Title III without offering a storefront for its patrons to visit personally.
Title III then defines a public accommodation by the type of business activity the entity conducts. 42 U.S.C. § 12181(7). Because Scribd sells reading and self-publishing services to the public, it is a “place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,” and a “library, gallery, or other place of public display or collection.” Id. § 12181(7)(C), (E), (F), (H).
As Scribd satisfies each of the statutory components of a public accommodation, it must be held accountable to Title III’s accessibility mandate. Scribd argues, however, that the statute’s reference to a “place” of public accommodation means that only structures open to the public are covered by Title III. The rules of statutory construction completely answer this argument.
Scribd relies selectively on one dictionary definition of “place” as proof that “place” can mean only a physical space. Mot. at 8. However, the dictionary offers 49 additional meanings, some of which bear no relationship to physical locations. Webster’s Encyclopedic Unabridged
4 The Supreme Court and Second Circuit have looked to dictionaries contemporaneous to the passage of the statute in question to understand statutory terms. Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2003 (2012); In re WorldCom, Inc., 723 F.3d 346, 354 (2d Cir. 2013).
9

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 10 of 25
Dictionary of the English Language 1478 (1996) (including entries such as “position, situation, or circumstances”). Thus, the definition that Scribd claims to end the debate at best perpetuates it. See Nat’l R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 418 (1992) (“The existence of alternative dictionary definitions of the word . . . each making some sense under the statute, itself indicates that the statute is open to interpretation.”).
The more instructive source for understanding the meaning of the statutory language is its everyday usage. Indeed, the Second Circuit places more weight on a term’s common usage than its dictionary definition. Mastrovincenzo v. City of New York, 435 F.3d 78, 104 (2006) (favoring how a word is “more frequently used and understood in common parlance” than its array of dictionary definitions); see also Muscarello v. United States, 524 U.S. 125, 127-33 (1998) (examining not just dictionary definitions of the term “carry,” but also its usage in popular literature and newspapers). The everyday usage of “place” confirms Ms. Viens and the NFB’s broad reading of the ADA.
The Internet is routinely described as a “place,” and it is often ascribed physical attributes. E.g., Shani Else, Note, Courts Must Welcome the Reality of the Modern World: Cyberspace is a Place Under the Americans with Disabilities Act, 65 Wash. & Lee L. Rev. 1121, 1145-48 (2008). As a society, we speak of email “addresses,” discussions on Internet chat “rooms,” posts on Facebook “walls,” and shopping at online “shops” and “stores.” The Internet as a whole is referred to as “cyberspace.” Newspapers and other media habitually refer to websites as “places.” 5 The following samples stand for thousands of others like them:
5 Because the relevant information in these media reports is the word usage, and not the truth of the matters asserted in them, the Court has discretion to take judicial notice of the reports. Steiner v. Shawmut Nat’l Corp., 766 F. Supp. 1236, 1241 n.13 (D. Conn. 1991); 5A C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1364, at 475–81 (1990).
10

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 11 of 25



“The only other place I can look is on the insurer’s website,”6

 “Something else I’ve grown to love about the website is much less common: It’s a wonderful place to shop,”7

 “The club’s Web site includes a place to donate to a fire-relief fund and a wish list of items ranging from audio and visual equipment to old skis,”8 and



“The Internet is not just a single place, it is lots of places.”9

Scribd and other businesses that create websites and mobile apps also refer to the Internet

as a “place.” The co-founder and CEO of Scribd, John R. “Trip” Adler, has consistently

described his company’s online presence as a “place” and has likened using Scribd to “being in a real-world book store or library.”10 Again, the following are just representative examples:

 “Scribd is the place where connections form around shared reading interests,”11
 “We want to be the place where people can publish instantly to their audiences . . . ,”12 and
 “Scribd’s goal is to collect all the world’s written information -- whether for free or for purchase -- in one place . . . .”13

6 Paul Downs, Help Needed on Health Plans, N.Y. Times, Jan. 9, 2014, at B5 (emphasis added).
7 Jenna Wortham, A Bazaar Where You Least Expect It, N.Y. Times, March 9, 2014, at BU4 (emphasis added).
8 Green Mountain Club fire, Burlington Free Press, March 14, 2004 (emphasis added).
9 George Malek, Beaulieu Place is well received, Times Argus, Nov. 1, 2001 (emphasis added).
10 Bloomberg TV, Interview of Trip Adler, 2014 WLNR 14693885 (May 30, 2014), also available at: http://www.bloomberg.com/video/scribd-subscription-app-for-digital-book-wormsCAPuh4~CSCeY3DjEZT2DTg.html (“[W]e’re sort of like the - the digital version of a book store, right? You go to our site to browse around and discover new books the same way you would do in - at a book store in the physical world.”)
11 Scribd Launches Readcast, Associated Press Alert, Apr. 21, 2010 (emphasis added).
12 Bobbie Johnson, How Scribd made pages pay, The Guardian, July 22, 2009, at Tech (emphasis added).
13 Harvard University Press to Sell Nearly 1,000 Digital Books on Scribd, Associated Press Alert, July 16, 2009.

11

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 12 of 25
Other website businesses, such as the website development company Go Daddy, have adopted the same understanding of the Internet as a place: “We’ve long taken it as a priority at Go Daddy to make the Internet a better and safer place.”14
In light of the digital community’s use of “place,” including Scribd’s self-description, there is no “linguistic reason to think that Congress intended to limit the word” to exclude Scribd’s website and mobile apps from the ADA’s categories of public accommodations. Muscarello, 524 U.S. at 131.
Scribd attempts to narrow the ADA by selectively applying the principles of noscitur a sociis and ejusdem generis. Mot. at 9-10. The Supreme Court has cautioned against just such a cramped reading: “we do not woodenly apply limiting principles every time Congress includes a specific example along with a general phrase.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227 (2008) (rejecting the application of the principle of noscitur a sociis).
Instead, the dispositive factor in construing the statute is Congress’s intent. United States v. Alpers, 338 U.S. 680, 682 (1950) (instructing that the rule of ejusdem generis cannot be employed to “obscure and defeat the intent and purpose of Congress”); United States v. Kennedy, 233 F.3d 157, 161 n.4 (2d Cir. 2000) (same); see also United States v. Pacione, 738 F.2d 567, 570 (2d Cir. 1984) (stating that a court should consult legislative history to resolve any conflict between principles of statutory interpretation). The legislative history of the ADA confirms the NFB and Ms. Viens’ broad reading of the statute.
14 E.g., Targeting Websites Dedicated to Stealing American Intellectual Property Before the U.S. Senate Committee on the Judiciary, 112th Cong. 1 (2011) (statement of Christine N. Jones, Executive Vice President, General Counsel, and Corporate Secretary, The Go Daddy Group, Inc.)) (emphasis added).
12

