[Nfbc-info] Traffic exchanges and discrimination

[Michael Peterson]

Hi all you may not be
 aware of traffic
 exchanges but lots of businesses use them to promote their website and online businesses.
Problem is "for security reasons they require the user to click on images that a screen reader can not read.They sell advertising to home businesses so when designing these
 exchanges they
 exclude blind persons with screen readers.

I reacently came across one called traffic splash here is the most recent correspondence I had with them.
 
Hi Michael Peterson,
Thanks for sending in a support ticket "accessile use of your site"
We just replied. To view the response and answer please
click here:
click here:
http://www.traffic-splash.com/tickets.php?id=LQP18655668
Again, if you need further help please reply using
the box on the Support ticket page.
Thanks again for your time. We really appreciate it.
Happy Splashing!
Paul Kinder
Contact me any time:
http://www.traffic-splash.com/tickets.php
##
TicketID:
LQP18655668
RE:
tickets.php?id=
Subject:
accessile use of your site
Message:
Hi Paul. I am encountering a problem and thought perhaps you might be able to help.
I am blind so I use a screen reader called window-eyes produced by gw-micro. http;//www.gwmicro.com
Screen readers transferre the information from print to voice or braille however
they can't read ocr images for example. Your site requires me to click images is
there a usable work arround. Currently I'm promoting my private website http://www.lifesrace.com
.net and .info I may be getting involved with a vitamin company and a candle company
and I do need to promote my traffic swarm because I only have a couple people in
my downline. I didn't take advantage of theoffers you made initially because I feared
the system might not be accessible. I am also a grad student studying for my masters
so time and money are limited which is one reason for promoting my traffic swarm.
But if this works doing that I should hope to promote the business my wife and I
are looking into. I would really like to use traffic at the races because Ilike the
special affects and used to go to a lot of horse races but same problem with accessability
there as well as at boot scootin traffic. Any help appreciated.
Thanks
Michael Peterson
Response:
Hi Michael
Here is the answer back from my biz partner and programmer Techy Tim...
if we give his program easy access to understand read the images as text, we are
going to give cheater the holy grail for surfing. because if we give it to him, the
cheaters will have it.. The only way to do do it, would be on an account level..
which would be a large undertaking.. at this point I would say that we cant for security
reasons.. I think it would be very very cool to do in the future.. would be a feature
noone has.. we would have to do it in way where we watched approved accounts super
super carefully.
tim
So it is possible but not in the near future I'm afraid as our development schedule
is very full. After we move to a new script it will be possible.
Hope that helps
Paul
Reply:


Thanks Paul.  I want to alert you that inaccesability is becoming more of a problem for disabled persons in fact recently a commercial site Target was sued and reached a settlement that cost them several million dollars.  They settled out of court but most likely new situations will arise.  Because traffic     exchanges sell services to the general public, independent home businesses,      denying access to substantial numbers of the public is  becoming a problem. It's like saying thank you for writing we would like to permit blacks in to our system but doing so could cause serious security problems, sorry Mr.King you will have to wait, maybe someday.  Meanwhile blacks don't get educated and blind folks who want the same ability to promote their home businesses can't.  This is especially sad because the unemployment rate amongst the blind is 75% to 80% and online promotion by traffic exchanges should they decide to start and maintain businesses is crucial to their success. The products of traffic exchanges that are sold should be available to blind persons as well as anyone else and making them inaccessible at least to me seems discriminatory. I'm not saying this to frighten or pressure you but because as blind persons we need the same access as others.  On MySpace they had capchea but recognizing the problems it was causing were able to develop alternative security techniques. Please become familiar with www.nfb.org We can and will work with your tech people to assist in resolving these kind of problems.We have and can connect you with computer programmers who can assist with accessability.

Think of the great publicity you could generate by making your sites accessible and promoting that fact it would make your traffic exchanges stand out as being innovative and you by promoting a product that helps blind persons achieve employment would most likely even gain recognition in the national media.  Give me a fish and I eat for a day, teach me to fish and I eat for a lifetime.
Please do what you can to work with us and be a part of the solution.
God Bless:
Mike
ps here's a copy of the target document
582 F.Supp.2d 1185, 20 A.D. Cases 467
Motions, Pleadings and Filings
United States District Court,
N.D. California.
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.
No. C 06-1802 MHP.
Oct. 2, 2007.
Background: National and state associations of the blind and blind customer brought
class action in
state court against retailer, seeking declaratory, injunctive, and monetary relief,
and alleging that
retailer's website was inaccessible to the blind and thereby violated federal and
state laws prohibiting
discrimination against the disabled. Retailer removed action. Plaintiffs moved for
class certification
and for bifurcation, and retailer moved for summary judgment.
Holdings: The District Court, Marilyn Hall Patel, J., held that:
(1) associations could base their representational standing claim on member's standing;
(2)
 national and state associations of the blind had standing as representatives of
their members to
pursue their claims for injunctive relief both independently and as part of the class
and subclass
against retailer;
(3)
 retailer's post-filing modifications to its website to increase accessibility for
the blind did not
render claims moot;
(4) no nexus to the physical stores was required for class certification of claims;
(5)
 number of blind persons affected by alleged access barriers to retailer's website
was sufficient to
establish numerosity;
(6)
 retailer's actions with respect to the accessibility of its website were generally
applicable to the
class; and
(7) bifurcation was warranted.
Ordered accordingly.
West Headnotes
[1]
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41 Associations
41k20 Actions by or Against Associations
41k20(1) k. In General. Most Cited Cases
If an organization has not suffered injury to itself, it may have standing to assert
the rights of its
members if (1) its members would have standing to sue on their own; (2) the interests
it seeks to
protect are germane to its purpose; and (3) its claim and requested relief do not
require participation
by individual members.
[2]
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41 Associations
41k20 Actions by or Against Associations
41k20(1)
 k. In General. Most Cited Cases
78 Civil Rights
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78III Federal Remedies in General
78k1328 Persons Protected and Entitled to Sue
78k1332 Third Party Rights; Decedents
78k1332(6)
 k. Other Particular Cases and Contexts. Most Cited Cases
78 Civil Rights
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78III Federal Remedies in General
78k1328 Persons Protected and Entitled to Sue
78k1333 Injury and Causation
78k1333(6)
 k. Other Particular Cases and Contexts. Most Cited Cases
Member of national and state associations of the blind demonstrated that he faced
a concrete and
particularized injury by retailer's alleged failures to make website accessible to
the blind that was not
conjectural, and met Article III standing requirements, and thus, based on member's
standing,
associations had representational standing to bring suit alleging that retailer's
website violated federal
and California laws prohibiting discrimination against the disabled; accessibility
barriers, including lack
of alt tags, keyboard accessibility, and headers, were traceable to conduct of retailer,
and member's
claims could be redressed by equitable relief. U.S.C.A. Const. Art. 3, § 1 et seq.;
Americans with
Disabilities Act of 1990, § 302, 42 U.S.C.A. § 12182; West's Ann.Cal.Civ.Code §§
51, 54.1.
[3]
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41 Associations
41k20 Actions by or Against Associations
41k20(1)
 k. In General. Most Cited Cases
78 Civil Rights
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78III Federal Remedies in General
78k1328 Persons Protected and Entitled to Sue
78k1332 Third Party Rights; Decedents
78k1332(6)
 k. Other Particular Cases and Contexts. Most Cited Cases
National and state associations of the blind had standing as representatives of their
members to
pursue their claims for injunctive relief both independently and as part of the class
and subclass
against retailer alleging that retailer's website was inaccessible to the blind and
thereby violated
federal and California laws prohibiting discrimination against the disabled; action
and requested relief
was germane to the associations' purposes in protecting the interests of the blind,
and, they sought
injunctive relief, which would not require the participation of individual members.
Americans with
Disabilities Act of 1990, § 2, 42 U.S.C.A. § 12101; West's Ann.Cal.Civ.Code § 51.
 KeyCite Citing References for this Headnote
[4]
170B Federal Courts
170BI Jurisdiction and Powers in General
170BI(A)
 In General
170Bk12 Case or Controversy Requirement
170Bk13.10
 k. Civil Rights. Most Cited Cases
Retailer's post-filing modifications to its website to increase accessibility for
the blind did not
render moot claims by national and state associations of the blind and blind customer
alleging that
retailer's website was inaccessible to the blind and thereby violated federal and
state laws
prohibiting discrimination against the disabled; not all of the modifications fully
addressed keyboard
accessibility, and, continuous addition of new pages to website argued against a
mootness finding.
Americans with Disabilities Act of 1990, § 2, 42 U.S.C.A. § 12101; West's Ann.Cal.Civ.Code
§ 51.
[5]
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170A Federal Civil Procedure
170AII Parties
170AII(D)
 Class Actions
170AII(D)2
 Proceedings
170Ak172 k. Evidence; Pleadings and Supplementary Material. Most Cited Cases
A court may only scrutinize plaintiffs' legal causes of action to determine whether
they are suitable
for resolution on a class-wide basis and this inquiry requires the court to accept
the substantive
allegations contained in plaintiffs' complaint as true and analyze only whether the
asserted claims or
defenses are susceptible of resolution on a class-wide basis.
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[6]
170A Federal Civil Procedure
170AII Parties
170AII(D)
 Class Actions
170AII(D)3
 Particular Classes Represented
170Ak182.5
 k. Consumers, Purchasers, Borrowers, and Debtors. Most Cited Cases
Declarations by putative class members in claim against retailer, alleging that retailer's
website
was inaccessible to the blind and thereby violated federal and state laws prohibiting
discrimination
against the disabled, specifically that they were deterred from going to the retailer's
stores after their
experiences with the website, and, that they suffered increased time and expense
incurred during in-
store shopping as a result of the inaccessibility of the website, were sufficient
to meet class definition.
Americans with Disabilities Act of 1990, § 2, 42 U.S.C.A. § 12101; West's Ann.Cal.Civ.Code
§ 51.
[7]
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78 Civil Rights
78I Rights Protected and Discrimination Prohibited in General
78k1043 Public Accommodations
78k1047 k. Theaters and Places of Exhibition or Entertainment. Most Cited Cases
78 Civil Rights
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78I Rights Protected and Discrimination Prohibited in General
78k1043 Public Accommodations
78k1049 k. Place of Business or Public Resort. Most Cited Cases
Unruh Act and Disabled Persons Act applied to retailer's website as a kind of business
establishment and accommodation, advantage, facility, and privilege of a place of
public
accommodation; nexus to retail stores was not required. West's Ann.Cal.Civ.Code §§
51, 54.1;
Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
[8]
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170A Federal Civil Procedure
170AII Parties
170AII(D)
 Class Actions
170AII(D)3
 Particular Classes Represented
170Ak182.5
 k. Consumers, Purchasers, Borrowers, and Debtors. Most Cited Cases
For purposes of class certification, number of blind persons affected by alleged
access barriers to
retailer's website was sufficient to establish numerosity in class action against
retailer alleging that
retailer's website was inaccessible to the blind and thereby violated federal and
state laws prohibiting
discrimination against the disabled; declarations submitted by putative class members
establish that
they had tried to access in-store information on website and could not, and, statistical
evidence
established that many blind people currently shopped at retailer. Fed.Rules Civ.Proc.Rule
23(a), 28
U.S.C.A.; Americans with Disabilities Act of 1990, § 2, 42 U.S.C.A. § 12101; West's
Ann.Cal.Civ.Code
§ 54.1.
