National Federation of the Blind et al v. Target Corporation

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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)

National Federation of the Blind et al v. Target Corporation

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

LAURENCE W. PARADIS (California Bar No. 122336) [e-mail] MAZEN M. BASRAWI (California Bar No. 235475) [e-mail] DISABILITY RIGHTS ADVOCATES 2001 Center Street, Third Floor Berkeley, California 94704 Telephone: [phone] Facsimile: [phone] TTY: [phone] TODD M. SCHNEIDER (California Bar No. 158253) [e-mail] JOSHUA KONECKY (California Bar No. 182897) [e-mail] SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: [phone] Fax: [phone] TTY: [phone] DANIEL F. GOLDSTEIN (pro hac vice) [e-mail] BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore St., Suite 1700 Baltimore, MD 21202 Telephone: [phone] Fax: [phone] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 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, v. TARGET CORPORATION, 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

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Dockets.Justia.com

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TABLE OF CONTENTS I. II. INTRODUCTION AND SUMMARY OF ARGUMENT ................................................. 1 FACTS ................................................................................................................................ 2 A. B. C. D. III. IV. The Parties .............................................................................................................. 2 Making Websites Accessible To Blind Individuals Is Not Difficult. ..................... 4 Target Refuses To Make Its Website Accessible. .................................................. 5 NFB Attempted To Convince Target To Make Its Website Accessible................ 6

LEGAL STANDARD......................................................................................................... 7 PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ..................................... 7 A. Plaintiffs' Unruh Act Claim Will Succeed Because Target Corporation Is A Covered Entity That Unlawfully Discriminates Against The Blind....................... 7 1. 2. 3. 4. B. Target Corporation Is A Business Establishment Within The Contemplation Of The Unruh Act. ............................................................. 7 Target.com Is A Service, Privilege, Facility, Advantage Or Accommodation Of Target Corporation..................................................... 8 Target.com Is Inaccessible And Thus Denies The Blind Full And Equal Access To Target's Facilities, Privileges And Services. ............................ 9 If Intentional Discrimination Is An Element Of An Unruh Act Claim, Target's Knowing Refusal To Remove Barriers Demonstrates Intent. ...... 9

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Plaintiffs' Disabled Persons Act Claim Will Succeed Because Target.com Is An Accommodation, Advantage, Facility Or Privilege Of Target Stores. ................. 10 1. 2. Target.com Is An Accommodation, Advantage, Facility Or Privilege Of Target Stores. ............................................................................................ 11 Failing To Provide Blind Customers Full And Equal Access To Target.com Violates The DPA.................................................................. 12

Plaintiffs' ADA Claim Will Succeed Because Target.com Is A Service, Facility, Privilege, Advantage Or Accommodation Of Target Stores. ............................... 12 1. 2. Title III Applies to Target.com Because It Is A Service, Facility, Privilege, Advantage Or Accommodation Of Target Corporation's Stores. ............ 13 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

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TABLE OF CONTENTS (continued) VI. VII. VIII. IX. X. THE BALANCE OF HARDSHIPS TIPS HEAVILY IN PLAINTIFFS' FAVOR ......... 18 THE INJUNCTION PLAINTIFFS SEEK IS REASONABLE........................................ 18 AN INJUNCTION IS IN THE PUBLIC INTEREST ...................................................... 19 THE COURT SHOULD WAIVE THE BOND REQUIREMENT OR ORDER A NOMINAL BOND ........................................................................................................... 20 CONCLUSION................................................................................................................. 21

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TABLE OF AUTHORITIES CASES American Motorcyclist Ass'n v. Watt, 714 F.2d 962 (9th Cir. 1983) ................................................................................................ 19 Anderson v. United States, 612 F.2d 1112 (9th Cir. 1979) ................................................................................................ 7 Burks v. Poppy Const. Co., 57 Cal. 2d 463 (1962) ............................................................................................................. 8 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 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 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 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 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 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 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

