WEBVTT

00:00:04.190 --> 00:00:08.206
So, I will say that you don't
need to repeat arguments

00:00:08.206 --> 00:00:11.408
related to Weyer unless they're
different because we are

00:00:11.408 --> 00:00:14.762
well aware of the issue on 
the Title 3.

00:00:14.762 --> 00:00:16.879
Yes, your Honor.
May it please the court,

00:00:16.879 --> 00:00:22.224
Jack Fitzgerald on behalf of Donald Cullen
and I would like to address Weyer

00:00:22.224 --> 00:00:24.900
but we do have a different take 
and different arguments on it

00:00:24.900 --> 00:00:28.745
than were presented.
I think that Cullen prevails in this appeal,

00:00:28.745 --> 00:00:33.608
including, as against Weyer, under a 
three step analysis.

00:00:33.608 --> 00:00:38.969
First, the statute is either ambiguous
or it leaves a gap for the agency to fill,

00:00:38.969 --> 00:00:40.735
as required under Chevron.

00:00:40.735 --> 00:00:46.745
Second, the DOJ's interpretation,
at least one of the interpretations

00:00:46.745 --> 00:00:50.045
we have talked about in the briefing
is entitled to Chevron deference.

00:00:50.045 --> 00:00:54.226
Meaning, it meets the standard set forth 
in US vs. Meade and its projeny.

00:00:54.226 --> 00:00:58.607
And third, under Brand X, 
that interpretation trumps Weyer

00:00:58.607 --> 00:01:02.291
because Weyer did not find,
did not construe the statute

00:01:02.291 --> 00:01:05.837
and say that it was an unambiguous
statute and this is the plain meaning.

00:01:05.837 --> 00:01:11.835
Weyer rather resorted to a canon
of construction, noscitur a sociis

00:01:11.835 --> 00:01:13.980
(chuckles)
I hope I'm pronouncing that right.

00:01:13.980 --> 00:01:17.860
That is used to resolve ambiguous
or unclear language.

00:01:17.860 --> 00:01:20.516
So on the first point,
I think this actually,

00:01:20.516 --> 00:01:22.926
whether the statute is ambiguous,
I think this action is one of

00:01:22.926 --> 00:01:27.387
the major disagreements in the briefing.
And maybe one of the points to crystallize.

00:01:27.387 --> 00:01:31.647
But, there are at least three points
that show that it's ambiguous.

00:01:31.647 --> 00:01:36.331
First, in the DOJ's rule making
in 2010 it noted

00:01:36.331 --> 00:01:39.750
that clarification was needed, 
or at least noted comments it received

00:01:39.750 --> 00:01:42.928
that clarification was needed 
because of the current ambiguity

00:01:42.928 --> 00:01:46.567
caused by court decisions
as to whether Web-only businesses

00:01:46.567 --> 00:01:50.896
are covered under Title III
and that's 75 FR 43464.

00:01:50.916 --> 00:01:55.410
Second, there indeed is a circuit split.
We've got four circuits

00:01:55.410 --> 00:02:00.090
on either side of the aisle
and different strengths.

00:02:00.272 --> 00:02:01.741
(Panel)
But, if circuit split isn't enough

00:02:01.741 --> 00:02:04.652
for us to depart from wire as a 
panel is it?

00:02:04.652 --> 00:02:06.252
(Fitzgerald)
No...The argument is that

00:02:06.381 --> 00:02:09.009
the circuit split indicates that
there is ambiguity in the statute.

00:02:09.009 --> 00:02:10.185
That's the only argument
I'm making.

00:02:10.185 --> 00:02:11.852
Not that the circuit split
overrules the wire.

00:02:11.852 --> 00:02:14.902
(Panel)
Let's assume there is ambiguity in the statute

00:02:14.902 --> 00:02:17.050
Where is the statement that deserves
Chevron deference?

00:02:17.050 --> 00:02:18.893
(Fitzgerald)
The statement that deserves

00:02:18.893 --> 00:02:24.146
Chevron deference is 28CFR
section 36, Appendix A. And...

00:02:25.316 --> 00:02:27.976
(Panel)
What statement in there?

00:02:27.976 --> 00:02:33.244
(Fitzgerald)
It's the statement, that

00:02:36.769 --> 00:02:39.422
It's actually, there's quite a long
paragraph on it.

