National Federation of the Blind et al v. Target Corporation, No. 3:2006cv01802 - Document 20 (N.D. Cal. 2006)

Court Description: MOTION for Preliminary Injunction filed by National Federation of the Blind, Bruce Frank Sexton, the National Federation of the Blind of California. Motion Hearing set for 6/12/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Affidavit of Dr. James W. Thatcher# 2 Affidavit of Marc Maurer# 3 Affidavit of Anne Taylor# 4 Affidavit of Bruce F. Sexton# 5 Affidavit of Bob Ayala# 6 Affidavit of Tim Elder# 7 Affidavit of Steve Jacobson# 8 Affidavit of Robert Stigile# 9 Affidavit of Tina Thomas# 10 Affidavit of Terri Uttermohlen# 11 Affidavit of Ken Volonte# 12 Proposed Order Granting Plaintiffs' Motion for Preliminary Injunction)(Paradis, Laurence) (Filed on 5/8/2006)

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National Federation of the Blind et al v. Target Corporation Case 3:06-cv-01802-MHP 1 2 3 4 5 Document 20 Doc. 20 Filed 05/08/2006 Page 1 of 28 LAURENCE W. PARADIS (California Bar No. 122336) lparadis@dralegal.org MAZEN M. BASRAWI (California Bar No. 235475) mbasrawi@dralegal.org DISABILITY RIGHTS ADVOCATES 2001 Center Street, Third Floor Berkeley, California 94704 Telephone: (510) 665-8644 Facsimile: (510) 665-8511 TTY: (510) 665-8716 6 7 8 9 10 11 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 13 14 15 TODD M. SCHNEIDER (California Bar No. 158253) tschneider@schneiderwallace.com JOSHUA KONECKY (California Bar No. 182897) jkonecky@schneiderwallace.com SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 Fax: (415) 421-7105 TTY: (415) 421-1655 DANIEL F. GOLDSTEIN (pro hac vice) dfg@browngold.com BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore St., Suite 1700 Baltimore, MD 21202 Telephone: (410) 962-1030 Fax: (410) 385-0869 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 SAN FRANCISCO DIVISION 19 20 21 22 NATIONAL FEDERATION OF THE BLIND, the NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA, on behalf of their members, and Bruce F. Sexton, on behalf of himself and all others similarly situated, Plaintiffs, 23 24 v. 25 TARGET CORPORATION, 26 Defendant. Case No.: C 06-01802 MHP CLASS ACTION PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES Hearing Date: June 12, 2006 Time: 2:00 p.m. Judge: The Honorable Marilyn Hall Patel 27 28 Dockets.Justia.com Case 3:06-cv-01802-MHP 1 Document 20 Filed 05/08/2006 Page 2 of 28 TABLE OF CONTENTS 2 I. INTRODUCTION AND SUMMARY OF ARGUMENT ................................................. 1 3 II. FACTS ................................................................................................................................ 2 4 A. The Parties .............................................................................................................. 2 5 B. Making Websites Accessible To Blind Individuals Is Not Difficult. ..................... 4 6 C. Target Refuses To Make Its Website Accessible. .................................................. 5 7 D. NFB Attempted To Convince Target To Make Its Website Accessible................ 6 8 III. LEGAL STANDARD......................................................................................................... 7 9 IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ..................................... 7 10 A. Plaintiffs’ Unruh Act Claim Will Succeed Because Target Corporation Is A Covered Entity That Unlawfully Discriminates Against The Blind....................... 7 11 1. Target Corporation Is A Business Establishment Within The Contemplation Of The Unruh Act. ............................................................. 7 2. Target.com Is A Service, Privilege, Facility, Advantage Or Accommodation Of Target Corporation..................................................... 8 3. Target.com Is Inaccessible And Thus Denies The Blind Full And Equal Access To Target’s Facilities, Privileges And Services. ............................ 9 4. If Intentional Discrimination Is An Element Of An Unruh Act Claim, Target’s Knowing Refusal To Remove Barriers Demonstrates Intent. ...... 9 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 13 14 15 16 17 B. 18 19 Plaintiffs’ Disabled Persons Act Claim Will Succeed Because Target.com Is An Accommodation, Advantage, Facility Or Privilege Of Target Stores. ................. 10 1. Target.com Is An Accommodation, Advantage, Facility Or Privilege Of Target Stores. ............................................................................................ 11 2. Failing To Provide Blind Customers Full And Equal Access To Target.com Violates The DPA.................................................................. 12 20 21 22 C. 23 24 25 26 D. 27 28 V. Plaintiffs’ ADA Claim Will Succeed Because Target.com Is A Service, Facility, Privilege, Advantage Or Accommodation Of Target Stores. ............................... 12 1. Title III Applies to Target.com Because It Is A Service, Facility, Privilege, Advantage Or Accommodation Of Target Corporation’s Stores. ............ 13 2. Target Discriminates Against The Blind In Creating, Maintaining And Operating Target.com In An Inaccessible Manner. .................................. 15 Target Has Violated All Three Statutes. ............................................................... 15 THE FAILURE TO MAKE TARGET.COM ACCESSIBLE TO THE BLIND CAUSES IRREPARABLE HARM .................................................................................................. 17 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Motion For Preliminary Injunction i Case 3:06-cv-01802-MHP 1 Document 20 Filed 05/08/2006 Page 3 of 28 TABLE OF CONTENTS (continued) 2 VI. THE BALANCE OF HARDSHIPS TIPS HEAVILY IN PLAINTIFFS’ FAVOR ......... 18 VII. THE INJUNCTION PLAINTIFFS SEEK IS REASONABLE........................................ 18 VIII. AN INJUNCTION IS IN THE PUBLIC INTEREST ...................................................... 19 IX. THE COURT SHOULD WAIVE THE BOND REQUIREMENT OR ORDER A NOMINAL BOND ........................................................................................................... 20 X. CONCLUSION................................................................................................................. 21 3 4 5 6 7 8 9 10 11 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Motion For Preliminary Injunction ii Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 4 of 28 1 TABLE OF AUTHORITIES 2 CASES 3 American Motorcyclist Ass’n v. Watt, 714 F.2d 962 (9th Cir. 1983) ................................................................................................ 19 4 5 6 Anderson v. United States, 612 F.2d 1112 (9th Cir. 1979) ................................................................................................ 7 Burks v. Poppy Const. Co., 57 Cal. 2d 463 (1962) ............................................................................................................. 8 7 8 9 Burlington Northern R. Co. v. Department of Revenue of State of Wash., 934 F.2d 1064 (9th Cir. 1991) .............................................................................................. 17 Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042 (9th Cir. 2000) ................................................................................................ 8 10 11 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878 (9th Cir. 2003) ................................................................................................ 20 Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078 (N.D. Cal. 1997) .............................................................................. 17, 20 13 14 15 Doctor’s Associates Inc. v. Stuart, 85 F.3d 975 (2nd Cir. 1996).................................................................................................. 20 Gorbach v. Reno, 219 F.3d 1087 (9th Cir.2000) ............................................................................................... 20 16 17 18 Gresham v. Windrush Partners, Ltd., 730 F.2d 1417 (11th Cir.1984) ............................................................................................. 17 Hankins v. El Torito Restaurants, Inc., 63 Cal. App. 4th 510 (1998) ........................................................................................... 10, 11 19 20 21 Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142 (1991) ......................................................................................................... 10 Isbister v. Boys' Club of Santa Cruz, 40 Cal. 3d 72 (1985) ............................................................................................................... 9 22 23 24 Keirnan v. Utah Transit Authority, 339 F.3d 1217 (10th Cir. 2003) ............................................................................................ 17 Lentini v. California Center for the Arts, 370 F.3d 837 (9th Cir. 2004) ............................................................................................ 