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TABLE OF AUTHORITIES (continued) 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 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 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 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 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 STATUTES 42 U.S.C. § 12101(b)(1). .............................................................................................................. 19 42 U.S.C. § 12181........................................................................................................................... 2 42 U.S.C. § 12182(a) .................................................................................................................... 12 42 U.S.C. § 12182(b) .................................................................................................................... 12 42 U.S.C. § 12182(b)(2)(A)(ii) ..................................................................................................... 13 42 U.S.C. § 12182(b)(2)(A)(iii).................................................................................................... 13 42 U.S.C. § 12182(b)(2)(A)(iv) .................................................................................................... 13 42 U.S.C. § 12182(7)(e) ............................................................................................................... 13 42 U.S.C. § 12188(a) .................................................................................................................... 17 Cal. Civ. Code § 51......................................................................................................................... 1
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TABLE OF AUTHORITIES (continued) Cal. Civ. Code § 51(b) ............................................................................................................ 1, 7, 8 Cal. Civ. Code § 52.1(b) ............................................................................................................... 17 Cal. Civ. Code § 54.1(a)(1)....................................................................................................... 2, 11 Cal. Civ. Code § 55....................................................................................................................... 17 OTHER AUTHORITIES 11A Charles Allen Wright, Arthur A. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2948.4 (2nd ed. 1995) ................................................... 19

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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 matter may be heard by the above-entitled court located at 450 Golden Gate Avenue, San Francisco, California 94102, Courtroom 15, Plaintiffs National Federation of the Blind ("NFB"), NFB of California and Bruce Sexton will and hereby do move the Court for a preliminary injunction requiring Target Corporation ("Target") to make its website, target.com, readily accessible to and useable by blind persons who use screen-reading software. This motion is brought on the grounds that Target, by failing and refusing to make target.com accessible, is in violation of California's Unruh Civil Rights Act (California Civil Code §§ 51, et seq.), California's Disabled Person's Act (California Civil Code §§ 54, et seq.) and Title III of the Americans With Disabilities Act (42 U.S.C. §§ 12181, et seq.) and on the basis that these violations have and are causing irreparable injuries to the blind. This motion is based on this Notice of Motion and Motion, the supporting Memorandum of Points and Authorities and declarations filed herewith, and on such further written and oral argument as may be presented at or before the time the Court takes this motion under submission.

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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) By: /s/ Laurence W. Paradis__ Laurence W. Paradis Attorneys for Plaintiffs

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiffs move for a preliminary injunction to prevent Target Corporation ("Target") from continuing to deny blind individuals full and equal access to one of its major services ­ "target.com." Target.com is a website that links the public to a wide array of household goods, clothing, pharmaceutical services, pricing discounts, product information and employment opportunities that are available in Target's retail stores. Despite Target's substantial revenues (fifty-two billion dollars in 2005), Target does not incorporate basic, readily available technology commonly used by businesses to make their websites accessible to blind individuals. As evidenced by Target's recently filed Motion to Dismiss (which misstates both plaintiffs' allegations and the substantive legal requirements), Target refuses to acknowledge its obligation to make its website accessible to people with disabilities. Plaintiffs seek preliminary injunctive relief to prevent Target from continuing to deny blind persons full and equal access to one of its major services ­ "target.com." As shown below, plaintiffs meet both tests for issuance of a preliminary injunction. With respect to the need to demonstrate "likelihood of success" on the merits, plaintiffs do so on each of their statutory claims, although a strong case on only one would suffice. Plaintiffs succeed on their claim under the California Unruh Civil Rights Act1 because (1) Target is a "business establishment" subject to the Act; (2) target.com is one of Target's "accommodations, advantages, facilities, privileges or services;" and (3) Target does not make target.com available to the blind on a "full and equal" basis to non-disabled persons.2 Plaintiffs have a substantial likelihood of success under both the California Disabled Persons Act and Title III of the ADA because (1) Target's retail stores are places of public accommodation; (2) target.com is one of the "accommodations, advantages, facilities, privileges or services" of the retail stores; and (3) blind individuals do not have "full and equal access, as other members of the general public" to

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1 2

Cal. Civ. Code §§ 51, et seq. See Cal. Civ. Code § 51(b); Section IV.A., infra.