[9]
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170A Federal Civil Procedure
170AII Parties
170AII(D)
 Class Actions
170AII(D)3
 Particular Classes Represented
170Ak182.5
 k. Consumers, Purchasers, Borrowers, and Debtors. Most Cited Cases
National and state associations of the blind and blind customer alleging that retailer's
website was
inaccessible to the blind and thereby violated federal and state laws prohibiting
discrimination against
the disabled established commonality, as required for class certification; questions
of fact common to
all class members included whether website was linked to retailer's stores, what
specific
accommodations were available on website, and whether the post-filing improvements
satisfied
retailer's statutory obligations. Americans with Disabilities Act of 1990, § 2, 42
U.S.C.A. § 12101;
Fed.Rules Civ.Proc.Rule 23(a)(2), 28 U.S.C.A.; West's Ann.Cal.Civ.Code § 54.1.
[10]
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170A Federal Civil Procedure
170AII Parties
170AII(D)
 Class Actions
170AII(D)1
 In General
170Ak164 k. Representation of Class; Typicality. Most Cited Cases
To be considered typical for purposes of class certification, the named plaintiff
need not have
suffered an identical wrong; rather, the class representative must be part of the
class and possess the
same interest and suffer the same injury as the class members. Fed.Rules Civ.Proc.Rule
23(a)(3), 28
U.S.C.A.
[11]
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170A Federal Civil Procedure
170AII Parties
170AII(D)
 Class Actions
170AII(D)3
 Particular Classes Represented
170Ak182.5
 k. Consumers, Purchasers, Borrowers, and Debtors. Most Cited Cases
Retailer's actions with respect to the accessibility of its website were generally
applicable to the
class, as required for class certification in claims brought by national and state
associations of the
blind and blind customer alleging that retailer's website was inaccessible to the
blind and thereby
violated federal and state laws prohibiting discrimination against the disabled;
while the class
definition as modified could include both blind individuals who use reader software
and those who do
not, the website accessibility barriers identified by were generally applicable to
the class.
Americans with Disabilities Act of 1990, § 2, 42 U.S.C.A. § 12101; Fed.Rules Civ.Proc.Rule
23(b)(2),
28 U.S.C.A.
[12]
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78 Civil Rights
78I Rights Protected and Discrimination Prohibited in General
78k1043 Public Accommodations
78k1047 k. Theaters and Places of Exhibition or Entertainment. Most Cited Cases
78 Civil Rights
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78I Rights Protected and Discrimination Prohibited in General
78k1043 Public Accommodations
78k1049 k. Place of Business or Public Resort. Most Cited Cases
Blind shopper's asserted difficulty in using retailer's website to pre-shop did not
render him unable
to access goods and services of retailer's stores, in violation of ADA. Americans
with Disabilities Act of
1990, § 302, 42 U.S.C.A. § 12182.
[13]
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170A Federal Civil Procedure
170AXV Trial
170AXV(A)
 In General
170Ak1959 Separate Trial of Particular Issues
170Ak1961 k. Damages. Most Cited Cases
Bifurcation of class action asserting that retailer's website was inaccessible to
the blind and
thereby violated federal and state laws prohibiting discrimination against the disabled
into two stages
was warranted, with phase one addressing the liability to the class as well as declaratory
and
injunctive relief, and phase two addressing damages for class members; a finding
of liability in phase
one, namely, that retailer's website was impermissibly inaccessible to blind users
would require at
phase II proof only that a particular user was blind and that he or she encountered
a particular barrier
on the website. Americans with Disabilities Act of 1990, § 2, 42 U.S.C.A. § 12101;
West's
Ann.Cal.Civ.Code § 54.1; Fed.Rules Civ.Proc.Rule 42(b), 28 U.S.C.A.
*1187 Rachel Elizabeth Brill, Joshua Geoffrey Konecky, Todd Michael Schneider, Schneider
&
Wallace, San Francisco, CA, Roger Norton Heller, Disability Rights Advocates, Oakland,
CA, Daniel F.
Goldstein, Mehgan Sidhu Capek, Brown Goldstein & Levy, LLP, Baltimore, MD, Laurence
Wayne
Paradis, Disability Rights Advocates, Berkeley, CA, Peter Blanck, Crouse-Hinds Hall,
Syracuse, NY, for
Plaintiffs.
Matthew Ian Kreeger, Harold J. McElhinny, Kristina Michelle Paszek, Attorney *1188
at Law, Mary F.
Hansbury Stuart Christopher Plunkett, Morrison & Foerster LLP, San Francisco, CA,
Robert Allen
Naeve, Morrison & Foerster LLP, Irvine, CA, David Frank McDowell, Michael James Bostrom,
Morrison
& Foerster LLP, Los Angeles, CA, for Defendant.
MEMORANDUM & ORDER
Re: Plaintiffs' Motion for Class Certification and Motion to Bifurcate; Defendant's
Motion for
Summary Judgment
MARILYN HALL PATEL, United States District Judge.
Plaintiffs National Federation of the Blind ("NFB"), National Federation of the Blind
of California
("NFB-CA"), Bruce Sexton, and all those similarly situated, filed this action against
Target Corporation
("Target"), seeking declaratory, injunctive and monetary relief. Plaintiffs claim
that Target.com is
inaccessible to the blind, and thereby violates federal and state laws prohibiting
discrimination against
the disabled. Now before the court is plaintiffs' motion for class certification
and motion for
bifurcation; defendant's motion for summary judgment and the parties' supplemental
briefing on the
state law claims. Having considered the parties' arguments and submissions, and for
the reasons set
forth below, the court enters the following memorandum and order.
BACKGROUNDFN1
FN1. Unless otherwise noted, background facts are taken from plaintiffs' First Amended
Complaint ("FAC" or "Complaint").
I. Parties
Plaintiffs NFB and NFB-CA are non-profit organizations. NFB is a nationwide organization
with a
50,000 strong membership, composed primarily of blind individuals. NFB-CA is the
California affiliate
of NFB. The purpose of NFB is to promote the general welfare of the blind by (1)
assisting the blind in
their efforts to integrate themselves into society on terms of equality and (2) removing
barriers and
changing social attitudes, stereotypes and mistaken beliefs that sighted and blind
persons hold
concerning the limitations created by blindness and that result in the denial of
opportunity to blind
persons in virtually every sphere of life. These organizations have brought suit
on their own behalf
and on behalf of their members.
Plaintiff Sexton is a member of the NFB and the NFB of California. He is legally
blind and uses
JAWS screen reading software to access the internet. Sexton Apr. 12, 2006 Dec. ¶¶
2, 13. Sexton
relies on the internet for a variety of functions and frequently uses the internet
in order to "research
products, compare prices, and make decisions about purchasing goods in the stores'
physical
locations." Id. ¶ 16. He has attempted to use Target.com with his screen reader on
"numerous
occasions" but has been unable to access certain features of the website. Id. at
¶ 32.
Defendant Target operates approximately 1,400 retail stores nationwide, including
205 stores in
California. Target.com is a website owned and operated by Target. By visiting Target.com,
customers
can purchase many of the items available in Target stores. Target.com also allows
a customer to
perform functions related to Target stores. For example, through Target.com, a customer
can access
information on store locations and hours, refill a prescription or order photo prints
for pick-up at a
store, and print coupons to redeem at a store.
II. Background
Plaintiffs allege that Target.com is not accessible to blind individuals. According
*1189 to
plaintiffs, designing a website to be accessible to the blind is technologically
simple and not
economically prohibitive. Protocols for designing an accessible internet site rely
heavily on "alternative
text": invisible code embedded beneath graphics. A blind individual can use screen
reader software,
which vocalizes the alternative text and describes the content of the webpage. Similarly,
if the screen
reader can read the navigation links, then a blind individual can navigate the site
with a keyboard
instead of a mouse. Plaintiffs allege that Target.com lacks these features that would
enable the blind
to use Target.com. Since the blind cannot use Target.com, they are denied full and
equal access to
Target stores, according to plaintiffs.
III. Procedural History
On February 7, 2006 plaintiffs filed this action in Superior Court of California
for the County of
Alameda. On March 9, 2006 defendant removed the case to federal court and subsequently
filed a
motion to dismiss the complaint for failure to state a claim. In its motion, defendant
claimed that
each of the anti-discrimination laws protecting the disabled-the Americans with Disabilities
Act, 42
U.S.C. section 12182, ("ADA"), Unruh Civil Rights Act, Cal. Civ.Code section 51 ("Unruh
Act"), and the
Disabled Persons Act, Cal. Civ.Code section 54.1 ("DPA")-cover access to physical
spaces only. Since
Target.com is not a physical space, defendant asserted that the complaint does not
state a claim
under these laws. On September 5, 2006 the court granted in part and denied in part
defendant's
motion to dismiss. The court reasoned that the inaccessibility of Target.com impeded
full and equal
enjoyment of goods and services offered in Target stores pursuant to the ADA. Thus,
the court
dismissed plaintiffs' claims to the extent that they are based on Target.com features
that are
unconnected to the stores. The court also denied the motion to dismiss plaintiffs'
state law claims. At
the same time, the court denied plaintiffs' request for a preliminary injunction
as premature.
Plaintiffs filed the instant motion for class certification on February 1, 2007.
On March 8, 2007
defendant filed a motion for summary judgment on the grounds that plaintiff Sexton
has not suffered
a cognizable injury under the ADA. The court held an initial hearing on these matters
on April 12,
2007. At the hearing, the court requested supplemental briefing on the reach of the
relevant state
statutes before ruling on the class certification motion as it related to the California
subclass.
Following the hearing, the court issued an order on the motion for class certification
on April 25,
2007. In its order, the court narrowed the proposed class definition for the nationwide
class to include
the nexus requirement from its earlier order. Accordingly, the nationwide class consists
of all legally
blind individuals in the United States who have attempted to access Target.com and
as a result have
been denied access to the enjoyment of goods and services offered in Target stores.
Subsequently,
the parties submitted supplemental briefing on whether the DPA and the Unruh Act
apply to websites.
Plaintiffs also submitted supplemental declarations of class members in accordance
with the court's
April 25, 2007 order. Both parties submitted additional briefing on the class certification
issues.
IV. Recent Modifications to Target.com
After the filing of the present complaint, Target undertook certain modifications
of its website to
make it more accessible to the blind. In response to this litigation, Target began
drafting Online
Assistive Technology Guidelines based on plaintiffs' expert report. Nemoir Dep. at
21:18-22:5.
