DECISION AND ORDER INTRODUCTION Plaintiff Dylan Panarra (“Plaintiff”), who is profoundly deaf, claims that Defendants HTC Corporation and its subsidiaries HTC America, Inc., and HTC American Content Services, Inc. (collectively, “Defendants”) are violating the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§121821 et seq., as well as New York State law, by not offering captioning on the Virtual Reality (“VR”) programming and content housed on their subscription service called “Viveport Infinity.” ECF No. 39 at 1-2. Defendants have moved to dismiss the operative compliant, Plaintiff’s First Amended Complaint (the “FAC”), ECF No. 39, pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 40. Defendants argue that Plaintiff has failed to state a claim because he has not plausibly alleged (1) that the ADA applies to Viveport Infinity as a place of “public accommodation” within the meaning of the statute; (2) that the ADA requires Viveport Infinity to alter its content; and (3) that the Defendants are sufficiently in control of the VR content to provide captioning. See generally ECF No. 41. Plaintiff responded in opposition to Defendants’ motion, ECF No. 46, and Defendants replied. ECF No. 47. For the reasons set forth below, Defendants’ motion to dismiss is DENIED. FACTUAL BACKGROUND When courts evaluate motions to dismiss, they must accept the facts alleged in the complaint as true and draw all reasonable inferences from those facts in favor of the non-moving party. Nat’l Fed. of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 567 (D. Vt. 2015). Therefore, for the purposes of evaluating Defendants’ motions, the facts below are taken from Plaintiff’s FAC and are accepted as true. Plaintiff is profoundly deaf and his hearing and speaking abilities are limited. ECF No. 39 6. He is a “big fan” of video games and has played them “all his life.” Id. 20. Plaintiff owns a device called an Oculus Rift which is a VR headset he uses to play VR video games and experience VR content.1 Id. 21. Defendants “are one of the biggest electronics companies in the world” and they “operate an online VR subscription service called Viveport Infinity.” Id. 14. Viveport Infinity is “the Netflix of VR” and offers “unlimited access to…thousands of VR content, including games, videos, and other apps and programs.” Id. 14-15. Like Netflix, subscribers can access Viveport Inifinity’s content from the comfort of their own homes. ECF No. 39 19. In addition to access to “more than $10,000 worth of critically acclaimed titles,” Viveport Infinity subscribers get “exclusive offers.” Id. 15. Currently, Viveport Infinity is the only subscription-based platform offering VR content. Id. 16. Plaintiff’s Oculus Rift headset is compatible with Viveport Infinity. Id. 21. He would like to subscribe to Viveport Infinity and use its content but has not done so “because Defendants have failed to provide closed captioning on its VR content.” Id.
35-36. Closed captioning “is a system that displays text on video content,” and, as such, it allows “deaf and hard of hearing individuals [to] have the opportunity to enjoy movies or videos by reading the captioned text.” ECF No. 17. Since Plaintiff is deaf, he “requires closed captions to meaningfully access and understand any video content that has audio portions.” Id. 20. While some of Viveport Infinity’s content does offer closed captioning, many titles in its catalog do not — unlike Netflix which “provides closed captions or subtitles for all its content.” Id. 18. Viveport Infinity’s failure to provide closed captioning renders much of its content inaccessible to Plaintiff and “other deaf and hard of hearing individuals.” Id.