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this accommodation, advantage, facility, privilege, and/or service.3 The merits of the motion for preliminary injunction do not turn on whether target.com is itself a "place of public accommodation." That issue, while alleged as an alternative theory of liability in the Amended Complaint, need not be addressed or resolved at this time for plaintiffs to have a substantial likelihood of success on any of their other claims. As to the remaining considerations for issuance of a preliminary injunction, the California statutes at issue and the ADA all specifically authorize injunctive relief. It is wellestablished that harm caused by ongoing discrimination is irreparable.4 Moreover, the balance of hardships and public interest tip sharply in plaintiffs' favor: (1) meaningful access to the World Wide Web is an indispensable component of independent living for the blind in today's technology-dependent world; (2) the laws at issue permit the use of injunctions to eradicate ongoing discrimination; (3) Target has extensive resources to make target.com accessible; (4) established guidelines and readily available protocols exist to make websites accessible; (5) the Court can craft an order allowing Target to use such guidelines and protocols to make target.com readily accessible and usable by blind people within a reasonably defined period of time (e.g., 90 days); and (6) the injunction can provide Target an opportunity to resolve particularly identified difficulties that arise (if any) by conferring with plaintiffs. For all these reasons, plaintiffs request that the Court grant their motion for a preliminary injunction as set forth herein. II. FACTS A. The Parties

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Bruce Sexton, a blind student at the University of California Berkeley, employs screen access software to use the internet for a variety of daily activities, including banking, research, online shopping, e-mail and instant messaging.5 Target.com's many barriers, however, prevent

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.
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him from navigating that site.6 Its inaccessibility, in turn, diminishes Mr. Sexton's use of Target stores.7 The inaccessible features on target.com include product information on in store items, including brand, model, features and price; information concerning weekly specials at individual stores; coupons for store redemption; and other store-related services which Mr. Sexton would choose to use if they were accessible.8 Moreover, while sighted persons can browse, purchase and receive special discounts to Target's merchandise from the comfort of their home computer, Mr. Sexton must travel to a Target store.9 These inequalities unfairly burden Mr. Sexton.10 The National Federation of the Blind ("NFB") is the oldest and largest national advocacy organization of blind persons. The vast majority of its approximately 50,000 members are blind. The NFB is widely recognized by the public, Congress, executive agencies of government and the courts as a collective and representative voice on behalf of blind Americans and their families. Its purpose is to promote the general welfare of the blind by (1) assisting the blind in their efforts to integrate themselves into society on equal terms and (2) removing barriers and changing social attitudes, stereotypes, and mistaken beliefs that sighted and blind persons hold concerning the limitations created by blindness and that result in the denial of opportunity to blind persons in virtually every sphere of life.11 The NFB has brought this suit on behalf of its members and a proposed class of all blind persons throughout the United States who have and 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 become a significant concern to the NFB. Increasingly, the Web has become an essential means to deliver information, conduct business and interact socially. If the blind are to live and work independently in today's technology-dependent world, meaningful access to the Web is indispensable. To make the Web fully accessible, the NFB and many of its members have been
6

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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.
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actively developing and promoting adaptive technology for the blind, including screen readers, and basic improvements in web design.13 Target Corporation ("Target") is a leading national retailer that offers household goods and clothing, an in-store pharmacy and other services. Target's gross revenues exceeded fortysix billion dollars in 2004 and leapt to fifty-two billion dollars in 2005.14 More than 200 of its 1400 stores are in California.15 Through target.com, Target maintains an online business that provides a multitude of services, including online shopping of items also available in Target stores; web-exclusive merchandise; special offers, coupons and programs; a store locator allowing persons who wish to shop at Target to learn its locations, hours and phone numbers; online orders of prescriptions for pickup at certain Target stores; online placement of deli party orders for pickup at certain Target stores; online photo shops wherein photos can be ordered for pickup at a Target store; and wedding and baby registries linked to Target's in-store merchandise. The website also includes extensive information about Target's employment opportunities, investor relations and company policies.16 All these features are provided on target.com to be useful to sighted customers; they would be equally valuable to blind customers.17 B. Making Websites Accessible To Blind Individuals Is Not Difficult.

