National Federation of the Blind et al v. Target Corporation

Filing 29

Opposition To 20 Plaintiffs' Motion for Preliminary Injunction filed by Target Corporation. (Naeve, Robert) (Filed on 6/13/2006) Modified on 6/14/2006 (gba, COURT STAFF).

National Federation of the Blind et al v. Target Corporation

Doc. 29

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 1 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ROBERT A. NAEVE (CA SBN 106095) [e-mail] MORRISON & FOERSTER LLP 19900 MacArthur Blvd. Irvine, California 92612-2445 Telephone: [phone] Facsimile: [phone] DAVID F. MCDOWELL (CA SBN 125806) SARVENAZ BAHAR (CA SBN 171556) MICHAEL J. BOSTROM (CA SBN 211778) [e-mail] [e-mail] [e-mail] MORRISON & FOERSTER LLP 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: [phone] Facsimile: [phone] STUART C. PLUNKETT (CA SBN 187971) [e-mail] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant TARGET CORPORATION 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.

C06-01802 MHP

TARGET CORPORATION'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Date: July 24, 2006 Time: 2:00 p.m. Judge: The Honorable Marilyn Hall Patel

TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

la-860849
Dockets.Justia.com

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 2 of 41

1 2

TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT.............................................................. 1

3 4 5 6

STATEMENT OF FACTS.............................................................................................................. 4 I. NFB FAILS TO MAKE A FACTUAL SHOWING THAT TARGET.COM'S GOODS AND SERVICES ARE INACCESSIBLE TO BLIND PERSONS ..................... 4 A. B. Blind Persons Can, In Fact, Access Target.com's Goods And Services With Screen Readers ............................................................................................... 5 NFB's Declarations From Blind Users Of Target.com Do Not Establish That The Website's Design Makes It Inaccessible.................................................. 6 No One Contests That The Goods And Services Of Target.com Are Accessible Using Target.com's 1-800 Number....................................................... 8 NFB's Expert Declaration Is Irrelevant To The Question Of Whether Target.com Is Accessible ........................................................................................ 8

7 8 9 10 11 12 13 14 15 16 17 18 19 D. 20 21 22 B. C. II. C. D.

NFB FAILS TO IDENTIFY THE STANDARDS IT WOULD HAVE THE COURT IMPOSE UPON TARGET CORPORATION IN THE REQUESTED MANDATORY INJUNCTION .......................................................................................... 9 NFB'S REQUEST FOR A MANDATORY INJUNCTION IS SUBJECT TO A HEIGHTENED STANDARD........................................................................................... 12 NFB FAILS TO DEMONSTRATE A CLEAR LIKELIHOOD OF SUCCESS ON ITS CLAIM UNDER TITLE III OF THE ADA AS A MATTER OF LAW ................... 13 A. Title III Of The ADA Prohibits Persons Who Own Or Operate Places Of Public Accommodation From Discriminating With Respect To The Goods And Services "Of Any Place Of Public Accommodation" ................................... 13 The Parties Agree That Defendant Target Corporation "Owns And Operates" Places Of Public Accommodation........................................................ 13 NFB Claims That Target's Bricks And Mortar Retail Stores ­ And Not The Target.com Website Itself - Constitute "Places Of Public Accommodation"....... 14 NFB Cannot Establish Discrimination With Respect To The Goods And Services "Of Any Place Of Public Accommodation" ........................................... 14 1. NFB Cannot Establish The Required Nexus Between Allegedly Inaccessible Features Of The Target.com Website And Target's Bricks And Mortar Retail Stores ............................................................... 15 NFB Cannot Rely Upon The Eleventh Circuit's Holding In Rendon To Support Its Claims................................................................................ 16

ARGUMENT ................................................................................................................................ 12 I. II.

2. 23 24 25 26 27 28 III. IV.

NFB CANNOT DEMONSTRATE AS A MATTER OF FACT THAT TARGET.COM IS A "SERVICE OF" TARGET'S RETAIL STORES .......................... 18 EVEN IF NFB COULD ESTABLISH THAT TITLE III OF THE ADA APPLIED TO TARGET.COM, IT CANNOT ESTABLISH THAT THE FACTS "CLEARLY FAVOR" A JUDGMENT IN ITS FAVOR ................................................. 19 A. NFB Fails To Demonstrate That Target.com Is Inaccessible To Blind Persons Using Screen Readers .............................................................................. 19

TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

i

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 3 of 41

1 2 3 4 5 6 V.

B.

NFB Has Not Established That Target Violated Section 12182(b)(2)(A)'s "Specific Prohibitions".......................................................................................... 21

NFB FAILS TO ESTABLISH A CLEAR LIKELIHOOD OF SUCCESS ON ITS STATE LAW CLAIMS .................................................................................................... 23 A. Interpreting California's Access Statutes As Applying To The Internet Would Violate The Commerce Clause.................................................................. 23 1. If The Unruh Act And Disabled Persons Act Applied To Internet Websites, California Would Be Impermissibly Regulating Conduct Occurring Outside Of Its Borders ............................................................. 24 Any Regulation Of The Internet Must Be Instituted At The National Level ........................................................................................... 26

2. 7 8 9 10 11 VI. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. VIII. B.

Even If California's Access Statutes Did Apply To The Internet, They Do Not Require Target Corporation To Alter Or Modify Its Website........................ 28 1. 2. The Unruh Act Does Not Require Target Corporation To Alter Or Modify Its Website .................................................................................... 28 The Disabled Persons Act Does Not Require Target Corporation to Alter or Modify Its Website ...................................................................... 30

NFB HAS NOT DEMONSTRATED IRREPARABLE HARM OR THAT THE BALANCE OF HARDSHIPS TIPS IN ITS FAVOR....................................................... 32 NFB HAS PROVIDED INSUFFICIENT DETAIL TO SATISFY THE SPECIFICITY REQUIREMENT OF RULE 65(D) ......................................................... 33 IF THE INJUNCTION IS GRANTED, THE COURT SHOULD REQUIRE A BOND THAT COVERS TARGET CORPORATION'S COMPLIANCE COSTS ......... 34

CONCLUSION ............................................................................................................................. 35

TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

ii

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 4 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CASES ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) ............................................................................................... 25 Am. Booksellers Found. v. Dean, 342 F.3d 96, 103 (2d Cir. 2003) ........................................................................................ 24, 25 Am. Libraries Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) ................................................................................... 25, 27 Arnold v. United Artists Theatre Cir., Inc., 158 F.R.D. 439, 446 (N.D. Cal. 1994) .................................................................................... 30 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ............................................................................................................... 24 Colin ex rel. Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135 (C.D. Cal. 2000).................................................................................... 34 Ctr. for Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004)....................................................................................... 25 D'Lil v. Stardust Vacation Club, No. Civ-S-00-1496 DFL-PAN 2001 U.S. Dist. LEXIS 23309, *15 (E.D. Cal. Dec. 20, 2001) ......................................................................................................................... 21 Dahl v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993)........................................................................................... 12 Diamond Multimedia Sys., Inc. v. Super. Ct., 19 Cal. 4th 1036, 1059-60 (1999) ........................................................................................... 25 Dobard v. San Francisco Bay Area Rapid Transit Dist., No. C-92-3563-DLJ 1993 U.S. Dist. LEXIS 13677, *10 (N.D. Cal. Sept. 7, 1993)........................................................................................................................................ 22 Ford v Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) .................................................................................................... 15 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) ........................................................................................... 22, 33 Hankins v. El Torito Restaurants, Inc., 63 Cal. App. 4th 510 (1998).................................................................................................... 31 Hart v. Cult Awareness Network, 13 Cal. App. 4th 777 (1993).................................................................................................... 26 Healy v. Beer Inst., 491 U.S. 324 (1989) .......................................................................................................... 24, 26 Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999) ................................................................................................... 34 Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003) ................................................................................................... 34 Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 734 (1982)...................................................................................................... 31 Marsh v. Edwards Theatres Cir., Inc., 64 Cal. App. 3d 881, 890 (1976) ................................................................................. 29, 30, 31
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

i

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 5 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984) ............................................................................................. 1 Nintendo of Am. v. Lewis Galoob Toys, 16 F.3d 1032 (9th Cir. 1994) ................................................................................................... 34 Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997) ................................................................................. 13, 19 PGA Tour Inc. v. Martin, 532 U.S. 661 (2001) ................................................................................................................ 22 Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002) ........................................................................................ passim Reno v. ACLU, 521 U.S. 844 (1997) ................................................................................................................ 16 S. Pac. v. Ariz., 325 U.S. 761, 767 (1945) .................................................................................................. 26, 27 Se. Booksellers Ass'n. v. McMaster, 371 F. Supp. 2d 773 (D.S.C. 2005) ......................................................................................... 25 Silver Sage Partners, LTD. v. City of Desert Hot Springs, 251 F.3d 814 (9th Cir. 2001) ................................................................................................... 32 Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) ..................................................................................... 1, 12 Stoutenborough v. Nat'l Football League, 59 F.3d 580, 583 (6th Cir. 1995) ....................................................................................... 15, 19 United States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005) ........................................................................................... 13 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) ........................................................................................... 14, 19 Wilson v. Pier 1 Imports (US), Inc., No. Civ. S-04-633 LKK/CMK 2006 U.S. Dist. LEXIS 21216 (E.D. Cal. Apr. 12, 2006).................................................................................................................................. 20 CONSTITUTIONS, STATUTES AND REGULATIONS 28 C.F.R. § 36.303(a) .................................................................................................................... 22 29 U.S.C. § 701, Rehabilitation Act of 1973, ..................................................................................................... 10 29 U.S.C. § 794d(a)(1)(A)(i)-(ii)................................................................................................... 10 29 U.S.C. § 794d(a)(2)(A)............................................................................................................. 10 36 C.F.R. § 1194.22 ...................................................................................................................... 10 42 U.S.C. § 12101 Title III of the Americans with Disabilities Act,....................................................................... 1 42 U.S.C. § 12181(7)(E) ............................................................................................................... 13 42 U.S.C. § 12182(a)..................................................................................................................... 13 42 U.S.C. § 12182(b)(2)(A) .......................................................................................................... 21 42 U.S.C. § 12182(b)(2)(A)(ii) ..................................................................................................... 21
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

ii

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 6 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

42 U.S.C. § 12182(b)(2)(A)(iii) .................................................................................................... 22 42 U.S.C. § 12812(a)..................................................................................................................... 19 42 U.S.C. § 2182(b)(2)(A)(iv)....................................................................................................... 21 56 Fed. Reg. 35544, 35566............................................................................................................ 22 Cal. Civ. Code § 51 Unruh Civil Rights Act,............................................................................................................. 2 Cal. Civ. Code § 51(d)................................................................................................................... 28 Cal. Civ. Code § 54, Blind and Other Physically Disabled Persons Act .................................................................... 2 California Government Code § 4450 ............................................................................................ 30 Fed. R. Civ. P. 65 Adv. Comm. Notes .......................................................................................... 33 Fed. R. Civ. P. 65(d)...................................................................................................................... 32

TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

iii

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 7 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

INTRODUCTION AND SUMMARY OF ARGUMENT NFB's motion for a preliminary injunction requiring Target Corporation to modify its website to make it "accessible" to blind persons using screen access software fails on a number of grounds and should be denied. As a preliminary matter, NFB cites the wrong standard for the relief it seeks and improperly glosses over the distinction between injunctions that seek to preserve the status quo and those that require affirmative conduct. In the Ninth Circuit, mandatory preliminary relief -- which is what NFB seeks -- "is subject to a higher degree of scrutiny because such relief is particularly disfavored . . . ." Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (emphasis added). District courts "should be extremely cautious about issuing" mandatory injunctions, Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984), and they may only be granted if "the law and the facts clearly favor" the moving party, Stanley, 13 F.3d at 1320 (emphasis added). NFB fails to satisfy the ordinary standard for preliminary relief, and comes no where near meeting the added burden of demonstrating that the law and facts "clearly favor" issuance of an injunction. Target Corporation is sensitive to the needs of its blind customers, and NFB acknowledges that Target Corporation has engaged in a "structured negotiation" in an attempt to hear and resolve NFB's concerns. But at issue here is whether NFB has justified the extraordinary and, in the context of website design, highly problematic remedy of mandatory preliminary relief. Such relief is not justified. In summary, NFB's motion should be denied because: 1. NFB cannot demonstrate a clear likelihood that it will succeed on its claim under

Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (sometimes referred to as "Title III") because, as shown in Target Corporation's motion to dismiss, that claim is legally barred. Title III does not apply to websites. Title III applies to "places of public accommodation," which includes only physical "facilities," such as "buildings, structures, sites, complexes" and the like. The Ninth Circuit has squarely held that "place of public accommodation" means a physical place, which would not include a website. In the face

TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

1

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 8 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of this authority, NFB does not even attempt to argue in its motion that Target.com is a "place of public accommodation." 2. To avoid arguing that Target.com is a "place of public accommodation," NFB

claims in these proceedings that Target's brick-and-mortar retail stores are the "places of public accommodation." NFB then claims that Target.com is a "service of" these stores, and that deficient programming makes Target.com's web pages inaccessible. Target Corporation agrees that its retail stores are places of public accommodation. Nonetheless, this argument fails both legally and factually. As a legal matter, NFB can only prevail on a "service of a place of public accommodation" claim by demonstrating that the "service" makes the physical place of public accommodation inaccessible. NFB cannot do so here, because the allegedly deficient programming of Target's web pages does not exist within Target's retail stores, and does not prevent anyone from shopping these retail stores. As a factual matter, the declarations submitted herewith demonstrate Target.com is not a service of Target's retail stores at all. Instead, it is a separate merchandising channel of Target Corporation, whose operations are independent of Target's retail stores. 3. NFB cannot demonstrate a clear likelihood that it will succeed on its state law

claims because, as shown in Target Corporation's motion to dismiss, those claims are barred on multiple legal grounds. NFB entirely ignores two of those grounds in its motion. First, the Court cannot construe the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. ("Unruh Act"), and the Blind and Other Physically Disabled Persons Act, Cal. Civ. Code § 54 et seq. ("Disabled Persons Act"), as applying to the Internet, because doing so would render those statutes unconstitutional. If these California access statutes are interpreted to regulate the Internet, they would violate the Dormant Commerce Clause because they would impermissibly regulate conduct occurring outside of California's borders. Second, assuming that NFB can establish that California's access statutes even apply to websites, neither statute would require Target Corporation to modify its website. The Unruh Act expressly states that it does not require modification that is not otherwise required by other provisions of law. California courts have held that the Disabled Persons Act requires no affirmative conduct at all.
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

2

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 9 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

4.

Even if NFB convinces the Court that there is no legal bar to its claims, NFB

cannot demonstrate a clear likelihood of success on the most fundamental element of its complaint: that Target.com is, in fact, "inaccessible" to blind users with screen readers. NFB submits the declaration of eight blind users of Target.com, each of whom declares -- using the identical boilerplate language -- that Target.com was "impossible" to use. But when deposed, several of these individuals admitted either that they had used Target.com successfully or that they visited Target.com for only a few minutes before concluding that the website was unusable. Furthermore, there can be no dispute that blind users can, in fact, use Target.com. Submitted herewith are the declarations of four such users. The very different results achieved by these users establishes that a blind person's experience on Target.com (and on any website) will vary based on a host of factors, including the user's technical abilities, the technology they are employing, and the amount of time they spend on the site. NFB also suggests that this Court should order Target.com to make unspecified affirmative changes to its web pages because Dr. James Thatcher believes that Target.com is "inaccessible." However, Dr. Thatcher's opinion is entitled to no weight for at least three interrelated reasons. First, Dr. Thatcher concluded that Target.com was "inaccessible" because it failed to comply with a "combination" of standards that only he uses, and that no court has ever applied to privately-owned Internet websites. Second, Dr. Thatcher admits that, even if a website were to comply with his personally-chosen standards, such a website could still be inaccessible and unusable to blind persons. Finally, and perhaps most importantly, Dr. Thatcher never tested whether a blind user can, in fact, use the website to access Target.com's goods and services. 5. NFB has failed to provide information that would enable the Court to craft a

preliminary injunction that satisfies the specificity requirement of Federal Rule of Civil Procedure 65(d). NFB seeks an injunction requiring Target Corporation to modify its website so that it will be "readily accessible to and usable by blind people who use screen access software." But NFB identifies no standards that would tell Target Corporation what it needs to do to make the site "readily accessible" and "usable." Dr. Thatcher acknowledges that there are many sources of guidelines for designing "accessible" websites, and that these guidelines are (a) inconsistent,
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

3

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 10 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(b) subjective, and (c) insufficient to ensure that a website is usable by blind persons. Implicitly acknowledging that it seeks a vague, standardless injunction, NFB proposes to have the Court oversee an on-going "meet and confer" process in which Target Corporation will meet with NFB whenever there is a disagreement on a website design issue, with the Court acting as referee every time a dispute arises. There is no authority to support the use of this process as a substitute for complying with Rule 65(d)'s specificity requirement. The motion for preliminary injunction should be denied. STATEMENT OF FACTS I. NFB FAILS TO MAKE A FACTUAL SHOWING THAT TARGET.COM'S GOODS AND SERVICES ARE INACCESSIBLE TO BLIND PERSONS

In the introduction to its motion, NFB characterizes the injunction it seeks as one that will "prevent" Target Corporation "from continuing to deny blind individuals full and equal access to" its website, Target.com. (Mot. at 1.) What NFB actually seeks is an injunction mandating that Target Corporation take affirmative steps to redesign its website so that it is "readily accessible" and "usable" by blind people using screen access software -- an assistive technology that vocalizes the contents of a computer screen, often called "screen readers." NFB supports its request for a mandatory injunction with the declarations of eight blind individuals who declared that they were unable to use Target.com, and with an expert declaration from Dr. Thatcher, who reviewed Target.com and concluded that it "is virtually unusable by a visitor who is blind." (Thatcher Decl. ¶ 60.) The parties agreed to conduct discovery in advance of the preliminary injunction hearing. Accordingly, Target Corporation deposed NFB's blind declarants and Dr. Thatcher.1 Target Corporation also had the opportunity to ask other blind persons to test Target.com to determine if their experiences on the website would differ from the experiences of NFB's declarants. The