*1190 LEGAL STANDARD
I. Motion for Class Certification
A party seeking to certify a class must satisfy the four prerequisites enumerated
in Rule 23(a), as
well as at least one of the requirements of Rule 23(b). Under Rule 23(a), the party
seeking class
certification must establish: (1) that the class is so large that joinder of all
members is impracticable
(i.e., numerosity); (2) that there are one or more questions of law or fact common
to the class (i.e.,
commonality); (3) that the named parties' claims are typical of the class (i.e.,
typicality); and (4) that
the class representatives will fairly and adequately protect the interests of other
members of the class
(i.e., adequacy of representation). Fed.R.Civ.P. 23(a). In addition to satisfying
these prerequisites,
parties seeking class certification must show that the action is maintainable under
Rule 23(b)(1), (2)
or (3). See Rule 23(b); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct.
2231, 138
L.Ed.2d 689 (1997). Rule 23(b)(2) permits class actions for declaratory or injunctive
relief where the
party opposing the class "has acted or refused to act on grounds generally applicable
to the class."
Rule 23(b)(2).
The party seeking class certification bears the burden of establishing that the requirements
of
Rules 23(a) and 23(b) have been met. See Zinser v. Accufix Research Inst., Inc.,
253 F.3d 1180,
1188 (9th Cir.2001), amended by 273 F.3d 1266 (9th Cir.2001); Hanon v. Dataproducts
Corp., 976
F.2d 497, 508 (9th Cir.1992). However, in adjudicating a motion for class certification,
the court
accepts the allegations in the complaint as true so long as those allegations are
sufficiently specific to
permit an informed assessment as to whether the requirements of Rule 23 have been
satisfied. See
Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S.
816, 97 S.Ct. 57,
50 L.Ed.2d 75 (1976). The merits of the class members' substantive claims are generally
irrelevant to
this inquiry. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140,
40 L.Ed.2d 732
(1974); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983).
II. Motion for Summary Judgment
Summary judgment is proper when the pleadings, discovery and affidavits show that
there is "no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of
law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of
the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A dispute as to a
material fact is genuine if there is sufficient evidence for a reasonable jury to
return a verdict for the
nonmoving party. Id. The party moving for summary judgment bears the burden of identifying
those
portions of the pleadings, discovery and affidavits that demonstrate the absence
of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986).
On an issue for which the opposing party will have the burden of proof at trial,
the moving party need
only point out "that there is an absence of evidence to support the nonmoving party's
case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond
the
pleadings and, by its own affidavits or discovery, "set forth specific facts showing
that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not
defeat a moving party's
allegations. Id.; Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th
Cir.1994). The
court may not make credibility determinations, and inferences to be drawn from the
facts must be
*1191 viewed in the light most favorable to the party opposing the motion. Masson
v. New Yorker
Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Anderson, 477
U.S. at 249,
106 S.Ct. 2505.
The moving party may "move with or without supporting affidavits for a summary judgment
in the
party's favor upon all [claims] or any part thereof." Fed.R.Civ.P. 56(a). "Supporting
and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would
be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated
therein." Fed.R.Civ.P. 56(e).
DISCUSSION
I. Motion for Class Certification
Plaintiffs seek certification of a nationwide class for claims arising under the
Americans with
Disabilities Act, 42 U.S.C. sections 12101 et seq. and a California sub-class for
violations of the Unruh
Civil Rights Act, California Civil Code sections 51 et seq. and the Disabled Persons
Act, California Civil
Code sections 42 et seq. In its April 27, 2007 order the court defined the proposed
nationwide class
as follows:
All legally blind individuals in the United States who have attempted to access Target.com
and as a
result have been denied access to the enjoyment of goods and services offered in
Target stores.
In that order, the court did not address the proposed class definition for the California
sub-class.
Plaintiffs have proposed the following definition for the sub-class:
All legally blind individuals in California who have attempted to access Target.com,
for plaintiffs'
claims arising under the California Unruh Civil Rights Act, California Civil Code
§§ 51 et seq. and the
Disabled Persons Act, California Civil Code §§ 54 et seq.
They ask the court to certify their claims for damages as well as injunctive relief
under Rule 23(b)(2).
Finally, they ask that Sexton be appointed as class representative and that Disability
Rights
Advocates, Schneider & Wallace, Brown, Goldstein, Levy, LLP, and Dr. Peter Blanck
be appointed as
class counsel. Before addressing the requirements for certifying a class under Rule
23, the court must
first address a number of preliminary issues.
A. Jurisdictional Issues
In various parts of its submissions, defendant raises both standing and mootness
challenges to the
proposed class action. Target argues that the organizational plaintiffs do not have
standing to pursue
the proposed class action. In addition, Target contends that certain accessibility
modifications to the
website have rendered plaintiffs' claims moot.
1. Standing
NFB and NFB-CA are proper parties to the instant action. While not raising an explicit
standing
challenge, Target argues that these two organizational plaintiffs are not members
of the putative
class according to the proposed class definition, which includes only blind "individuals."
However, NFB
and NFB-CA are parties to the complaint individually as well as on behalf of their
members. Lack of
membership in the class does not defeat standing independent of a class nor can the
court
contemplate any reason why the exclusion of the organizational plaintiffs from the
class definition is
relevant.
Target further questions whether NFB and NFB-CA have demonstrated injury in their
own right,
presumably for the purposes of organizational standing. Def.'s Opp. at 5. Even if
the organization has
not suffered injury to itself, it may have standing to assert the rights of its members.
Warth v. Seldin,
422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Therefore,*1192 these organizations
need
not prove injury to themselves.
[1]
[2]
 If an organization has not suffered injury to itself, it may have standing to assert
the
rights of its members if (1) its members would have standing to sue on their own;
(2) the interests it
seeks to protect are germane to its purpose; and (3) its claim and requested relief
do not require
participation by individual members. Hunt v. Wash. State Apple Adver. Comm'n, 432
U.S. 333, 343,
97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Plaintiffs have submitted declarations from
members of both
NFB and NFB-CA that demonstrate that their members meet the requirements of standing:
injury-in-
fact, causation, and redressability. See, e.g., Sexton Dec. ¶ 33. Sexton is a member
of both
organizations. Id. ¶ 6-7. In his declaration, Sexton describes his thwarted attempts
to use Target.com
to browse for products found in the Target stores. Id. ¶ 33. He also describes his
intention to use the
website to search store-related weekly specials and other features of the website.
Id. He states that
he is unable to do so because of website accessibility barriers. Id. ¶ 32; see also
Jacobson Dec. ¶ 20.
For the purposes of the injury-in-fact requirement, Sexton has demonstrated that
he faces a concrete
and particularized injury that is not conjectural. Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs.
Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The accessibility
barriers-lack of alt
tags, keyboard accessibility, and headers-are traceable to the conduct of the defendant.
Moreover,
Sexton's claims can be redressed by the equitable relief sought. Id. The court concludes
that Sexton
has satisfied the Article III standing requirements, and, therefore, NFB and NFB-CA
may properly
base their representational standing claim on Sexton's standing.
[3]
 Moreover, the instant action and requested relief is germane to the organizational
plaintiffs'
purposes in protecting the interests of the blind. FAC ¶¶ 8-9. Finally, these two
plaintiffs seek
injunctive relief, which would not require the participation of individual members.
The court,
therefore, finds that NFB and NFB-CA have standing as representatives of their members
to pursue
their claims for injunctive relief both independently and as part of the class and
subclass alleged.
Target argues that the two organizational plaintiffs do not have standing to pursue
damages on
behalf of the California subclass. Certainly, it is unlikely, if not impossible,
that organizational
plaintiffs would have standing to pursue damages claims because the form of relief
necessarily
requires the participation of the individual members. See Bano v. Union Carbide Corp.,
361 F.3d 696,
714 (2d Cir.2004) (observing that no federal appellate body had held that an "association
has
standing to pursue damages claims on behalf of its members"). However, the court
need not reach
this issue because Sexton has standing to pursue damages claims on behalf of the
California subclass.
The parties do not dispute that the organizational plaintiffs have standing to pursue
the equitable
relief sought by them independently and for the class.
2. Mootness
[4]
 Target points to several accessibility improvements on its website, which it made
subsequent to the filing of the instant complaint, to argue that plaintiffs' claims
are moot.
FN2
 In
response to the accessibility*1193 report of plaintiffs' expert, Target has made
certain modifications
to its website. Indeed, plaintiffs' expert concedes that the modifications have increased
accessibility
for the blind. See Thatcher July 7, 2006 Dec. ¶ 3 (remarking that the changes at
Target.com have
made it "more likely that a blind user could complete a transaction"). Target does
not assert that all
of plaintiffs' accessibility claims have been addressed by the recent modifications,
and even the most
favorable understanding of these modifications would suggest that only one aspect
of the claims has
been fully addressed: keyboard accessibility. Moreover, the continuous addition of
new pages to
Target.com argues against a mootness finding. Aside from the incompleteness of the
modifications
and the potential for new pages, it is well-settled law that "voluntary cessation
of allegedly illegal
conduct ... does not make the case moot." DeFunis v. Odegaard, 416 U.S. 312, 318,
94 S.Ct. 1704,
40 L.Ed.2d 164 (1974) (citation and quotation omitted). Therefore, the court rejects
the argument
that the post-filing modifications to Target.com render plaintiffs' claims moot.
FN2. Target raises this issue in the context of arguing that the timing of the
improvements to the website complicate individual damages calculations, without
explicitly raising a mootness challenge. However, the court considers it prudent
to
address any potential jurisdictional issues.
B. Proposed Class Definitions
Target argues that two deficiencies in the proposed class definitions militate against
certification.
First, it argues that the proposed definitions are overbroad, because they include
claims that the court
dismissed in its previous order. Second, it contends that the proposed definitions
are not adequately
defined or ascertainable. Having addressed both issues in its previous class certification
order, the
court need not consider those here.
C. Supplemental Declarations
Target contends that plaintiffs' efforts to certify a class must fail because all
of the putative class
member declarants were able to access the goods and services of Target stores. The
court has
examined each of the thirty-four supplemental declarations submitted by plaintiffs
in response to the
court's previous class certification order.
Styled as a challenge to class certification, Target's argument addresses the merits
of whether
plaintiffs have suffered an injury under the ADA's requirement of "full and equal
enjoyment of the
goods [and] services ... of any place of public accommodation." 42 U.S.C. § 12182(a).
This dispute is
dangerously close to asking the court to make a preliminary inquiry into the merits
of plaintiffs' claims
in determining whether to certify a class. See Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 177, 94
S.Ct. 2140, 40 L.Ed.2d 732 (1974). Alternatively, Target's position sounds as a standing
challenge.
Neither view is persuasive.
[5]
 A preliminary inquiry into the merits of plaintiffs' claims at the class certification
stage is
inappropriate. Id. The court may only scrutinize plaintiffs' legal causes of action
to determine whether
they are suitable for resolution on a class-wide basis. See, e.g., Moore v. Hughes
Helicopters, Inc.