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To use websites, the blind rely on screen access software that reads the code behind the computer screen and text-to-speech software that vocalizes that information. (To best illustrate 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.
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how screen access software functions, the elements of web accessibility and the inaccessibility of target.com, plaintiffs are prepared to present their web access expert, Dr. James W. Thatcher, during the hearing on this Motion for Preliminary Injunction to testify and present an in-court demonstration on web-accessibility and/or provide a videotape of such a presentation, at the Court's discretion.)18 The use of screen access software by the blind is widespread.19 However, websites must be designed to allow adaptive software to work. Accordingly, long-accepted, comprehensive guidelines outline the design requirements for accessible websites. The most prominent set of guidelines are those of the Web Accessibility Initiative (WAI), a project of the 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 "alt tags" by web designers) that can be read by screen access software; (2) ensuring that all functions can be performed with a keyboard and not just a mouse; (3) ensuring that forms are labeled in ways the screen access software can recognize; and (4) adding invisible headings to links so that blind people can easily navigate the site.21 This technology has existed for years, does not affect the operation or appearance of the website for sighted people, and has been adopted not only by various federal, state and local governments to make their websites accessible, but also by many business and organizations both nationally and internationally.22 C. Target Refuses To Make Its Website Accessible.

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Defendant Target Corporation is a multi-billion dollar retail business with over 1400 retail stores and locations, selling its product line and offering a variety of special discounts and

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.
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services through its online site, target.com.23 In spite of its considerable resources, and the availability of technology and widely accepted procedures for achieving web accessibility, Target has failed to make its website accessible to the blind.24 Target's refusal prevents the blind from having access to the wide array of basic goods and services on target.com that Target makes available to sighted people. Target.com lacks the most basic requirements for accessibility. What the blind encounter at target.com is inexplicable code, garbled text, and unidentifiable product images.25 As 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 D. NFB Attempted To Convince Target To Make Its Website Accessible.

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Before filing this case, NFB notified Target of the website's many unlawful accessibility barriers.27 Although the NFB entered into a structured negotiation and tolling agreement with Target Corporation and agreed to extend it twice, negotiations proved fruitless and the agreement was allowed to expire.28 The website remains inaccessible.29 Accordingly, plaintiffs filed their complaint on February 6, 2006, in Alameda County Superior Court of California alleging violations of the Unruh Civil Rights Act and the California Disabled Persons Act. When Target 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.
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filed a notice of removal, the case was assigned to the San Francisco Division of the Northern District of California on March 24, 2006. On March 30, 2006, plaintiffs filed an Amended Complaint with an additional claim alleging violation of Title III of the ADA. III. LEGAL STANDARD This Court has often articulated the legal standard for the issuance of a preliminary 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 Whether the sought-after injunction is deemed "mandatory" or "prohibitive," relief will issue "where the injury complained of is [not] capable of compensation in damages."31 As demonstrated below, plaintiffs fully satisfy these standards for preliminary relief. IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS A. Plaintiffs' Unruh Act Claim Will Succeed Because Target Corporation Is A Covered Entity That Unlawfully Discriminates Against The Blind.