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 13 of 25
2. Congress declared that the ADA should be interpreted to “keep pace with the rapidly changing technology of the times,” such as websites and mobile apps.
The legislative history of the definition of “public accommodation” shows that Congress wanted the list of 12 exemplars in the definition to be “construed liberally” in harmony with the ADA’s broad purpose. S. Rep. No. 101-116, 59 (1990) (“[W]ithin each of these categories, the legislation only lists a few examples and then, in most cases, adds the phrase ‘other similar’ entities. The Committee intends that the ‘other similar’ terminology should be construed liberally consistent with the intent of the legislation . . . .”); see also H.R. Rep. 101-485 (III) at 54, reprinted in 1990 U.S.C.C.A.N. at 477 (same). The law’s breadth is evident in Congress’s agreement with the Attorney General’s view that the definition “must bring Americans with disabilities into the mainstream of society ‘in other words, full participation in and access to all aspects of society.’” H.R. Rep. 101-485 (II) at 36, reprinted in 1990 U.S.C.C.A.N. at 317 (internal citation omitted).
Congress unequivocally intended that the ADA’s broad mandate for providing access to public accommodations apply to emerging technologies like those now offered by Scribd. “[T]he Committee intends that the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill,[15] should keep pace with the rapidly changing technology of the times.” Id. at 108, reprinted in 1990 U.S.C.C.A.N. at 391 (cited in Netflix, 869 F. Supp. 2d at 200-01). Unquestionably, new technologies would be subject to the ADA:
15 One court has concluded that the services and communications provided on a public transit agency’s website must be made accessible under Title II of the ADA. Martin v. Metro. Atl. Rapid Transit Auth., 225 F. Supp. 2d 1362, 1377 (N.D. Ga. 2002) (construing 42 U.S.C. § 12132).
13

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 14 of 25
“technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities.” Id.16
Congress specifically identified “[i]nformation exchange” – Scribd’s principal service – as an area where expanding technology would be subject to the ADA. Id.; see also H.R. Conf. Rep. No. 101-596 at 67-68 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 576-77 (recognizing that “[i]n the future, new technology, such as speech-to-text services, may require other forms of direct access” to 911 emergency services for the deaf). Scribd warrants no exemption from Congress’s expectation that the ADA would adapt to include new technology. The ADA is designed to protect people with disabilities whether they encounter discrimination in services offered by a public accommodation in person, through the mail, over the phone, via the Internet, or whatever medium comes next in the evolution of technology.
Because Congress purposely created broad protections intended to ensure access to services made available through new technologies, there has never been a need to amend the ADA to include websites as Scribd argues was necessary. Mot. at 11. Further, the Supreme Court has said that congressional inaction cannot establish an affirmative legal rule. Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2052 (2014) (“[I]t is impossible to assert with any degree of assurance that congressional failure to act represents affirmative congressional approval of one of this Court’s decisions.”) (internal quotation marks omitted); Helvering v. Hallock, 309 U.S. 106, 121 (1940) (“[W]e walk on quicksand when we try to find in the absence of corrective
16 Over a decade before the enactment of the ADA, the Supreme Court noted in applying the Rehabilitation Act of 1973 that “[i]t is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities . . . .” Se. Cmty. Coll. v. Davis, 442 U.S. 397, 412 (1979).
14

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 15 of 25
legislation a controlling legal principle”). The services Scribd provides are readily classified in the categories of services listed in the ADA’s definition of “public accommodation.” The current statute provides all the authority necessary to hold Scribd accountable.
C. Pallozzi was premised on judicial decisions that apply the ADA to public accommodations regardless of whether their services are provided from a public place.
The breadth of the decisions on which Pallozzi relied supports denial of Scribd’s motion. One such decision is Carparts, which holds that “[t]o . . . limit the application of Title III to physical structures . . . 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.” Pallozzi, 198 F.3d at 32 (quoting Carparts, 37 F.3d at 20).
The defendant in Carparts had no public office for the plaintiff to visit; rather, the defendant company sponsored plaintiff’s self-funded medical reimbursement plan that provided services via correspondence. See 37 F.3d at 14. When the plaintiff sued the plan sponsor under Title III for discriminating against individuals with HIV in providing reimbursement benefits, the district court dismissed the claim on the ground that the ADA applied to physical places only. Id. at 14-15, 18. The First Circuit reversed and held that the plan sponsor was subject to the ADA because “[t]he plain meaning of the terms [of Title III] do[es] not require ‘public accommodations’ to have physical structures for persons to enter.” Id. at 19.
Carparts examined the 12 categories of public accommodations and reasoned that the inclusion of “travel service,” which could be accessed via phone or mail, meant that “Congress clearly contemplated that ‘service establishments’ include providers of services which do not require a person to physically enter an actual physical structure.” Id. Presciently, the Court added that “one can easily imagine the existence of other service establishments conducting business by
15

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 16 of 25
mail and phone without providing facilities for their customers to enter in order to utilize their services.” Id. The Court then concluded that Congress did not intend to offer protection to those who enter an office to purchase services, but deny protection to those who purchase the same services over the phone or by mail. Id. The NFB and Ms. Viens are members of this latter group of consumers whom Congress intended to protect in their transactions with public accommodations that choose not to offer a physical space in which to provide their services.17
Another decision cited in Pallozzi specifically lists websites as a type of public accommodation. 198 F.3d at 33 (citing Doe, 179 F.3d at 559). Chief Judge Posner, writing for the Seventh Circuit, explained 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, [citing Carparts]) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the non-disabled do. Id. at 559 (emphasis added). D. The decision in National Ass’n of the Deaf v. Netflix, Inc., confirms the
application of the ADA to the Internet. In Netflix, a district court in Massachusetts recently applied the reasoning common to Carparts, Pallozzi and Doe to find that Title III applies to public accommodations that exist and provide services solely over the Internet. In that case, the plaintiffs sued Netflix, an Internetbased movie rental company, for failing to close-caption certain videos it provides for online viewing. 869 F. Supp. 2d at 198. Netflix argued that because its video services were accessed exclusively online and not in a public store, it was not covered by Title III. Id. at 199-200. The district court looked to Carparts for guidance. The court found that Carparts supported the
17 See, e.g., Netflix, 869 F. Supp. 2d at 201 (stating that the ADA was intended to cover “businesses that provide services to a customer’s home—such as plumbers, pizza delivery services, or moving companies”).
16

