National Federation of the Blind et al v. Target Corporation

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Memorandum in Opposition re 16 First MOTION to Dismiss Amended Complaint filed byNational Federation of the Blind, Bruce Frank Sexton, the National Federation of the Blind of California. (Attachments: # 1 Proposed Order Denying Target's Motion to Dismiss# 2 Request For Judicial Notice# 3 Declaration of Camilla L. Roberson# 4 Exhibit A# 5 Exhibit B# 6 Exhibit C)(Paradis, Laurence) (Filed on 6/12/2006)

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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' OPPOSITION TO DEFENDANT TARGET CORPORATION'S MOTION TO DISMISS Hearing Date: July 24, 2006 Time: 2:00 p.m. Judge: The Honorable Marilyn Hall Patel

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TABLE OF CONTENTS I. II. III. Introduction......................................................................................................................... 1 Factual Allegations ............................................................................................................. 2 Argument ............................................................................................................................ 4 A. Plaintiffs Properly State A Claim Under Title III Of The Americans With Disabilities Act........................................................................................................ 5 1. 2. B. Target Is Denying Full and Equal Access to A Service, Privilege And Advantage Of Target Stores........................................................................ 5 Congress Intended Title III To Apply To All Services Of A Public Accommodation, Including Newly Emerging Forms of Services. ............. 7

Plaintiffs Properly State A Claim Under The Unruh Act ..................................... 10 1. 2. 3. Target Corporation Is A Business Establishment That Unlawfully Discriminates Against The Blind.............................................................. 11 If Intentional Discrimination Is An Element Of An Unruh Act Claim, Target's Knowing Refusal To Remove Barriers Demonstrates Intent. .... 13 Plaintiffs' Claim Does Not Require Any Structural Construction Or Modification Of A Physical Structure. ..................................................... 15

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Plaintiffs Have Properly Stated A Claim Under The Disabled Persons Act. ....... 15 The Commerce Clause Does Not Bar Application Of Plaintiffs' State Law Claims. .................................................................................................................. 17 1. The Unruh Act and DPA Are Constitutional Because They Are Civil Rights Laws of General Application Which Do Not Conflict with the Laws of Other States and Which Have Local Benefits That Outweigh Whatever Incidental Burdens on Interstate Commerce That May Theoretically Exist. ................................................................................... 18 The Unruh Act and DPA may address conduct that occurs on the Internet. ..................................................................................................... 20

