No One Prevailed, He Ultimately Ruled.
Well, U.S. District Judge Edward Davila (N.D. Cal.) had his hands full in dueling fee petitions brought by a disabled plaintiff class action representative Donald Cullen and Netflix, Inc. after the federal district judge dismissed the plaintiff’s third amended complaint with prejudice. However, plaintiff claimed he was the “catalyst” for Netflix’s disability reforms based on getting the company to enter into a consent decree in an ADA action involving the National Association of the Deaf (NAD) in Massachusetts requiring full captioning for all streaming video content by September 2014 to the benefit to disabled persons. Netflix saw it differently: NAD obtained the consent decree, and private plaintiff’s action had nothing to do with the earlier settlement given that he was not a party to the NAD suit or involved in consent decree negotiations.
Cullen sought to recover fees or $262,641, while Netflix sought recovery of around $165,000 in fees based on divergent claims that each was the “prevailing party” under a recent California Supreme Court decision, Jankey v. Lee, 55 Cal.4th 1038 (2012) [discussed in our December 12, 2012 post] permitting fee recovery under certain state disability statutes, including recovery to prevailing defendants. (The federal ADA is only unilateral in favor of prevailing plaintiffs.) Plaintiff argued that the mandatory fee-shifting provision did not apply to class actions under Turner v. Association of Medical Colleges, 193 Cal.App.4th 1047 (2011) [discussed in our March 15, 2011 post]. Netflix countered that this argument was based upon a footnote in a lower court decision that was pre-Jankey dicta. Both sides pointed fingers, arguing each’s requests were unconscionable or unjustified.
Late on Wednesday, May 1, 2013, District Judge denied both motions, determining that neither side prevailed.