By Naya Coard, UC Berkeley Law 3L
On December 5, 2019, the U.S. District Court for the Northern District of California made clear that not every website will be considered a place of “public accommodation” requiring compliance under the American Disabilities Act (“ADA”). In Estavillo v. Blizzard Entertainment, Inc., Judge Edward Davila dismissed video gamer Erik Estavillo’s disability discrimination lawsuit against video game developer Blizzard Entertainment (“Blizzard”), finding that Blizzard’s digital storefront was not connected to a physical space, as is required to be considered a public accommodation.
A habitual litigator, Erik Estavillo has filed a string of disability discrimination lawsuits against major gaming consoles like Microsoft, Sony, and Nintendo since 2009. As the Court describes, Mr. Estavillo, who purportedly suffers from depression, OCD, panic disorder and Crohn’s disease, plays video games as a distraction from his disabilities and relies heavily on online gameplay to socialize with others since his ailments make it difficult for him to socialize outside the house. Estavillo v. Blizzard Entm’t, Inc., No. 5:19-CV-05540-EJD, 2019 WL 6612061 (N.D. Cal. Dec. 5, 2019).
In a suit filed in August 2019, Mr. Estavillo alleged that Blizzard violated the ADA and California State law by banning him from the Overwatch video game and then refusing his request for a refund of nearly $300 he spent at Blizzard’s digital storefront buying copies of the game itself and loot boxes containing cosmetic customizations for Overwatch characters. In its motion to dismiss, Blizzard contended that it banned Mr. Estavillo from the Overwatch chat function for “abusive” behavior and subsequently denied Mr. Estavillo recovery of his game expenditures per Blizzard’s terms of sale that all sales for digital content or services are final.
Even so, Mr. Estavillo claimed that Blizzard violated California Civil Code Section 1723 by not explicitly stating on the front of its digital store that no returns or refunds were available for video gamers. Mr. Estavillo also asserted that Blizzard’s failure to explicitly disclose information about returns and refunds on its digital storefront and in its End-User License Agreement violated the ADA because the digital storefront is a “public accommodation” and “persons with mental disabilities and minors need information about returns and refunds explicitly explained to them.” Mr. Estavillo argued that the ADA applied under the holding in Gil v. Winn-Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017) (“Gil”) that Winn Dixie’s website fell under the definition of a public accommodation and its inaccessibility to persons with certain impairments was covered by the ADA.
However, the Court dismissed Mr. Estavillo’s ADA claim under Federal Rule 12(b)(6) for failure to state a claim, holding that Blizzard did not violate the ADA because its digital storefront was not a public accommodation. The Court acknowledged Gil’s holding that a website may be subject to ADA requirements, but it distinguished that case because the website at issue there operated as a gateway to Winn Dixie’s physical grocery store, whereas Mr. Estavillo did not allege any facts showing that Blizzard’s digital storefront was heavily integrated with any physical store. Further, the court in Gil reasoned that the ADA applied to Winn Dixie’s website because it was in service of a public accommodation, but it did not go so far as to find that Winn Dixie’s website was a public accommodation in and of itself.
Instead of relying on Gil, a distinguishable and non-binding authority, the Court agreed with Blizzard’s argument that the ADA did not apply to its digital storefront because the Ninth Circuit interprets a place of public accommodation as requiring some connection between the good or service complained of and an actual physical place. In Earll v. eBay, Inc., 599 F. App’x 695 (9th Cir. 2015), an individual with a hearing impairment sued eBay Inc., alleging that eBay’s voice-based verification system prevented her from registering as a seller. The Ninth Circuit held the ADA did not apply to eBay’s website because eBay’s services were online-only and lacked connection “to any ‘actual, physical place.’”
After finding Mr. Estavillo failed to state a claim for relief under the ADA, the Court declined to exercise supplemental jurisdiction over the California state law claim and remanded that claim to California state court.
Although Mr. Estavillo’s suit against Blizzard stemmed from an alleged inconspicuous return and refund policy, the Court’s holding exposes a potential gap in disabilities law as there is no bright-line rule for when the ADA applies to websites. Today, as our culture continues to shift away from traditional, physical gathering spaces, application of the ADA may become more uneven and unpredictable because its language has not been updated to reflect the new social reality of being online. But bridging this gap is more difficult than it may first appear. On one hand, making all websites compliant with a broad interpretation of the ADA is likely a far more complicated endeavor than modifying the premises of a business to accommodate disabled customers or disabled employees and may impose an undue burden. If the ADA were to apply to all gaming websites, in order to be in compliance those platforms may have to overhaul their existing content with, for example, audio descriptions, closed-captioning, and predictable and consistent navigation that is accessible by keyboard only. On the other hand, the growing popularity of online and social games opens the door for websites to inadvertently discriminate against those with disabilities. If inconsistent and conflicting judicial authority over application of the ADA are to be avoided, statutory amendment may be necessary to clarify how and to which online places of public accommodation the ADA applies.