Relevant portions of the transcripts from these depositions are attached as exhibits to the Declaration of Michael J. Bostrom ("Bostrom Decl.") as follows: Volonte (Ex. A); Uttermohlen (Ex. B); Ayala (Ex. C); Sexton (Ex. D); Jacobson (Ex. E); Thomas (Ex. F); Stigile (Ex. G); Elder (Ex. H); and Thatcher (Ex. I).
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

1

4

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 11 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

testimony of all these individuals is now before the Court, and the result is clear: NFB has not met its burden with respect to the most fundamental element of its claims, namely, demonstrating that Target.com is inaccessible to blind users. Although there are several legal barriers outlined in this brief (and in Target Corporation's motion to dismiss) that should prevent the question of Target.com's accessibility from ever being the operative issue in this case, NFB's failure to provide the Court with a factual record that could support the requested injunction is reason enough to deny it. A. Blind Persons Can, In Fact, Access Target.com's Goods And Services With Screen Readers

Target Corporation submits herewith the declarations of blind persons who accessed Target.com using a screen reading program called JAWS for Windows ("JAWS"). (See Declaration of Dawn Wilkinson ("Dawn Wilkinson Decl.") ¶¶ 1, 5; Declaration of Dave Wilkinson ("Dave Wilkinson Decl.") ¶¶ 1, 4; Declaration of Suzanne Tritten ("Tritten Decl.") ¶¶ 1, 3; Declaration of Chris Polk ("Polk Decl.") ¶¶ 1, 3.) All of these individuals successfully navigated the website and purchased products. The following is typical of their experiences: I accessed Target.com with the intention of navigating the web site and purchasing merchandise. I conducted my online shopping excursion using JAWS version 7.0. I was able to access Target.com, navigate the various links on the site, and search for specific products. I was also able to find the specific products I was shopping for, and browse through the various departments within Target.com. I conducted searches on Target.com by category and department. Specifically, I looked at products in the music, toys and games, and "Target Exclusive" departments. I was able to add merchandise to my virtual shopping cart, and remove items I chose not to purchase. At the end of my shopping experience, I was able to complete my purchase using a credit card, and I received verification of my purchase from Target.com. The products I purchased were delivered to my home on May 25, 2006. (Dawn Wilkinson Decl. ¶ 5; see also Dave Wilkinson Decl. ¶ 4; Tritten Decl. ¶¶ 4-6; Polk Decl. ¶ 5.) While none of these declarants have said that their screen readers worked seamlessly on Target.com, they all testify that they were able to work around any difficulties they encountered and that they had an enjoyable experience on the website. For example:
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

5

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 12 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"I was able to navigate and use the features on the site with little or no difficulty. When I did encounter an obstacle, or when a process was unclear, I was able to figure out how to work my way around the obstacle using my screen reader." (Dawn Wilkinson Decl. ¶ 7.) "I found my shopping experience on Target.com to be enjoyable and fun. I intend to shop on Target.com again. I also intend to recommend Target.com to my friends, both sighted and sight-impaired." (Id. ¶ 8.) "During my visit to Target.com, I was able to navigate and use the features on the site with little or no difficulty. When I did encounter an obstacle, or when a process was unclear, I was able to work my way around the obstacle without any significant difficulty." (Dave Wilkinson Decl. ¶ 5.) "I thought using Target.com was fun. I enjoyed browsing the products sold on Target.com, and playing around with the `Gift Finder' feature. It was not difficult to access or navigate the site. I was able to access different departments, review products, and find out all sorts of details on product availability and return options. I usually have to do some groping around the first time I visit a new website, but I did not have many difficulties at all on Target.com. I believe Target.com is usable by sight-impaired individuals who have a basic to intermediate competency with screen reader Assistive Technology like JAWS." (Tritten Decl. ¶ 8.) "I had little or no difficulty navigating and using the features of the site. When I did encounter an obstacle, or when a process was unclear, I was able to work around the obstacle using my screen reader. . . . I will use Target.com again. I would also recommend Target.com to my sight-impaired friends as I believe the site is easy to use and helpful." (Polk Decl. ¶¶ 6-7.) B. NFB's Declarations From Blind Users Of Target.com Do Not Establish That The Website's Design Makes It Inaccessible

NFB's declarants, who also used JAWS to access Target.com, tell a different story. However, while NFB's declarations all include boilerplate language regarding the difficulty and impossibility of using Target.com, the deposition testimony of many of these individuals calls into question the weight these statements should receive, even whether the declarations should have been submitted at all. Three of the declarants admitted that they only had the patience to use Target.com for a matter of minutes before concluding the site was unusable and leaving. (Volonte Depo. at 23:19-23 ("I've never spent more than a few minutes on the website."); Id. at 26:15-20 (exited site because "life's too short"); Uttermohlen Depo. at 26:9-11, 28:6-18 (left site immediately upon encountering any difficulty and never spent more than 5 to 15 minutes on the site because she is a "busy person" and prefers to do "something else that would be more productive"); Ayala Depo. at 44:22-45-45:18 (left site in less than 15 minutes because "if I can
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

6

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 13 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