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TABLE OF AUTHORITIES CASES Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) ................................................................................... 6 American Library Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997)........................................................................................ 22 Arnold v. United Artists Theatre Cir., Inc., 158 F.R.D. 439 (N.D. Cal. 1994).......................................................................................... 16 Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959)........................................................................................................ 22, 24 Blum v. Stenson, 465 U.S. 886 (1984)................................................................................................................ 9 Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) .................................................. 17, 23 Brecht v. Abrahamson, 507 U.S. 619, 632 (1993)........................................................................................................ 8 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986).............................................................................................................. 19 Burks v. Poppy Const. Co., 57 Cal. 2d 463 (1962) ........................................................................................................... 11 C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).............................................................................................................. 18 Cashatt v. State, 873 So. 2d 430 (Fla. Dist. Ct. App. 2004) ............................................................................ 22 Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042 (9th Cir. 2000) .......................................................................................... 7, 11 Colo. Anti-Discrimination Comm'n v. Cont'l Air Lines, Inc., 372 U.S. 714 (1963).............................................................................................................. 24 Curran v. Mt. Diablo Council of the Boy Scouts of America, 17 Cal. 4th 670 (1998) .................................................................................................... 11, 12 Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) .......................................................................................... 9 Ferguson v. Friendfinders, Inc., 94 Cal. App. 4th 1255 (2002) ............................................................................................... 22 Ford Motor Co. v. Tex. Dep't of Transp., 264 F.3d 493 (5th Cir. 2001) .......................................................................................... 21, 22
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TABLE OF AUTHORITIES (continued) Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of Natural Resources, 504 U.S. 353 (1992).............................................................................................................. 18 Hankins v. El Torito Restaurants, Inc., 63 Cal. App. 4th 510 (1998) ..................................................................................... 14, 15, 16 Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142 (1991) ......................................................................................................... 14 Hatch v. Superior Ct., 80 Cal. App. 4th 170 (2000) ........................................................................................... 21, 22 Head v. N.M. Bd. of Examiners, 374 U.S. 424 (1963).................................................................................................. 19, 23, 24 Healy v. Beer Inst., Inc., 491 U.S. 324 (1989).............................................................................................................. 23 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960).............................................................................................................. 19 Ingels v. Westwood One Broadcasting Services, Inc., 129 Cal. App. 4th 1050 (2005) ....................................................................................... 11, 12 Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal. 3d. 72 (1985) ...................................................................................................... 14, 19 Kassel v. Consol. Freightways Corp. of Del., 450 U.S. 662 (1981).............................................................................................................. 22 Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824 (2005) .......................................................................................................... 14 Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837 (9th Cir. 2004) ................................................................................................ 13 Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881 (1976) .................................................................................................. 16 Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1377 (N.D. Ga. 2002) ......................................................................... 8 MaryCLE, LLC v. First Choice Internet, Inc., 890 A.2d 818 (Md. 2006) ..................................................................................................... 22 New Energy Co. of Ind. v. Limbach, 486 U.S. 269 (1988).............................................................................................................. 18 O'Connor v. Village Green Owners Ass'n, 33 Cal. 3d 790 (1983) ........................................................................................................... 11
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TABLE OF AUTHORITIES (continued) People v. Foley, 731 N.E.2d 123 (NY. 2000).................................................................................................. 22 People v. Hsu, 82 Cal. App. 4th 976 (2000) ........................................................................................... 21, 22 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).............................................................................................................. 19 Presta v. Peninsula Corridor Joint Powers Bd., 16 F. Supp. 2d 1134 (N.D. Cal. 1998) ............................................................................ 13, 14 Rendon v. Valleycrest Prod., 294 F.3d 1279 (11th Cir. 2002) ............................................................................................ 6 Roberts v. United States Jaycees, 468 U.S. 609 (1984).............................................................................................................. 19 Rotary Club of Duarte v. Bd. of Dir. of Rotary Club Int'l, 178 Cal. App. 3d 1035 (Ct. App. 1986).......................................................................... 10, 12 Rothman v. Emory Univ., 828 F. Supp. 537 (N.D. Ill. 1993) ........................................................................................... 8 S.D. Myers, Inc. v. City of San Francisco, 253 F.3d 461 (9th Cir. 2001) .............................................................................. 18, 19, 20, 24 Sherlock v. Alling, 93 U.S. 99 (1876).................................................................................................................. 18 Smith v. Jackson, 84 F.3d 1213 (9th Cir. 1996) .................................................................................................. 4 South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984).......................................................................................................... 18 State v. Backlund, 672 N.W.2d 431 (N.D. 2003) ............................................................................................... 22 State v. Heckel, 24 P.3d 404 (Wash. 2001), cert. denied, 534 U.S. 997 (2001)............................................. 22 State v. Snyder, 801 N.E.2d 876 (Ohio Ct. App. 2003).................................................................................. 22 Torres v. AT&T Broadband, LLC, 158 F. Supp. 2d 1035 (N.D. Cal. 2001) .................................................................................. 7 Valley Bank of Nev. v. Plus System, Inc., 914 F.2d 1186 (9th Cir. 1990) .............................................................................................. 19
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TABLE OF AUTHORITIES (continued) Van Winkle v. Allstate Ins. Co., 290 F. Supp. 2d 1158 (C.D. Cal. 2003) .......................................................................... 17, 23 Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594 (1995) .......................................................................................................... 11 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) ............................................................................................ 6, 7 STATUTES 29 U.S.C. §794d.............................................................................................................................. 7 42 U.S.C. §§12101, et seq. ......................................................................................................... 1, 3 42 U.S.C. §12101(b) ....................................................................................................................... 9 42 U.S.C. §12132............................................................................................................................ 8 42 U.S.C. §12181(7)(E).............................................................................................................. 4, 5 42 U.S.C. §12182(a) ................................................................................................................... 5, 9 42 U.S.C. §12182(b)(1)(A)(i) ......................................................................................................... 5 42 U.S.C. §12182(b)(1)(A)(ii).................................................................................................... 5, 6 42 U.S.C. §12182(b)(2)(A)(iii)....................................................................................................... 6 42 U.S.C. §12182(b)(2)(A)(iv) ....................................................................................................... 6 Cal. Bus. & Prof. Code §6157.1 ................................................................................................... 21 Cal. Civ. Code §§51, et seq. ....................................................................................................... 1, 3 Cal. Civ. Code §§54, et seq. ....................................................................................................... 1, 3 Cal. Civ. Code §§54.1(a), et seq. .................................................................................................. 16 Cal. Civ. Code §51(b) ................................................................................................................... 10 Cal. Civ. Code §51(d) ................................................................................................................... 15 Cal. Civ. Code §51(f).................................................................................................................... 13 Cal. Civ. Code §54.1(d) ................................................................................................................ 15 U.S. Const. art. I, §8, cl. 3............................................................................................................. 18

