Both Sides Rebuffed in Netflix Closed Captioning Fee Dispute

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Donald Cullen, a deaf college student, filed suit against Netflix over alleged violations of the Americans with Disabilities Act (ADA) and California’s Disabled Persons and Unruh Civil Rights Acts, claiming that Netflix failed to provide adequate closed captioning and made misleading statements about the availability of closed captioning in Netflix’s streaming movies and TV shows. While Cullen’s suit was pending, the National Association of the Deaf (NAD) filed and settled a similar action against Netflix, which resulted in a consent decree requiring that Netflix provide closed captioning in all streaming video by September of 2014. As a result, Cullen opted to dismiss his ADA claims.

Although Cullen’s suit did not directly generate the settlement resulting in the consent decree, it was likely among the constellation of forces — a “catalyst” under pertinent doctrine — that compelled Netflix to agree to precisely the relief that Cullen sought in his earlier-filed case. As such, Cullen’s attorneys sought fees of $250,000 based on that theory, noting that Cullen effectively prevailed in his litigation aims (insofar as his claims were virtually identical to those in the NAD lawsuit) and that in the course of litigating the case, Cullen and his counsel contributed to negotiations and decisions that ultimately led to the settlement with the NAD. However, Netflix’s counsel, San Francisco-based Morrison & Forster, not only opposed the attempt by Cullen’s counsel to recover fees, but argued that Netflix should be awarded $165,000 to pay Morrison & Forster for efforts spent defending against Cullen’s suit.

On May 1st, U.S. District Court Judge Edward J. Davila issued a decision denying both fee motions. Cullen v. Netflix, No. 11-1199 (N.D. Cal. May 1, 2013) (order denying plaintiff’s and defendant’s motions for attorneys’ fees, available here). Judge Davila held that Cullen had not successfully argued for application of the catalyst theory, finding that he failed to establish the requisite causal connection between his suit and the NAD-negotiated consent decree. Order at 4-5. In rejecting the Netflix fee motion, Judge Davila found that Netflix fell well short of establishing the criteria for a prevailing party entitled to fees, and hinted that the Cullen fee decision was a close call, since Cullen filed his claims “not only to rectify an alleged harm on his own behalf, but also to serve a greater purpose in the form of establishing certain civil rights standards and thresholds on behalf of a class of disabled individuals.” Order at 7.

Ultimately, that greater purpose will be served by the consent decree that will eventually provide for full closed captioning of Netflix streaming videos. Whether Cullen’s fee motion might have been granted in the absence of Netflix having filed its own fee motion cannot be known.