708 F.2d 475, 480 (9th Cir.1983). This inquiry requires the court to accept the substantive
allegations
contained in plaintiffs' complaint as true and analyze only whether the asserted
claims or defenses
are susceptible of resolution on a class-wide basis. See McCarthy v. Kleindienst,
741 F.2d 1406, 1419
n. 8 (D.C.Cir.1984). Target asks the court to determine which of plaintiffs' alleged
injuries constitute
a denial of access to the stores for the purposes of the ADA; in essence, this would
require the court
to make a liability determination at this stage. The court declines to decide, at
the class certification
stage, which of the declarants' purported injuries constitute violations of the ADA.
*1194 Those
questions reach the ultimate merits of this action.
[6]
Rather, the court has reviewed each of the supplementary declarations to determine
whether the putative class members meet the class definition. The court is satisfied
that many of the
putative class members have alleged that they were denied access to the enjoyment
of goods and
services offered in Target stores as a result of their inability to access Target.com.
The declarations
present two types of alleged access problems: diverted purchases and in-store barriers.
Some of the putative class members were deterred from going to Target stores after
their
experiences with the website. See, e.g., Williamson Dec. ¶ 17 ("I was not able to
locate any products
or access any product descriptions.... I gave up ... and ended up finding the video
game I was looking
for on Wal-Mart's website and purchased the game from our local Wal-Mart store");
Carranza Dec. ¶
12 ("I tried, without success, to use Target's website before shopping at my local
Target store.... The
layout of the website was extremely confusing and large portions of information appeared
to be
missing. So, I went to [another] store's website instead. I easily selected a gift
from that store's
online registry and a friend of mine purchased it from the local store."). Target
dismisses these
diverted purchases as speculative, depending on a number of unsubstantiated assumptions
about the
availability of products in the stores. Certainly, products listed on a gift registry,
like the one Ms.
Carranza attempted to access, are expected to be available in the stores; her diverted
purchase was
not based solely on speculation. See Carranza Dec. ¶ 12. Moreover, Target's argument
based on the
speculative purchases would defeat most ADA claims. There is no requirement that
a plaintiff who
encounters physical accessibility barriers-such as a wheelchair user who confronts
a store without
ramps at its entrance-must provide a shopping list of products available at the store
in order to
proceed with an ADA claim. Rather, it is sufficient that the putative class members
have alleged that
they were denied access, by being diverted to another store, in order to meet the
class definition.
Again, this showing does not establish that any of the alleged injuries were, in
fact, a denial of access
under the ADA.
To put to rest any latent standing challenges on the basis of the declarations presented,
the court
notes that putative class members who have been deterred from shopping at Target
altogether have
standing to proceed on their ADA claims. Pickern v. Holiday Quality Foods Inc. suggests
that for the
purposes of standing, class members need not have engaged in a "futile gesture" to
gain access to
the store when they knew that it would likely be inaccessible. 293 F.3d 1133, 1135
(9th Cir.2002)
("We hold that when a plaintiff who is disabled within the meaning of the ADA has
actual knowledge
of illegal barriers at a public accommodation to which he or she desires access,
that plaintiff need not
engage in the 'futile gesture' of attempting to gain access in order to show actual
injury during the
limitations period."). Therefore, those declarants who have described specific incidents
in which they
were diverted to another store by virtue of the inaccessibility of Target.com have
met the class
definition.
A second set of declarants describe the increased time and expense incurred during
in-store
shopping as a result of the inaccessibility of the website. Their inability to pre-shop
on the website
required declarants to hire an aide or ask a friend or family member to accompany
them. See, e.g.,
Marks Dec. ¶ 12; Booth Dec. ¶ 12. Guided shopping trips took longer *1195 as a result
of the
inability to review products online in advance. Booth Dec. ¶ 12. Other declarants
resorted to in-store
help when they could not access the website. For example, Charlotte Czarnecki described
her
experience with seeking assistance with a gift registry after being unable to access
it online:
I went to the physical Target store and asked a store clerk to print out the registry
and read it to
me. The list was very long with many categories. I felt uncomfortable because the
store clerk
seemed reluctant to read the entire list to me aloud and provide the level of detail
I needed to
decide what to buy.... In the end, I made a rash decision about what to buy and purchased
the gift
before I left the store.
Czarnecki Dec. ¶ 8. Plaintiffs characterize these as a dignitary injury in which
a "blind shopper must
check her independence at the door." Pls.' Class Cert. Suppl. at 5. Certainly, forced
reliance on other
people is injurious in many respects. Again, Target responds that none of these declarants
were absolutely prohibited from entering the Target stores and making purchases as
a result of the
website's inaccessibility. According to Target, these shoppers merely experienced
inconvenience.
Target contends that equal convenience is not required by ADA; therefore, the fact
that putative class
members spent more time to accomplish the same tasks as sighted persons and required
assistance
from in-store personnel or guides does not render the stores inaccessible. Like its
argument that
deterrence does not constitute inaccessibility, this argument, too, is overbroad.
A wheelchair user is
not prohibited from entering a store without a ramp: that person could be carried
into the store by
the store personnel or hire a guide to do so. Nevertheless, those accessibility barriers,
even where
they may be accommodated, would generally violate the ADA. Similarly, the increased
cost and time
to surmount the alleged barriers presented by the inability to pre-shop demonstrate
that these
declarants have met the class definition. Target's reliance upon their ability to
accommodate blind
shoppers through other means, such as in-store assistance or a 1-800 customer service
number is
misplaced at this stage. As the court noted at the outset of this litigation, the
method of
accommodation is an affirmative defense. Order of September 5, 2006 at 11 ("[T]he
flexibility to
provide reasonable accommodation is an affirmative defense and not an appropriate
basis upon which
to dismiss the action."). Whether Target's proffered accommodations are reasonable
is an inquiry
better left to later stages of the litigation.
The declarations do not suffer from the defects described in the court's previous
order on class
certification. See April 25, 2007 Order at 7 ("Despite the statements indicating
that they may have
been deterred from purchasing products at Target stores, the declarations make clear
that these are
individuals who would prefer to shop online. They consistently express the declarants'
desire to shop
on the Target.com website."). The declarants each describe how they use the Target.com
website in
connection with their visits to the store. See, e.g., Kresmer Dec. ¶ 7 ("I visit
store websites in
connection with in-store shopping at least twice a month."); Servan Dec. ¶ 7 ("I
also use the internet
to access gift registries, but ... I tend to buy the items at the stores themselves
rather than order on
the internet."). The declarations suggest that pre-shopping is an important aspect
of in-store
accessibility for blind shoppers. See Kresmer Dec. ¶ 9 (noting that the newly-blind
are taught to use
the "internet in conjunction with in-store shopping"). Significantly, each of the
putative class
members has described specific incidents within the recent past in which the inaccessibility
of the
website has *1196 prevented them from enjoying the goods and services available at
Target stores.
See e.g., Frye Dec. ¶ 9 (describing such an incident "last Christmas"); Booth Dec.
¶ 11-12 (an
incident "last fall"). The boilerplate "recitation of [a] future desire" to visit
the stores is no longer the
only allegation of a nexus to the stores. April 25, 2007 Order at 8. The court is
satisfied that, for the
sole purpose of class certification, the declarants have established that they meet
the class definition.
D. State law claims
As an initial matter, the parties dispute whether the class definition for the proposed
California
subclass must contain a similar nexus requirement. Defendant also asserts that certification
of a
California subclass for either the Unruh or the DPA claims is improper. The court
will consider each of
these arguments in turn.
Target contends that the Unruh Act and DPA claims must be dependent on an alleged
ADA
violation because neither statute would apply to Target.com independent of an alleged
ADA violation.
In its September 5, 2006 order, the court noted that a violation of the ADA is, by
statutory definition,
a violation of both the Unruh Act and the DPA. Cal. Civ.Code §§ 51(f), 54.l(d); Sept.
5, 2006 Order at
12-13. That order did not address whether the nexus requirement was applicable to
the Unruh and
DPA claims independent of plaintiffs' ADA claims. The court did not impose the nexus
requirement for
state law claims; it merely noted that a violation of the ADA was ipso facto a violation
of the two state
statutes at issue. Sept. 5, 2006 Order at 12-13. Indeed, the court observed that
Target.com likely
met the definition of a service of a business establishment under section 51(b) of
the Unruh Act. Id.
Plaintiffs present persuasive authority to demonstrate that the Unruh Act and the
DPA do not
require a nexus to the retail stores. First, neither statute is limited to restrictions
on access to a place
of public accommodation in the same way as the ADA is limited. 42 U.S.C. § 12182(a)
("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...."); see Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104,
1114 (9th
Cir.2000) (concluding that, for the purposes of the ADA, "places of public accommodation"
is limited
to actual, physical spaces). The Unruh Act regulates "all business establishments
of every kind
whatsoever." Cal Civ.Code § 51(b). The DPA addresses "an accommodation, advantage,
facility, and
privilege of a place of public accommodation" and "other places to which the general
public is invited."
Id. § 54.1(a)(1). Thus, the language of both statutes is broader than that of the
ADA.
[7]
What the court alluded to in its previous order, it will now hold explicitly for
the purposes of
class certification: the Unruh Act and the DPA reach Target.com as a kind of business
establishment
and an accommodation, advantage, facility, and privilege of a place of public accommodation,
respectively. No nexus to the physical stores need be shown.
1. Unruh Act
The Unruh Act, California Civil Code section 51, et seq. states that
(b) All persons within the jurisdiction of this state are free and equal, and no
matter what their
sex, race, color, religion, ancestry, national origin, disability, medical condition,
marital status, or
sexual orientation are entitled to the full and equal accommodations, advantages,
facilities,
privileges, or *1197 services in all business establishments of every kind whatsoever.
The statutory text is not susceptible to the limited construction that the Ninth
Circuit has placed on
the ADA. Weyer, 198 F.3d at 1114 (9th Cir.2000). In its 1959 amendments to the Unruh
Act, the
California legislature eliminated the list of physical places contained in the Act
and replaced it with the
reference to "all business establishments of every kind whatsoever." Warfield v.
Peninsula Golf &
Country Club, 10 Cal.4th 594, 618, 42 Cal.Rptr.2d 50, 896 P.2d 776 (1995) (discussing
1959
amendments to the Unruh Act); Gardner v. Vic Tanny Compton, Inc., 182 Cal.App.2d
506, 512, 6
Cal.Rptr. 490 (1960) (describing interpretation of previous statutory language limiting
Unruh Act to
"all other places"). By contrast, the California Supreme Court has read the relevant
language of the
Unruh Act to the broadest extent possible: "the word 'establishment,' as broadly
defined, includes not
only a fixed location ... but also a permanent 'commercial force or organization.'