tell it's not friendly, I just ­ I don't have the time to fiddle with it, so I move on")2.) Another user who had declared it was "impossible" to navigate the site admitted that the difficulties he encountered on Target.com only made "the learning curve longer" and "add[ed] a whole level of unnecessary complexity." (Jacobson Depo. at 53:19-54:11.) Far from finding the site "impossible" to use, as he had declared, Mr. Jacobson admitted that he regularly uses Target.com to conduct product research. (Id. at 48:12-51:12.) Bruce Sexton, a plaintiff in this case, said he considers a website "acceptably accessible" only if it allows him to make purchases "with ease." (Sexton Depo. at 46:13-16.) At most, NFB's submission demonstrates that a blind user's ability to access Target.com, or any website, will vary based on a number of factors unrelated to the design of the website -- a point that Dr. Thatcher concedes3 and that is supported by Target Corporation's expert, Chuck Letourneau. (Letourneau Decl. ¶ 13.) NFB's declarants admit that their ability to access websites has improved as screen reading technology has improved, demonstrating that users employing older technology will have greater difficulties with accessibility. (Sexton Depo. at 35:18-36:2, 37:14-16; Uttermohlen Depo. at 12:12-19; Jacobson Depo. at 15:15-17:3; Thomas Depo. at 17:20-18:10.) The particular Internet browser, and the version of the browser, used will also affect accessibility. (Jacobson Depo. at 25:20-26:9, 27:12-28:20, 29:17-30:7, 32:14-33:4.) NFB's declarants testified that they had an easier time using screen readers after taking classes, demonstrating that a user's own experience and technical skills will affect accessibility. (Volonte Depo. at 16:12-18; Thomas Depo. at 16:18-17:6.) Given these variables that have nothing to do with a website's design, it is not surprising that NFB's declarants achieved very different results on Target.com. For example, one user said Furthermore, Mr. Ayala admitted that he attempted to access Target.com with JAWS version 4.51 -- a technology that is indisputably out of date (the current version is 7.0). (Ayala Depo. at 12:10-14; see also Letourneau Decl. ¶ 7.) Dr. Thatcher admits that these variables include the user's strategy for accessing particular web pages (Thatcher Depo. at 112:17-113:13), the user's experience with computers (id. at 113:14-16), the type of computer being used (id. at 113:17-21), the user's experience with the screen reader (id. at 113:22-24), the particular Internet browser being used (id. at 114:11-17), and the particular screen reader and version being used (id. at 114:18-115:15, 116:12-20).
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP 3 2

7

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 14 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

he was unable to find even a single product on Target.com (Stigile Depo. at 34:1-3), while another user said he uses the site regularly for product research (Jacobson Depo. at 48:12-51:12). And while some users found it impossible at times to navigate past the home page (Uttermohlen Depo. at 26:9011, 28:6-18; Ayala Depo. at 44:22-45:18, Stigile Depo. at 29:11-31:15), others had no difficulty doing so (Sexton Depo. at 72:21-73:5; Volonte Depo. at 21:19-21; Elder Depo. at 32:20-33:24; Jacobson Depo. at 54:12-56:2). Some users had no difficulty accessing the website's search function to locate products (Uttermohlen Depo. at 27:25-28:18; Jacobson Depo. at 48:12-51:12; Thomas Depo. at 31:6-32:22), but others said they could not find the search function (Volonte Depo. at 26:15-20) or could find it but could not enter text (Volonte Depo. at 25:6-16). Some users had no problem finding items and adding items to their virtual shopping cart (Sexton Depo. at 72:21-73:5; Elder Depo. at 32:20-33:24, Jacobson Depo. at 54:12-56:2; Thomas Depo. at 31:6-32:22), but one user said she could not add items to the cart (Uttermohlen Depo. at 27:25-28:18). Of the users who entered the checkout phase, one was unable to locate a checkout button (Sexton Depo. at 78:10-16), two were able to locate it but unable to activate it (Elder Depo. at 32:20-33:24; Thomas Depo. at 31:6-32:22), and another said he was able to activate it on one occasion (Jacobson Depo. at 57:11-58:11). C. No One Contests That The Goods And Services Of Target.com Are Accessible Using Target.com's 1-800 Number

Target.com's goods and services are also accessible to blind customers through a 1-800 number that is staffed 24 hours a day, every day of the year. (Declaration of Trish Perry ("Perry Decl.") ¶¶ 7-8.) None of NFB's witnesses claimed they could not access Target.com's goods and services via the 1-800 number. None of them even attempted to do so. The plaintiff, Mr. Sexton, testified that he is "confident" he could have found a way to contact Target.com if he had wanted to do so. (Sexton Depo. at 95:9-18; See also Tritten Decl. ¶7 (stating that she found a 1-800 telephone number on Target.com she could call if she had problems).)

TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

8

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 15 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

D.

NFB's Expert Declaration Is Irrelevant To The Question Of Whether Target.com Is Accessible

NFB submitted Dr. Thatcher's declaration to further demonstrate that Target.com is inaccessible, but Dr. Thatcher's admissions at his deposition negate his opinion on this issue. Dr. Thatcher admitted that he only evaluated whether Target.com complied with his own chosen "combination" of website accessibility guidelines, and that he did not evaluate whether noncompliance with his chosen guidelines rendered the website inaccessible. (Thatcher Depo. at 100:21-101:7.) Indeed, he admitted that his opinion that Target.com is "inaccessible" is based solely on his determination that certain elements on Target.com are "non-compliant" with his guidelines. (Id. at 106:13-107:14; see also id. at 108:14-109:1 (admitting he did not consider "how important" a particular non-compliant element of the website was to a blind person's ability to use the website).)4 Significantly, Dr. Thatcher also admitted that a website can be "noncompliant" yet still be accessible to a blind user. (Id. at 100:14-19.) His testimony thus does not assist NFB in establishing that Target.com is inaccessible. Moreover, Dr. Thatcher's speculative statements that "I am as close to certain as I can be that no blind person has ever made a purchase on ... Target.com" (Id. at 135:14-22) and that Target.com "is virtually unusable by a visitor who is blind" (Thatcher Decl. ¶ 60) are plainly contradicted by the declarations submitted herewith.

Dr. Thatcher further admitted that he considers Target.com inaccessible even though there may be alternatives that will allow a blind user to navigate the site with a screen reader: "The fact that there are alternative technique[s] that[] you might be able to find doesn't forgive the process of doing it right in these other cases." (Thatcher Depo. at 123:25-124:9.) Furthermore, when asked about specific "problems" he identified on Target.com, Dr. Thatcher admitted either that they would not prevent a user from accessing the website's goods and services or that he did not evaluate usability. (Id. at 71:14-22 (checkout button can be activated with screen reader); id. at 104:11-25 (user can access search button and department links on home page despite "annoying" problem with some of the links); id. at 96:14-97:21 (did not consider whether mislabeling of "checkout progress bar" would affect usability); id. at 128:17-129:1 (did not determine whether forms could actually be completed by a blind user); id. at 131:4-14 (navigation issues do not prevent a blind user from accessing pages on the site, but makes it "much more difficult"); id. at 134:8-21 (screen readers include functions that assist in navigation even when a site does not comply with his navigation guidelines).
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

4

9

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 16 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

II.