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As a business that operates in California, Target Corporation is required to abide by 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 To succeed on this claim, plaintiffs need only show that (1) Target Corporation is a business establishment; (2) target.com is one of the "accommodations, advantages, facilities, privileges, or services" of Target Corporation; and (3) the blind lack "full and equal" access to target.com. 1. 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
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).
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construed to apply to the full gamut of business entities.33 For example, in O'Connor v. Village 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 In affirming an order of this Court, the Ninth Circuit reached the same conclusion.35 Target Corporation is a business establishment in the most traditional sense. Target not only has 205 stores in California,36 but owns target.com, an online site where it sells merchandise to California residents and provides information to California investors and prospective employees.37 As a for-profit, publicly traded corporation conducting an immense amount of retail business in California every day of every year, Target Corporation is clearly a permanent commercial force and organization within California. 2. Target.com Is A Service, Privilege, Facility, Advantage Or Accommodation Of Target Corporation.

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The Unruh Act's guarantee of full and equal access extends to a business establishment's "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 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).
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means that provides an opportunity to buy goods offered for sale by Target. Finally, target.com is an advantage, privilege, service and/or accommodation offered by Target because it contains employment information, investment information, product information and information concerning in-store specials and price discounts and other in-store-related features. 3. Target.com Is Inaccessible And Thus Denies The Blind Full And Equal Access To Target's Facilities, Privileges And Services.

Target does not provide the blind full and equal access to target.com. Target.com contains thousands of accessibility barriers, including active images that do not have text equivalents and form fields which do not have proper labels.39 These barriers deny the blind access to target.com just as surely as staircases, narrow doorways and blocked aisles would deny wheelchair users access to physical stores. Such barriers violate both the plain text and sweeping intent of the Unruh Act's "full and equal" access mandate. 4. If Intentional Discrimination Is An Element Of An Unruh Act Claim, Target's Knowing Refusal To Remove Barriers Demonstrates Intent.

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39 40

In Presta v. Peninsula Corridor Joint Powers Bd., Judge Henderson of this District held that a plaintiff "need not demonstrate that defendants harbored discriminatory intent as an element of her claim of disability discrimination under the Unruh Civil Rights Act."40 The Ninth Circuit has also rejected the suggestion that intentional discrimination is an element of all Unruh 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

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)).
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It may be that the Act requires intentional conduct in most cases that do not involve disability discrimination.43 Nonetheless, as explained in Presta and Lentini, not all Unruh Act claims require proof of intentional conduct.44 Even if the Unruh Act requires showing that Target acted intentionally, plaintiffs easily meet their burden. Intentional discrimination under California law simply means that the defendant has unlawfully engaged in wrongful and discriminatory conduct with "knowledge of the effect [its conduct] was having on [] disabled persons."45 Plaintiffs notified Target on May 5, 2005, that its website was inaccessible to the blind and that the site's access barriers discriminated against and excluded the blind from the benefits of that service.46 Plaintiffs unsuccessfully attempted to convince Target through structured negotiations to make its website accessible.47 The site remains largely inaccessible.48 As stated in plaintiffs' Amended Complaint, "Target has constructed a website that is inaccessible to class members; maintains the website in this inaccessible form; and has failed to take action to correct these barriers even after being notified of the discrimination that such barriers cause."49 This certainly suffices to prove intent under California law ­ if such a showing were necessary. In sum, plaintiffs are clearly likely to prevail on the merits of their Unruh Act claim. B. Plaintiffs' Disabled Persons Act Claim Will Succeed Because Target.com Is An Accommodation, Advantage, Facility Or Privilege Of Target Stores.

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The Disabled Persons Act ("DPA") states that, Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities . . . and
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.
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privileges of . . . places of public accommodation . . . or other places to which the general public is invited.50 Plaintiffs are also highly likely to prevail on this claim since Target's retail stores in California are denying blind persons an accommodation, advantage, facility or privilege of those stores ­ to wit, target.com. The language of Section 54.1(a) et seq. reflects, "...a legislative intent to afford broad protection,"51 forbidding covered entities from maintaining policies or practices "unrelated to any structural impediment, which results in a denial of full and equal access by a disabled individual to a public accommodation."52 This statute clearly prohibits policies and practices that have the effect of denying equal access to customers with disabilities even in the absence of an intent to discriminate.53 1. Target.com Is An Accommodation, Advantage, Facility Or Privilege Of Target Stores.