9, 10 25 26 27 O’Connor v. Village Green Owners Ass'n, 33 Cal. 3d 790 (1983) ............................................................................................................. 8 Pathways Psychosocial v. Town of Leonardtown, Md., 223 F. Supp. 2d 699 (D. Md. 2002) ...................................................................................... 17 28 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Motion For Preliminary Injunction iii Case 3:06-cv-01802-MHP 1 Document 20 Filed 05/08/2006 Page 5 of 28 TABLE OF AUTHORITIES (continued) 2 3 4 People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319 (9th Cir. 1985) .............................................................................................. 20 Presta v. Peninsula Corridor Joint Powers Bd. 16 F. Supp. 2d 1134 (N.D. Cal. 1998) ........................................................................ 9, 10, 19 5 6 7 Regents of the University of California v. Dakocytomation California, Inc., Slip Copy, 2006 WL 618769, 3 (N.D. Cal., March 10, 2006)................................................ 7 Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2004) .............................................................................. 12, 14, 15 8 9 10 Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972) .............................................................................................. 20 Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814 (9th Cir. 2001) ................................................................................................ 17 11 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 13 Smallwood v. National Can Co., 583 F.2d 419 (9th Cir. 1978) ................................................................................................ 17 Sullivan By and Through Sullivan v. Vallejo City Unified School Dist., 731 F. Supp. 947 (E.D. Cal. 1990)........................................................................................ 17 14 15 16 United States by Mitchell v. Hayes Int'l Corp., 415 F.2d 1038 (5th Cir. 1969) .............................................................................................. 17 Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594 (1995) ............................................................................................................ 8 17 18 STATUTES 19 42 U.S.C. § 12101(b)(1). .............................................................................................................. 19 20 42 U.S.C. § 12181........................................................................................................................... 2 21 42 U.S.C. § 12182(a) .................................................................................................................... 12 22 42 U.S.C. § 12182(b) .................................................................................................................... 12 23 42 U.S.C. § 12182(b)(2)(A)(ii) ..................................................................................................... 13 24 42 U.S.C. § 12182(b)(2)(A)(iii).................................................................................................... 13 25 42 U.S.C. § 12182(b)(2)(A)(iv) .................................................................................................... 13 26 42 U.S.C. § 12182(7)(e) ............................................................................................................... 13 27 42 U.S.C. § 12188(a) .................................................................................................................... 17 28 Cal. Civ. Code § 51......................................................................................................................... 1 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Motion For Preliminary Injunction iv Case 3:06-cv-01802-MHP 1 Document 20 Filed 05/08/2006 Page 6 of 28 TABLE OF AUTHORITIES (continued) 2 Cal. Civ. Code § 51(b) ............................................................................................................ 1, 7, 8 3 Cal. Civ. Code § 52.1(b) ............................................................................................................... 17 4 Cal. Civ. Code § 54.1(a)(1)....................................................................................................... 2, 11 5 Cal. Civ. Code § 55....................................................................................................................... 17 6 7 OTHER AUTHORITIES 8 11A Charles Allen Wright, Arthur A. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2948.4 (2nd ed. 1995) ................................................... 19 9 10 11 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Motion For Preliminary Injunction v Case 3:06-cv-01802-MHP 1 2 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 3 Document 20 Filed 05/08/2006 Page 7 of 28 NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 12, 2006 at 2:00 p.m., or as soon thereafter as the 4 matter may be heard by the above-entitled court located at 450 Golden Gate Avenue, San 5 Francisco, California 94102, Courtroom 15, Plaintiffs National Federation of the Blind (“NFB”), 6 NFB of California and Bruce Sexton will and hereby do move the Court for a preliminary 7 injunction requiring Target Corporation (“Target”) to make its website, target.com, readily 8 accessible to and useable by blind persons who use screen-reading software. This motion is 9 brought on the grounds that Target, by failing and refusing to make target.com accessible, is in 10 violation of California’s Unruh Civil Rights Act (California Civil Code §§ 51, et seq.), 11 California’s Disabled Person’s Act (California Civil Code §§ 54, et seq.) and Title III of the 12 Americans With Disabilities Act (42 U.S.C. §§ 12181, et seq.) and on the basis that these 13 violations have and are causing irreparable injuries to the blind. This motion is based on this 14 Notice of Motion and Motion, the supporting Memorandum of Points and Authorities and 15 declarations filed herewith, and on such further written and oral argument as may be presented at 16 or before the time the Court takes this motion under submission. 17 18 19 20 21 22 DATED: May 8, 2006 DISABILITY RIGHTS ADVOCATES LAURENCE W. PARADIS MAZEN M. BASRAWI SCHNEIDER & WALLACE TODD M. SCHNEIDER JOSHUA KONECKY BROWN, GOLDSTEIN & LEVY, LLP DANIEL F. GOLDSTEIN (pro hac vice) 23 24 By: 25 26 27 28 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Motion For Preliminary Injunction /s/ Laurence W. Paradis__ Laurence W. Paradis Attorneys for Plaintiffs Case 3:06-cv-01802-MHP 1 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Filed 05/08/2006 Page 8 of 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 2 3 Document 20 I. INTRODUCTION AND SUMMARY OF ARGUMENT 4 Plaintiffs move for a preliminary injunction to prevent Target Corporation (“Target”) 5 from continuing to deny blind individuals full and equal access to one of its major services – 6 “target.com.” Target.com is a website that links the public to a wide array of household goods, 7 clothing, pharmaceutical services, pricing discounts, product information and employment 8 opportunities that are available in Target’s retail stores. Despite Target’s substantial revenues 9 (fifty-two billion dollars in 2005), Target does not incorporate basic, readily available technology 10 commonly used by businesses to make their websites accessible to blind individuals. As 11 evidenced by Target’s recently filed Motion to Dismiss (which misstates both plaintiffs’ 12 allegations and the substantive legal requirements), Target refuses to acknowledge its obligation 13 to make its website accessible to people with disabilities. Plaintiffs seek preliminary injunctive 14 relief to prevent Target from continuing to deny blind persons full and equal access to one of its 15 major services – “target.com.” As shown below, plaintiffs meet both tests for issuance of a preliminary injunction. With 16 17 respect to the need to demonstrate “likelihood of success” on the merits, plaintiffs do so on each 18 of their statutory claims, although a strong case on only one would suffice. Plaintiffs succeed on 19 their claim under the California Unruh Civil Rights Act1 because (1) Target is a “business 20 establishment” subject to the Act; (2) target.com is one of Target’s “accommodations, 21 advantages, facilities, privileges or services;” and (3) Target does not make target.com available 22 to the blind on a “full and equal” basis to non-disabled persons.2 Plaintiffs have a substantial 23 likelihood of success under both the California Disabled Persons Act and Title III of the ADA 24 because (1) Target’s retail stores are places of public accommodation; (2) target.com is one of 25 the “accommodations, advantages, facilities, privileges or services” of the retail stores; and (3) 26 blind individuals do not have “full and equal access, as other members of the general public” to 27 28 1 2 Cal. Civ. Code §§ 51, et seq. See Cal. Civ. Code § 51(b); Section IV.A., infra. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 1 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 9 of 28 1 this accommodation, advantage, facility, privilege, and/or service.3 The merits of the motion for 2 preliminary injunction do not turn on whether target.com is itself a “place of public 3 accommodation.” That issue, while alleged as an alternative theory of liability in the Amended 4 Complaint, need not be addressed or resolved at this time for plaintiffs to have a substantial 5 likelihood of success on any of their other claims. 6 As to the remaining considerations for issuance of a preliminary injunction, the 7 California statutes at issue and the ADA all specifically authorize injunctive relief. It is well- 8 established that harm caused by ongoing discrimination is irreparable.4 Moreover, the balance of 9 hardships and public interest tip sharply in plaintiffs’ favor: (1) meaningful access to the World 10 Wide Web is an indispensable component of independent living for the blind in today’s 11 technology-dependent world; (2) the laws at issue permit the use of injunctions to eradicate 12 ongoing discrimination; (3) Target has extensive resources to make target.com accessible; (4) 13 established guidelines and readily available protocols exist to make websites accessible; (5) the 14 Court can craft an order allowing Target to use such guidelines and protocols to make target.com 15 readily accessible and usable by blind people within a reasonably defined period of time (e.g., 90 16 days); and (6) the injunction can provide Target an opportunity to resolve particularly identified 17 difficulties that arise (if any) by conferring with plaintiffs. For all these reasons, plaintiffs request that the Court grant their motion for a preliminary 18 19 injunction as set forth herein. 20 II. FACTS 21 A. The Parties 22 Bruce Sexton, a blind student at the University of California Berkeley, employs screen 23 access software to use the internet for a variety of daily activities, including banking, research, 24 online shopping, e-mail and instant messaging.5 Target.com’s many barriers, however, prevent 25 26 27 28 3 See Cal. Civ. Code § 54.1(a)(1); Section IV.B., infra; see 42 U.S.C. §§ 12181 et seq.; Section IV.C., infra. 4 See Section V, infra. 5 Declaration of Bruce F. Sexton, Jr. (“Sexton Decl.”) at ¶¶2, 4, 14-17. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 2 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 10 of 28 1 him from navigating that site.6 Its inaccessibility, in turn, diminishes Mr. Sexton’s use of Target 2 stores.7 The inaccessible features on target.com include product information on in store items, 3 including brand, model, features and price; information concerning weekly specials at individual 4 stores; coupons for store redemption; and other store-related services which Mr. Sexton would 5 choose to use if they were accessible.8 Moreover, while sighted persons can browse, purchase 6 and receive special discounts to Target’s merchandise from the comfort of their home computer, 7 Mr. Sexton must travel to a Target store.9 These inequalities unfairly burden Mr. Sexton.10 8 The National Federation of the Blind (“NFB”) is the oldest and largest national advocacy 9 organization of blind persons. The vast majority of its approximately 50,000 members are blind. 10 The NFB is widely recognized by the public, Congress, executive agencies of government and 11 the courts as a collective and representative voice on behalf of blind Americans and their 12 families. Its purpose is to promote the general welfare of the blind by (1) assisting the blind in 13 their efforts to integrate themselves into society on equal terms and (2) removing barriers and 14 changing social attitudes, stereotypes, and mistaken beliefs that sighted and blind persons hold 15 concerning the limitations created by blindness and that result in the denial of opportunity to 16 blind persons in virtually every sphere of life.11 The NFB has brought this suit on behalf of its 17 members and a proposed class of all blind persons throughout the United States who have and 18 are being denied access due to the barriers on target.com.12 Access to the World Wide Web and the wealth of services and information it offers has 19 20 become a significant concern to the NFB. Increasingly, the Web has become an essential means 21 to deliver information, conduct business and interact socially. If the blind are to live and work 22 independently in today’s technology-dependent world, meaningful access to the Web is 23 indispensable. To make the Web fully accessible, the NFB and many of its members have been 24 6 25 26 27 28 Id. at ¶¶29-35. Id. 8 Id. 9 Id. at ¶¶22-25, 28. 10 Id. at ¶¶28, 33-37. 11 Declaration of Marc Maurer (“Maurer Decl.”), President of the NFB, at ¶5. 12 Amended Complaint at ¶¶8, 12. 7 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 3 Case 3:06-cv-01802-MHP Filed 05/08/2006 Page 11 of 28 1 actively developing and promoting adaptive technology for the blind, including screen readers, 2 and basic improvements in web design.13 Target Corporation (“Target”) is a leading national retailer that offers household goods 3 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 4 and clothing, an in-store pharmacy and other services. Target’s gross revenues exceeded forty- 5 six billion dollars in 2004 and leapt to fifty-two billion dollars in 2005.14 More than 200 of its 6 1400 stores are in California.15 Through target.com, Target maintains an online business that 7 provides a multitude of services, including online shopping of items also available in Target 8 stores; web-exclusive merchandise; special offers, coupons and programs; a store locator 9 allowing persons who wish to shop at Target to learn its locations, hours and phone numbers; 10 online orders of prescriptions for pickup at certain Target stores; online placement of deli party 11 orders for pickup at certain Target stores; online photo shops wherein photos can be ordered for 12 pickup at a Target store; and wedding and baby registries linked to Target’s in-store 13 merchandise. The website also includes extensive information about Target’s employment 14 opportunities, investor relations and company policies.16 All these features are provided on 15 target.com to be useful to sighted customers; they would be equally valuable to blind 16 customers.17 17 B. 18 To use websites, the blind rely on screen access software that reads the code behind the 19 computer screen and text-to-speech software that vocalizes that information. (To best illustrate Making Websites Accessible To Blind Individuals Is Not Difficult. 20 13 21 22 23 24 25 26 27 28 Declaration of Anne Taylor (“Taylor Decl.”), Co-Director of the NFB International Braille and Technology Center for the Blind, at ¶6; Maurer Decl. at ¶6. 14 Press Release, Target Corporation, “Target Corporation Fourth Quarter Earnings Per Share From Continuing Operations $1.06” (February 16, 2006) (on file with author and at http://investors.target.com). 15 Target Corporation, “Company Overview”, http://investors.target.com/phoenix.zhtml?c=65828&p=irol-homeProfile (last visited May 4, 2006). 16 See Target website, http://www.target.com (last visited May, 4, 2006). 17 See Sexton Decl. at ¶32; Declaration of Bob Ayala (“Ayala Decl.”) at ¶¶16-19; Declaration of Tim Elder (“Elder Decl.”) at ¶¶10, 14-15; Declaration of Tina Thomas (“Thomas Decl.”) at ¶¶13, 17; Declaration of Ken Volonte (“Volonte Decl.”) at ¶¶16-17; Declaration of Terri Uttermohlen (“Uttermohlen Decl.”) at ¶¶15, 21; Declaration of Steve Jacobson (“Jacobson Decl.”) at ¶¶14, 20; Declaration of Robert Stigile (“Stigile Decl.”) at ¶¶14, 18. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 4 Case 3:06-cv-01802-MHP Filed 05/08/2006 Page 12 of 28 1 how screen access software functions, the elements of web accessibility and the inaccessibility of 2 target.com, plaintiffs are prepared to present their web access expert, Dr. James W. Thatcher, 3 during the hearing on this Motion for Preliminary Injunction to testify and present an in-court 4 demonstration on web-accessibility and/or provide a videotape of such a presentation, at the 5 Court’s discretion.)18 The use of screen access software by the blind is widespread.19 However, 6 websites must be designed to allow adaptive software to work. Accordingly, long-accepted, 7 comprehensive guidelines outline the design requirements for accessible websites. The most 8 prominent set of guidelines are those of the Web Accessibility Initiative (WAI), a project of the 9 World Wide Web Consortium (W3C), the Web’s leading standards organization.20 The basic components of accessibility are (1) using invisible labels for graphics (called 10 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 11 “alt tags” by web designers) that can be read by screen access software; (2) ensuring that all 12 functions can be performed with a keyboard and not just a mouse; (3) ensuring that forms are 13 labeled in ways the screen access software can recognize; and (4) adding invisible headings to 14 links so that blind people can easily navigate the site.21 This technology has existed for years, 15 does not affect the operation or appearance of the website for sighted people, and has been 16 adopted not only by various federal, state and local governments to make their websites 17 accessible, but also by many business and organizations both nationally and internationally.22 18 C. 19 Defendant Target Corporation is a multi-billion dollar retail business with over 1400 20 Target Refuses To Make Its Website Accessible. retail stores and locations, selling its product line and offering a variety of special discounts and 21 22 23 24 25 26 27 28 18 Dr. Thatcher is a prominent expert in the field of web accessibility. See Expert Declaration of James W. Thatcher (“Thatcher Decl.”) at ¶¶2-14. Dr. Thatcher has worked in the field of assistive technology for more than twenty years and served as Vice Chairman of the Advisory Committee that proposed Web Accessibility Standards for the U.S. Access Board. Id. Plaintiffs will await further guidance from the Court as to whether to have Dr. Thatcher prepare a live and/or video demonstration for the purposes of this hearing. 19 Taylor Decl. at ¶¶8, 10. 20 See Web Accessibility Initiative, www.w3.org/WAI (last visited May 4, 2006). 21 Thatcher Decl. at ¶¶13 (alt text requirement), 41-42 (keyboard access), 47-51 (website navigation) and 52-59 (labeling forms); see www.w3.org/WAI (last visited May 4, 2006). 22 Taylor Decl. at ¶6. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 5 Case 3:06-cv-01802-MHP Filed 05/08/2006 Page 13 of 28 1 services through its online site, target.com.23 In spite of its considerable resources, and the 2 availability of technology and widely accepted procedures for achieving web accessibility, 3 Target has failed to make its website accessible to the blind.24 Target’s refusal prevents the blind 4 from having access to the wide array of basic goods and services on target.com that Target 5 makes available to sighted people. Target.com lacks the most basic requirements for accessibility. What the blind encounter 6 7 at target.com is inexplicable code, garbled text, and unidentifiable product images.25 As 8 explained by Dr. Thatcher in his expert declaration: There are many thousands of images on Target.com that lack text equivalents to make them available to people using screen readers…None of the form controls on Target.com have proper labeling and there is no accommodation to facilitate keyboard navigation throughout Target.com pages. I have described four types of barriers that are easiest to explain and that are especially important for screen readers. There are other components of Web Accessibility for people with visual disabilities. As of April 12, 2006 the website of the Target Corporation is virtually unusable by a visitor who is blind.26 9 10 11 12 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 13 D. NFB Attempted To Convince Target To Make Its Website Accessible. 14 Before filing this case, NFB notified Target of the website’s many unlawful accessibility 15 barriers.27 Although the NFB entered into a structured negotiation and tolling agreement with 16 Target Corporation and agreed to extend it twice, negotiations proved fruitless and the agreement 17 was allowed to expire.28 The website remains inaccessible.29 Accordingly, plaintiffs filed their 18 complaint on February 6, 2006, in Alameda County Superior Court of California alleging 19 violations of the Unruh Civil Rights Act and the California Disabled Persons Act. When Target 20 21 22 23 24 25 26 27 28 23 Press Release, Target Corporation, “Target Corporation Fourth Quarter Earnings Per Share From Continuing Operations $1.06” (February 16, 2006) (on the web at http://investors.target.com); see also Target Corporation, “Company Overview”, http://investors.target.com/phoenix.zhtml?c=65828&p=irol-homeProfile (last visited May 4, 2006); see also Target website, www.target.com (last visited May 4, 2006). 24 Thatcher Decl. at ¶60. 25 See Sexton Decl. at ¶¶29-33; Ayala Decl. at ¶¶13-18; Elder Decl. at ¶¶11-13; Thomas Decl. at ¶¶14-16; Volonte Decl. at ¶¶13-15; Uttermohlen Decl. at ¶¶16-20; Jacobson Decl. at ¶¶15-19; Stigile Decl. at ¶¶15-17. 26 Thatcher Decl. at ¶60. 27 Maurer Decl. at ¶7. 28 Id. 29 Thatcher Decl. at ¶60. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 6 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 14 of 28 1 filed a notice of removal, the case was assigned to the San Francisco Division of the Northern 2 District of California on March 24, 2006. On March 30, 2006, plaintiffs filed an Amended 3 Complaint with an additional claim alleging violation of Title III of the ADA. 4 III. This Court has often articulated the legal standard for the issuance of a preliminary 5 6 LEGAL STANDARD injunction: a plaintiff seeking preliminary injunctive relief must demonstrate either: “(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits [have been] raised and the balance of hardships tips sharply in [the plaintiff's] favor.” The components of these two tests, together with the added consideration of the public interest, operate on a sliding scale or “continuum.”30 7 8 9 10 Whether the sought-after injunction is deemed "mandatory" or "prohibitive," relief will issue 11 "where the injury complained of is [not] capable of compensation in damages."31 As DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 demonstrated below, plaintiffs fully satisfy these standards for preliminary relief. 13 IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS 14 A. 15 As a business that operates in California, Target Corporation is required to abide by 16 17 Plaintiffs’ Unruh Act Claim Will Succeed Because Target Corporation Is A Covered Entity That Unlawfully Discriminates Against The Blind. California civil rights laws. The Unruh Act states in pertinent part: All persons within the jurisdiction of this state are free and equal, and no matter what their … disability … are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.32 18 19 20 To succeed on this claim, plaintiffs need only show that (1) Target Corporation is a business 21 establishment; (2) target.com is one of the “accommodations, advantages, facilities, privileges, or 22 services” of Target Corporation; and (3) the blind lack “full and equal” access to target.com. 23 1. 24 25 Target Corporation Is A Business Establishment Within The Contemplation Of The Unruh Act. The California Supreme Court has repeatedly held that the Unruh Act should be liberally 26 27 28 30 Regents of the University of California v. Dakocytomation California, Inc., Slip Copy, 2006 WL 618769, at *3 (N.D. Cal., March 10, 2006) (internal citations omitted). 31 Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1979) (citations omitted). 32 Cal. Civ. Code §51(b). National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 7 Case 3:06-cv-01802-MHP Filed 05/08/2006 Page 15 of 28 1 construed to apply to the full gamut of business entities.33 For example, in O’Connor v. Village 2 Green Owners Association, the Supreme Court reasoned: The Legislature used the words “all” and “of every kind whatsoever” in referring to business establishments covered by the Unruh Act (Cal. Civ. Code § 51), and the inclusion of these words without any exception and without specification of particular kinds of enterprises, leaves no doubt that the term “business establishments” was used in the broadest sense reasonably possible…The word “establishment,” as broadly defined, includes not only a fixed location, such as the “place where one is permanently fixed for residence or business,” but also a permanent “commercial force or organization” or “a permanent settled position as in life or business.”34 3 4 5 6 7 8 In affirming an order of this Court, the Ninth Circuit reached the same conclusion.35 9 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 Target Corporation is a business establishment in the most traditional sense. Target not 10 only has 205 stores in California,36 but owns target.com, an online site where it sells merchandise 11 to California residents and provides information to California investors and prospective 12 employees.37 As a for-profit, publicly traded corporation conducting an immense amount of 13 retail business in California every day of every year, Target Corporation is clearly a permanent 14 commercial force and organization within California. 15 2. 