NFB FAILS TO IDENTIFY THE STANDARDS IT WOULD HAVE THE COURT IMPOSE UPON TARGET CORPORATION IN THE REQUESTED MANDATORY INJUNCTION

NFB does not identify the standards that it claims Target Corporation must follow to make its website "readily accessible to and usable by blind people." (Mot. at 18.) Instead, NFB says there are "several readily achievable ways Target.com can accomplish this" and cites as its only example the Web Content Accessibility Guidelines ("WCAG") written by the World Wide Web Consortium, a standards organization. (Id.) Strangely, NFB's own expert did not use the WCAG in his evaluation of Target.com. Rather, Dr. Thatcher testified that he used his own "combination" of guidelines, some of which came from the WCAG and others from the standards applied to federal agency websites, known as the "Section 508 standards." (Thatcher Decl. ¶ 16; Thatcher Depo. at 34:1-16.) In 1998, Congress amended section 508 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., to require federal contractors to take affirmative action to make electronic and information technology accessible to and useable by federal employees with disabilities, as well as individuals with disabilities who are members of the public who seek information or services from a federal agency. See 29 U.S.C. § 794d (a)(1)(A)(i)-(ii). Congress directed the federal Architectural and Transportation Barriers Compliance Board (the "Access Board") to develop regulations implementing amended section 508. 29 U.S.C. § 794d (a)(2)(A). The Access Board's regulations contain specific rules that describe how websites maintained by federal agencies are to be made accessible. See 36 C.F.R. § 1194.22. NFB omits several key facts about the WCAG and Section 508 standards, all of which were later admitted to by Dr. Thatcher. Perhaps most importantly, both the WCAG and Section 508 standards are many years out of date and are currently under revision due to changes in technology. (Thatcher Depo. at 34:21-36:21, 39:20-40:16, 40:22-25, 43:19-44:1, 45:9-22.)5

Web accessibility guidelines typically require periodic revisions. When Dr. Thatcher was involved in creating web accessibility guidelines at IBM, he had to revise the guidelines about every six months due to "changing technology" and "changing standards in the community." (Thatcher Depo. at 27:5-22.)
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

5

10

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 17 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Also, Section 508, as well as the Access Board's website accessibility standards, do not apply in this case, because Target Corporation is not a federal agency.6 Furthermore, the WCAG and Section 508 standards, which are plainly outdated, are not the only sources for web accessibility guidelines. There are many others, including organizational standards, state standards, and international standards. (Thatcher Depo. at 79:1080:5, 80:20-81:18; Letourneau Decl. ¶ 8.) These various guidelines and standards are not consistent. Indeed, Dr. Thatcher admits that just the WCAG and Section 508 standards are "different in wording," "different in organization," "different in intention," and contain "substantive differences." (Thatcher Depo. at 90:24-91:14; see also Letourneau Decl. ¶ 10-11.)7 The problems that the lack of a single set of generally accepted guidelines causes for mandating web accessibility is compounded by the fact that compliance with a set of guidelines does not equate to accessibility. Dr. Thatcher admits that a website can comply with existing guidelines, yet still be inaccessible. (Id. at 38:6-10; see also Letourneau Decl. ¶ 9.) As Dr. Thatcher explains, "there is more to accessibility than just the standards," because web designers must have an understanding of the "alternatives" that are permitted by a particular guideline. (Thatcher Decl. ¶¶ 17-18.) The reason for this is that the process for making a website accessible pursuant to guidelines is inherently "subjective." (Thatcher Depo. at 37:10-38:5; see also id. at 84:16-85:19 (the process for making a website accessible pursuant to guidelines is "subject to debate").) As Mr. Letourneau explains, "[e]ven when a web designer relies upon accessibility guidelines, he or she must nonetheless exercise a great deal of discretion. Indeed, a

To the extent there is any consensus about the "correct" set of guidelines to make websites accessible (and Dr. Thatcher admits that he does not know what guidelines other website evaluators use), he thinks the consensus will be reflected in the revised WCAG, which will not be out until later this year. (Thatcher Depo. at 46:14-47:1, 82:12-85:19.) Dr. Thatcher has a comparison chart which shows that that these two sets of guidelines are different. (Bostrom Decl., Ex. J; Thatcher Depo. 86:24- 89:10.) Dr. Thatcher also admits that one "crucial issue" for website accessibility -- page navigation -- is not addressed in the W3C guidelines (id. at 91:6-14), and his report shows that he evaluated Target.com on standards that do not appear in any guidelines. (Report at 7 (chart showing "n/a"); Thatcher Depo. at 110:21-25 ("n/a" means there is no corresponding guideline).)
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP 7

6

11

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 18 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

designer must exercise discretion in organizing the content layout, choosing the most desirable headings, and implementing the appropriate content mark ups." (Letourneau Decl. ¶ 11.) For these reasons, NFB's generalized assertion that there are "established guidelines and readily available protocols" to allow the Court to "craft" a mandatory injunction requiring modifications to Target.com (Mot. at 2) is substantially misleading. ARGUMENT I. NFB'S REQUEST FOR A MANDATORY INJUNCTION IS SUBJECT TO A HEIGHTENED STANDARD

NFB fails to acknowledge that its motion is subject to a heightened standard because it seeks a mandatory injunction. Indeed, in reciting the standard, NFB paraphrases language from the Ninth Circuit in an apparent attempt to obscure the settled rule that a heightened standard applies to requests for mandatory injunctions.8 (Mot. at 7.) The case NFB paraphrases clearly states that mandatory injunctions are subject to a heightened standard and that courts are "reluctant" to grant them unless "extreme or very serious damage will result," and the case is not otherwise "doubtful." Anderson, 612 F.2d at 1115 (citation omitted). More recent Ninth Circuit cases hold that mandatory preliminary injunctions are "particularly disfavored." Stanley, 13 F.3d at 1320. They "should not be issued unless the facts and law clearly favor the moving party." Dahl v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993).