Target stores are unquestionably places of public accommodation under the DPA, and target.com is related to and integrated with these physical stores. Customers are able to browse target.com for products for later purchase in Target stores,54 select products at Target stores for use in conjunction with the online wedding and baby registries for purchase either online or at the stores,55 place party orders for pickup at the store,56 and find and print out coupons for use in Target stores.57 All of these features of target.com are clearly advantages and benefits only to sighted users of Target's stores and Target's website. As Bruce Sexton has explained, "I often use the product listings and descriptions on retail stores' websites in order to research products, compare prices, and make decisions about purchasing goods in the stores physical locations," but
50 51

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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).
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"[u]pon accessing target.com on several occasions, I have become frustrated with inexplicable code and garbled text that has prevented me from continuing to navigate through the site."58 2. Failing To Provide Blind Customers Full And Equal Access To Target.com Violates The DPA.

Target's maintenance of an inaccessible website violates the DPA because it denies full and equal access to Target stores' services. Maintaining target.com in its inaccessible state constitutes a policy and practice that has the direct effect of denying blind persons access to Target stores' services. Moreover, Target can readily ensure full and equal access simply by adopting and implementing the clear and simple web accessibility guidelines that are already widely accepted and used by other businesses nationwide.59 Target's failure to provide full and equal access to the services offered by target.com clearly denies the blind equal access to the advantages of shopping at Target stores, and thereby violates the DPA. C. Plaintiffs' ADA Claim Will Succeed Because Target.com Is A Service, Facility, Privilege, Advantage Or Accommodation Of Target Stores.

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58

Title III of the ADA forbids places of public accommodation from discriminating against people with disabilities in the provision of goods, services, facilities, privileges and advantages.60 A public accommodation which denies blind customers full and equal access to whatever "goods," "services," "facilities," "privileges," and/or "advantages" that it provides to sighted customers is thus discriminating in violation of Title III.61 The courts have held that Title III forbids intangible as well as tangible barriers to access by persons with disabilities.62 Thus, to prevail on the merits of their ADA claim, plaintiffs need only establish that Target stores are places of public accommodation and that target.com is a service, facility, privilege or advantage of those stores to which Target denies plaintiffs access, in whole or in part. For the reasons discussed below, plaintiffs are highly likely to prevail on this basis. 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).
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Defendant also violates several additional provisions of Title III of the ADA. Target has failed to remove communication barriers from target.com, even though such removal is readily achievable.63 Moreover, Target has failed to make reasonable modifications to its policy and practice of maintaining an inaccessible website, even though such modifications are necessary and even though Target cannot show that such modifications would fundamentally alter target.com's nature by making it something other than a website.64 Finally, Target has failed to provide auxiliary aids or services where the absence of those aids or services excludes the blind, even though this would not fundamentally alter the nature of the website nor result in an undue burden.65 Each of these violations alone is enough to subject Target to liability under the ADA. 1. Title III Applies to Target.com Because It Is A Service, Facility, Privilege, Advantage Or Accommodation Of Target Corporation's Stores.

Target stores are sales establishments. As such, each is unquestionably a place of public accommodation within the meaning of Title III.66 Target.com is a service provided by Target that is related to and highly integrated with Target's brick-and-mortar stores. Examples of these store-related features include: · a store locator, allowing persons who wish to shop at a Target store to learn its location, hours, and phone numbers;67 · an online pharmacy, allowing a customer to order a prescription refill online for pickup at those Target stores which have pharmacies;68 · an online photo shop, allowing a customer to order photo prints for pickup at a Target store;69 · weekly ads, allowing a customer to know what items are on sale at a particular Target