" O'Connor v. Village
Green Owners Ass'n, 33 Cal.3d 790, 795, 191 Cal.Rptr. 320, 662 P.2d 427 (1983). In
its most recent
amendments to the Unruh Act, the legislature made a specific finding expressing its
support for the
expansive construction in O'Connor. See Cal. Civ.Code. § 51, Historical Notes-Historical
and Statutory
Notes ("It is the intent of the Legislature that the amendments made to the Unruh
Civil Rights Act by
this act do not affect the California Supreme Court's rulings in [ Marina Point ]
and [ O'Connor ].").
Indeed, one federal district has recently construed the term "business establishment"
to include an
exclusively internet-based adoption agency. Butler v. Adoption Media, LLC, 486 F.Supp.2d
1022, 1054
(N.D.Cal.2007) (Hamilton, J.). In that case, the plaintiffs alleged that the website's
refusal to offer
same-sex domestic partners the adoption-related services on the same terms and conditions
offered
married couples, violated the Unruh Act. None of these cases restrict the applicability
of the Unruh Act
in the same way as the ADA; imposing a nexus requirement on the class definition
for the California
subclass is, therefore, not necessary.
In its supplemental briefing, Target does not appear to dispute that the Unruh Act
applies to
websites. Rather, it argues that the Unruh Act requires an individualized showing
of discriminatory
intent and that such a showing necessarily defeats class certification. Under this
theory, plaintiffs
cannot meet the predominance showing required by Rule 23(b)(3). See Rutstein v. Avis
Rent-A-Car
Systems, Inc., 211 F.3d 1228, 1235 (11th Cir.2000) (concluding that putative class
action requiring a
showing of intentional discrimination could not meet the predominance requirement).
Target also
contends that the damages claims would require individualized determinations unsuitable
for a class
action. In similar contexts, district courts have certified class actions alleging
disability discrimination
under the Unruh Act. See Moeller v. Taco Bell Corp., 220 F.R.D. 604, 613 (N.D.Cal.2004)
(Jenkins, J.)
(certifying class under Rule 23(b)(2) for ADA and Unruh Act claims brought by wheelchair
users
against restaurant); Arnold, 158 F.R.D. at 461-62 (certifying similar class under
Rule 23(b)(2));
Berlowitz v. Nob Hill Masonic Management, No. C-96-01241 MHP, 1996 WL 724776 (N.D.Cal.
Dec. 6,
1996) (Patel, J.) (same). In each of these cases as in the present one, the class
members did not
challenge individual actions by the defendant against each member of the class but
the same
actions taken by defendant. Moeller, 220 F.R.D. at 613. The intent requirement, if
one exists, of the
Unruh Act does not render class certification inappropriate.
*1198 Target also argues that the Unruh Act bars claims that require modification
of the sort
sought by plaintiffs claims for injunctive relief. See Cal. Civ.Code 51(d) ("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...."). This argument, even if it is correct,
is not relevant to the
instant motion for class certification.
2. DPA
The DPA guarantees that individuals with disabilities
shall be entitled to full and equal access, as other members of the general public,
to
accommodations, advantages, facilities, medical facilities, including hospitals,
clinics, and
physicians' offices, and privileges of all common carriers, airplanes, motor vehicles,
railroad trains,
motorbuses, streetcars, boats, or any other public conveyances or modes of transportation
(whether private, public, franchised, licensed, contracted, or otherwise provided),
telephone
facilities, adoption agencies, private schools, hotels, lodging places, places of
public
accommodation, amusement, or resort, and other places to which the general public
is invited,
subject only to the conditions and limitations established by law, or state or federal
regulation, and
applicable alike to all persons.
Cal. Civ.Code § 54.1(a)(1). The parties dispute whether the language "and other places
to which the
general public is invited" includes websites such as Target.com. Id. The text itself
is silent on the
issue, but it is notably broader than the ADA. Compare id. with 42 U.S.C. § 12182(a)
("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.").
The
enumeration of the public places in the DPA includes such things as "telephone facilities,"
defined by
the Act as "tariff items and other equipment and services." Cal. Civ.Code § 54.1(a)(2).
The logic of
Weyer in limiting the ADA to physical places relied upon the canon of noscitur a
sociis:
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.
198 F.3d at 1114. Fidelity to this principle of statutory construction would suggest
the opposite
conclusion for the DPA: because the DPA enumerates both physical places and non-physical
places,
the phrase "other places to which the general public is invited" cannot be limited
solely to physical
places. Furthermore, among the "places" enumerated in the DPA is entitlement to "advantages,"
which clearly is not affixed to any particular physical location.
While there are no cases applying the DPA to websites, there is no case law to suggest
that the
legislature intended to exclude websites from the coverage of the DPA. Indeed, the
broad language of
the DPA comfortably encompasses websites as "places to which the general public is
invited."*1199
Recent amendments to the statute reaffirm that the statutory language was intended
to be read
liberally. In enacting the 1992 amendments to the statute, the legislature noted
its intent "to
strengthen California law in areas where it is weaker than the Americans with Disabilities
Act of 1990,
and to retain California law when it provides more protection for individuals with
disabilities ...." 1992
Cal. Stats. 4282. In drafting such broad language, the legislature was likely aware
that it was
ensnaring websites.
In sum, the court concludes that imposing a nexus requirement on the definition of
the subclass
would be inappropriate at this stage. Therefore, the court finds that the proposed
California subclass
definition is appropriate.
II. Rule 23(a) Requirements
As noted above, a party seeking class certification must establish that the numerosity,
commonality, typicality and adequacy of representation requirements of Rule 23(a)
have been met.
The court addresses each of these requirements below.
A. Numerosity
Pursuant to Rule 23, the class must be "so numerous that joinder of all members is
impracticable."
Fed.R.Civ.P. 23(a)(1). As a general rule, classes numbering greater than 41 individuals
satisfy the
numerosity requirement. See 5 James Wm. Moore et al., Moore's Federal Practice §
23.22[1] [b] (3d
ed.2004). Although plaintiffs need not allege the exact number or identity of class
members to satisfy
the numerosity prerequisite, mere speculation as to the number of parties involved
is not sufficient to
satisfy the numerosity requirement. See Freedman v. Louisiana-Pac. Corp., 922 F.Supp.
377, 398
(D.Or.1996); 7 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice
and Procedure
§ 1762 (3d ed.1995).
[8]
 Plaintiffs have submitted evidence, based on U.S. Census data, that there are likely
thousands of potential class members in the nationwide class based on the large number
of people
who are legally blind and use screen access software. See Brome Dec. ¶ 4. Similarly,
they estimate
that there are approximately 140,000 blind individuals in California. Id. They further
contend that
10,000 blind people in California use screen access software to access the internet.
Taylor Dec. ¶ 4.
Target responds that plaintiffs have not met their burden on this element: they have
not presented
any evidence of the number of blind individuals who use the internet and more specifically
those who
have attempted to access Target.com. However, defendant seeks to impose a level of
specificity not
required by Rule 23(a). Courts, including this one, have repeatedly certified ADA
classes like the one
proposed here based on similar evidentiary showings. In Lieber v. Macy's Cal., Inc.,
No. C 96-2955
MHP, Order re: Class Certification, at 5 (N.D.Cal. Mar. 9, 1998), this court found
the numerosity
requirement satisfied based on census data and statistical evidence indicating that
there were
thousands of wheelchair users and persons with other mobility disabilities living
in the Bay Area. In
that action, like the present one, the class definition included persons with certain
specific mobility
disabilities who had been denied access to one of defendants' stores. Id. The court
required no
evidence that a sufficiently numerous subset of mobility impaired persons had been
denied access to
the stores, because no such evidence was required by the dictates of Rule 23. Indeed,
in cases, like
those involving alleged violations of the ADA, where the alleged violations may have
deterred putative
class members from attempting to access*1200 stores, the type of evidence defendant
seeks may be
unavailable, if not impossible, to obtain. The court in Arnold v. United Artists
Theatre Circuit, Inc.,
158 F.R.D. 439, 448 (N.D.Cal.1994) (Henderson, J.) similarly concluded that estimates
of the likely
number of disabled persons affected by access barriers in seventy of the defendant's
theaters was
sufficient to establish numerosity.
Defendant's reliance upon Celano v. Marriott Intern., Inc., 242 F.R.D. 544, 548 (N.D.Cal.2007)
(Hamilton, J.) is misplaced. The district court in Celano held that the plaintiffs
had not satisfied the
numerosity requirement because they had not established how many putative class members
"actually had attempted to access one of [plaintiff's facilities] and could not do
so because of the lack
of accessible" auxiliary aides. Id. at 549. In the instant action, plaintiffs have
submitted declarations
establishing that putative class members have tried to access in-store information
on Target.com and
could not. Additionally, the statistical evidence submitted here does not suffer
from the same defects
as that in Celano. That court distinguished the unspecific and insufficient statistical
evidence provided
from that in Arnold. Id. Like the data in Arnold, the statistics presented by plaintiffs
establish that
many blind people currently shop at Target and that the type of activity, shopping
at a Target store,
is sufficiently "widespread", "numerous" and "readily available" that the use of
statistics regarding the
number of blind shoppers at Target is not "rank speculation untethered to real facts."
Id. at 449-50.
Plaintiffs have submitted sufficient evidence to demonstrate numerosity, and the
court declines
defendant's request for more granularity.
B. Commonality
[9]
To fulfill the commonality prerequisite of Rule 23(a)(2), plaintiff must establish
that there
are questions of law or fact common to the class as a whole. Rule 23(a)(2) does not
mandate that
each member of the class be identically situated, but only that there be substantial
questions of law
or fact common to all. See Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d
909, 914 (9th
Cir.1964). Individual variation among plaintiffs' questions of law and fact does
not defeat underlying
legal commonality, because "the existence of shared legal issues with divergent factual
predicates is
sufficient" to satisfy Rule 23. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th
Cir.1998). To the
extent that the parties' commonality arguments overlap with the merits, the court
has evaluated all
relevant evidence to determine whether commonality has been established.
Plaintiffs, like those in Arnold, bring challenges to common design features of Target.com
on the
basis of "common distinguishing characteristics shared by all the class members,"
in this case, their
status as blind or visually impaired individuals. 158 F.R.D. at 452. The common questions
of law
presented here include whether the ADA covers websites as a service for a place of
accommodation,
which parts of the Target.com website are covered by the ADA, and whether Target
has satisfied its
obligations under the relevant statutes by accommodating access including, but not
limited to,
providing a customer service telephone number. The questions of fact common to all
class members
include whether the website is linked to Target stores, what specific accommodations
(e.g., alt-tags,
keyboard functionality, headings) are available on Target.com, and whether the post-filing
improvements have satisfied Target's statutory obligations. Defendants present no
arguments to
suggest that plaintiffs have not satisfied the commonality requirement.
*1201 In sum, plaintiffs have demonstrated to the court that there are common issues
of fact and
theories of law as to accessibility of the Target.com website. Therefore, the court
finds that plaintiffs
have satisfied the commonality requirement.