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TABLE OF AUTHORITIES (continued) OTHER AUTHORITIES 135 CONG REC. S4984, S4997 (1990) ............................................................................................ 9 Applicability of the Americans With Disabilities Act (ADA) to Private Internet Sites: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. 65-010 (2000)..................................................................................................... 8 Brief of the United States as Amicus Curiae in Support of Appellant, Hooks v. OKBridge, Inc., 232 F.3d 208 (5th Cir. 2000)......................................................... 9 H.R. REP. 106-1048, at 210 (2001)................................................................................................ 8 H.R. REP. NO. 101-485, pt. 2, at 108 (1990)................................................................................... 9 H.R. REP. NO. 101-485, pt. 3, at 26 (1990)..................................................................................... 9 Letter from the Assistant Attorney-General for Civil Rights to Senator Tom Harkin (September 9, 1996), 10 NDLR 240 .......................................................................................................... 9 State Bar of Calif. Stdg Comm. On Prof. Responsibility & Conduct, Formal Op. #2005-168.................................................................................................... 21, 24 State Bar of California Stdg Comm. On Prof. Responsibility & Conduct, Formal Op. # 2001-155......................................................................................................... 21

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I.

INTRODUCTION Plaintiffs, the blind of California and the United States, have brought this action against

Target Corporation ("Target") because they are being denied full and equal access to target.com. Target.com is an internet website which provides a variety of services, many relating to Target retail stores. The website is entirely inaccessible to the blind, who use screen reading software to navigate the internet. Plaintiffs' Amended Complaint ("Complaint") states claims under Title III of the Americans with Disabilities Act ("ADA") as well as California's Unruh Civil Rights Act ("Unruh Act") and California's Disabled Persons Act ("DPA").1 The principal animating theory of plaintiffs' Complaint is that target.com is a service of a place of public accommodation (Target's stores) in the case of the ADA and DPA, and a service of a business establishment (Target Corporation) in the case of the Unruh Act.2 Amended Complaint ("Compl.") ¶¶40, 49, 56. Target's motion to dismiss depends in great part on misconceiving the actual Complaint as premised entirely on the argument that target.com is itself a business establishment or a public accommodation. See, e.g., Target's Memorandum of Points and Authorities in support of its motion to dismiss ("Def. Mem.") at 11 ("Does the term `business establishment' include a retailer's website?"). In fact, that is just one alternative basis for one cause of action (the DPA claim). The core of the Complaint is that target.com is a service provided by Target Corporation ­ a service which is linked to Target's brick and mortar stores. Target does not even address these allegations of the Complaint and thus ignores the primary thrust of the case. Target also ignores established rules of statutory construction. Rather than looking to the plain meaning and intent of the statutes at issue, Target creates a wholly new and unrecognized rule wherein a statute may not apply to conduct on the internet until the statute has first been amended. Finally, Target offers an interpretation of the interstate commerce clause that would have the unprecedented effect of making the internet a haven from all state laws of general application that address matters of traditional state concern, from fraud to malpractice, so long as the
42 U.S.C. §§12101, et seq.; Cal. Civ. Code §§51, et seq.; Cal. Civ. Code §§54, et seq. The various statutes speak of services, privileges, advantages and accommodations. For brevity's sake, the argument will refer to "service" to encompass the entire litany.
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conduct occurred on the internet. None of these arguments warrants dismissing the Complaint. II. FACTUAL ALLEGATIONS Target is one of the country's largest retail companies, operating over 1400 stores in 47 states with 205 stores in California. Target owns, operates, and maintains target.com. Target.com is a commercial website that offers products and services for online sale and home delivery that are available in Target retail stores. The online store allows the user to browse products, product descriptions and prices; view sale items and discounts for online shopping; print coupons for use in Target retail stores; purchase items for home delivery; order pharmacy items and have prescriptions filled for pickup at Target retail stores; find retail store locations; and perform a variety of other functions. Target.com provides many features that are related to and integrated with the physical stores. Compl. ¶¶20-23. These include: · a store locator, allowing persons who wish to shop at a Target store to learn its location, hours, and phone numbers; · an online pharmacy, allowing a customer to order a prescription refill online for pickup at a Target store; · an online photo shop, allowing a customer to order photo prints for pickup at a Target store; · weekly ads, allowing a customer to know what items are on sale at a particular Target store location; · coupons for groceries, eyeglasses and portrait photos, among others, that may be redeemed at Target stores; · online wedding and baby registries to allow shoppers at a Target store to purchase a gift for a target.com user; · information about Target's REDcardSM program and other financial products and services offered by Target; · information about Target Corporation's employment opportunities, investor information and company policies; and · sale of many of the products and services available at Target stores.