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 17 of 25
plaintiffs’ argument that the Netflix website “was analogous to a brick-and-mortar store or other venue that provides similar services, such as a video rental store,” and was thus a public accommodation under Title III. Id. at 200. The Netflix Court opined that the purpose of the ADA and the realities of technology-driven modern life required that Internet-only businesses be subject to the statute:
[i]n a society in which business is increasingly conducted online, 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.” Id. (quoting Carparts, 37 F.3d at 20). Like the online videos Netflix provided, Scribd’s website and mobile apps provide rental services that consumers access exclusively over the Internet. And just as Netflix’s website was analogous to a video rental store covered by the ADA, Scribd’s website and mobile apps that provide access to over 40 million written works are analogous to a library, Compl. ¶ 15, which is specifically listed among the ADA’s exemplar public accommodations. 42 U.S.C. § 12181(7) (H). Because Netflix and this case are indistinguishable, this Court should reach the same result and find that Scribd is a public accommodation under the ADA. E. The U.S. Department of Justice has consistently stated that public
accommodations offering goods and services without a brick-and-mortar location, including websites, are covered by Title III. Since the early days of the ADA, the U.S. Department of Justice (“DOJ”) has consistently told courts, members of Congress, and businesses that Title III applies to web-based businesses like Scribd. That position, which, as discussed below, this Court should accord deference, compels the denial of Scribd’s Motion. In 1996, Senator Tom Harkin, the chief Senatorial sponsor of the ADA, asked the DOJ whether the ADA applies to websites. The DOJ confirmed that it does:
17

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 18 of 25
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. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.
Letter from Deval L. Patrick, Assistant Attorney General, to Senator Tom Harkin (Sept. 9, 1996),
available at http://www.justice.gov/crt/foia/readingroom/frequent_requests/ada_tal/tal712.txt.
That has been DOJ’a position for well over a decade. In 2010, Samuel R. Bagenstos, the
Principal Deputy Assistant Attorney General for Civil Rights, testified before a House
subcommittee that “a business providing services solely over the internet is subject to the ADA’s
prohibitions on discrimination on the basis of disability.” Emerging Technologies and the Rights
of Individuals with Disabilities: Hearing Before the Subcomm. on the Constitution, Civil Rights,
and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 5, 6 (emphasis added).
The DOJ has initiated litigation and filed briefs to enforce its interpretation that Title III
covers websites that offer the services of a public accommodation, including in Netflix, where it
said “a web-based service . . . 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.” 18 Indeed, the DOJ took the position in Pallozzi that “an insurance company
representative may solicit business and sell insurance coverage to individuals over the telephone,
18 Statement of Interest of the United States of America in Opp’n to Def.’s Mot. for Judgment on the Pleadings at 7, Netflix; see also e.g., Brief of the United States of America as Amicus Curiae in Support of Appellant at 7, Hooks v. OKbridge, Inc., No. 99-50891, 1999 WL 33806215 (5th Cir. Aug. 1, 2000) (arguing that a company operating bridge tournaments exclusively on the Internet is covered by Title III); see also Brief of the United States of America as Amicus Curiae in Support of Appellant, Rendon v. Valleycrest Prods., Ltd., No. 01-11197, 1999 WL 33806215 (11th Cir. May 3, 2001) (arguing against the notion that Title III applies only when there is a nexus between an accommodation’s challenged activity and its brick-and-mortar facility); Mot. of United States of America to Intervene as Pls., Nat’l Fed’n of the Blind v. HRB Digital LLC, Civil Action No. 1:13-cv-10799-GAO (intervening to challenge the legality of H&R Block’s inaccessible website and mobile apps).
18

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 19 of 25
through the mail, or via the Internet without inviting customers to physically enter the company’s
office” and still be covered under Title III for “literally operating an ‘insurance office.” Amicus
Curiae Brief of the United States of America at 14, Pallozzi. The DOJ’s enforcement of the ADA
also includes settlements with Internet-only businesses, such as the Peapod online grocery delivery service, and other entities providing goods and services online.19
DOJ is also in the process of promulgating regulations that will clarify that public
accommodations that operate exclusively online are covered by the ADA. See 75 Fed. Reg. at
43465 (“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.”).
Under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1994), the Court should accord at
least “considerable” deference to the Department’s consistent interpretation that Title III applies
to websites and mobile apps. Scribd’s contrary argument ignores that an agency’s interpretation
19 E.g., Settlement Agreement Between the United States of America and Ahold U.S.A., Inc. and Peapod, LLC, available at http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2014/11/17/peapod_settlement_agreement.pdf (requiring online grocery delivery service to provide an accessible website and mobile apps); Project Civic Access Agreement Between the United States of America and Warrenton, Virginia Under the Americans with Disabilities Act, available at http://www.ada.gov/warrenton_va_pca/warrenton_va_pca.htm (requiring, among other things, that the town of Warrenton, VA provide an accessible website); Settlement Agreement Between the United States of America and The Newseum, Inc. (Dec. 6, 2013), available at http://www.ada.gov/newseum/newseum-sa.htm (requiring the Newseum to ensure that its website complied with the Web Content Accessibility Guidelines); Settlement Agreement Between the United States of America, Fremantle Productions, Inc., & CBS Broadcasting Inc. (Sept. 20, 2011), available at http://www.ada.gov/price-is-right.htm (requiring the producer of The Price Is Right to develop an accessible website); Consent Decree, United States of America v. QuikTrip Corp., (D. Neb. July 15, 2010), available at http://www.ada.gov/quiktrip_ consent.htm (requiring convenience store operator to ensure accessibility of its website); see also Settlement Agreement Between the United States of America and Atlanta’s John Marshall Law School (Apr. 26, 2011), available at http://www.ada.gov/john-marshall-lawsch.htm (requiring that law school cease using inaccessible online application process).
19

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 20 of 25
of statutory (rather than regulatory) language is also owed deference. United States v. Mead Corp., 533 U.S. 218, 234 (2001) (holding that an agency’s interpretation of a statute may merit some deference given the “specialized experience and broader investigations and information” available to the agency (quoting Skidmore, 323 U.S. at 139)). Indeed, subsequent to Christensen v. Harris County, on which Scribd relies, the Supreme Court has “pointed to instances in which the Court has applied [binding] Chevron deference to agency interpretations that did not emerge out of notice-and-comment rulemaking.” Barnhart v. Walton, 535 U.S. 212, 222 (2002).
The question of whether and how much deference is owed “depends in significant part upon the interpretive method used and the nature of the question at issue.” Id. The DOJ’s expertise regarding public accommodations, the consistency of its interpretation over nearly 20 years, the careful consideration used to reach its conclusion, and the persuasiveness of its interpretation warrant Skidmore deference. 323 U.S. at 140. Because the DOJ’s interpretation of its Title III regulations is true to Congress’s intent, it should be followed here and this Court should deny Scribd’s motion. II. Because Scribd servers are physical places that patrons access to obtain services,
Scribd must comply with Title III. Even if the Court were to conclude that for Title III to apply, Scribd’s operation of a website and mobile apps required a physical “place,” the company’s hardware that provides the services accessed by the website and mobile apps would satisfy such a requirement. Scribd’s patrons access the company’s extensive library of electronic documents by navigating to the Scribd website or launching the Scribd mobile app on their smartphone or tablet. Compl. ¶ 16; Mot. at 6. Consumers ultimately must access Scribd’s web servers to obtain access to the information they seek. Mot. at 5-6. Because these servers are physical places under Title III, Scribd is subject to the ADA.
20

