National Federation of the Blind v. Target Corporation – Summary and Update
National Federation of the Blind v. Target Corp., originally filed in California state court and removed last year to the Northern District of California, was one of several cases that finally motivated me to get this blog going (as you may have inferred from one of the bullet points in my first post). Now that Judge Patel has certified two classes in the case, I thought this would be a good time to put together a short (?) summary of the litigation.
Background. The case revolves around the accessibility of the defendant’s website – Target.com – to blind and visually-impaired persons, who “access websites by using keyboards in conjunction with screen-reading software which vocalizes visual information on a computer screen.” Plaintiffs include the National Federation of the Blind (“NFB”), National Federation of the Blind of California and Bruce F. Sexton. They allege in their First Amended Complaint that defendant Target Corporation (“Target”) denies “blind people throughout the United States equal access to the goods and services Target provides to its non-disabled customers through” Target.com. Plaintiffs note that the site “offers products and services for online sale and home delivery that are available in Target retail stores.”
Plaintiffs complain of “thousands of access barriers that make it difficult if not impossible for blind customers to use” Target.com. Specifically, plaintiffs allege that Target.com lacks alt-text on graphics, contains inaccessible image maps, lacks adequate prompting and labeling, denies keyboard access and requires that transactions be performed solely with a mouse. In order to demonstrate a nexus with Target’s stores (see below), plaintiffs also submitted affidavits pertaining to two alleged effects of such inaccessibility – diverted purchasers (persons deterred from going to a Target store after bad experiences with Target.com) and in-store barriers (increased time and expense incurred during in-store shopping as a result of the inaccessibility of Target.com).
Plaintiffs’ Claims. Plaintiffs allege violations of the federal Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act and Disabled Persons Act (“DPA”). They seek injunctive relief (including an order requiring Target “to take the steps necessary to make Target.com readily accessible to and usable by blind individuals), statutory damages, and declaratory relief. As you by now know, the complaint also asks for certification of a nationwide class and a California subclass.
Rulings on Defendant’s Motion to Dismiss the Complaint.
1. ADA claims
The court noted that “Plaintiffs’ legal theory is that unequal access to Target.com denies the blind the full enjoyment of the goods and services offered at Target stores, which are places of public accommodation.” In other words, the alleged place of public accommodation is the brick and mortar store, not the website, which gets most of plaintiffs’ ADA claims past the pleading stage. However, the court also ruled that “to the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under [the ADA].” Accordingly, pages on the website that offer goods for sale that cannot be purchased or ordered at a physical Target store are presumably dismissed by the court’s ruling.
2. State law claims
The court considered, in detail, Target’s argument that application of the California state laws to Target.com violates the “dormant” Commerce Clause. Yet the court explained that “[t]he commerce clause is not necessarily implicated since Target could choose to make a California-specific website.” The court concluded that “it is inappropriate at the motion to dismiss stage to assert a commerce clause violation based on the mere fact that Target, at the remedy stage, may ultimately choose to make its nationwide website accessible to the blind.”
[While the state law claims stand for the time being, Judge Patel probably did Target a favor by putting the Commerce Clause inquiry on hold, thereby allowing the company to raise it again later. Had she been pressed to rule on the issue as a matter of law, Judge Patel likely would have barred the defense. Which of course isn't to say she won't bar it at a future date.]
Ruling on Plaintiffs’ Motion for Preliminary Injunction. The court denied, without prejudice, plaintiffs’ motion for a preliminary injunction (which sought an order “directing Target to take affirmative steps . . . to change the programming of its websites to accommodate the blind.”), noting that “plaintiffs cannot demonstrate that the relevant facts clearly favor a finding that Target.com is inaccessible to the blind.”
Target’s Position. Target “denies the existence of any ‘accessibility barriers’” as alleged in a pre-complaint letter submitted by NFB, denies most of the allegations contained in the complaint, and denies that the plaintiffs “have suffered or incurred any injury or damage in this matter.” The company has also asserted twenty-one affirmative defenses to the plaintiffs’ claims, including disability law-related defenses, unconstitutional vagueness (due process), and violations of the (dormant) Commerce Clause.
Class Definition Ruling. Earlier this year, before ruling on class certification, the court modified the definition submitted by the plaintiffs for the putative nationwide class, essentially requiring a nexus between the website and a physical Target store, as required by the ADA. The new definition is set forth in the next section.
Certification of Nationwide class and California subclass. Last week Judge Patel granted plaintiffs’ motion for certification of a nationwide class (for claims arising under the ADA) and a California subclass (for violations of the two state laws). Unlike the ADA claim, the court concluded, with respect to the claims arising under the two California statutes, that “[n]o nexus to the physical stores need be shown.”
Accordingly, the nationwide class consists of “all legally blind individuals in the United States who have attempted to access Target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores.” The California subclass consists of “all legally blind individuals in California who have attempted to access Target.com.”
Next up – merits discovery, perhaps followed by a summary judgment motion from Target.
- While considering the dormant Commerce Clause defense in connection with plaintiffs’ motion to dismiss, the court almost seemed to taunt federal lawmakers and encourage more state legislation and/or lawsuits in this area: “[T]he lack of congressional action explicitly addressing accessibility requirements for private websites should not be construed to bar the extension of the protections of California statutes to these websites.”
- I wonder if Target is rethinking its decision to forego a jury trial. While the case has yet to reach the merits, the court comes across as somewhat cold toward the company’s position/sympathetic to plaintiffs, at one point suggesting that Target “seeks to escape the requirements of the ADA.” (emphasis added).
- The dismissal of ADA claims with no nexus to physical Target stores is good news for dot coms with no brick and mortar stores open to the public. However, the court ruled that the state claims here require no such showing. Another reason to keep following this case.
- Again the court has not yet ruled on the merits. However, it did note that one question of law to be resolved is “whether Target has satisfied its obligations under the relevant statutes by accommodating access including, but not limited to, providing a customer service telephone number.” While I know nothing about the accessibility of Walmart.com, and am not familiar with any reasonable accommodation decisions on this issue, Walmart may want to reconsider its recent decision to eliminate telephonic customer service for its website users. Here’s a more recent account of Walmart’s move.
- I am by no means the first person to blog on this case, or the court’s certification decision. Check out recent posts by Eric Goldman and Thomas O’Toole.
- Law.com recently published an interesting article relating to this and similar disputes, identifying several which culminated in settlements.
- The American Bar Association has weighed in on the issue with a resolution relating to accessibility standards for law-related websites.