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Compl. ¶23. However, Target has failed and refused to make target.com available to blind people. Target refuses to put the well-recognized and readily achievable coding on the website which is necessary for blind people to access the site with their screen access software. Compl. ¶¶ 27-29. By way of background, blind persons use screen access software to access internet websites. This software converts information on a computer screen to verbal speech through a voice synthesizer. Screen access software allows blind persons access to websites only if website designers and operators comply with widely known and available website programming guidelines. These include the use of alternative text ("alt-text") for graphics to allow screenreaders to recognize the graphical image, the provision of accessible image-maps, the labeling of form fields, the use of HTML markup headings for navigational purposes, and the accessibility of the functions of the website through a keyboard. Compl. ¶¶27-34. Target's website contains pervasive barriers that make the website unusable by blind persons: Target.com contains access barriers that prevent free and full use by blind persons using keyboards and screen reading software. These barriers are pervasive and include, but are not limited to: lack of alt-text on graphics, inaccessible image maps, the lack of adequate prompting and labeling; the denial of keyboard access; and the requirement that transactions be performed solely with a mouse. Compl. ¶29. These access barriers deny the blind full and equal access to, and enjoyment of, Target stores' goods and benefits. Compl. ¶36. The NFB notified Target of the access barriers existing on its website on May 5, 2005. The parties entered into a standstill/tolling agreement executed on September 1, 2005. Because the parties did not resolve the matter in structured negotiations, they allowed the agreement to expire. Compl. ¶37. Target's website remains inaccessible to the blind. Compl. ¶¶24-36. Plaintiffs assert four causes of action against Target: (1) violation of the California Unruh Civil Rights Act, Cal. Civ. Code §§51, et seq.; (2) violation of the California Disabled Persons Act, Cal. Civ. Code §§54, et seq.; (3) violation of Title III of the Americans With Disabilities Act, 42 U.S.C. §§12101, et seq.; and (4) declaratory relief based on the violation of federal and state law. Compl. ¶¶39-60. Plaintiffs' claim under Title III of the ADA alleges that "Target stores are sales
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establishments and public accommodations within the definition of Title III of the ADA. 42 U.S.C. §§12181(7)(E). Target.com is a service, privilege or advantage of Target stores. Target.com is a service that is by and integrated with these stores." Compl. ¶56. "Patrons of Target stores who are blind have been denied full and equal access to target.com, have not been provided services that are provided to other patrons through target.com who are not disabled, and/or have been provided services that are inferior to the services provided to non-disabled patrons." Compl. ¶60. The Complaint does not allege that target.com is itself a place of public accommodation for the purposes of the ADA. For their Unruh Act claim, plaintiffs allege that Target Corporation is a business establishment within the meaning of the Unruh Act, as it owns and operates 205 stores in California as well as selling goods and providing valuable services through its website to California citizens. Plaintiffs further allege that Target violates the Unruh Act by denying blind citizens full and equal access to and the use and enjoyment of one of its major services ­ target.com and, consequently, a myriad of other goods, services and advantages readily available to sighted customers on target.com. Target's conduct is intentional in that Target has constructed and maintained an inaccessible website even after being notified of its inaccessibility and the discrimination caused by such inaccessibility. Compl. ¶¶40-41. Plaintiffs' DPA claim alleges two theories of liability: (1) target.com is a public place within the meaning of the DPA to which Target denies the blind full and equal access; and (2) target.com is a service "provided by and integrated with" Target's brick and mortar stores, a service which is inaccessible to the blind. Compl. ¶¶48-49. III. ARGUMENT On a motion to dismiss for failure to state a claim, the court must assume the truth of all factual allegations in the complaint, and must construe them in the light most favorable to plaintiffs. See, e.g., Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). The Complaint, fairly construed, establishes that target.com is a service of a statutorily regulated entity well within the contemplation of constitutional statutes. Accordingly, the motion must fail.

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A.

Plaintiffs Properly State A Claim Under Title III Of The Americans With Disabilities Act.

Title III of the ADA states, "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. §12182(a) (emphasis added). Plaintiffs' Complaint is clear: "Target stores are sales establishments and public accommodations within the definition of Title III of the ADA. 42 U.S.C. §12181(7)(E). Target.com is a service, privilege or advantage of Target stores. Target.com is a service that is by and integrated with these stores." Compl. ¶56 (emphasis added). Target, however, treats the Complaint as though it asserted that under the ADA websites are places of public accommodation. Though websites are in fact covered entities under Title III, this case does not involve a retailer that only exists in cyberspace, and is not the occasion to litigate that issue. Thus, Target's discussion of cases addressing what can and cannot be places of public accommodation under the ADA fails to address the actual basis of the Title III claim in this case. 1. Target Is Denying Full and Equal Access to A Service, Privilege And Advantage Of Target Stores.