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 21 of 25
The regulations implementing Title III define “[p]lace of public accommodation” as “a facility operated by a private entity whose operations affect commerce and fall within at least one of the [12] categories” listed in the ADA. 28 C.F.R. § 36.104. Scribd argues that “facility” is the operative term in this definition, Mot. at 2, 10, but it ignores that the regulations define “facility” as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. § 36.104 (emphasis added). Congress expressed its intent that “facility” was to be broadly construed to cover all manner of human-constructed objects: “[t]his definition . . . includes both indoor areas and outdoor areas where human-constructed improvements, structures, equipment, or property have been added to the natural environment.” H.R. Rep. 101-485 (II), 114 (1990), reprinted in 1990 U.S.C.C.A.N. at 397.
Scribd’s web servers are human-built. Mot. at 5-6. Because they exist for the purpose of transmitting requested data, they meet the plain understanding of “equipment.” Black’s Law Dictionary 537 (1990) (defining “equipment” as “[f]urnishings, or outfit for the required purposes”); Webster’s Encyclopedic Unabridged Dictionary of the English Language 656 (1996) (“anything kept, furnished, or provided for a specific purpose”). Further, the Second Circuit has discussed “computer equipment, bandwidth, and server capacity” as examples of “traditional personal property.”20 Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 36 n.19 (2d Cir. 2002).
20 Relatedly, some cases have found that electronic data stored on servers and other computer equipment is physical in nature because it “takes up space on the tape, disc, or hard drive, makes physical things happen, and can be perceived by the senses.” E.g., Landmark Am. Ins. Co. v. Gulf Coast Analytical Labs., Inc., No. CIV.A. 10-809, 2012 WL 1094761, at *3-4 (M.D. La. Mar. 30, 2012); S. Cent. Bell Tel. Co. v. Barthelemy, 643 So. 2d 1240, 1246 (La. 1994).
21

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 22 of 25
Thus, Scribd’s computer servers are “equipment,” and “personal property,” qualifying those servers as a “facility” under the ADA.
As a facility, Scribd’s servers, which provide patrons access to millions of written works in the form of electronic documents, fit squarely within several of the categories of “places of public accommodation”: a “place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,” and a “library, gallery, or other place of public display or collection.” 28 C.F.R. § 36.104. It makes no difference that Scribd patrons do not personally visit the building that contains Scribd’s web servers; their access to the data in the servers is covered. Public accommodations must allow persons with disabilities equal access to their products and services, wherever and however they are provided. Pallozzi, 198 F.3d at 33; Carparts, 37 F.3d at 20; see also DOJ, Technical Assistance Manual § III-1.2000 (explaining that while the portion of a facility that is not open to the public is not bound by Title III, “any policies or decisions made in the administrative offices that affect [the public] would be subject to the requirements for public accommodations”). Thus, Scribd’s decision to deny blind patrons equal access to its services, which are provided by its web servers, is well within the scope of Title III.
CONCLUSION Title III of the ADA applies to public accommodations like Scribd that do not use brickand-mortar stores to offer their goods and services to the public. Scribd’s arguments to the contrary defy the clear holding of Pallozzi, the mandated plain and broad reading of the text and purpose of Title III, and the steadfast position of the Department of Justice. Additionally, the ADA applies to Scribd because the public accesses Scribd’s services through a physical place— Scribd’s server facilities. Servers, websites, and mobile apps exemplify the types of technological developments Congress specifically intended the ADA to encompass.
22

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 23 of 25

Given the ubiquity of online businesses in today’s society, confining the ADA to physical

stores would leave disabled Americans more marginalized than they were in 1990. Nothing in

the ADA entitles Scribd, with over 80 million patrons, to an exemption from the mandate that

public accommodations must provide equal access to their services.

For the foregoing reasons, Plaintiffs respectfully request that the Court deny Scribd’s

Motion to Dismiss.

Respectfully submitted,

__/s/ Laurence Paradis

DISABILITY RIGHTS ADVOCATES

LAURENCE PARADIS (pro hac vice)

lparadis@dralegal.org

HABEN GIRMA (pro hac vice)

hgirma@dralegal.org

2001 Center Street, Fourth Floor

Berkeley, CA 94704-1204

Telephone: (510) 665-8644

Facsimile: (510) 665-8511

TTY:

(510) 665-8716

REBECCA RODGERS (pro hac vice)

rrodgers@dralegal.org

40 Worth Street, 10th Floor

New York, NY 10013

Telephone: (212) 644-8644

Facsimile: (212) 644-8636

TTY:

(510) 665-8716

__/s/ Daniel F. Goldstein BROWN, GOLDSTEIN & LEVY, LLP DANIEL F. GOLDSTEIN (pro hac vice) dfg@browngold.com GREGORY P. CARE (pro hac vice) gpc@browngold.com 120 E. Baltimore Street. Suite 1700 Baltimore, MD 21202 Telephone: (410) 962-1030 x1314 Facsimile: (410) 385-0869

__/s/ Emily J. Joselson

LANGROCK SPERRY & WOOL, LLP

EMILY J. JOSELSON (VT BAR NO. 683)

ejoselson@langrock.com

JAMES T. DEWEESE

jdeweese@langrock.com

111 S. Pleasant Street

PO Drawer 351

Middlebury, VT 05753-0351

Telephone: (802) 388-6356

Fax:

(802) 388-6149

Attorneys for Plaintiffs

REQUEST FOR ORAL ARGUMENT

Plaintiffs hereby respectfully request that the Court hold oral argument on the Motion to

Dismiss, this Opposition Memorandum, and any replies thereto.

__/s/ Emily J. Joselson EMILY J. JOSELSON

23

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 24 of 25

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.