00:02:40.287 --> 00:02:45.453
I won't read the whole thing.
But, it's in our addendum

00:02:45.453 --> 00:02:48.944
at pages 40-41 and there's
a comment on website accessibility

00:02:48.944 --> 00:02:52.294
that talks about how the DOJ
has consistently interpreted

00:02:52.294 --> 00:02:53.397
this over time.

00:02:53.397 --> 00:02:56.502
(Panel)
But not in any regulation

00:02:56.502 --> 00:02:58.767
to which we owe Chevron
deference, right?

00:02:58.767 --> 00:03:01.085
That's true, they've interpreted
this way. But, in briefs

00:03:01.085 --> 00:03:03.665
and other things under Meade
we wouldn't give deference to?

00:03:03.688 --> 00:03:04.466
(Fitzgerald)
That's true.

00:03:04.489 --> 00:03:09.779
Not until the DOJ put it in this 
regulation. Granted, this is an appendix.

00:03:09.779 --> 00:03:12.493
And it sort of commentary on the
rules and principles.

00:03:12.511 --> 00:03:16.693
But, I point the Court to the decision 
in Gilstrap v. United Airlines

00:03:16.693 --> 00:03:23.567
Where, the question was whether
a woman who had repaired knees

00:03:23.567 --> 00:03:28.808
had to be given a wheelchair in
an airport terminal to...and she had sued

00:03:28.808 --> 00:03:32.484
United Airlines.
And, the court found, in that case

00:03:32.484 --> 00:03:35.745
the statute wasn't ambiguous
because there was a regulation or

00:03:35.745 --> 00:03:40.042
there was a specific exception for
airline carriers at airport terminals.

00:03:40.042 --> 00:03:42.333
So, it said, that it wasn't ambiguous.
The plain language was clear,

00:03:42.333 --> 00:03:44.490
and we decide that Title 3
doesn't cover it.

00:03:44.490 --> 00:03:50.760
But, our interpretation is
confirmed by regulation.

00:03:50.760 --> 00:03:58.118
And it referred to the DOJ's comments
in an appendix to the same thing.

00:03:58.118 --> 00:04:00.214
(Panel)
Right, but that really goes to the point.

00:04:00.214 --> 00:04:05.581
We see that a lot, where the
interpretation is made by the Court.

00:04:05.581 --> 00:04:08.879
And then, they might make reference.
But, that doesn't mean there is some sort

00:04:08.879 --> 00:04:12.226
of deference, either Skidmore or Chevron.
Does it?

00:04:12.226 --> 00:04:13.658
(Fitzgerald mumbles)
(Panel) Your point is that

00:04:13.658 --> 00:04:17.231
they called the appendix a regulation,
so that means we need to treat

00:04:17.231 --> 00:04:19.656
the appendix as a regulation?

00:04:19.656 --> 00:04:21.970
(Fitzgerald)
The appendix is part of the regulation.

00:04:21.970 --> 00:04:25.600
(Panel)
But the appendix wasn't passed through

00:04:25.627 --> 00:04:27.755
notice and comment and procedures 
the way the regulation itself was.

00:04:27.755 --> 00:04:32.528
Right? So it seems like maybe our court
made a misstatement with vocabulary

00:04:32.528 --> 00:04:34.836
That doesn't mean all of the sudden
this thing is a regulation.

00:04:34.836 --> 00:04:37.581
(Fitzgerald)
Well, your Honor, I respectfully disagree.

00:04:37.581 --> 00:04:40.957
I think if it's codified there
the same way the advisory committee

00:04:40.957 --> 00:04:44.035
notes to the federal rules are
relied on and are considered

00:04:44.035 --> 00:04:48.722
authoritative on Federal rules.
I believe Gilstrap shows and, in fact,

00:04:48.722 --> 00:04:53.081
twice it called it a regulation
and not commentary or guidance

00:04:53.081 --> 00:04:54.275
They called it a regulation.

00:04:54.275 --> 00:04:57.029
(Panel) What the label is, is not so important,

00:04:57.029 --> 00:04:59.942
as to what it is and how did it get there.
Would you agree?

00:04:59.942 --> 00:05:02.892
(Fitzgerald) That's fair. 
So I would like to turn to Meade.

00:05:02.892 --> 00:05:05.273
Really, the question is,
is it entitled to deference under Meade?

00:05:05.917 --> 00:05:10.221
So what Meade says is that you
have to have two criteria.