16 The Unruh Act’s guarantee of full and equal access extends to a business establishment’s 17 18 19 20 21 22 23 24 25 26 27 28 Target.com Is A Service, Privilege, Facility, Advantage Or Accommodation Of Target Corporation. “accommodations, advantages, facilities, privileges, and services.”38 Target.com falls squarely within a number of those categories. Target.com is a “service” of Target Corporation in that it is, by its nature, a service, and is certainly not a service of any other business establishment. Moreover, just as a store is a “facility” of a retail company, so, too, target.com is a venue or 33 See Burks v. Poppy Const. Co., 57 Cal. 2d 463, 468-469 (1962); Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594, 621 (1995); O’Connor v. Village Green Owners Ass’n, 33 Cal. 3d 790, 795 (1983). 34 O'Connor, 33 Cal. 3d at 795 (quoting Burks, 57 Cal. 2d at 468). 35 See Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1050 (9th Cir. 2000) (holding that an insurance company is a business establishment within the meaning of the Unruh Act). 36 Target Corporation, “Company Overview”, http://investors.target.com/phoenix.zhtml?c=65828&p=irol-homeProfile (last visited May 4, 2006). 37 Thatcher Decl. at ¶20. 38 Cal. Civ. Code 51(b). National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 8 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 16 of 28 1 means that provides an opportunity to buy goods offered for sale by Target. Finally, target.com 2 is an advantage, privilege, service and/or accommodation offered by Target because it contains 3 employment information, investment information, product information and information 4 concerning in-store specials and price discounts and other in-store-related features. 5 3. Target.com Is Inaccessible And Thus Denies The Blind Full And Equal Access To Target’s Facilities, Privileges And Services. 6 Target does not provide the blind full and equal access to target.com. Target.com 7 contains thousands of accessibility barriers, including active images that do not have text 8 equivalents and form fields which do not have proper labels.39 These barriers deny the blind 9 access to target.com just as surely as staircases, narrow doorways and blocked aisles would deny 10 wheelchair users access to physical stores. Such barriers violate both the plain text and sweeping 11 intent of the Unruh Act’s “full and equal” access mandate. DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 13 4. If Intentional Discrimination Is An Element Of An Unruh Act Claim, Target’s Knowing Refusal To Remove Barriers Demonstrates Intent. 14 In Presta v. Peninsula Corridor Joint Powers Bd., Judge Henderson of this District held 15 that a plaintiff “need not demonstrate that defendants harbored discriminatory intent as an 16 element of her claim of disability discrimination under the Unruh Civil Rights Act.”40 The Ninth 17 Circuit has also rejected the suggestion that intentional discrimination is an element of all Unruh 18 Act claims.41 As Judge Henderson reasoned in Presta, [O]ften the most damaging instances in which rights of persons with disabilities are denied come not as the result of malice or discriminatory intent, but rather from benevolent inaction when action is required. Such discrimination may only be fought by a statute that prescribes liability without reference to an actor's intent.42 19 20 21 22 23 24 25 26 27 28 39 Thatcher Decl. at ¶¶24-60. Presta v. Peninsula Corridor Joint Powers Bd., 16 F. Supp. 2d 1134, 1136 (N.D. Cal. 1998). 41 Lentini v. California Center for the Arts, 370 F.3d 837, 847 (9th Cir. 2004) (“We find that… no showing of intentional discrimination is required where the Unruh Act violation is premised on an ADA violation”). 42 Presta, 16 F. Supp. 2d at 1136. Judge Henderson also reasoned that the Unruh Act’s incorporation of the ADA as a floor for liability belies any construction of the statute which would require an intent to discriminate, given that the ADA does not require such intent. Id. at 1135-1136. This is further confirmed by the fact that the “California courts have clearly and repeatedly held that the Unruh Act is to be interpreted ‘in the broadest sense reasonably possible,’ so as to achieve its purpose of combating discrimination in all its forms.” Id. (citing Isbister v. Boys’ Club of Santa Cruz, 40 Cal. 3d 72, 76 (1985)). 40 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 9 Case 3:06-cv-01802-MHP Filed 05/08/2006 Page 17 of 28 1 It may be that the Act requires intentional conduct in most cases that do not involve disability 2 discrimination.43 Nonetheless, as explained in Presta and Lentini, not all Unruh Act claims 3 require proof of intentional conduct.44 Even if the Unruh Act requires showing that Target acted intentionally, plaintiffs easily 4 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 5 meet their burden. Intentional discrimination under California law simply means that the 6 defendant has unlawfully engaged in wrongful and discriminatory conduct with “knowledge of 7 the effect [its conduct] was having on [] disabled persons.”45 Plaintiffs notified Target on May 5, 8 2005, that its website was inaccessible to the blind and that the site’s access barriers 9 discriminated against and excluded the blind from the benefits of that service.46 Plaintiffs 10 unsuccessfully attempted to convince Target through structured negotiations to make its website 11 accessible.47 The site remains largely inaccessible.48 As stated in plaintiffs’ Amended 12 Complaint, “Target has constructed a website that is inaccessible to class members; maintains the 13 website in this inaccessible form; and has failed to take action to correct these barriers even after 14 being notified of the discrimination that such barriers cause.”49 This certainly suffices to prove 15 intent under California law – if such a showing were necessary. 16 In sum, plaintiffs are clearly likely to prevail on the merits of their Unruh Act claim. 17 B. Plaintiffs’ Disabled Persons Act Claim Will Succeed Because Target.com Is An Accommodation, Advantage, Facility Or Privilege Of Target Stores. 18 The Disabled Persons Act (“DPA”) states that, 19 Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities . . . and 20 21 22 23 24 25 26 27 28 43 Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1175 (1991) (upholding dismissal of sex discrimination claim pled under disparate impact theory and holding that plaintiffs would have needed to plead intent to state Unruh Act claim). 44 See Presta, 16 F. Supp. 2d at 1135-1136; Lentini, 370 F.3d at 847. 45 Cf. Hankins v. El Torito Restaurants, Inc., 63 Cal. App. 4th 510, 518 (1998) (finding of intentional discrimination where plaintiff alleged that the defendant had “‘wrongfully and unlawfully denied accessible restroom facilities to physically handicapped persons,’ that it acted with ‘knowledge of the effect [its conduct] was having on physically disabled persons,’ and that [the plaintiff] was ‘discriminated against on the sole basis that he was physically disabled and on crutches.’”). 46 Maurer Decl. at ¶7. 47 Id. 48 Thatcher Decl. at ¶ 60. 49 First Amended Complaint, filed March 30, 2006, at ¶41. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 10 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 18 of 28 privileges of . . . places of public accommodation . . . or other places to which the general public is invited.50 1 2 Plaintiffs are also highly likely to prevail on this claim since Target’s retail stores in 3 California are denying blind persons an accommodation, advantage, facility or privilege of those 4 stores – to wit, target.com. The language of Section 54.1(a) et seq. reflects, “…a legislative 5 intent to afford broad protection,”51 forbidding covered entities from maintaining policies or 6 practices “unrelated to any structural impediment, which results in a denial of full and equal 7 access by a disabled individual to a public accommodation.”52 This statute clearly prohibits 8 policies and practices that have the effect of denying equal access to customers with disabilities 9 even in the absence of an intent to discriminate.53 10 1. 11 Target stores are unquestionably places of public accommodation under the DPA, and 12 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Target.com Is An Accommodation, Advantage, Facility Or Privilege Of Target Stores. 13 target.com is related to and integrated with these physical stores. Customers are able to browse 14 target.com for products for later purchase in Target stores,54 select products at Target stores for 15 use in conjunction with the online wedding and baby registries for purchase either online or at 16 the stores,55 place party orders for pickup at the store,56 and find and print out coupons for use in 17 Target stores.57 All of these features of target.com are clearly advantages and benefits only to 18 sighted users of Target’s stores and Target’s website. As Bruce Sexton has explained, “I often 19 use the product listings and descriptions on retail stores’ websites in order to research products, 20 compare prices, and make decisions about purchasing goods in the stores physical locations,” but 21 22 23 24 25 26 27 28 50 Cal. Civ. Code §54.1(a)(1). Hankins, 63 Cal. App. 4th at 523. 52 Id. 53 Id. at 519. 54 Thatcher Decl. at ¶20. 