Docket No. 2:14-cv-00162-wks

CERTIFICATE OF SERVICE

This is to certify that on the 29th day of December, 2014, I, Daniel F. Goldstein, attorney for the Plaintiffs, electronically filed with the Clerk of the Court PLAINTIFFS’ MEMORANDUM OF LAW OPPOSING MOTION TO DISMISS by using the CM/ECF system. The CM/ECF system will provide service of such filing via Notice of Electronic Filing (NEF) to the following NEF parties:

Gary F. Karnedy, Esq. gkarnedy@primmer.com, ageritano@wsgr.com, cmeilleur@primmer.com

Emily J. Joselson, Esq. James T. DeWeese, Esq. ejoselson@langrock.com, jdeweese@langrock.com, mnewton@langrock.com, lbrunet@langrock.com

Laurence Paradis, Esq. Rebecca J. Rodgers, Esq. Haben Girma, Esq. Lparadis@dralegal.org, rrodgers@dralegal.org, Hgirma@dralegal.org

I also caused the above-referenced document to be served, by e-mailing a copy of the same on the following non-NEF parties:

David H. Kramer Esq Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, CA 94304 DKramer@wsgr.com

Tonia M. Ouellette Klausner , Esq. Wilson Sonsini Goodrich & Rosati, P.C. 1301 Avenue of the Americas, 40th Floor New York, NY 10019 tklausner@wsgr.com

24

Case 2:14-cv-00162-wks Document 17 Filed 12/29/14 Page 25 of 25
DATED at Baltimore, Maryland this 29th day of December, 2014. BROWN, GOLDSTEIN & LEVY, LLP
/s/ Daniel F. Goldstein
Daniel F. Goldstein, Esq. (pro hac vice) Gregory P. Care, Esq. (pro hac vice) 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 dfg@browngold.com gpc@browngold.com Phone: (410) 962-1030 Fax: (410) 385-0869 Attorneys for Plaintiffs
25

 
 Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 1 of 9

U.S. District Court District of Vermont (Burlington) CIVIL DOCKET FOR CASE #: 2:14−cv−00162−wks

CLOSED,ENE4

National Federation of the Blind et al v. Scribd, Inc. Assigned to: Judge William K. Sessions III Cause: 28:1331 Fed. Question: Civil Rights Violation
Plaintiff

Date Filed: 07/29/2014 Date Terminated: 11/19/2015 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

National Federation of the Blind on behalf of its members and itself

represented by Daniel F. Goldstein , Esq. Brown, Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962−1030 Fax: (410) 385−0869 Email: dfg@browngold.com PRO HAC VICE ATTORNEY TO BE NOTICED

Emily J. Joselson , Esq. Langrock Sperry &Wool, LLP 111 South Pleasant Street P.O. Drawer 351 Middlebury, VT 05753−0351 (802) 388−6356 Fax: (802) 388−6149 Email: ejoselson@langrock.com ATTORNEY TO BE NOTICED

Gregory P. Care , Esq. Brown, Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962−1030 Fax: (410) 385−0869 Email: gpc@browngold.com PRO HAC VICE ATTORNEY TO BE NOTICED

Haben Girma , Esq. Brown, Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (510) 665−8644 Fax: (510) 655−8511 Email: Hgirma@dralegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

James T. DeWeese , Esq. Langrock Sperry &Wool, LLP 210 College Street P.O. Box 721 Burlington, VT 05402−0721 (802) 864−0217 Fax: (802) 864−0137 Email: jdeweese@langrock.com TERMINATED: 03/24/2015 ATTORNEY TO BE NOTICED

Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 2 of 9

Plaintiff Heidi Viens

Laurence Paradis , Esq. Disability Rights Advocates 2001 Center Street, 4th Floor Berkley, CA 94704 (510) 665−8644 Fax: (510) 665−8511 Email: Lparadis@dralegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michele B. Patton , Esq. Langrock Sperry &Wool, LLP 111 South Pleasant Street P.O. Drawer 351 Middlebury, VT 05753−0351 (802) 388−6356 Email: mpatton@langrock.com ATTORNEY TO BE NOTICED
Rebecca J. Rodgers , Esq. Brown, Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (212) 644−8644 Fax: (212) 644−8636 Email: rrodgers@dralegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Daniel F. Goldstein , Esq. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J. Joselson , Esq. (See above for address) ATTORNEY TO BE NOTICED
Gregory P. Care , Esq. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Haben Girma , Esq. Brown, Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (510) 655−8644 Fax: (510) 655−8511 Email: Hgirma@dralegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
James T. DeWeese , Esq. (See above for address) TERMINATED: 03/24/2015 ATTORNEY TO BE NOTICED
Laurence Paradis , Esq. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 3 of 9

Michele B. Patton , Esq. (See above for address) ATTORNEY TO BE NOTICED
Rebecca J. Rodgers , Esq. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Scribd, Inc.

represented by Gary F. Karnedy Primmer Piper Eggleston &Cramer PC 150 South Champlain Street P.O. Box 1489 Burlington, VT 05402−1489 (802) 864−0880 Fax: (802) 864−0328 Email: gkarnedy@primmer.com ATTORNEY TO BE NOTICED
Greg A. Garbacz , Esq. Klinedinst PC 501 W. Broadway, Suite 600 San Diego, CA 92101 (619) 239−8131 Fax: (619) 238−8707 TERMINATED: 10/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Laurence Pulgram , Esq. Fenwick &West LLP 555 California Street, 12th Floor San Franciso, CA 94104 (415) 875−2300 Fax: (415) 281−1350 PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsey N. Heaton , Esq. Klinedinst PC 801 K Street, Suite 2100 Sacramento, CA 95814 (916) 444−7573 Fax: (916) 444−7544 TERMINATED: 10/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Liwen Mah , Esq. Fenwick &West LLP 555 California Street, 12th Floor San Franciso, CA 94101 (415) 875−2300 Fax: (415) 281−1350 PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie P. Vance , Esq. Klinedinst PC 801 K Street, Suite 2100

Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 4 of 9

Sacramento, CA 95814 (916) 444−7573 Fax: (916) 444−7544 TERMINATED: 10/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Stuart P. Meyer Fenwick &West LLP 450 Partridge Hill Williston, VT 05495 (650) 988−8500 Fax: (650) 938−5200 Email: smeyer@fenwick.com ATTORNEY TO BE NOTICED

Tonia M. Ouellette Klausner , Esq. Wilson Sonsini Goodrich &Rosati, P.C. 1301 Avenue of the Americas, 40th Floor New York, NY 10019 (212) 999−5800 Fax: (212) 999−5899 TERMINATED: 05/13/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

ENE Evaluator
ENE Evaluator TERMINATED: 12/02/2015

represented by Richard T. Cassidy , Esq. Hoff Curtis 100 Main Street P.O. Box 1124 Burlington, VT 05402−1124 (802) 864−6400 Fax: (802) 860−1565 Email: rcassidy@hoffcurtis.com TERMINATED: 12/02/2015 ATTORNEY TO BE NOTICED