C. Typicality
[10]
Under Rule 23(a)(3), the claims of the representative plaintiff must be typical of
the
claims of the class. To be considered typical for purposes of class certification,
the named plaintiff
need not have suffered an identical wrong. See Hanlon, 150 F.3d at 1020. Rather,
the class
representative must be part of the class and possess the same interest and suffer
the same injury as
the class members. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147,
156, 102 S.Ct.
2364, 72 L.Ed.2d 740 (1982)
.
The gravamen of Target's argument is that the named plaintiff, Sexton, has not demonstrated
a
legally cognizable injury and, therefore, his claims are not typical of those belonging
to the class.
Specifically, they contend that Sexton's declaration-nor that of any of the putative
class members-has
not demonstrated an injury with sufficient nexus to the Target stores. As discussed
below, the court is
not convinced that Sexton has demonstrated an injury with the requisite nexus to
the Target stores
for the nationwide class. However, the court is satisfied that some of the putative
class members
would present the same type of legal and remedial theory as the unnamed class members.
As long as
the proposed class satisfies the requirements of Rule 23, the court may certify the
class conditioned
upon the substitution of another named plaintiff. See Kremens v. Bartley, 431 U.S.
119, 135, 97 S.Ct.
1709, 52 L.Ed.2d 184 (1977) (where named plaintiffs' claims were determined to be
moot, ordering
substitution of class representatives); Gibson v. Local 40, 543 F.2d 1259, 1263 (9th
Cir.1976) ("In
any event, failure of proof as to the named plaintiffs would not bar maintenance
of the class action or
entry of judgment awarding relief to the members of the class."). Thus, the court
will grant plaintiffs'
leave to substitute another class representative for the nationwide class.
Target also attacks the proposed class on the basis that the class members' claims
are widely
divergent, depending on the members' different skill levels with the internet; the
type of technology
they use; and which parts of the website they attempted to access. These arguments
are
unavailing. "Some degree of individuality is to be expected in all cases, but that
specificity does not
necessarily defeat typicality." Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1232 (9th
Cir.2007). In most
cases involving access under the ADA, there will be individual variations among class
members in
terms of the nature of their disability, the types of aides used, and the individual
nature of each class
member's encounters with the website and access to services and facilities. See,
e.g., Moeller v. Taco
Bell Corp., 220 F.R.D. 604, 611 (N.D.Cal.2004) (finding typicality satisfied where
proposed class used
different types of mobility aides but experienced the same "effect of these alleged
barriers and
policies").
D. Adequacy of Representation
Rule 23(a)(4) dictates that the representative plaintiff must fairly and adequately
protect the
interests of the class. To satisfy constitutional due process concerns, unnamed class
members must
be afforded adequate representation before entry of a judgment which binds them.
See Hanlon, 150
F.3d at 1020 (citing Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 85 L.Ed.
22 (1940)).
"Resolution of two questions *1202 determines legal adequacy: (1) do the named plaintiffs
and their
counsel have any conflicts of interest with other class members and (2) will the
named plaintiffs and
their counsel prosecute the action vigorously on behalf of the class?" Hanlon, 150
F.3d at 1020.
Defendant attacks the adequacy of the representation by reiterating the same theory:
that Sexton
has not provided proof of a legally cognizable injury. Having addressed that elsewhere,
the court need
not revisit that argument here. Plaintiffs and their counsel appear to have no conflicts
of interest with
the members of the class. Moreover, it is clear that plaintiffs' counsel is highly
competent and
defendant does not dispute this. Therefore, the court concludes that plaintiffs have
satisfied the
adequacy of representation requirement.
E. Rule 23(b)(2) Requirements
In addition to meeting the conditions imposed by Rule 23(a), a party seeking certification
of a
class under Rule 23(b)(2) also bears the burden of establishing that "the party opposing
the class has
acted or refused to act on grounds generally applicable to the class, thereby making"
injunctive relief
appropriate. Fed.R.Civ.P. 23(b)(2). Class actions certified under Rule 23(b)(2) are
"not limited to
actions requesting only injunctive or declaratory relief, but may include cases that
also seek monetary
damages" where the claim for injunctive relief is the primary claim. Probe v. State
Teachers' Ret.
Sys., 780 F.2d 776, 780 (9th Cir.1986). Rule 23(b)(2) certification of a class seeking
both injunctive
relief and damages is proper only where the claim for injunctive relief is the predominant
form of
relief sought by the class. The court addresses these requirements below.
[11]
 For the purposes of Rule 23(b)(2), plaintiffs have sufficiently established that
Target's
actions with respect to the accessibility of its website are "generally applicable
to the class." Fed. R.
Civ. Proc. 23(b)(2). Target's expert, Dr. Thatcher, explained in his report that
"[a]s of April 12, 2006
the website of Target Corporation is virtually unusable by a visitor who is blind."
Thatcher Dec. ¶ 60,
Pls.' Exh. D. Target has made accessibility improvements to its website more recently.
See Nemoir
Dep. at 21:18-22:5. Nonetheless, putative class members state that they have experienced
difficulties accessing the website as recently as June 2007. See e.g., Jacobs Dep.
at 44-45. The
parties agree that these barriers, to the extent that they still exist, impact all
blind users who rely on
reader software.FN3 While the class definition as modified may include both blind
individuals who use
reader software and those who do not, the court is satisfied that the website accessibility
barriers
identified by plaintiffs are generally applicable to the class.
FN3. Plaintiffs contend that Target's witnesses, Nemoir and Perry, acknowledge that
the
accessibility barriers on Target.com are generally applicable to the class. See Pl's
Mot. at
17. However, a review of the deposition testimony of these two witnesses indicates
that
both acknowledge only that alt-tags are necessary for people using JAWS or other
reader
software. Perry Dep. at 22:17-26:7; Nemoir Dep. at 85:15-24. Nemoir further
acknowledged that keyboard navigation is generally necessary for blind users who
use screen access software. Nemoir Dep. at 154:10-155:9.
The second of the Rule 23(b)(2) requirements, the predominance inquiry, affects only
the
California subclass. Here, plaintiffs seek statutory damages only for the California
state law claims on
behalf of the putative California subclass. The nationwide class seeks only declaratory
and injunctive
relief, thus satisfying the predominance requirement. Target argues*1203 that the
statutory
damages sought by the California subclass predominate over their request for equitable
relief; indeed,
it asserts that the damages are the very "raison de etre of this subclass." Def.'s
Opp. at 20. In
divining the intent of the plaintiffs, Target emphasizes the recent changes to the
website and
statements made by NFB members that the changes render the site accessible. Because
Target.com
is now more accessible, Target argues that equitable relief will accomplish little
more and, therefore,
the damages claims predominate. While some anticipation of plaintiffs' intent is
appropriate under
Rule 23(b)(2), see Molski v. Gleich, 318 F.3d 937, 950 (9th Cir.2003) (focusing on
the plaintiff's
intent for purposes of the predominance inquiry), Target's heavy focus on damages,
and hence intent,
is misplaced. The nature of the equitable relief is likely to be different and more
expansive given the
court's holding on the state law claims. Also, plaintiffs' own declarations and those
of putative class
members indicate that the major form of relief sought is equitable. See, e.g., Clegg
Dec. ¶ 21; Sexton
Apr. 12, 2006 Dec. ¶ 37 (describing impact on Sexton from not being able to access
the website).
Moreover, as noted previously, the changes made to the website have not addressed
all of plaintiffs'
claims. Accordingly, reliance on the court's order in Leiber is inapposite. Paradis
Dec., Exh. R. Here,
the issues requiring equitable relief have not been resolved to the same degree,
if at all, and will need
to be treated differently from the federal claims.
Next, Target attempts to persuade the court that the damages claims require individualized
inquires too complex for certification of a(b)(2) subclass. However, plaintiffs seek
the minimum
statutory damages, a fixed amount per offense. As the court noted in a similar case
seeking both
injunctive relief and statutory damages, individual-specific claims for statutory
damages, such as
those requested here, are routine in employment discrimination cases. Arnold, 158
F.R.D. at 453
(considering class certification in action for statutory damages and equitable relief
for alleged
violations of the ADA, California Disabled Persons Act, and the Unruh Civil Rights
Act). In Arnold as
here, the relatively minor complexity of these damage claims should not defeat certification
under
Rule 23(b)(2).
Therefore, certification of the nationwide class and the California subclass is proper
under Rule 23
(b)(2).
III. Motion for appointment of class counsel
Federal Rule 23(g) requires the court to appoint plaintiffs' counsel in a class action.
Fed.R.Civ.P. 23
(g). The court is confident in the collective and individual abilities of Mr. Paradis,
Mr. Konecky, Dr.
Blanck, and Mr. Goldstein to fairly and adequately represent the class. Together
counsel have decades
of class action and disability rights experience and adequate resources to pursue
an action of this
nature. See, e.g., Paradis Dec. ¶¶ 2-6; Konecky Dec. ¶¶ 1-6.
Accordingly, the court grants plaintiffs' motion for appointment of lead counsel.
IV. Motion for Summary Judgment
Shortly after plaintiffs filed their motion for class certification, Target filed
a motion for summary
judgment arguing that plaintiff Sexton had suffered no legally cognizable injury.
Specifically, Target
argues that Sexton had failed to meet the nexus requirement for the purposes of his
ADA claim.
Because his state law claims were dependent on his ADA claim, those too must fail
according to
Target.
*1204 A. ADA claim
[12]
 The court agrees that Sexton has not demonstrated that his inability to access Target.com
renders him unable to access the goods and services of Target stores. Sexton has
submitted at least
four declarations over the course of this litigation. See App. of Supp. Dec., Exh.
14 (compiling
declarations). His most recent one, submitted May 25, 2007, describes how Sexton
frequently pre-
shops on several stores' websites before shopping. Sexton May 25, 2007 Dec. ¶ 4.
It further
describes the cost and time incurred when he is unable to pre-shop. Id. ¶ 5. However,
Sexton's
declarations do not establish how his difficulties with the Target.com website have
impeded his access
to the goods and services in the store. He states only that he has been "unable to
use Target.com for
th[e] purpose" of pre-shopping and that he has been unable to use the weekly advertisements
on
Target.com for use in the stores. Id. ¶ 6-7. The only specific incident described
in his declarations
involves his purchase of towels for his dorm room. Sexton Apr. 12 2006 Dec. ¶ 33.
While he was
unable to access information about the towels online, he was ultimately successful
in purchasing them
in the store after hiring a driver and coordinating a trip with a companion. Id.
While Sexton's
experience may qualify under the class definition if he incurred increased expense
and time from the
inability to access the website, nonetheless his declaration does not suggest that
hiring the driver and
arranging for the companion were necessary only because he could not pre-shop. Accordingly,
the
court will grant defendant's motion for summary judgment on Sexton's ADA claim, but
allow
substitution of another plaintiff or plaintiffs on this claim.FN4
FN4. Anticipating that plaintiffs may attempt another declaration by Mr. Sexton,
the court
instructs that this avenue has been exhausted and it will not entertain any further
declarations from Mr. Sexton or other plaintiffs. Plaintiffs may substitute another
named
plaintiff who does not have the shortcomings of Mr. Sexton as described above and
set
forth in the amended complaint the basis on which the newly named plaintiff satisfies
the
standing requirements.