55 Target Corporation, “Target Club Wedd”, http://www.target.com/gp/registry/wedding.html (last visited May 4, 2006); Target Corporation, “Target Baby”, http://www.target.com/gp/registry/babyreg.html (last visited May 4, 2006). 56 Target Corporation, “Order Party Food”, http://sites.target.com/site/en/supertarget/page.jsp;jsessionid=ELXR4CMKRXWKBLARAAVP X5Y?title=supertarget_order_party (last visited May 4, 2006). 57 Target Corporation, “Target Weekly Ad”, http://weeklyad.target.com (last visited May 4, 2006). 51 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 11 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 19 of 28 1 “[u]pon accessing target.com on several occasions, I have become frustrated with inexplicable 2 code and garbled text that has prevented me from continuing to navigate through the site.”58 3 2. Failing To Provide Blind Customers Full And Equal Access To Target.com Violates The DPA. 4 Target’s maintenance of an inaccessible website violates the DPA because it denies full 5 and equal access to Target stores’ services. Maintaining target.com in its inaccessible state 6 constitutes a policy and practice that has the direct effect of denying blind persons access to 7 Target stores’ services. Moreover, Target can readily ensure full and equal access simply by 8 adopting and implementing the clear and simple web accessibility guidelines that are already 9 widely accepted and used by other businesses nationwide.59 Target’s failure to provide full and 10 equal access to the services offered by target.com clearly denies the blind equal access to the 11 advantages of shopping at Target stores, and thereby violates the DPA. DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 13 C. Plaintiffs’ ADA Claim Will Succeed Because Target.com Is A Service, Facility, Privilege, Advantage Or Accommodation Of Target Stores. 14 Title III of the ADA forbids places of public accommodation from discriminating against 15 people with disabilities in the provision of goods, services, facilities, privileges and advantages.60 16 A public accommodation which denies blind customers full and equal access to whatever 17 “goods,” “services,” “facilities,” “privileges,” and/or “advantages” that it provides to sighted 18 customers is thus discriminating in violation of Title III.61 The courts have held that Title III 19 forbids intangible as well as tangible barriers to access by persons with disabilities.62 Thus, to 20 prevail on the merits of their ADA claim, plaintiffs need only establish that Target stores are 21 places of public accommodation and that target.com is a service, facility, privilege or advantage 22 of those stores to which Target denies plaintiffs access, in whole or in part. For the reasons 23 discussed below, plaintiffs are highly likely to prevail on this basis. 24 58 25 26 27 28 Sexton Decl. at ¶¶16, 31. For similar examples of the barriers which the blind routinely experience in trying to use target.com, see Ayala Decl., Elder Decl., Jacobson Decl., Sexton Decl., Stigile Decl., Thomas Decl., Uttermohlen Decl., Volonte Decl. 59 Thatcher Decl. at ¶61. 60 42 U.S.C. §12182(a). 61 42 U.S.C. §12182(b). 62 Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002). National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 12 Case 3:06-cv-01802-MHP Filed 05/08/2006 Page 20 of 28 Defendant also violates several additional provisions of Title III of the ADA. Target has 1 2 failed to remove communication barriers from target.com, even though such removal is readily 3 achievable.63 Moreover, Target has failed to make reasonable modifications to its policy and 4 practice of maintaining an inaccessible website, even though such modifications are necessary 5 and even though Target cannot show that such modifications would fundamentally alter 6 target.com’s nature by making it something other than a website.64 Finally, Target has failed to 7 provide auxiliary aids or services where the absence of those aids or services excludes the blind, 8 even though this would not fundamentally alter the nature of the website nor result in an undue 9 burden.65 Each of these violations alone is enough to subject Target to liability under the ADA. 10 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 1. 11 Title III Applies to Target.com Because It Is A Service, Facility, Privilege, Advantage Or Accommodation Of Target Corporation’s Stores. 12 Target stores are sales establishments. As such, each is unquestionably a place of 13 public accommodation within the meaning of Title III.66 Target.com is a service provided 14 by Target that is related to and highly integrated with Target’s brick-and-mortar stores. 15 Examples of these store-related features include: • 16 a store locator, allowing persons who wish to shop at a Target store to learn its location, hours, and phone numbers;67 17 • 18 an online pharmacy, allowing a customer to order a prescription refill online for pickup at those Target stores which have pharmacies;68 19 • 20 an online photo shop, allowing a customer to order photo prints for pickup at a Target store;69 21 • 22 weekly ads, allowing a customer to know what items are on sale at a particular Target 23 24 63 See 42 U.S.C. §12182(b)(2)(A)(iv). See 42 U.S.C. §12182(b)(2)(A)(ii). 65 See 42 U.S.C. §12182(b)(2)(A)(iii). 66 See 42 U.S.C. §12182(7)(e). 67 Target Corporation, “Store Locator”, http://target.com/storelocator (last visited May 4, 2006). 68 Target Corporation, “Target Pharmacy”, http://sites.target.com/site/en/spot/page.jsp?title=pharmacy_home (last visited May 4, 2006). 69 Target Corporation, “Target Photo Center”, http://target.com/target_group/stores_services/photo_center.jhtml (last visited May 4, 2006). 64 25 26 27 28 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 13 Case 3:06-cv-01802-MHP Filed 05/08/2006 Page 21 of 28 store location;70 1 • 2 coupons for groceries, eyeglasses and portrait photos, among others, that customers may redeem at Target stores;71 3 • 4 online wedding and baby registries linked to Target’s in-store merchandise which allow customers of a Target store to purchase a gift for a target.com user;72 and 5 • 6 a party function, allowing customers to order deli products online for pickup at a local Target “superstore.”73 7 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 8 In addition, sighted Target customers can browse target.com to obtain product information about 9 a wide assortment of in-store items before going to the store to make a purchase, an advantage 10 denied to blind customers because of the inaccessibility of the website. All of these services are 11 clearly intended to enhance a consumer’s use of Target stores, adding benefits of convenience, 12 information and costs savings. 13 Courts have applied Title III to remove intangible barriers to a service that has a nexus 14 with a physical place of public accommodation. In Rendon v. Valleycrest Productions,74 the 15 barrier to a televised game show consisted of an automated telephone contestant selection 16 process, which the court determined was a screening device. The telephone contest, 17 however, was not fully accessible. Because the telephone contest had a nexus to the public 18 accommodation (a game show at a public studio), it was required to be accessible. The 19 court explained that, [A] reading of the plain and unambiguous statutory language at issue reveals that the definition of discrimination provided in Title III covers both tangible barriers, that is, physical and architectural barriers that would prevent a 20 21 22 23 24 25 26 27 28 70 Target Corporation, “Target Weekly Ad”, http://weeklyad.target.com (last visited May 4, 2006). 71 Target Corporation, “Supertarget”, http://sites.target.com/site/en/supertarget/page.jsp?title=supertarget_home (last visited May 4, 2006). 72 Target Corporation, “Target Club Wedd”, http://www.target.com/gp/registry/wedding.html (last visited May 4, 2006); Target Corporation, “Target Baby”, http://www.target.com/gp/registry/babyreg.html (last visited May 4, 2006). 73 Target Corporation, “Order Party Food”, http://sites.target.com/site/en/supertarget/page.jsp;jsessionid=ELXR4CMKRXWKBLARAAVP X5Y?title=supertarget_order_party (last visited May 4, 2006). 74 Rendon, 294 F.3d at 1280. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 14 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 22 of 28 disabled person from entering an accommodation's facilities and accessing its goods, services and privileges, and intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person's ability to enjoy the defendant entity's goods, services and privileges.75 1 2 3 4 Moreover, a place of public accommodation cannot discriminate against persons with 5 disabilities simply because, as with a website, the discrimination occurs off-site.76 Like the 6 inaccessible telephone system in Rendon that denied persons with disabilities an equal 7 opportunity to participate in the televised game show, the inaccessibility of target.com 8 denies blind persons an equal opportunity to receive and participate in many of the services 9 and advantages provided to sighted customers of Target stores through Target’s website. 