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Plaintiffs' claim under Title III of the ADA rests comfortably within the recognized contours of the statute. Target's physical stores throughout the country are clearly places of public accommodation governed by Title III. Title III of the ADA generally prohibits a covered entity from denying an individual or class of individuals an opportunity "to participate in or benefit from the goods, services, privileges, advantages, or accommodations of an entity." 42 U.S.C. §12182(b)(1)(A)(i). This opportunity must be equal to that afforded non-disabled individuals. 42 U.S.C. §12182(b)(1)(A)(ii). Title III further specifically obligates a covered entity to: (1) remove communication barriers where such removal is readily achievable; (2) modify its policies and practices where such modification would not cause a fundamental alteration; and (3) provide auxiliary aids and services to the extent this would not be an undue
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burden. 42 U.S.C. §§12182(b)(2)(A)(ii)-(iv). Target's refusal to remedy the barriers on target.com violates these prohibitions. Contrary to defendant's assertion that Title III is limited to physical barriers, Title III applies where, as here, the barrier to access is intangible or even off-site from the public accommodation. Courts have thus held that Title III applies to intangible barriers to a service that has a nexus with a physical place of public accommodation. In Rendon v. Valleycrest Productions, 294 F.3d 1279 (11th Cir. 2002), for example, the barrier to a public accommodation (a televised game show) consisted of an automated telephone contestant selection process that was not fully accessible. Rendon, 294 F.3d at 1280. 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 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. Rendon, 294 F.3d at 1283 (internal citations omitted). Moreover, the Eleventh Circuit explained, a place of public accommodation cannot discriminate against persons with disabilities simply because the discrimination occurs off site. Id. at 1284-85. So, too, Target has erected intangible barriers that deny the blind 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. In challenging plaintiffs' ADA cause of action, defendant's motion relies on several inapplicable cases. Defendant cites Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002), where the court held that a website ­ southwest.com ­ is not a place of public accommodation. While plaintiffs belief that case was wrongly decided, it has nothing to do with the issues at hand. Plaintiffs, again, have not alleged that target.com is a place of public accommodation within the meaning of Title III. Defendant also cites Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000), where the Ninth Circuit held that an employee insurance policy is not a place of public
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accommodation within the meaning of Title III. Weyer, 198 F.3d at 1114-15. The court stated that, "The principle of noscitur a sociis requires that the term, `place of public accommodation,' be interpreted within the context of the accompanying words, and this context suggests that some connection between the good or service complained of and an actual physical place is required." Id. at 1114. This connection is precisely what plaintiffs in this case allege in detail. See Compl. ¶¶20-23. In addition, defendant cites Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042 (9th Cir. 2000), where the court distinguished between access to and the content of goods and services. Chabner, 225 F.3d at 1047. The court's holding that Title III does not compel insurance companies to modify the content of their policies is much like a bookstore not being obligated to provide Braille books to its blind customers. Here plaintiffs are simply seeking access to the same goods, services and privileges that Target makes available to the general public. Finally, defendant cites Torres v. AT&T Broadband, LLC, 158 F. Supp. 2d 1035 (N.D. Cal. 2001), where plaintiff alleged that a digital cable program guide which assists a viewer in finding information on and watching programs on a home television was a place of public accommodation. Plaintiff in that case argued that the television became "a place of exhibition and entertainment" and that the digital cable box was a "facility" within the meaning of Title III. Torres, 158 F. Supp. 2d at 1037-38. Plaintiffs' allegations in this case are in no way comparable to the allegations in Torres. Target stores, and not the website, are the relevant places of public accommodation under the Title III claim in this case. The website here is indisputably a service, privilege, and/or advantage that is related to and integrated with those brick and mortar stores. Compl. ¶¶20-23, 56-60. 2. Congress Intended Title III To Apply To All Services Of A Public Accommodation, Including Newly Emerging Forms of Services.

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Target has suggested that the failure of Congress to amend the ADA means that a private retailer's website necessarily falls outside its scope and points, cryptically, to Congress' decision to require the federal government to utilize accessible software. 29 U.S.C. §794d. The Supreme
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Court has stated, however, that "[a]s a general matter, we are reluctant to draw inferences from Congress' failure to act." Brecht v. Abrahamson, 507 U.S. 619, 632 (1993) (internal citations omitted). Moreover, there has been no reason for Congress to amend the ADA to cover websites such as target.com since such websites already fall within the statute as a service, privilege, facility, advantage or accommodation of a public accommodation.3 Indeed, the same term "services," which appears also in Title II of the ADA, 42 U.S.C. §12132, dealing with public entities, has already been held broad enough to cover the website of a public entity where the website provided route and scheduling information for public transit. Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1377 (N.D. Ga. 2002). Target also points to a Congressional oversight hearing entitled Applicability of the Americans With Disabilities Act (ADA) to Private Internet Sites: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. 65-010 (2000) ("Hearing").4 The hearing was scheduled after the NFB brought suit against America Online (AOL) for accessibility. Def. Mem. at 5; see also H.R. REP. 106-1048, at 210 (2001) (noting that one of the developments leading to the hearing was that on November 2, 1999, the NFB filed a class action lawsuit against AOL). Target suggests, without any authority, that the Committee believed that the ADA did not yet apply to private websites. To the contrary, members of Congress noted that it was the opinion of the Department of Justice that the ADA applied to private websites and acknowledged that the state of the law was unsettled. Hearing at 7-9 (opening statement of Chairman Charles T. Canady). While some witnesses testified that the ADA needed to be amended to exclude the internet, Congress ultimately declined to enact such an exception to the statute's broad and far-reaching language. Id. at 7-163. The typical judicial approach to statutory construction is to begin with the words of the statute, then consider, if necessary, congressional materials. Blum v. Stenson, 465 U.S. 886, 896
3