00:05:10.221 --> 00:05:14.679
First, Congress has to have delegated
authority to the agency. We know that they did.

00:05:14.679 --> 00:05:17.684
That's 44 USC 12186B.

00:05:17.684 --> 00:05:23.803
Second, the agency interpretation claiming
deference has to be promulgated in the exercise of that.

00:05:23.803 --> 00:05:26.516
That doesn't actually say that it
has to be a regulation.

00:05:26.516 --> 00:05:34.240
It just has to be promulgated in its authority.
Meaning, no [mumbled] rulemaking.

00:05:34.240 --> 00:05:38.238
Indeed, these comments were part of
a two step note of proposed

00:05:38.238 --> 00:05:40.773
notice of rule making.
And then, a final rule.

00:05:40.773 --> 00:05:42.679
It was codified.

00:05:42.679 --> 00:05:46.710
(Panel) Okay, so even if we give you that.
Say, we think this is a regulation,

00:05:46.710 --> 00:05:56.298
and something that deserves deference.
Isn't it still the case that what it says

00:05:56.298 --> 00:05:59.599
is that a public accomodation's website
and so we still have this issue that

00:05:59.599 --> 00:06:03.912
what it means is an actual physical bank that runs a website?


00:06:03.912 --> 00:06:07.645
As opposed to an entity that is just a website?

00:06:07.645 --> 00:06:12.540
(Fitzgerald) I think the comments are broader than that.
In fact, it refers to some of its previous

00:06:12.540 --> 00:06:15.237
comments to incorporate some
of its statements over time.

00:06:15.237 --> 00:06:20.273
Certainly, as you mentioned, the statement
of interest, the comments

00:06:20.273 --> 00:06:21.976
may be persuasive.

00:06:21.976 --> 00:06:23.612
(Panel interrupts inaudibly)

00:06:23.612 --> 00:06:27.538
I understand
they aren't entitled to Chevron deference.

00:06:27.538 --> 00:06:31.624
But those are persuasive and I think
the commentary here is broad enough

00:06:31.624 --> 00:06:35.848
that it doesn't mean that it's just
the websites of physical places.

00:06:35.848 --> 00:06:41.113
(Panel) How do we know that reading it? 
At least, it's ambiguous in what it means.

00:06:41.113 --> 00:06:46.333
If it's ambiguous, how can we say
that it's clearly reconciable with Weyer?

00:06:46.342 --> 00:06:52.023
(Fitzgerald) Your Honor, I don't think it's ambiguous.
If it's ambiguous, that's probably a problem.

00:06:52.023 --> 00:06:56.978
I think if it's ambiguous, one thing the
court could do is say,

00:06:56.978 --> 00:07:00.773
well in Weyer, we interpreted a certain
way. We found the statute was ambiguous.

00:07:00.773 --> 00:07:04.144
We interpreted it a certain way.
We didn't find it was plain clear.

00:07:04.144 --> 00:07:09.922
So now we have an ambiguous statute.
Since Weyer we have had a lot

00:07:09.922 --> 00:07:11.626
of commentary from the DOJ.

00:07:11.626 --> 00:07:15.423
(Panel) And we now have an ambiguous 
commentary and therefore, what do we do?

00:07:15.423 --> 00:07:18.930
(Fitzgerald) That commentary is at least 
persausive under Skidmore.

00:07:18.930 --> 00:07:23.327
Granted, that doesn't necessarily
allow this court to overrule Weyer

00:07:23.327 --> 00:07:27.547
on this panel, because it's persausive.
But, I think an opinion saying that,

00:07:27.547 --> 00:07:31.946
today, persuaded by the DOJ's commentary,
we might find differently.

00:07:31.946 --> 00:07:37.524
That gives us a chance to bring it up
for review and let the panel face it.

00:07:37.524 --> 00:07:41.871
(Panel) That's why even if you're going to
lose you would rather have the merit

00:07:41.871 --> 00:07:46.129
that say that you waived it. 
Because we have this issue of if you waived.

00:07:46.129 --> 00:07:50.947
(Fitzgerald) You know, we responded to that.
I'm happy to address that.

00:07:50.947 --> 00:07:54.248
(Panel) Could you address it?
I'm trying to figure out why you omitted

00:07:54.248 --> 00:07:58.658
your state law discrimination claims
from your third ammended complaint.