B. State law claims
While Target contends that plaintiffs' state law claims rest entirely on their ADA
claims, plaintiffs
have stated independent bases for their claims under the Unruh Act and the DPA. See
FAC ¶¶ 42, 50.
Therefore, Sexton's failure to meet the nexus requirement does not necessarily defeat
his state law
claims. Having determined that the DPA and the Unruh Act apply to Target. com without
a nexus
requirement, Sexton's state law claims may survive.
1. Unruh Act
The Unruh Act, California Civil Code section 51, et seq. provides in relevant part:
(b)
All persons within the jurisdiction of this state are free and equal, and no matter
what their
sex, race, color, religion, ancestry, national origin, disability, medical condition,
marital status, or
sexual orientation are entitled to the full and equal accommodations, advantages,
facilities,
privileges, or services in all business establishments of every kind whatsoever.
(d)
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,
nor shall
anything in this section be *1205 construed to augment, restrict, or alter in any
way the
authority of the State Architect to require construction, alteration, repair, or
modifications that the
State Architect otherwise possesses pursuant to other laws.
With respect to the Unruh Act claim, Target notes that there are only a few contexts
in which an
Unruh Act claim can exist independent of an ADA claim. It contends that the facts
presented here are
not one of those contexts. Compare Chabner v. United of Omaha Life Ins. Co., 225
F.3d 1042,1047
(9th Cir.2000) (holding that insurance policy that discriminated against the disabled
did not violate
the ADA but did independently violate the Unruh Act) with Molski v. M.J. Cable, Inc.,
481 F.3d 724,
731 (9th Cir.2007) ("In the disability context, California's Unruh Civil Rights Act
operates virtually
identically to the ADA."). The distinguishing factor, according to Target, is that
an independent cause
of action under the Unruh Act involves a discriminatory policy. That argument is
easily set aside.
Nothing in the text of the Unruh Act suggests that a discriminatory policy is required
for a claim
independent of an ADA claim, nor does Target cite any case law to support that position.
Target notes that section 51(c) limits Unruh Act claims to those that do not require
any
"modification or alterations" beyond that required by other provisions of law. Cal.
Civ.Code § 51(c). It
is premature, at this stage, to determine whether the ADA or the DPA would require
modifications of
the Target.com website. The court sees no reason why the Unruh Act's reference to
other provisions
of law would not refer to either the ADA or the state statute. Id. Moreover, plaintiffs
argue that the
modification language refers to physical modification or construction and, therefore,
would not restrict
remedies in the instant action, which require only modification of a website.
Second, Target argues that Sexton has failed to make the requisite intent showing.
Harris v.
Capital Growth Investors XIV, 52 Cal.3d 1142, 1175, 278 Cal.Rptr. 614, 805 P.2d 873
(1991) ("[T]he
language and history of the Unruh Act indicate that the legislative object was to
prohibit intentional
discrimination in access to public accommodations."). Under Ninth Circuit law, intentional
discrimination is not required for an Unruh Act claim predicated on an ADA claim.
See Lentini v. Cal.
Ctr. for the Arts, 370 F.3d 837, 846-47 (9th Cir.2004) ("We find that, regardless
of whether Harris
may continue to have relevance to other Unruh Act suits, no showing of intentional
discrimination is
required where the Unruh Act violation is premised on an ADA violation."). Having
determined that
Sexton has failed to establish his ADA claims, Lentini does not absolve him of his
duty to prove intent
for his independent claim under the Unruh Act.
Whether intent is required for an independent disability claim under the Unruh Act
has not been
addressed by the Ninth Circuit. Harris held that disparate impact theories for gender
discrimination
were not actionable under the Unruh Act. 52 Cal.3d at 1175, 278 Cal.Rptr. 614, 805
P.2d 873.
However, the legislative history of the Act and its subsequent construction tilts
in favor of plaintiffs'
preferred reading. The 1992 amendments to the Unruh Act included a provision to make
a violation of
the ADA a per se violation of the Unruh Act. In doing so, the legislature noted its
intent "to strengthen
California law in areas where it is weaker than the Americans with Disabilities Act
of 1990, and to
retain California law when it provides more protection for individuals with disabilities...."
1992 Cal.
Stats. 4282. This statement of legislative intent, issued *1206 after Harris, suggests
that Harris'
proclamations on the legislature's intent may no longer be applicable, particularly
in disability cases.
But see Gunther v. Lin, 144 Cal.App.4th 223, 50 Cal.Rptr.3d 317 (2006) (relying on
Harris to
conclude that a plaintiff must prove intent for a damages claim, but not for injunctive
relief, under the
Unruh Act).
Plaintiffs argue that the unique nature of discrimination on the basis of disability
makes the
reasoning in Harris inapposite. Disability discrimination, they contend, is characterized
by inaction and
the appropriate remedy for this type of discrimination is modification of otherwise
neutral policies or
practices. Presta v. Peninsula Corridor Joint Powers Bd., 16 F.Supp.2d 1134, 1136
(N.D.Cal.1998)
(Henderson, J.) ("[D]iscrimination against persons with disabilities differs from
discrimination on the
basis of, for example, gender, or race. Discrimination in the latter instances has
been judicially
defined as disparate treatment on the basis of a certain characteristic that identifies
an individual as a
member of a protected class. However, a person with a disability may be the victim
of discrimination
precisely because she did not receive disparate treatment when she needed accommodation.").
The
ADA thus departs from other anti-discrimination statutes in requiring that places
of public
accommodation take affirmative steps to accommodate the disabled. H.R. Rep. No. 101-485,
pt.2, at
104 (1990); 42 U.S.C. § 12182(b)(2) (A) (ii-iv). The court is not persuaded that
the California Court
of Appeals properly acknowledged the unique nature of disability discrimination in
applying Harris to
disability claims for damages. Gunther, 144 Cal.App.4th at 223, 50 Cal.Rptr.3d 317.
At least one
other district court has reached this conclusion. See Wilson v. Haria and Gogri Corp.,
479 F.Supp.2d
1127, 1141 (E.D.Cal.2007) (rejecting Gunther where Unruh claim depended on violations
of the
ADA).
Plaintiffs have alleged intentional discrimination in their complaint. FAC ¶ 41.
Target argues that
they have not established intent nor can they for four reasons: 1) Target did not
engage in any
discriminatory personal contact with Sexton; 2) Target has not engaged in any willful,
affirmative
misconduct; 3) Discriminatory intent cannot be inferred from the effect on the class;
4)
Discriminatory intent cannot be inferred from Target's refusal to modify its website.
Plaintiffs, in their
supplementary brief on state law issues, set out their evidentiary proffer of intent
for a later stage of
litigation, namely that Target's knowing failure and refusal to adopt certain accessibility
features in
Target.com constitute the requisite intent. They cite Hankins v. El Torito Restaurants,
Inc., 63
Cal.App.4th 510, 518, 74 Cal.Rptr.2d 684 (1998) for the proposition that such a knowing
failure
establishes the requisite intent. That case is far from clear on the nature of the
intent showing
required by the Unruh Act.
2. DPA
The DPA provides in relevant part:
§ 54(a) Individuals with disabilities or medical conditions have the same right as
the general public
to the full and free use of the streets, highways, sidewalks, walkways, public buildings,
medical
facilities, including hospitals, clinics, and physicians' offices, public facilities,
and other public places.
...
(c) A violation of the right of an individual under the Americans with Disabilities
Act of 1990 (Public
Law 101-336) also constitutes a violation of this section.
§ 54.1(a) (1) Individuals with disabilities shall be entitled to full and equal access,
*1207 as other
members of the general public, to accommodations, advantages, facilities, medical
facilities,
including hospitals, clinics, and physicians' offices, and privileges of all common
carriers, airplanes,
motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public
conveyances or
modes of transportation (whether private, public, franchised, licensed, contracted,
or otherwise
provided), telephone facilities, adoption agencies, private schools, hotels, lodging
places, places of
public accommodation, amusement, or resort, and other places to which the general
public is
invited, subject only to the conditions and limitations established by law, or state
or federal
regulation, and applicable alike to all persons.
...
(3) "Full and equal access," for purposes of this section in its application to transportation,
means
access that meets the standards of Titles II and III of the Americans with Disabilities
Act of 1990
(Public Law 101-336) and federal regulations adopted pursuant thereto, except that,
if the laws of
this state prescribe higher standards, it shall mean access that meets those higher
standards.
Cal. Civ.Code § 54 et seq.
Target argues that Sexton's DPA claim must fail because the DPA requires an ADA violation
or a
building code violation. Under this view, because Sexton has not suffered an injury
under the ADA
and has provided no evidence of a building code violation, his DPA claim must also
fail. Target relies
on two cases for the proposition that the DPA requires a violation of the ADA or
a building code
violation. The first, Mannick v. Kaiser Foundation Health Plan, Inc., No. 03-5905,
2006 WL 2168877,
at *16 (N.D.Cal. July 31, 2006) (Hamilton, J.), involved a DPA claim that was based
solely on the
plaintiff's claims under the ADA. Here, plaintiffs have alleged an independent DPA
claim from the
alleged ADA violations. Like Mannick, the second case, Arnold v. United Artists Theatre
Cir., Inc., also
involved building code violations and thus the court referred to those as the appropriate
state law for
the purposes of determining what "full and equal access" meant in that context. See
Cal Civ.Code §
54.1(a)(3) ("Full and equal access," for purposes of this section in its application
to transportation,
means access that meets the standards [of the ADA] ... except that, if the laws of
this state prescribe
higher standards, it shall mean access that meets those higher standards.). Nothing
in the language
of the DPA suggests that it is limited to building code violations; rather the statutory
language refers
to the higher standards of state law. Id. In Arnold and in Mannick, the relevant
higher standard of
state law was the building code because the disputes concerned building accessibility.FN5
Here, if
state law requires higher standards of website accessibility than the ADA, those
standards are the
relevant ones for the purposes of the DPA. Accordingly, the applicable standards
of "full and equal
access" under state law is still an open question. The court declines to adopt Target's
cramped
reading of the DPA.
FN5. Target also cites to Urhausen v. Longs Drug Stores of Ca., Inc., 155 Cal.App.4th
254, 65 Cal.Rptr.3d 838 (2007). Urhausen, however, provides further support for the
court's holding since it defines "full and equal access" as access that complies
with the
ADA, or complies with state statutes, if the latter impose a higher standard. Id.
at 155
Cal.App.4th at *260, 65 Cal.Rptr.3d at 842. Specifically, the court declines to limit
the
definition of access "only to entry into a building." Id.