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The ADA bar of discrimination in a public accommodation's "goods, services, facilities, privileges, advantages, or accommodations," has been broadly construed. See, e.g., Rothman v. Emory University, 828 F. Supp. 537, 541 (N.D. Ill. 1993) (a law school's recommendation to the bar is an ADA-covered service and privilege offered by a law school). 4 The referenced portions of the legislative history for this Committee hearing are submitted herewith in Plaintiffs' Request for Judicial Notice. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs' Opposition to Defendant Target Corporation's Motion To Dismiss

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(1984) ("Where, as here, resolution of a question of federal law turns on a statute and the intention of Congress, the court should look first to the statutory language and then to the legislative history if the statutory language is unclear."). Here, Target has not only eschewed consideration of why a website cannot be a service of a public accommodation, but has pointed to a subsequent committee hearing whose significance is ambiguous at best. Target's overly restrictive approach to the interpretation of the ADA stands in stark contradiction to Congress's intent. The purpose of the ADA, as stated in the statute itself, was: (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; ... (4) to invoke the sweep of congressional authority...in order to address the major areas of discrimination faced day-to-day by people with disabilities. 42 U.S.C. §12101(b) ("Purpose") (emphasis added). Congress's stated goal in enacting the ADA was to extend broad civil rights protections to people with disabilities, thus eliminating the need for further legislation in this area. H.R. REP. NO. 101-485, pt. 3, at 26 (1990). Congress's ultimate intent in enacting Title III was to provide persons with disabilities the right to participate fully in everyday life.5 The legislative record is also clear that Congress intended the ADA to apply to new and emerging technologies. The committee report states: Indeed, the Committee intends that the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times. This is a period of tremendous change and growth involving technology assistance and the Committee wishes to encourage this process. H.R. REP. NO. 101-485, pt. 2, at 108 (1990). Furthermore, Congress explicitly intended to remove barriers to information exchange. Id.6

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See remarks of Sen. John Kerry, 135 CONG REC. S4984, S4997 (1990) ("Talking on the telephone, following a sports game on television, or operating a word processor are all activities that most of us take for granted, yet they too are needlessly unavailable to many of the disabled."). 6 The U.S. Department of Justice, the entity charged with issuance of the regulations under Title III, has thus found that Title III applies to internet websites such as target.com whether or not there is a nexus to a physical store. See Brief of the United States Department of Justice as Amicus Curiae in Support of Appellant, Hooks v. OKBridge, Inc., 232 F.3d 208 (5th Cir. 2000) (available at http://www.usdoj.gov/crt/briefs/hooks.htm); see also Letter from the Assistant Attorney-General for Civil Rights to Senator Tom Harkin (September 9, 1996) (10 NDLR 240 available at http://www.usdoj.gov/crt/foia/cltr204.txt). See also Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) ("The core meaning of [42 U.S.C. §12182(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, Web site or other facility (whether in physical space or electronic National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs' Opposition to Defendant Target Corporation's Motion To Dismiss

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Application of Title III to Target's website service is well within the scope of the statute, consistent with applicable caselaw, and necessary to implement Congressional intent. Accordingly, defendant's motion to dismiss the ADA Title III cause of action should be denied. B. Plaintiffs Properly State A Claim Under The Unruh Act

As a business establishment that operates in California, Target Corporation is required to abide by the Unruh Act, which guarantees that persons with disabilities "are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ. Code §51(b). Thus, to state an independent claim under the Unruh Act, plaintiffs need only allege facts showing 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. The Complaint clearly does so. Compl. ¶40. The motion to dismiss shoots wide of the mark and focuses instead on the proposition that a retailer's website is not itself a "business establishment." Def. Mem. at 11-14. The Complaint alleges that Target Corporation is the business establishment in that Target is a forprofit corporation conducting business at its 205 stores in California and through target.com. Compl. ¶11. The Complaint further alleges that the website, target.com, is an accommodation, advantage, facility, privilege, or service of a business establishment ­ to wit, Target Corporation. The terms "accommodations, advantages, facilities, privileges and services of a business establishment" are clearly meant to encompass all the benefits which a business establishment offers. See, e.g., Rotary Club of Duarte v. Bd. of Dir. of Rotary Club Int'l, 178 Cal. App. 3d 1035, 1059 (Ct. App. 1986) (finding that benefits of Rotary Club membership included membership itself, receipt of the organization's magazine and publications, the right to wear the Rotary emblem and the opportunity to attend "business relation conferences"). The Complaint delineates the obvious benefits of target.com to Target's customers. Compl. ¶¶22-23.
space) . . . that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.") (emphasis added). The argument about whether Title III covers a website business that has no connection to a physical place of public accommodation, however, must await another case on another day. As discussed above, the complaint here concerns a website service which is extensively linked to and integrated with Target's physical stores. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs' Opposition to Defendant Target Corporation's Motion To Dismiss