Date Filed 07/29/2014 07/29/2014 07/29/2014 07/29/2014 07/29/2014
07/30/2014

# Docket Text
1 COMPLAINT against Scribd, Inc. filed by Heidi Viens, National Federation of the Blind. Summons issued. (Attachments: # 1 Civil Cover Sheet)(law) (Entered: 07/29/2014)
2 NOTICE OF APPEARANCE by Emily J. Joselson, Esq on behalf of National Federation of the Blind, Heidi Viens. (law) (Entered: 07/29/2014)
3 NOTICE OF APPEARANCE by James T. DeWeese, Esq on behalf of National Federation of the Blind, Heidi Viens. (law) (Entered: 07/29/2014)
4 CORPORATE DISCLOSURE STATEMENT pursuant to Local Rule 7.1(a) by National Federation of the Blind. (law) (Entered: 07/29/2014)
5 MOTION for Appearance Pro Hac Vice of Daniel F. Goldstein, Gregory P. Care, Laurence Paradis, Haben Girma, and Rebecca Rodgers filed by National Federation of the Blind, Heidi Viens. (Attachments: # 1 Affidavit of Daniel F. Goldstein, # 2 Certificate of Good Standing, # 3 Affidavit of Gregory P. Care, # 4 Certificate of Good Standing, # 5 Affidavit of Laurence Paradis, # 6 Certificate of Good Standing, # 7 Affidavit of Haben Girma, # 8 Certificate of Good Standing, # 9 Affidavit of Rebecca J. Rodgers, # 10 Certificate of Good Standing)(jlh) (Entered: 07/29/2014)
6 ORDER granting 5 Motion for Admission Pro Hac Vice of Daniel F. Goldstein, Gregory P. Care, Laurence Paradis, Haben Girma and Rebecca Rodgers. Signed by Judge William K. Sessions III on 07/30/14. (This is a text−only Order.) (eae)

Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 5 of 9

09/04/2014 09/22/2014 09/22/2014 09/24/2014 10/28/2014 10/28/2014 10/29/2014 10/30/2014 11/07/2014 11/07/2014 12/29/2014 12/30/2014
01/22/2015 02/02/2015 02/10/2015 02/11/2015

(Entered: 07/30/2014)
7 WAIVER OF SERVICE Returned Executed: Scribd, Inc. waiver sent on 7/29/2014, answer due 9/29/2014 (Joselson, Emily) Text clarified on 9/5/2014 (jlh). (Entered: 09/04/2014)
8 NOTICE OF APPEARANCE by Gary F. Karnedy on behalf of Scribd, Inc.(Karnedy, Gary) (Entered: 09/22/2014)
9 STIPULATED MOTION for Extension of Time to File Answer re: 1 Complaint filed by Scribd, Inc. (Karnedy, Gary) Event/text clarified on 9/22/2014 (law). (Entered: 09/22/2014)
10 ORDER granting 9 Stipulated Motion for Extension of Time to Answer re 1 Complaint. Signed by Judge William K. Sessions III on 09/24/14. (This is a text−only Order.) (eae) (Entered: 09/24/2014)
11 CORPORATE DISCLOSURE STATEMENT pursuant to Local Rule 7.1(a) by Scribd, Inc. (law) (Entered: 10/28/2014)
12 MOTION for Appearance Pro Hac Vice of Tonia Ouellette Klausner, Esq. filed by Scribd, Inc. (Attachments: # 1 Declaration of Tonia Ouellette Klausner, # 2 Certificate of Good Standing)(jlh) (Entered: 10/29/2014)
13 MOTION to Dismiss for Failure to State a Claim filed by Scribd, Inc.. (Attachments: # 1 Certificate of Service)(Karnedy, Gary) (Entered: 10/29/2014)
14 ORDER granting 12 Motion for Admission Pro Hac Vice of Tonia Ouellette Klausner. Signed by Judge William K. Sessions III on 10/30/14. (This is a text−only Order.) (eae) (Entered: 10/30/2014)
15 STIPULATED MOTION for Extension of Time to File Response/Reply as to 13 MOTION to Dismiss for Failure to State a Claim filed by National Federation of the Blind, Heidi Viens. (Attachments: # 1 Certificate of Service)(Joselson, Emily) (Entered: 11/07/2014)
16 ORDER granting 15 STIPULATED MOTION for Extension of Time to File Response/Reply as to 13 MOTION to Dismiss for Failure to State a Claim. Signed by Judge William K. Sessions III on 11/07/14. (This is a text−only Order.) (eae) (Entered: 11/07/2014)
17 MEMORANDUM by National Federation of the Blind, Heidi Viens in Opposition of 13 MOTION to Dismiss for Failure to State a Claim (Goldstein, Daniel) (Main Document 17 replaced on 12/30/2014) (jlh). (Additional attachment(s) added on 12/30/2014: # 1 Table of Contents, # 2 Appendix) (jlh) (Entered: 12/29/2014)
18 NOTICE OF DOCKET ENTRY CORRECTION re: 17 Memorandum in Opposition filed by Heidi Viens, National Federation of the Blind. The main document image contained that of the Table of Contents and Appendix. The document has been broken apart and reattached to the docket. The corrected documents are now attached to 17 as well as this entry. (Attachments: # 1 Table of Contents, # 2 Appendix) (jlh) (Entered: 12/30/2014)
19 REPLY to Response to 13 MOTION to Dismiss for Failure to State a Claim filed by Scribd, Inc. (Attachments: # 1 Certificate of Service)(Karnedy, Gary) Text clarified on 1/23/2015 (jlh). (Entered: 01/22/2015)
20 NOTICE of Hearing re: 13 MOTION to Dismiss for Failure to State a Claim . Motion Hearing set for 3/3/2015 01:30 PM in Burlington Courtroom 542 before Judge William K. Sessions III.(jam) (Entered: 02/02/2015)
21 UNOPPOSED MOTION to Request Transcriptionists for Plaintiffs' Attorney filed by National Federation of the Blind, Heidi Viens. (Attachments: # 1 Affidavit of Haben Girma, # 2 Text of Proposed Order, # 3 Certificate of Service)(Joselson, Emily) (Entered: 02/10/2015)
22 ORDER granting 21 Unopposed Motion to Request Transcriptionists for Plaintiffs' Attorney. Signed by Judge William K. Sessions III on 2/10/2015. (law) (Entered: 02/11/2015)

Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 6 of 9

02/26/2015 02/27/2015 03/03/2015
03/10/2015
03/10/2015 03/10/2015 03/11/2015 03/19/2015 03/24/2015 04/02/2015
04/02/2015 04/03/2015 04/03/2015 04/03/2015