10 2. Target Discriminates Against The Blind In Creating, Maintaining And Operating Target.com In An Inaccessible Manner. 11 The variety of barriers on target.com – such as the numerous graphics which do not have DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 text equivalents, the lack of html headings needed by blind persons using screen access software 13 to navigate through target.com, and the lack of proper labeling of form fields – make the website 14 15 virtually unusable by the blind.77 As Dr. Thatcher explains in his declaration, removing these communication barriers is not difficult.78 To the extent that making the website accessible will 16 require Target to modify its practices and procedures, such modifications would be reasonable 17 and would not fundamentally alter the nature of target.com. Indeed, for sighted users, target.com 18 would look and operate precisely as it does now.79 With respect to the provision of auxiliary aids 19 and services, removing the accessibility barriers would, again, not constitute a fundamental 20 alteration of the website, as it would only make the existing website accessible to the blind. 21 Moreover, the cost of making target.com accessible could not be an undue burden for a company 22 whose annual revenue exceeds fifty-two billion dollars. 23 D. Target Has Violated All Three Statutes. 24 The analysis for each of the three specific claims set forth above rests on a common core 25 26 27 28 75 Id. at 1283 (internal citations omitted). Id. at 1284-1285. 77 Thatcher Decl. at ¶60. 78 Id. at ¶¶12-13, 25, 61. 79 Id. at ¶13. 76 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 15 Case 3:06-cv-01802-MHP 1 Filed 05/08/2006 Page 23 of 28 of established legal principles and documented facts: 2 • Plaintiffs are a protected class under the applicable statutes.80 3 • Target.com is a service, privilege and advantage offered to customers of Target Corporation for the purchase of products and services sold by Target. 4 • 5 Target.com also is a service, privilege and advantage of Target stores in that it offers 6 information and features that provide many benefits to individuals seeking to locate and 7 attain the various goods, products, medicines and opportunities available in the stores 8 themselves. • 9 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 Blind individuals do not have full and equal access to target.com or the multiple benefits 10 connected to target.com because of the access barriers on the site.81 11 While the precise analysis varies somewhat with each statute, all end with the same 12 outcome. In the context of the Unruh Act, (1) Target Corporation is a “business establishment” 13 that (2) has failed and refused to ensure that blind individuals have “full and equal” access to one 14 of its “accommodations, advantages, facilities, privileges or services” – to wit, target.com. As to 15 the Disabled Persons Act and the ADA: (1) Target stores are “public accommodations;” (2) 16 target.com is a service, accommodation, advantage, facility and/or privilege of those stores; (3) 17 target.com has a nexus to and enhances the use of those stores; but (4) target.com is nonetheless 18 inaccessible to the blind.82 Given the established legal standards and facts, plaintiffs are likely to succeed on the 19 20 merits of all of their claims. A preliminary injunction is thus warranted to prevent Target from 21 continuing to deny blind persons full and equal access to target.com. 22 23 24 80 25 26 27 28 Maurer Decl. at ¶¶5-6; Sexton Decl. at ¶¶2, 6. Thatcher Decl. at ¶60-61. 82 Plaintiffs also allege in their Amended Complaint that target.com is itself a public accommodation within the reach of both the ADA and the Disabled Persons Act. Whether a website may be a place of public accommodation would be a matter of first impression as to the ADA in the Ninth Circuit and as to the Disabled Persons Act. However, the court need not resolve that question to grant a preliminary injunction in this case. Accordingly, Plaintiffs have not addressed that theory as a basis for preliminary relief. 81 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 16 Case 3:06-cv-01802-MHP 1 V. Document 20 Filed 05/08/2006 Page 24 of 28 THE FAILURE TO MAKE TARGET.COM ACCESSIBLE TO THE BLIND CAUSES IRREPARABLE HARM 2 Irreparable harm is presumed where a defendant engages in acts or practices prohibited 3 4 5 6 by a statute that provides for injunctive relief.83 The Unruh Act, Disabled Persons Act and ADA all explicitly provide for injunctive relief. 84 Accordingly, federal courts have recognized that violations of the disability access laws constitute irreparable injury per se.85 More generally, “injuries to individual dignity and deprivations of civil rights constitute irreparable injury.”86 7 Irreparable injury occurs when the unlawful acts have diminished a party’s “ability to function as 8 an independent person, according to her [or his] own self-definition.”87 Thus, Target’s violations 9 of statutes authorizing injunctions and its acts of discrimination both create a presumption of 10 irreparable injury to plaintiffs. 11 Plaintiffs have suffered and will continue to suffer significant irreparable harm DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 throughout this litigation, absent a preliminary injunction. No remedy at law can provide 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 83 See, e.g., Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 2001) (violation of Fair Housing Act); Smallwood v. National Can Co., 583 F.2d 419, 420 (9th Cir. 1978) (“this is an injunction issued in response to a statutory provision, and irreparable harm is presumed from the fact of the violation of the Act.”); Burlington Northern R. Co. v. Department of Revenue of State of Wash., 934 F.2d 1064, 1074 (9th Cir. 1991) (“When the evidence shows that the defendants are engaged in, or about to be engaged in, the act or practices prohibited by a statute which provides for injunctive relief to prevent such violations, irreparable harm to the plaintiffs need not be shown”) (internal citations omitted); United States by Mitchell v. Hayes Int’l Corp, 415 F.2d 1038, 1045 (5th Cir. 1969) (Civil Rights Act; “irreparable injury should be presumed from the very fact that the statute has been violated”); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.1984) (“irreparable injury may be presumed from the fact of discrimination and violation of fair housing statutes”). 84 Cal. Civ. Code § 52.1(b) (Unruh Act); Cal. Civ. Code § 55 (Disabled Persons Act); 42 U.S.C. § 12188(a) (ADA’s incorporation of the remedies and procedures set forth in the Civil Rights Act of 1964). 85 See, e.g., Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1084 (N.D. Cal. 1997); Pathways Psychosocial v. Town of Leonardtown, Md., 223 F. Supp. 2d 699, 717 (D. Md. 2002). 86 Cupolo, 5 F. Supp. 2d at 1084 87 Sullivan By and Through Sullivan v. Vallejo City Unified School Dist., 731 F. Supp. 947, 961 (E.D. Cal. 1990) (preliminary injunction issued ordering school district to allow disabled student to bring her service dog to school after Plaintiff showed that “she will likely suffer grave and irreparable injury if a preliminary injunction does not issue.” Court held that “neither an award of damages nor a permanent injunction following the conclusion of this litigation could possibly restore to plaintiff the loss of independence she is likely to suffer in the interim as a result of defendants' conduct.”); see also Keirnan v. Utah Transit Authority, 339 F.3d 1217, 1220 (10th Cir. 2003) (irreparable harm where Defendant’s conduct affects Plaintiffs ability to live their lives in an independent fashion). National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 17 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 25 of 28 1 plaintiffs with the ability to access target.com and the myriad of goods, services and information 2 that Target makes available only to its sighted customers.88 The lack of access to Target’s 3 website contributes to the exclusion and marginalization of blind people from the commercial 4 life of this country, an exclusion which prevents them from obtaining full and independent 5 participation in today’s technology-based society.89 Unless and until an injunction issues 6 requiring that target.com become accessible to the blind, Target will continue to treat plaintiffs as 7 second-class citizens, despite its vast resources and the relative ease of the fix. 8 VI. THE BALANCE OF HARDSHIPS TIPS HEAVILY IN PLAINTIFFS’ FAVOR 9 As noted, Target’s deprivation of plaintiffs’ right to be free from discrimination, 10 guaranteed by federal and state law, constitutes an irreparable injury which would be mitigated 11 by the issuance of a preliminary injunction. By contrast, the harm that an injunction would cause 12 Target is negligible. Target is one of the world’s largest retail companies. With over fifty billion 13 dollars in annual revenue, the amount Target will need to spend to remove accessibility barriers 14 from target.com is comparatively miniscule, and will not impede Target’s ability to operate as a 15 business. Indeed, once Target is fully accessible, it will likely recover the costs of barrier 16 removal with the resulting revenue from the sale of products and services that are currently 17 inaccessible to the blind. 