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Target's approach is a novel and ultimately unsatisfactory approach to statutory construction. The proper starting point is the text of the statute and a determination as to whether target.com can be fairly said to be an accommodation, advantage, facility, privilege, or service of Target Corporation. Target has not and cannot argue otherwise. Since target.com is clearly a service of Target Corporation, and since the benefits of that service are being denied to the blind due to the pervasive access barriers, the claim should proceed. 1. Target Corporation Is A Business Establishment That Unlawfully Discriminates Against The Blind

The California Supreme Court has repeatedly held that the Unruh Act should be liberally construed to apply to the full gamut of business entities. 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). 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." O'Connor, 33 Cal. 3d at 795 (quoting Burks, 57 Cal. 2d at 468) (emphasis added). The Ninth Circuit reached the same conclusion. See Chabner, 225 F.3d at 1050 (holding that an insurance company is a business establishment within the meaning of the Unruh Act). Target Corporation is a business establishment in the most traditional sense: a for-profit, publicly traded corporation conducting a substantial retail business with California residents in California every day of every year. Target Corporation is clearly a permanent commercial force and organization within California. Defendant's reliance on Curran v. Mt. Diablo Council of the Boy Scouts of America, 17 Cal. 4th 670 (1998), and Ingels v. Westwood One Broadcasting Services, Inc., 129 Cal. App. 4th 1050 (2005), is misplaced. In Curran, the court decided that the internal membership policies of
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a non-profit organization fall outside the purview of the Unruh Act. Curran, 17 Cal. 4th at 69798. The court stated, The record establishes that the Boy Scouts is an organization whose primary function is the inculcation of a specific set of values in its youth members, and whose recreational facilities and activities are complementary to the organization's primary purpose. Unlike membership in the Boys' Club of Santa Cruz, Inc., membership in the Boy Scouts is not simply a ticket of admission to a recreational facility that is open to a large segment of the public and has all the attributes of a place of public amusement. Id. Target Corporation is nothing like the Boy Scouts. Rather, it is in every sense the traditional type of business that the California Supreme Court has found falls within the Act ­ a large-scale retailer without any function other than to profit from the sales of goods and services to the general public. Ingels is similarly inapplicable. In that case, the plaintiffs alleged that a talk show violated the Unruh Act by berating an on-air caller for their age. The court found that the Unruh Act could not be extended so as to violate the defendant's constitutional free-speech rights. Ingels, 129 Cal. App. 4th at 1072. Target cannot seriously assert that removal of the barriers which deny the blind access to its website would interfere with protected speech. Target also claims that the Unruh Act does not cover websites because the statute has not been amended to specifically mention websites. Target fails to explain, however, why any such amendment is necessary. The terms "advantages, facilities and privileges" have been in the statute since 1905 and have not been further refined, even though websites are but one of the many advantages, facilities and privileges that did not exist in 1905. Indeed in 1959, the language "all business establishments of any kind whatsoever" was substituted for the previous specific list of business establishments in order to ensure that the scope of the statute's coverage is comprehensive. There are many kinds of businesses today that did not exist in 1959. There is no rule of law that the legislature must determine every session what new services and what new business establishments have been created and amend the statute accordingly. Indeed, such an approach would be contrary to the Act's comprehensive intent. The Unruh Act, after all, "is to be liberally construed with a view to effectuating the purposes for which it was enacted," purposes which include interdicting "all arbitrary discrimination by a business enterprise." Rotary Club, 178 Cal. App. 3d at 1046-47.
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Target also argues that it cannot be held liable for violation of the Unruh Act because (i) no court has previously held that the Act applies to internet services such as target.com (the issue has not previously been addressed), and (ii) the Act contains a damage remedy along with the injunctive relief remedy. Under this reasoning, the Unruh Act could never be applied to cover a new type of business enterprise. The undisputed facts are that Target, a $52 billion-per-year business enterprise, was put on notice by plaintiffs that Target's website illegally excluded the blind, that Target refused to rectify this violation, and that Target now seeks to be excused from compliance with any state or federal access obligations concerning its inaccessible website service. Due process surely does not extend so far as to be a license to discriminate in the provision of goods and services by a major business establishment such as Target. None of the cases cited by defendant support such a proposition. Finally, the Unruh Act has been amended to incorporate defendant's obligations under the ADA. See Cal. Civ. Code §51(f). Defendant's violation of Title III of the ADA (see discussion above) thus also subjects defendant to liability for injunctive relief and damages under the Unruh Act. 2. If Intentional Discrimination Is An Element Of An Unruh Act Claim, Target's Knowing Refusal To Remove Barriers Demonstrates Intent.