23 SUPPLEMENTAL DOCUMENT(S) re: 13 MOTION to Dismiss for Failure to State a Claim by National Federation of the Blind, Heidi Viens. (Attachments: # 1 Certificate of Service)(DeWeese, James) Link corrected on 2/26/2015 (jlh) (Entered: 02/26/2015)
24 SUPPLEMENTAL DOCUMENT(S) re: 17 Memorandum in Opposition of 13 MOTION to Dismiss for Failure to State a Claim by National Federation of the Blind, Heidi Viens. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(DeWeese, James) Link added on 3/1/2015 (law). (Entered: 02/27/2015)
25 MINUTE ENTRY for proceedings held before Judge William K. Sessions III: Motion Hearing held on 3/3/2015 re 13 MOTION to Dismiss for Failure to State a Claim . Danial Goldstein, Esq., Gregory Care, Esq., Emily Joselson, Esq., James DeWeese, Esq., Haben Girma, Esq. &Meghan Sidhu, Esq. present for pltfs; Tonia Ouellette Klausner, Esq. &Gary Karnedy, Esq. present for dft. Court makes inquiries. Statements by counsel. Motion Taken Under Advisement: 13 MOTION to Dismiss for Failure to State a Claim . (Court Reporter: JoAnn Carson, Capitol Court Reporters, Inc.) (jam) (Entered: 03/04/2015)
26 TRANSCRIPT of Hearing on Motion to Dismiss held on 3/3/2015 before Judge Sessions. Court Reporter/Transcriber JoAnn Carson, Capitol Court Reporters, Inc., telephone number 802−863−6067. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/3/2015. Redacted Transcript Deadline set for 4/13/2015. Release of Transcript Restriction set for 6/11/2015. (jam) (Entered: 03/10/2015)
27 SUPPLEMENTAL MEMORANDUM by Scribd, Inc. re: 13 Motion to Dismiss (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Karnedy, Gary) Text clarified, link added on 3/11/2015 (jlh) (Entered: 03/10/2015)
28 MOTION to File Supplemental Memorandum re 13 Motion to Dismiss filed by Scribd, Inc. (Attachments: # 1 Certificate of Service)(Karnedy, Gary) Link corrected on 3/11/15 (jlh) (Entered: 03/10/2015)
29 ORDER granting 28 Motion To File Supplemental Memorandum. Signed by Judge William K. Sessions III on 3/11/2015. (This is a text−only Order.) (eae) (Entered: 03/11/2015)
30 OPINION AND ORDER denying 13 Motion to Dismiss for Failure to State a Claim. Signed by Judge William K. Sessions III on 3/19/2015. (law) (Entered: 03/19/2015)
31 NOTICE of Attorney Substitution by Michele B. Patton, Esq as to National Federation of the Blind, Heidi Viens (Attachments: # 1 Certificate of Service)(Patton, Michele) (Entered: 03/24/2015)
32 MOTION for Appearance Pro Hac Vice of Greg A. Garbacz, Natalie P. Vance, and Lindsey N. Heaton filed by Scribd, Inc. (Attachments: # 1 Affidavit of Lindsey N. Heaton, # 2 Certificate of Good Standing, # 3 Affidavit of Greg A. Garbacz, # 4 Certificate of Good Standing, # 5 Affidavit of Natalie P. Vance, # 6 Certificate of Good Standing, # 7 Certificate of Service)(jlh) (Entered: 04/02/2015)
33 ANSWER to 1 Complaint and Affirmative Defenses by Scribd, Inc.. (Attachments: # 1 Certificate of Service)(Karnedy, Gary) (Main Document 33 replaced on 4/3/2015) (jlh). (Entered: 04/02/2015)
34 ENE LETTER re: Potential Evaluators sent; responses due by 4/20/2015. (hbc) (Entered: 04/03/2015)
35 ORDER granting 32 Motion for Admission Pro Hac Vice of Greg A. Garbacz, Natalie P. Vance, and Lindsey N. Heaton. Signed by Judge William K. Sessions III on 4/3/2015. (This is a text−only Order.) (eae) (Entered: 04/03/2015)
36 NOTICE OF DOCKET ENTRY CORRECTION re: 33 Answer to Complaint filed by Scribd, Inc. The document image was incomplete and has been replaced on the docket. The corrected document is now attached to 33 as well as this entry. (jlh)

Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 7 of 9

04/07/2015
04/20/2015 04/20/2015 04/21/2015
04/24/2015 05/11/2015 05/11/2015 05/11/2015
05/12/2015 05/13/2015 05/18/2015 05/20/2015 05/21/2015 05/28/2015 05/28/2015 05/28/2015
05/29/2015 05/29/2015
06/18/2015

(Entered: 04/03/2015)
37 MOTION for Certification of Order for Interlocutory Review and MOTION to Stay Action Pending Further Appellate Proceedings filed by Scribd, Inc. (Attachments: # 1 Certificate of Service)(Karnedy, Gary) (Main Document 37 replaced on 4/21/2015) (law). (Entered: 04/07/2015)
38 ENE Evaluator Selection Response by National Federation of the Blind, Heidi Viens, Scribd, Inc.(Goldstein, Daniel) Text/filers clarified on 4/20/2015 (law). (Entered: 04/20/2015)
39 ENE Evaluator Richard T. Cassidy, Esq. assigned. (hbc) (Entered: 04/20/2015)
40 NOTICE OF DOCKET ENTRY CORRECTION re: 37 MOTION for Certification of Order for Interlocutory Review filed by Scribd, Inc. The document image has been replaced as some of the signature were omitted. The completed document is now attached to 37 and this entry. (law) (Entered: 04/21/2015)
41 MEMORANDUM by National Federation of the Blind, Heidi Viens in Opposition of 37 MOTION for Certification of Order for Interlocutory Review (Attachments: # 1 Certificate of Service)(Joselson, Emily) (Entered: 04/24/2015)
42 REPLY to Response re 37 MOTION for Certification of Order for Interlocutory Review filed by Scribd, Inc. (Attachments: # 1 Certificate of Service)(Karnedy, Gary) Text clarified on 5/11/2015 (jlh). (Entered: 05/11/2015)
43 Entry has been removed from docket. (Entered: 05/11/2015)
44 NOTICE OF DOCKET ENTRY REMOVAL. Document 43 has been removed from the docket as the the signature on the document did not match the signature of the e−filer in accordance with the Administrative Procedures. (jlh) (Entered: 05/11/2015)
45 MOTION to Withdraw as Attorney filed by Scribd, Inc. (Attachments: # 1 Certificate of Service)(law) (Entered: 05/12/2015)
46 ORDER granting 45 Motion to Withdraw as Attorney. Signed by Judge William K. Sessions III on 5/13/2015. (This is a text−only Order.) (eae) (Entered: 05/13/2015)
47 PROPOSED Stipulated Discovery Schedule/Order by National Federation of the Blind, Heidi Viens.(Goldstein, Daniel) (Entered: 05/18/2015)
48 LETTER to counsel re: [47 Proposed Stipulated Discovery Schedule/Order non−compliant; case may be placed on the master calendar unless a new stipulated schedule is filed. (law) (Entered: 05/20/2015)
49 PROPOSED Stipulated Discovery Schedule/Order by National Federation of the Blind, Heidi Viens.(Goldstein, Daniel) (Entered: 05/21/2015)
50 DISCOVERY CERTIFICATE − Initial Disclosures by Scribd, Inc..(Karnedy, Gary) (Entered: 05/28/2015)
51 DISCOVERY CERTIFICATE − Initial Disclosures by National Federation of the Blind, Heidi Viens.(Goldstein, Daniel) (Entered: 05/28/2015)
52 STIPULATED DISCOVERY SCHEDULE/ORDER Discovery due by 12/2/2015. Motions due by 1/15/2016. Early Neutral Evaluation set for 11/17/2015 at 10:00 AM. Ready for Trial by 5/1/2016. Signed by Judge William K. Sessions III on 5/28/2015. (law) (Entered: 05/28/2015)
53 DISCOVERY CERTIFICATE − Notice of Deposition of Scribd, Inc. by National Federation of the Blind, Heidi Viens.(Girma, Haben) (Entered: 05/29/2015)
54 OPINION AND ORDER denying 37 Motion for Certification of Order for Interlocutory Review and denying as moot MOTION to Stay Action Pending Further Appellate Proceedings. Signed by Judge William K. Sessions III on 5/29/2015. (law) (Entered: 05/29/2015)
55 PROPOSED Stipulated Protective Order by National Federation of the Blind, Heidi Viens. (Care, Gregory) (Entered: 06/18/2015)

Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 8 of 9

07/02/2015 07/02/2015 07/02/2015 07/07/2015 07/09/2015
07/09/2015 07/09/2015 07/10/2015 07/15/2015 07/28/2015
07/28/2015
08/04/2015
08/06/2015 10/07/2015 10/07/2015 10/09/2015 10/22/2015 11/19/2015

56 DISCOVERY CERTIFICATE − Interrogatories and Request to Produce to Heidi Viens and National Federation of the Blind by Scribd, Inc..(Karnedy, Gary) (Entered: 07/02/2015)
57 DISCOVERY CERTIFICATE − Interrogatories to Defendant by National Federation of the Blind, Heidi Viens.(Joselson, Emily) (Entered: 07/02/2015)
58 DISCOVERY CERTIFICATE − Interrogatories and Request to Produce by National Federation of the Blind, Heidi Viens.(Care, Gregory) (Entered: 07/02/2015)
59 STIPULATED PROTECTIVE ORDER Discovery Matter. Signed by Judge William K. Sessions III on 7/7/2015. (law) (Entered: 07/07/2015)
60 JOINT MOTION to Amend the Discovery Schedule/Order filed by Scribd, Inc., National Federation of the Blind, Heidi Viens (Attachments: # 1 Text of Proposed Order Amending for 30 Days, # 2 Text of Proposed Order Amending for 60 Days, # 3 Certificate of Service)(Karnedy, Gary) Text clarified on 7/10/2015 (jlh). Filers added on 7/13/2015 (jlh). (Entered: 07/09/2015)
61 NOTICE OF APPEARANCE by Stuart P. Meyer on behalf of Scribd, Inc.. (Attachments: # 1 Certificate of Service)(Meyer, Stuart) (Entered: 07/09/2015)
62 Entry has been removed from the docket. (Entered: 07/09/2015)
63 NOTICE OF DOCKET ENTRY REMOVAL. Document 62 has been removed from the docket as it can not be filed electronically. (jlh) (Entered: 07/10/2015)
64 DISCOVERY CERTIFICATE re: Amended Rule 26 Disclosure Statement by Scribd, Inc..(Karnedy, Gary) (Entered: 07/15/2015)
65 ORDER AMENDING Discovery Schedule/Order Pending Settlement Negotiations for Thirty (30) Days re: 60 JOINT MOTION to Amend the Discovery Schedule/Order. Discovery due by 1/4/2016. Motions due by 2/15/2016. Early Neutral Evaluation set for 11/17/2015 at 10:00 AM. Ready for trial by 6/1/2016. Signed by Judge William K. Sessions III on 7/28/2015. (law) (Entered: 07/28/2015)
66 ORDER AMENDING First Amended Discovery Schedule/Order Pending Settlement Negotiations for Sixty (60) Days re: 60 JOINT MOTION to Amend the Discovery Schedule/Order. Discovery due by 3/4/2016. Motions due by 4/15/2016. Early Neutral Evaluation set for 11/17/2015 at 10:00 AM. Ready for trial by 8/1/2016. Signed by Judge William K. Sessions III on 7/28/2015. (law) (Entered: 07/28/2015)
67 MOTION for Appearance Pro Hac Vice of Liwen Mah, Laurence Pulgram filed by Scribd, Inc. (Attachments: # 1 Affidavit of Liwen Mah, # 2 Certificate of Good Standing, # 3 Affidavit of Laurence Pulgram, # 4 Certificate of Good Standing, # 5 Certificate of Service)(jlh) (Entered: 08/05/2015)
68 ORDER granting 67 Motion for Admission of Liwen A. Mah and Laurence F. Pulgram Pro Hac Vice. Signed by Judge William K. Sessions III on 8/6/2015. (This is a text−only Order.) (eae) (Entered: 08/06/2015)
69 DISCOVERY CERTIFICATE − Request to Produce (Second Set) by Scribd, Inc..(Karnedy, Gary) (Entered: 10/07/2015)
70 MOTION to Withdraw as Attorney filed by Scribd, Inc. (Karnedy, Gary) (Entered: 10/07/2015)
71 ORDER granting 70 Motion to Withdraw as Attorney. Signed by Judge William K. Sessions III on 10/9/2015. (This is a text−only Order.) (eae) (Entered: 10/09/2015)
72 DISCOVERY CERTIFICATE re: Notices of Deposition of Heidi Viens, Mark Riccobono, Marc Mauer by Scribd, Inc.(Karnedy, Gary) Text clarified on 10/23/2015 (jlh). (Entered: 10/22/2015)
73 STIPULATED MOTION to Dismiss Pursuant to F.R.C.P. 41(a)(2) filed by Scribd, Inc.. (Attachments: # 1 Text of Proposed Order)(Karnedy, Gary) (Entered: 11/19/2015)

Case: 2:14-cv-162 As of: 02/04/2016 02:39 PM EST 9 of 9

11/19/2015

74 ORDER granting 73 STIPULATED MOTION to Dismiss Pursuant to F.R.C.P. 41(a)(2). Signed by Judge William K. Sessions III on 11/19/2015. (jam) (Entered: 11/19/2015)