NFB incorrectly states that "[w]hether the sought-after injunction is `mandatory' or `prohibitive,' relief will issue `where the injury complained of is [not] capable of compensation in damages." (Mot. at 7 (quoting Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1979).) NFB's insertion of "not" in brackets within its partial quotation from Anderson completely alters the meaning of the full quote: Courts are more reluctant to grant a mandatory injunction than a prohibitory one and . . . generally an injunction will not lie except in prohibitory form. Such mandatory injunctions, however, are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages. Anderson, 612 F.2d at 1115 (citation omitted).
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

8

12

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 19 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Thus, in addition to meeting the traditional standard for preliminary relief, NFB must further demonstrate that the facts and the law "clearly favor" issuance of the injunction. As demonstrated in the following sections, NFB has failed to meet even the minimum standard. II. NFB FAILS TO DEMONSTRATE A CLEAR LIKELIHOOD OF SUCCESS ON ITS CLAIM UNDER TITLE III OF THE ADA AS A MATTER OF LAW A. Title III Of The ADA Prohibits Persons Who Own Or Operate Places Of Public Accommodation From Discriminating With Respect To The Goods And Services "Of Any Place Of Public Accommodation"

The scope of Title III is necessarily defined and limited by the terms of the Act itself. United States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997), cert. denied, 522 U.S. 1084 (1998). Title III's general rule against discrimination provides: 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). In evaluating NFB's claims in these proceedings, the Court should: (a) identify who "owns and operates" the place(s) of public accommodation; (b) identify the "place of public accommodation" that is subject to Title III's general rule against discrimination in these proceedings; and (c) evaluate whether NFB has demonstrated discrimination with respect to the goods and services "of" that place of public accommodation. These inquiries are addressed separately in the following sections. B. The Parties Agree That Defendant Target Corporation "Owns And Operates" Places Of Public Accommodation

Target Corporation concedes, as it did in the motion to dismiss, that it is a "person who owns . . . or operates" a place of public accommodation. See 42 U.S.C. § 12181(7)(E) (defining "public accommodation") & 12182(a); see also Am. Compl. ¶¶ 1 & 11.

TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

13

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 20 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

C.

NFB Claims That Target's Bricks And Mortar Retail Stores ­ And Not The Target.com Website Itself - Constitute "Places Of Public Accommodation"

NFB does not claim in these proceedings that the Target.com website itself is a "place of public accommodation." (Mot. at 2 & 16 n.82.)9 Instead, NFB's sole theory is - and Target Corporation concedes - that Target's retail stores are places of public accommodation. (Mot. at 12 & 12.) D. NFB Cannot Establish Discrimination With Respect To The Goods And Services "Of Any Place Of Public Accommodation"

To establish liability under Title III, a plaintiff must demonstrate that the person who owns or operates a covered place of public accommodation has engaged in a prohibited act of discrimination that occurs in, or has some type of nexus to, the place of public accommodation. As the Ninth Circuit explained in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000): Title III provides an extensive list of "public accommodations" in § 12181(7), including such a wide variety of things as an inn, a restaurant, a theater, an auditorium, a bakery, a laundromat, a depot, a museum, a zoo, a nursery, a day care center, and a gymnasium. All the items on this list, however, have something in common. They are actual, physical places where goods or services are open to the public, and places where the public gets those goods or services. 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 (emphasis added). NFB's decision not to claim that Internet websites like Target.com are "places of public accommodation" comes as no surprise. As explained in the motion to dismiss, federal courts have held in a variety of contexts that Internet websites and the like are not "places of public accommodation" because they do not exist in a physical place, and they can be accessed from anywhere. See, e.g., Access Now Inc. v. Southwest Airlines, 227 F. Supp. 2d 1312, 1318 (S.D. Fla. 2002), app. dismissed, 385 F.3d 1324 (11th Cir. 2004); Noah v. AOL Time Warner, 261 F. Supp. 2d 532, 544-45 (E.D. Va. 2003) (AOL chat rooms and other online services); Torres v. AT&T Broadband, LLC, 158 F. Supp. 2d 1035, 1037-38 (N.D. Cal. 2001) (digital cable system is not a "place of public accommodation" because "in no way does viewing the system's images require the plaintiff to gain access to any actual physical public place"); Access Now, Inc. v. Claire's Stores, Inc. No. 00-14017-CIV, 2002 WL 1162422 (S.D. Fla. May 7, 2002) (defendant was a retail store that operated a website); Hooks v. OKbridge, SA-99-CA-214-EP (W.D. Tex. 1999) (defendant operated an on-line bridge game and website) (Bostrom Decl., Ex. K.).
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP 9

14

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 21 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Hence, it is not sufficient for a plaintiff to complain about services offered by a public accommodation from a non-physical place. See, e.g., Stoutenborough v. Nat'l Football League, 59 F.3d 580, 583 (6th Cir. 1995) (place of public accommodation must be a "facility"). Instead, the plaintiff must demonstrate a nexus between the allegedly discriminatory service and the place of public accommodation, by showing that services were offered in, or precluded access to, a place of public accommodation. See, e.g., Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1284 (11th Cir. 2002) (Title III applies to both tangible and intangible barriers that prevent disabled person from entering, accessing or enjoying facility's goods, services and privileges offered by place of public accommodation); Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998) ("goods, services, facilities, privileges, advantages, or accommodations" to which Title III ensures access should not be treated as "free-standing concepts but rather all refer to the statutory term `public accommodation' and thus to what these places of public accommodation provide").10 1. NFB Cannot Establish The Required Nexus Between Allegedly Inaccessible Features Of The Target.com Website And Target's Bricks And Mortar Retail Stores

NFB claims that Target.com discriminates against individuals with vision impairments because the web pages of Target.com itself cannot be read by screen readers, and because they: (a) do not use invisible "alt-tags"; (b) contain links that cannot be activated by a keyboard; (c)