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Target's insistence that the Unruh Act claim must be dismissed for want of a discriminatory intent fails on three grounds: (1) under Rule 9(b), Fed. R. Civ. P., intent may be generally averred; (2) disability discrimination claims do not require a discriminatory animus; and (3) the Complaint alleges specific facts amounting to intentional discriminatory conduct by Target. In Presta v. Peninsula Corridor Joint Powers Bd., 16 F. Supp. 2d 1134 (N.D. Cal. 1998), 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." Presta, 16 F. Supp. 2d at 1136. The Ninth Circuit has also rejected the suggestion that intentional discrimination is an element of all Unruh Act claims. Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir. 2004) ("We find that... no showing of intentional
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discrimination is required where the Unruh Act violation is premised on an ADA violation"). As Judge Henderson reasoned in Presta, often 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. Presta, 16 F. Supp. 2d at 1136. 7 It may be that the Act requires intentional conduct in most cases that do not involve disability discrimination. See, e.g., 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). However, this case clearly alleges disability discrimination and not just from benevolent inaction but also from a deliberate disregard after a defendant was specifically put on notice of the discrimination, yet chose to continue to exclude the blind from the benefits of its services.8 Accordingly, even if the Unruh Act requires 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." Hankins v. El Torito Restaurants, Inc., 63 Cal. App. 4th 510, 518 (1998). In Hankins, the court found 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.'" Id. In the case at hand, plaintiffs notified Target on May 5, 2005 that Target's website is inaccessible to

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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. Presta, 16 F. Supp. 2d 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)). 8 For this reason, the two cases Target cites, Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824 (2005) and Harris, 52 Cal. 3d 1142 (1991), are inapplicable, as neither involves disability discrimination. National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs' Opposition to Defendant Target Corporation's Motion To Dismiss

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the blind and that the site's access barriers discriminate against and exclude the blind from the benefits of that service. Plaintiffs unsuccessfully attempted to convince Target to make its website accessible. Compl. ¶37. The site remains inaccessible to the blind even now. Compl. ¶¶29-34. This certainly suffices for an allegation of intent under California law ­ if such a showing were necessary. 3. Plaintiffs' Claim Does Not Require Any Structural Construction Or Modification Of A Physical Structure.

Defendant relies on Cal. Civ. Code §51(d), which states in pertinent part: Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure... By its own terms, this provision applies solely to the alteration of physical structures, specifically establishments, facilities and buildings. Target's reliance on this provision is nothing less than ironic, given that it takes great pains to argue elsewhere that target.com is not a physical structure. In any event, the section simply does not purport to apply to the modification, alteration or repair of a service, privilege, accommodation or advantage. California courts have recognized that this provision does not bar Unruh Act claims relating to policies, practices and procedures such as those asserted by plaintiffs in this case. See Hankins, 63 Cal. App. 4th at 519520. C. Plaintiffs Have Properly Stated A Claim Under The Disabled Persons Act.

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The Disabled Persons Act 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 privileges of . . . places of public accommodation . . . or other places to which the general public is invited." Cal. Civ. Code §54.1(a)(1). Plaintiffs have properly stated a claim under the DPA for three reasons. First, the DPA (like the Unruh Act) incorporates the ADA by reference and the Plaintiffs have, as articulated above, properly pled a violation of the ADA. Cal. Civ. Code §54.1(d). Second, target.com is properly understood as an "accommodation, advantage, facility and privilege" of a place of
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public accommodation ­ to wit, Target stores in California. Third, although the Court need not reach this issue to deny the motion to dismiss, target.com is itself, under California law, a "place" to which the general public is invited. Target contends that the DPA cannot apply to a website. Def. Mem. at 19-21. Again the authority Target cites does not in fact support this proposition. California Civil Code §§54.1(a), et seq., reflects "...a legislative intent to afford broad protection." Hankins, 63 Cal. App. 4th at 523. In the Hankins case, the court explicitly held that the DPA prohibits a covered entity from maintaining a policy or practice "unrelated to any structural impediment, which results in a denial of full and equal access by a disabled individual to a public accommodation." Id. That is precisely the type of situation presented here ­ target.com is a service provided by and linked to Target's physical stores. Target's decision to make this website usable only by sighted customers results in a denial of full and equal access by blind customers to the servi