00:07:58.658 --> 00:08:05.360
(Fitzgerald) We, the Court found, that it was bound
by wire. There was only one operate affect.

00:08:05.360 --> 00:08:08.838
That was that Netflix is a website.
We couldn't have ammended the complaint.

00:08:08.838 --> 00:08:13.694
Couldn't have planted additional facts
that would have allowed us to state a claim,

00:08:13.694 --> 00:08:15.681
under the current state of law.

00:08:15.681 --> 00:08:18.148
That was really clear. 
If you look at the district court's opinion,

00:08:18.148 --> 00:08:21.337
everything it dismissed us against,
granted without prejudice,

00:08:21.337 --> 00:08:24.508
exempt for that section where
it says bound by wire.

00:08:24.508 --> 00:08:27.972
(Panel) But you made some expressed
statements that you voluntarily

00:08:27.972 --> 00:08:33.091
abandoned those claims and
that Netflix...

00:08:33.091 --> 00:08:36.325
(Fitzgerald) Your Honor, that statment was
in application to opposition of

00:08:36.325 --> 00:08:38.422
Netflix's application which was
filed a month after this appeal.

00:08:38.422 --> 00:08:44.373
But, that only had to do with ADA
independent state law claims

00:08:44.373 --> 00:08:48.550
under the DPA. 
It wasn't a statement about the Unruh Act.

00:08:48.550 --> 00:08:53.108
It wasn't a statement about the 
ADA independent claims.

00:08:53.108 --> 00:08:58.056
(Panel) The court had already said you
couldn't ammend the DPA claim

00:08:58.056 --> 00:08:59.861
based on the ADA.
So the only thing you abadoned

00:08:59.861 --> 00:09:02.085
was the DPA claims based on
something else.

00:09:02.085 --> 00:09:04.895
(Fitzgerald) Right. And that's because 
we got similar rulings.

00:09:04.895 --> 00:09:09.387
I think it was the same court,
the intentional discrimination.

00:09:09.387 --> 00:09:13.009
We had to show a higher standard.
We didn't feel we could do that

00:09:13.009 --> 00:09:15.506
under Rule 11. 
So we elected not to pursue

00:09:15.506 --> 00:09:19.259
the ADA independent claims.
Clearly, the ADA claims have been

00:09:19.259 --> 00:09:23.039
dismissed as a matter of law.
There was nothing we could do.

00:09:23.039 --> 00:09:29.115
(Panel) I think my question earlier was confused.
So your ADA claim where you have to get

00:09:29.115 --> 00:09:32.410
around wire and want to seek
review. That is preserved.

00:09:32.410 --> 00:09:35.916
The only issue is whether the
DPA claim is preserved or not.

00:09:35.916 --> 00:09:38.803
That one is also based on the ADA.
Do you need both or....[mumbles]?

00:09:40.930 --> 00:09:44.578
(Fitzgerald) Actually, we did not pursue an ADA 
claim on principle. We only did it under DPA.

00:09:44.578 --> 00:09:48.872
(Panel) So you do really need this?
You need to not have waived this DPA claim.

00:09:48.872 --> 00:09:52.199
(Fitzgerald)
At least the ADA dependent DPA claim.

00:09:52.199 --> 00:09:54.742
(Panel) 
Why did you not pursue an ADA claim directly?

00:09:54.742 --> 00:09:56.994
(Fitzgerald) Because the NAD came to 
us and said that the law is better

00:09:56.994 --> 00:09:59.495
in the first circuit, will you
please drop your ADA claim

00:09:59.495 --> 00:10:03.795
so that we aren't subject to wire.
I'm glad they did because look at the result.

00:10:03.795 --> 00:10:09.638
I just want to finish on the final point
that under Brand X, because if you

00:10:09.638 --> 00:10:12.878
find that the statute is ambiguous
and you find that at least this

00:10:12.878 --> 00:10:15.827
regulation is entitled to chevron 
deference then under Brand X

00:10:15.827 --> 00:10:19.184
that supercedes wire. That's entirely fair.
Thank you very much.


00:10:19.184 --> 00:10:20.309
(Panel) Thank you.

00:10:27.559 --> 00:10:30.579
Good morning, may it please the court.
David McDowell on behalf of Netflix.

