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Old 05-09-2013, 05:11 AM
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Angry In Netflix Captioning Case, an Unexpected Fee Fight

from American Lawyer:
In Netflix Captioning Case, an Unexpected Fee Fight
By Vanessa Blum

The Litigation Daily

May 1, 2013

Vanessa Blum writes for The Recorder, an American Lawyer affiliate.

The suit didn't get far.

But that isn't stopping both sides from claiming victory in a disability rights class action against Netflix Inc. over closed captioning for the deaf.

In dueling briefs in San Jose federal court, lawyers for plaintiff Donald Cullen and for Netflix argue they technically prevailed in the discrimination case and should recover attorney fees.

Cullen, a deaf college student represented by San Diego-based Gregory Weston of The Weston Firm, is seeking fees of $262,641. Meanwhile, Netflix says it should receive $165,000 from Cullen to pay lawyers from the Los Angeles office of Morrison & Foerster.

The dispute between a disabled plaintiff and a publicly traded company with annual revenues topping $3 billion is the cockeyed result of a 2012 California Supreme Court decision mandating attorney fees for prevailing parties in disability access suits brought under state law.

Both sides cite the ruling in Jankey v. Lee to support their bid. U.S. District Judge Edward Davila is expected to rule any time. Cullen's lawyer called the effort by Netflix "unconscionable."

"I'm really surprised Morrison & Foerster would do something like that," Weston said in an interview.

Netflix lead lawyer David McDowell, a MoFo partner who specializes in class action defense, is not cowed.

"[Cullen] and his lawyers were looking for a large financial recovery. To say therefore Netflix should be denied what the statute entitles it to, doesn't seem consistent," McDowell said. "If this was really an issue for him or his lawyers, they could have just pursued injunctive relief and not had this risk."

Cullen sued Netflix in March 2011, claiming discrimination under the federal Americans with Disabilities Act and California's Disabled Persons and Unruh Civil Rights Acts and also accusing Netflix of false advertising in statements about the availability of closed captioning.

In June 2011 the National Association of the Deaf, or NAD, filed a similar action against Netflix under the ADA in Massachusetts and obtained a consent decree requiring full captioning for all streaming video content by September 2014. Netflix also agreed to pay the association's attorneys fees of $775,000.

Prior to the settlement, Cullen voluntarily dropped his ADA claims and refiled the suit under more stringent and punitive state laws. In court briefs, Cullen's lawyers say that decision was made in consultation with the NAD, with the understanding the association would pursue the ADA claims.

Cullen's state disability claims were dismissed in July 2012 with leave to amend, and Davila tossed Cullen's third amended complaint in January with prejudice.

Despite those dismissals, Cullen's lawyers contend he should be considered the prevailing party because the suit achieved its main objective.

"On a 'practical level' Mr. Cullen obtained exactly what his lawsuit sought: Netflix's commitment indeed, legal obligation to caption its entire streaming video library," Weston wrote.

Attorneys for Netflix take a different view, insisting Cullen and his lawyers should receive no credit for the settlement, which resulted from negotiations with the NAD that began prior to Cullen filing suit.

"Cullen had nothing to do with the NAD action consent decree. He was not a party to the consent decree, he did not participate in its negotiation, and did not even file a lawsuit until after NAD initiated litigation," McDowell wrote in a brief opposing Cullen's fee request. "His action was not a 'catalyst' and does not entitle him to recover fees."

State law provides mandatory fee shifting for certain claims under California's Disabled Persons Act. The provision states the prevailing party "shall be entitled to recover reasonable attorney's fees."

In Jankey, the California Supreme Court held the language applies to defendants just as to plaintiffs, even in cases that simultaneously pursue remedies under the ADA. The court pointed out that plaintiffs could sue under the ADA only and forgo state law claims if they were concerned about subjecting themselves to potential fee awards.

According to its filings, Netflix seeks roughly half of its total attorney fees the amount "incurred in its successful defense of the state disability access claims."

Cullen's lawyers contend the mandatory fee-shifting provision does not apply to cases pleaded as class actions under a California appeal court ruling in Turner v. Association of Medical Colleges, 193 Cal.App.4th 1047. That ruling was undisturbed by Jankey, Cullen's legal team asserts.

In court filings, McDowell calls the language "out of context dicta in the footnote of a lower court decision predating Jankey." Cullen's belief that the current law is unfair, McDowell adds, is "an issue to raise with the California legislature, not this court."

Michael Caesar, a litigation fellow at the Impact Fund in Berkeley, agrees the issue is likely one for lawmakers. His group filed an amicus curiae brief in Jankey arguing the ADA's heightened standards for fee shifting should pre-empt state law.

"Clearly, something like this could potentially have a chilling effect on plaintiffs," Caesar said. "I don't think lawmakers anticipated scenarios in which megabillion-dollar companies are moving for fee awards against individual disabled plaintiffs."
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