See also Parker, 121 F.3d at 1010 (en banc) (rejecting plaintiff's claim because there was "no nexus between the disparity in benefits and the services which [the insurance company] offered to the public from its insurance office"); Southwest Airlines, 227 F. Supp. 2d at 1318 ("to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure"); Pappas v. Bethesda Hosp. Ass'n., 861 F. Supp. 616, 620 (S.D. Ohio 1994) (Title III is limited to discrimination in "the physical use of a place of public accommodation"). Only the First Circuit in Carparts Distrib. Ctr. v. Auto. Wholesaler's Ass'n, 37 F.3d 12 (1st Cir. 1994), has held that a "place of public accommodation" does not need to be a physical place. This ruling has been roundly rejected and criticized by other federal courts for its disregard for accepted canons of statutory construction. See, e.g., Southwest Airlines, 227 F. Supp. 2d at 1318; Parker, 121 F.3d at 1013-14. The law in the Seventh Circuit is muddled. Compare Morgan v. Joint. Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001) ("place of public accommodation" does not need to be a physical place) and Doe v. Mut. of Omaha, 179 F.3d 557, 559 (7th Cir. 1999) (same) with Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1269-76 (7th Cir. 1993) ("place of public accommodation" in Title II of Civil Rights Act of 1964, which is analogous to Title III of ADA, was limited to physical places).
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

10

15

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 22 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

contain improperly labeled forms; and (d) lack invisible headings to assist blind users navigate the site. (Mot. at 5.) As noted above, NFB's does not claim that Target.com itself is a place of public accommodation. Hence, the question this Court must evaluate is not whether these alleged programming deficiencies preclude access to Target.com itself. Rather, NFB must establish a nexus between these programming deficiencies and Target's retail stores themselves. NFB simply cannot make that showing here. In particular, NFB cannot claim that Target.com's services are offered in any Target retail store. See Reno v. ACLU, 521 U.S. 844, 851 (1997) (Internet websites are "a unique medium - - known to its users as cyberspace - located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet"). Similarly, NFB cannot claim that individuals with vision impairments use screen readers to shop at Target's retail stores, or that the lack of alt-tags, keyboard-activated links, properly labeled forms, or invisible navigation links somehow preclude anyone from shopping at Target's retail stores, or that these alleged deficiencies make the goods and services offered within Target's retail stores inaccessible. In short, NFB cannot establish the required nexus between the alleged programming deficiencies contained within Target.com's web pages and Target's retail stores: these alleged deficiencies do not exist within a Target retail store, and do not prevent anyone from shopping in any of Target's retail stores. 2. NFB Cannot Rely Upon The Eleventh Circuit's Holding In Rendon To Support Its Claims

The legal flaw inherent in NFB's claims can best be exposed by evaluating the Eleventh Circuit's holding in Rendon. In that case, individuals competed to become contestants on the "Who Wants To Be A Millionaire" television quiz show by dialing into a toll-free contestant hotline and pressing keys on their telephone keypads to answer a series of automated questions. Rendon, 294 F.3d at 1280. The plaintiffs claimed that use of this selection process violated Title III because individuals with hearing and upper-body-mobility impairments could not use a telephone. Id. at 1280-81. In evaluating whether the plaintiffs stated a claim under Title III, the Eleventh Circuit found that the plaintiffs had adequately alleged that the contestant hotline
TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

16

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 23 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

imposed "unnecessary eligibility criteria [that] screened them out or tended to screen them out from accessing a privilege or advantage of Defendants' public accommodation." Id. at 1283. Target Corporation acknowledges that Rendon stands for the unremarkable proposition that Title III of the ADA applies to both tangible and intangible barriers. Id. at 1284. However, the issue in this case is not whether Target.com constitutes a tangible or intangible barrier. Instead, the issue is whether the alleged barrier denies access to a place of public accommodation -- that is, to Target's retail stores. In Rendon, the Eleventh Circuit found that the contestant hotline violated Title III because it prevented disabled contestants from accessing a public accommodation -- the quiz show itself. Id. ("Plaintiffs in the present case, however, are not suing merely to observe a television show; rather, they seek the privilege of competing in a contest held in a concrete space, a contest they have been screened out of because of their disabilities."); see Southwest Airlines, 227 F. Supp. 2d at 1319-20 ("Most significantly, the Eleventh Circuit [in Rendon] noted that the plaintiffs stated a claim under Title III because they demonstrated `a nexus between the challenged service and the premises of the public accommodation,' namely the concrete television studio."). NFB cannot make the same type of showing here. As noted above, NFB does not claim that the alleged deficiencies in the programming of Target.com made the physical spaces occupied by Target's retail stores inaccessible. Indeed, NFB argues the precise opposite by alleging in its complaint that, "[d]ue to Target.com's inaccessibility, blind Target customers must in turn spend time, energy, and/or money to make their purchases at a Target store." (Am. Compl. ¶ 35.) NFB thus cannot establish the required nexus between the alleged programming deficiencies within the Target.com website and the accessibility of any of Target's bricks and mortar retail stores. See Southwest Airlines, 227 F. Supp. at 1320 ("Whereas . . . the game show [in Rendon] took place at a physical, public accommodation (a concrete television studio), and that the fast finger telephone selection process used to select contestants tended to screen out disabled individuals, the Internet' website at issue here is neither a physical, public accommodation itself as defined by the ADA, nor a means to accessing a concrete space such as

TARGET CORPORATION'S OPP. TO PLAINTIFFS' MOT. FOR PRELIMINARY INJUNCTION CASE NO. 06-01802 MHP

17

Case 3:06-cv-01802-MHP

Document 29

Filed 06/13/2006

Page 24 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the specific television studio in Rendon.") (emphasis added). NFB's claims, and request for preliminary injunction, must fail accordingly. III. NFB CANNOT DEMONSTRATE AS A MATTER OF FACT THAT TARGET.COM IS A "SERVICE OF" TARGET'S RETAIL STORES

NFB asserts that Target.com must be a "service of" Target's retail stores because the website "is related to and highly integrated with Target's brick-and-mortar stores," and because website visitors can use an on-line store locator to find nearby stores; order merchandise to be picked up at local Target retail stores; use the website's online pharmacy, photo shop, deli and wedding and baby registries; and obtain discount coupons, all of which can be picked up or used in local Target retail stores. (Mot. at 13-14.) However, these facts do not establish that Target.com is "a service of" Target's retail stores for several reasons. First and foremost, the accompanying declarations conclusively demonstrate that Target.com is not a "service" of Target's retail stores. Instead, Target.com and Target's retail stores are separate and independent merchandising channels of Target Corporation. In particular: Target.com has its own president and management team who do not make any decisions for Target's retail stores. (Declaration of Trish Perry (