00:10:30.594 --> 00:10:35.464
I'm not going to go back through
the argument that was made

00:10:35.464 --> 00:10:38.961
by Ebay. He's right, they walked
through the various steps

00:10:39.094 --> 00:10:44.824
this court needed to do and did
in where and the question of

00:10:44.824 --> 00:10:47.659
Chevron deference.
I think the real question that

00:10:47.659 --> 00:10:50.467
is left here is whether the
claim was abandoned.

00:10:50.467 --> 00:10:53.643
Certainly the ADA claim 
was abandoned.

00:10:53.643 --> 00:10:55.737
They walked away from it.
They made a choice.

00:10:55.737 --> 00:11:00.696
(Panel) Well, they lost it on the merit.
The district court said as a matter

00:11:00.696 --> 00:11:05.046
of law the DPA claim based on the
ADA is foreclosed by wire.

00:11:05.046 --> 00:11:08.387
That section does not say that you can
ammend all the other sections.

00:11:08.387 --> 00:11:12.772
Are you actually saying they could
have tried again to plead the claim

00:11:12.772 --> 00:11:15.067
based on the ADA at that point?

00:11:15.067 --> 00:11:22.758
(McDowell) No at that claim, that sole claim.
Not that there is anything DPA broader than the ADA.

00:11:22.758 --> 00:11:25.678
Those claims were waived
and walked away from.

00:11:25.678 --> 00:11:32.304
I do think that it's absolutely right.
I can't dispute that the court did say

00:11:32.304 --> 00:11:37.138
the DPA claim based on a 
violation of the ADA.

00:11:37.138 --> 00:11:43.374
(Panel) And so why isn't that a final 
decision on the merits of that claim that

00:11:43.374 --> 00:11:49.253
was dismissed with prejudice and is
therefore done is preserved for repeal.

00:11:49.253 --> 00:11:55.884
(McDowell) That question is preserved.
It's the other question that was also

00:11:55.884 --> 00:12:00.787
throughout the papers of the 
broader DPA independence.

00:12:00.787 --> 00:12:04.121
(Panel) So you're really just arguing
that they can't try to have a

00:12:04.121 --> 00:12:07.302
DPA claim based on other state 
laws, the Unruh act, or something else.

00:12:07.302 --> 00:12:11.295
That seems very clear.
So if that's all you are arguing...

00:12:11.295 --> 00:12:14.141
I didn't understand that from
your brief.

00:12:14.141 --> 00:12:18.841
(McDowell) I apologize for that.
It was because it was unclear to us

00:12:18.841 --> 00:12:20.973
what claims were 
being asserted.

00:12:20.973 --> 00:12:25.798
(Panel) What they are left with is
a DPA claim hinged on Title 3.

00:12:25.798 --> 00:12:26.555
(McDowell) Yes.

00:12:26.555 --> 00:12:29.891
(Panel) We all agree that is here
on the deal.

00:12:29.891 --> 00:12:34.847
But then, there are some
hurdles which may or may

00:12:34.847 --> 00:12:37.484
not be able to overcome 
because of Weyer.

00:12:37.484 --> 00:12:39.600
Is that the sum of
what we have?

00:12:39.600 --> 00:12:41.110
(McDowell) That's absolutely correct.

00:12:41.110 --> 00:12:44.540
(Panel) So in your view we should
write something now that says

00:12:44.540 --> 00:12:46.734
they have this claim of the DPA
based on the ADA but it's

00:12:46.734 --> 00:12:49.232
foreclosed by wire. We can
write a paragraph in this case.

00:12:49.232 --> 00:12:51.341
That's what we should do?

00:12:51.341 --> 00:12:56.707
(McDowell) That's what you should do.
If there are any other questions,

00:12:56.707 --> 00:12:58.946
I'm happy to address them,
but the issues have been covered well.

00:12:58.946 --> 00:13:03.049
(Panel) Alright. (To Fitzgerald) I would 
give you some rebuttal time, but

00:13:03.049 --> 00:13:05.852
I don't think there is much to
rebutt. I will give you a minute

00:13:05.852 --> 00:13:08.364
if you feel like there is something
additional you need to tell us.

00:13:08.364 --> 00:13:10.408
(Fitzgerald)
I appreciate that but I don't think so.

00:13:10.408 --> 00:13:14.408
(Panel) Alright, thank you. Thank you
both for your argument this morning.

00:13:14.408 --> 00:13:16.903
Cullen v. Netflix is submitted.