A recent The Recorder story, “In Netflix Captioning Case, an Unexpected Fee Fight,” reports that both sides are claiming victory in a disability rights class action against Netflix Inc., resulting in a prevailing party fee dispute. 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. The dispute centers on the result of a 2012 California Supreme Court decision mandating attorney fees for prevailing parties in disability access suits brought under state law.
Cullen sued Netflix in March 2011, claiming discrimination under the ADA and California’s Disabled Persons and Unruh Civil Rights Acts and also accusing Netflix of false advertising in statements about the availability of close captioning. 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 law firm of Morrison & Foerster. Both sides cite Jankey v. Lee to support their bid.
In June 2011 the National Association for the Deaf (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 NAD’s attorney fees of $775,000. Prior to the settlement, Cullen dropped his ADA claims and refiled under state laws. Despite Cullen’s state claims being dismissed in July 2012, Cullen’s lawyers contend he should be the prevailing party because the suit achieved its main objective – “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 NAD that began prior to Cullen filing. David McDowell, a MoFo partner, 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. Cullen’s lawyers contend the mandatory fee-shifting provision does not apply to class action cases.