18 VII. THE INJUNCTION PLAINTIFFS SEEK IS REASONABLE Plaintiffs request that Target be ordered to make target.com readily accessible to and 19 20 usable by blind people who use screen access software, within ninety (90) days. There are 21 several readily achievable ways Target can accomplish this. As just one example, Target can 22 implement the relevant provisions described in Priorities One and Two of the Web Accessibility 23 Initiative Guidelines of the World Wide Web Consortium (“W3C”).90 As described above, the 24 W3C is the leading standards organization of the World Wide Web. Given Target’s vast 25 88 26 27 28 Sexton Decl. at ¶¶30; Ayala Decl. at ¶¶ 14, 18; Elder Decl. at ¶12; Thomas Decl. at ¶¶15-16; Volonte Decl. at ¶¶14-15; Uttermohlen Decl. at ¶¶17-20; Jacobson Decl. at ¶¶15-16; Stigile Decl. at ¶13. 89 Sexton Decl. at ¶¶37; Ayala Decl. at ¶22; Elder Decl. at ¶18; Thomas Decl. at ¶20; Volonte Decl. at ¶¶20-21; Uttermohlen Decl. at ¶24; Jacobson Decl. at ¶¶14, 23; Stigile Decl. at ¶22. 90 Thatcher Decl. at ¶15. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 18 Case 3:06-cv-01802-MHP Filed 05/08/2006 Page 26 of 28 1 resources, there is no reason why it cannot easily comply with such standards. Indeed, in 2004, 2 the Attorney General of New York State entered into public settlement agreements with both 3 Priceline.com and Ramada Hotels requiring these major commercial entities to make their 4 websites accessible to the blind and visually impaired.91 Moreover, if Target encounters a 5 problem with any particular access issue, this Court’s injunction could allow Target an 6 opportunity to raise and resolve such particularized concerns through a meet and confer process 7 with plaintiffs. Thus, the injunction plaintiffs seek is reasonable and appropriate given the facts 8 and circumstances of this case. 9 VIII. AN INJUNCTION IS IN THE PUBLIC INTEREST A district court “must always consider whether the public interest would be advanced or 10 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 Document 20 11 impaired by issuance of an injunction in any action in which the public interest is affected.”92 12 Vindicating state and federally guaranteed rights against discrimination is indisputably in the 13 public interest.93 “California courts have clearly and repeatedly held that the Unruh Act is to be 14 interpreted ‘in the broadest sense reasonably possible,’ so as to achieve its purpose of combating 15 discrimination in all its forms.”94 Similarly, Congress has made clear in enacting the ADA that 16 the public interest lies in the eradication of discrimination against persons with disabilities, 17 declaring that the ADA’s purpose is “to provide a clear and comprehensive national mandate for 18 the elimination of discrimination against individuals with disabilities.”95 The injunctive relief 19 plaintiffs seek, as described below, is clearly necessary to achieve these anti-discrimination 20 91 21 22 23 24 25 26 27 28 Press Release, Office of the New York State Attorney General, “Spitzer Agreement To Make Web Sites Accessible To The Blind And Visually Impaired” (August 19, 2004) (at http://www.oag.state.ny.us/press/2004/aug/aug19a_04.html (last visited May 4, 2006)); Attorney General of the State of New York Internet Bureau, “In the Matter of Ramada Franchise Systems – Assurance of Discontinuance” (August 12, 2004), http://www.icdri.org/News/Ramada%20AOD.pdf; Attorney General of the State of New York Internet Bureau, “In the Matter of Priceline.com, Incorporated – Assurance of Discontinuance” (April 8, 2004), http://www.icdri.org/News/Priceline%20AOD.pdf. 92 American Motorcyclist Ass’n v. Watt, 714 F.2d 962, 967 (9th Cir. 1983). 93 See 11A Charles Allen Wright, Arthur A. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2948.4 at 207 (2nd ed. 1995) (where Congress has enacted a statute declaring the public interest, ordering compliance with the statute benefits the public interest). 94 Presta , 16 F. Supp. 2d at 1136 (citations omitted). 95 42 U.S.C. § 12101(b)(1). National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 19 Case 3:06-cv-01802-MHP 1 mandates. 2 IX. Document 20 Filed 05/08/2006 Page 27 of 28 THE COURT SHOULD WAIVE THE BOND REQUIREMENT OR ORDER A NOMINAL BOND 3 The Court should waive the bond requirement for preliminary injunctions. A court may 4 dispense with the bond requirement set out in Rule 65(c) of the Federal Rules of Civil Procedure 5 or only order a nominal bond when (1) there is little or no realistic likelihood of harm to the 6 7 defendant;96 (2) the balance of the potential hardships each party will suffer as a result of a preliminary injunction “weighs overwhelmingly in favor of the party seeking the injunction;”97 8 or (3) the moving party has demonstrated an overwhelmingly strong likelihood of success on the 9 merits.98 10 In the case at hand, there is little or no likelihood of harm to the defendant and the 11 balance of equities falls squarely in plaintiffs’ favor. Indeed, Target would likely benefit by DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 making the website accessible to more customers.99 Furthermore as in Cupolo v. Bay Area 13 Rapid Transit, “any additional costs that [Target] may incur will advance the public policy 14 established by the ADA of enhancing the accessibility of [public accommodations] to individuals 15 with disabilities.”100 Plaintiffs, as demonstrated by this record, have suffered and are likely to 16 17 18 19 20 21 22 23 24 25 26 27 28 96 See, e.g., Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878, 882-883 (9th Cir. 2003) (“bond amount may be zero if there is no evidence the party will suffer damages from the injunction”) (citing Gorbach v. Reno, 219 F.3d 1087, 1092 (9th Cir. 2000)); Doctor’s Associates, Inc. v. Stuart, 85 F.3d 975, 985 (2nd Cir. 1996) (affirming district court’s waiver of bond where Defendants did not show that they would suffer any harm absent the posting of a bond). 97 Cupolo, 5 F. Supp. 2d at 1086 (ordering bond of $100 in a disability access class action concerning access to an entire mass transit agency’s facilities). The Court in Cupolo held that a court “may waive Rule 65(c)'s bond requirement when the balance of the equities weighs overwhelmingly in favor of the party seeking the injunction.” 98 See, e.g., People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1325-1326 (9th Cir. 1985) (“The court has discretion to dispense with the security requirement…[where] the likelihood of success on the merits, as found by the district court, tips in favor of a minimal bond or no bond at all.”) (internal citations omitted); Scherr v. Volpe, 466 F2d 1027, 1035 (7th Cir. 1972) (finding no abuse of discretion in waiving bond requirement because “the amount of the security rests within the discretion of the district judge…[and the plaintiffs demonstrated a] strong likelihood of success on the merits[.]”). 99 See, e.g., Ayala Decl. at ¶21; Elder Decl. at ¶¶ 15, 17; Volonte Decl. at ¶16,19; Uttermohlen Decl at ¶24; Jacobson Decl. at ¶ 22; Stigile Decl. at ¶¶ 14,19, 21. 100 Cupolo, 5 F.Supp.2d at 1086. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 20 Case 3:06-cv-01802-MHP Document 20 Filed 05/08/2006 Page 28 of 28 1 continue to suffer irreparable harm as a result of Target’s neglect and refusal to act.101 Unless 2 Target is ordered to make its website accessible, plaintiffs will continue to be denied access to a 3 whole host of services which Target currently makes available only to sighted customers. 4 Finally, as demonstrated in Section IV, supra, there is a very high likelihood of success on the 5 merits in this case. Accordingly, waiver of the bond requirement is appropriate. 6 X. CONCLUSION 7 For all the foregoing reasons, plaintiffs request that the Court issue a preliminary 8 injunction ordering that, within ninety (90) days, Target ensure that target.com is readily 9 accessible to and usable by blind people who use screen access software. 10 11 DATED: May 8, 2006 DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644 12 13 DISABILITY RIGHTS ADVOCATES LAURENCE W. PARADIS MAZEN M. BASRAWI SCHNEIDER & WALLACE TODD M. SCHNEIDER JOSHUA KONECKY 14 15 BROWN, GOLDSTEIN & LEVY, LLP DANIEL F. GOLDSTEIN (pro hac vice) 16 17 By: 18 /s/ Laurence W. Paradis__ Laurence W. Paradis Attorneys for Plaintiffs 19 20 21 22 23 24 25 26 27 28 101 See Section V, supra. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Motion For Preliminary Injunction 21

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