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63 64

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).
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store location;70 · coupons for groceries, eyeglasses and portrait photos, among others, that customers may redeem at Target stores;71 · 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 · a party function, allowing customers to order deli products online for pickup at a local Target "superstore."73 In addition, sighted Target customers can browse target.com to obtain product information about a wide assortment of in-store items before going to the store to make a purchase, an advantage denied to blind customers because of the inaccessibility of the website. All of these services are clearly intended to enhance a consumer's use of Target stores, adding benefits of convenience, information and costs savings. Courts have applied Title III to remove intangible barriers to a service that has a nexus with a physical place of public accommodation. In Rendon v. Valleycrest Productions,74 the barrier to a televised game show consisted of an automated telephone contestant selection process, which the court determined was a screening device. The telephone contest, however, was not fully accessible. Because the telephone contest had a nexus to the public accommodation (a game show at a public studio), it was required to be accessible. The 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 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.
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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 Moreover, a place of public accommodation cannot discriminate against persons with disabilities simply because, as with a website, the discrimination occurs off-site.76 Like the inaccessible telephone system in Rendon that denied persons with disabilities an equal opportunity to participate in the televised game show, the inaccessibility of target.com denies blind persons an equal opportunity to receive and participate in many of the services and advantages provided to sighted customers of Target stores through Target's website. 2. Target Discriminates Against The Blind In Creating, Maintaining And Operating Target.com In An Inaccessible Manner.

The variety of barriers on target.com ­ such as the numerous graphics which do not have text equivalents, the lack of html headings needed by blind persons using screen access software to navigate through target.com, and the lack of proper labeling of form fields ­ make the website 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 require Target to modify its practices and procedures, such modifications would be reasonable and would not fundamentally alter the nature of target.com. Indeed, for sighted users, target.com would look and operate precisely as it does now.79 With respect to the provision of auxiliary aids and services, removing the accessibility barriers would, again, not constitute a fundamental alteration of the website, as it would only make the existing website accessible to the blind. Moreover, the cost of making target.com accessible could not be an undue burden for a company whose annual revenue exceeds fifty-two billion dollars. D. Target Has Violated All Three Statutes.

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The analysis for each of the three specific claims set forth above rests on a common core
75 76

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.
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of established legal principles and documented facts: · · Plaintiffs are a protected class under the applicable statutes.80 Target.com is a service, privilege and advantage offered to customers of Target Corporation for the purchase of products and services sold by Target. · Target.com also is a service, privilege and advantage of Target stores in that it offers information and features that provide many benefits to individuals seeking to locate and attain the various goods, products, medicines and opportunities available in the stores themselves. · Blind individuals do not have full and equal access to target.com or the multiple benefits connected to target.com because of the access barriers on the site.81 While the precise analysis varies somewhat with each statute, all end with the same outcome. In the context of the Unruh Act, (1) Target Corporation is a "business establishment" that (2) has failed and refused to ensure that blind individuals have "full and equal" access to one of its "accommodations, advantages, facilities, privileges or services" ­ to wit, target.com. As to the Disabled Persons Act and the ADA: (1) Target stores are "public accommodations;" (2) target.com is a service, accommodation, advantage, facility and/or privilege of those stores; (3) target.com has a nexus to and enhances the use of those stores; but (4) target.com is nonetheless inaccessible to the blind.82 Given the established legal standards and facts, plaintiffs are likely to succeed on the merits of all of their claims. A preliminary injunction is thus warranted to prevent Target from continuing to deny blind persons full and equal access to target.com.

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80

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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.
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V.

THE FAILURE TO MAKE TARGET.COM ACCESSIBLE TO THE BLIND CAUSES IRREPARABLE HARM Irreparable harm is presumed where a defendant engages in acts or practices prohibited

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 Irreparable injury occurs when the unlawful acts have diminished a party's "ability to function as an independent person, according to her [or his] own self-definition."87 Thus, Target's violations of statutes authorizing injunctions and its acts of discrimination both create a presumption of irreparable injury to plaintiffs. Plaintiffs have suffered and will continue to suffer significant irreparable harm throughout this litigation, absent a preliminary injunction. No remedy at law can provide 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).
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