V. Motion to Strike
Target filed a motion to strike portions of the March 29, 2007 declaration of Anne
*1208 Taylor
submitted in support of plaintiffs' reply. Target bases its motion on grounds that
the testimony is
speculative, that the declarant lacks personal knowledge, and that the testimony
lacks foundation. In
particular, defendant objects to Taylor's statements regarding the likelihood of
blind and visually
impaired people using screen access software to visit the website. Taylor Mar. 29,
2007 Dec. ¶ 5. To
be admissible, this statement, Target argues, requires Taylor to be qualified as
an expert.
Additionally, they are not based on Taylor's personal knowledge. Plaintiffs contend
that Taylor is
qualified to attest to the statements in her declaration based on her experience
in the field of access
to technology by the blind. See Taylor May 8, 2006 Dec. ¶ 2. Taylor appears to have
knowledge in
this field, although without properly qualifying her as an expert, her testimony
is inadmissible. Taylor
does not have personal knowledge, according to Federal Rule of Evidence 602, of the
incidence and
usage of all blind and visually impaired people using the website. While there may
be a somewhat
relaxed standard for the use of expert testimony at class certification, the lenience
of the standard
does not apply to qualification as an expert but to the probative value of her conclusions.
Dukes v.
Wal-Mart, Inc., 222 F.R.D. 189, 191 (N.D.Cal.2004) (Jenkins, J.); see also In re
Polypropylene Carpet
Antitrust Litigation, 996 F.Supp. 18, 26 (N.D.Ga.1997) (at class certification stage
court only
examined whether the expert's methodology will (a) comport with basic principles,
(b) have any
probative value, and (c) primarily use evidence that is common to all members of
the proposed
class). The court has no information about Taylor's methodology or basis for her
conclusion.
Accordingly, her declaration has not met even the lower Daubert standard applicable
at this stage.
Target further objects to Taylor's statements about the number of blind and visually
impaired
people who would likely visit Target.com if it were fully and equally accessible.
Again, Target argues
that this statement is speculative and without foundation. In defense of Taylor's
declaration, plaintiffs
raise her extensive experience and point to the underlying data on which Taylor relied
to reach this
conclusion. Her forecasts about the incidence of blind and visually impaired visitors
to a fully
accessible site suffer from the same flaws as the previous statement: she lacks personal
knowledge
and has not sufficiently laid the foundation for her conclusions.
Accordingly, Target's motion to strike the disputed portions of the Taylor declaration
is GRANTED.
VI. Motion for Bifurcation
Plaintiffs ask the court to bifurcate the issues at trial into two stages. Phase
I would address the
liability to the class as well as declaratory and injunctive relief. If Target is
found liable at the first
stage, then phase II would address damages for the class members, likely in the form
of claims
process or hearings before a special master. Pursuant to Federal Rule of Civil Procedure
42(b), the
court has discretion to order a separate trial of any issue or claim where it is
convenient and not
prejudicial. Id.; see also Davis & Cox v. Summa Corp., 751 F.2d 1507, 1517 (9th Cir.1985).
Defendant contends that plaintiffs' bifurcation proposal attempts to import burden-shifting
principles
from the employment discrimination context to the instant action. See International
Broth. of
Teamsters v. U.S., 431 U.S. 324, 360-61, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Unlike
a
damages phase in an employment discrimination action, a proposed damages phase in
the instant
action would not require burden-shifting; nor do plaintiffs appear*1209 to seek such
a framework in
their proposal. Rather, a finding of liability in phase I-namely that Target.com
was impermissibly
inaccessible to blind users-would require at phase II proof only that a particular
user was blind and
that he or she encountered a particular barrier on the website.
[13]
 Because neither party has requested a jury trial, the relevant considerations for
bifurcation
are complexity, disposition of the issues, and the likelihood of prejudice to the
parties. See, e.g.,
Arnold, 158 F.R.D. at 459. The complexity of the legal and factual issues associated
with the proposed
liability stage in addition to those associated with individual determinations of
damages weighs in
favor of bifurcation. In particular, the court must determine what the statutory
requirement of full and
equal access means in the context of reviewing a website and its nexus to the Target
stores. It must
evaluate whether the various parts of Target.com met that standard and the appropriate
form of
equitable relief, if any. These issues are distinct from the inquiries related to
damages determinations
and separating the issues will aid in their determination. Target objects that plaintiffs'
proposal alters
the burden of proof and presumes liability, thereby prejudicing Target. Having rejected
this argument,
the court concludes that bifurcation is appropriate.
CONCLUSION
Based upon the foregoing, IT IS HEREBY ORDERED that:
1) Plaintiffs' motion to certify a class is GRANTED.
2) The nationwide class consists of all legally blind individuals in the United States
who have
attempted to access Target.com and as a result have been denied access to the enjoyment
of goods
and services offered in Target stores. The California subclass includes all legally
blind individuals in
California who have attempted to access Target.com, for plaintiffs' claims arising
under the California
Unruh Civil Rights Act, California Civil Code §§ 51 et seq. and the Disabled Persons
Act, California
Civil Code §§ 54 et seq.
3) Plaintiffs are ordered to substitute a new class representative with respect to
the ADA claims
consistent with this order within thirty (30) days of the date of this order.
4) The counsel of named plaintiff shall serve as counsel for the class.
5) Defendant's motion to strike Taylor's supplementary declaration is GRANTED.
6) Plaintiffs' motion for bifurcation of trial is GRANTED.
7) Defendant's motion for summary judgment is DENIED subject to the provisions of
this order.
IT IS FURTHER ORDERED that counsel shall confer and submit a proposed class notice
in
compliance with this order within thirty (30) days of the date of this order. Within
thirty (30) days,
counsel shall also set forth a class commencement date that is to be included in
the definition of the
class.
N.D.Cal.,2007.
National Federation of Blind v. Target Corp.
582 F.Supp.2d 1185, 20 A.D. Cases 467
Motions, Pleadings and Filings (Back to top)
. 2008 WL 4177568 (Trial Motion, Memorandum and Affidavit) Joint Motion for Preliminary
Approval
of Settlement; Memorandum of Points and Authorities (Aug. 27, 2008)
Original Image of this
Document (PDF)
. 569 (Trial Motion, Memorandum and Affidavit) Declaration of Laurence Paradis in
2008 WL 4177
Support of the Joint Motion for Preliminary Approval of Settlement (Aug. 27, 2008)
Original Image
of this Document (PDF)
.
2008 WL 273860 (Trial Pleading) Target Corporation's Answer to Second Amended Complaint
(Jan.
17, 2008)
Original Image of this Document (PDF)
.
2007 WL 4618130 (Trial Motion, Memorandum and Affidavit) Target Corporation's Reply
Claims Under the Americans with Disabilities Act (Dec. 20, 2007)
Memorandum in Support of its motion to Strike the Second Amended Complaint and Dismiss
Plaintiffs'
Original Image of this Document
(PDF)
.
2007 WL 4438274 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Opposition to
Defendant's
Motion to Strike the Second Amended Complaint and Dismiss Plaintiffs' Claims Under
the Americans
with Disabilities Act (Dec. 6, 2007)
.
2007 WL 4313033 (Trial Filing) Plaintiffs' Case Management Statement (Nov. 28, 2007)
Original
Image of this Document (PDF)
.
2007 WL 4144504 (Trial Motion, Memorandum and Affidavit) Target Corporation's Notice
of Motion
and Motion to Strike the Second Amended Complaint and Dismiss Plaintiffs' Claims
Under the
Original Image of this Document (PDF)
.
2007 WL 3340294 (Trial Pleading) Second Amended Complaint for Injunctive and Declaratory
Relief
and Damages for Violations of the Unruh Civil Rights Act, Cal. Civ. Code | 51, the
California Disabled
Persons Act, Cal. Civ. Code | 54, and the Americans with Disabilities Act, 42 U.S.C.
|| 12101, et seq.
Americans with Disabilities Act; Supporting Memorandum of Points and Authorities
(Nov. 19, 2007)
(Nov. 1, 2007)
Original Image of this Document (PDF)
.
2007 WL 2227619 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Supplemental
Brief in
Support of Motion for Class Certification (Jul. 25, 2007)
Original Image of this Document (PDF)
.
2007 WL 2227586 (Trial Motion, Memorandum and Affidavit) Target Corporation's Supplemental
Brief in Opposition to Plaintiffs' Motion for Class Certification (Jul. 16, 2007)
Original Image of this
Document (PDF)
Motion Requesting A Briefing Schedule and Further Depositions (May 29, 2007)
. 2007 WL 5203879 (Trial Motion, Memorandum and Affidavit) Target Corporation's Administrative
Original Image of
this Document (PDF)
Plaintiffs' Supplemental Brief Regarding State Law Claims (May 1, 2007)
. 2007 WL 1424432 (Expert Report and Affidavit) Declaration of Dr. James W. Thatcher
in Support of
Original Image of this
Document (PDF)
.
2007 WL 1301595 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Supplemental
Brief
Regarding State Law Claims (Apr. 26, 2007)
.
2007 WL 1301596 (Trial Motion, Memorandum and Affidavit) Target Corporation's Supplemental
Brief in Support of its Motion for Summary Judgment and in Opposition to Plaintiffs'
Motion for Class
Certification (Apr. 26, 2007)
.
2007 WL 5193486 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Opposition to
Defendant's
Motion to Strike (Apr. 9, 2007)
Original Image of this Document (PDF)
.
2007 WL 1112449 (Trial Motion, Memorandum and Affidavit) Target Corporation's Reply
Memorandum in Support of its Motion for Summary Judgment (Apr. 2, 2007)
Original Image of this
Document (PDF)
.
2007 WL 1112448 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Reply Brief
in Support of
Motion for Bifurcation (Mar. 29, 2007)
Original Image of this Document (PDF)
.
2007 WL 1112505 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Reply Brief
in Support of
Motion for Class Certification (Mar. 29, 2007)
Original Image of this Document (PDF)
.
2007 WL 1112503 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Memorandum of
Points and
Authorities in Opposition to Defendant's Motion for Summary Judgment (Mar. 26, 2007)
.
2007 WL 5193487 (Trial Motion, Memorandum and Affidavit) Target Corporation's Notice
of Motion
Original
Image of this Document (PDF)
Plaintiffs' Opposition to Defendant's Motion for Summary Judgment (Mar. 16, 2007)
. 2007 WL 1112504 (Trial Deposition and Discovery) Declaration of Daniel Brome in
Support of
Original Image
of this Document with Appendix (PDF)
and Motion for Summary Judgment; Supporting Memorandum of Points and Authorities
(Mar. 8,
2007)
Original Image of this Document (PDF)
. 2007 WL 5203878 (Trial Motion, Memorandum and Affidavit) Target Corporation's Opposition
to
Plaintiffs' Motion for Bifurcation of Issues at Trial (Mar. 8, 2007)
Original Image of this Document
(PDF)
.
2007 WL 980509 (Trial Motion, Memorandum and Affidavit) Target Corporation's Opposition
to
Plaintiffs' Motion for Class Certification (Mar. 8, 2007)
.
2007 WL 5203880 (Trial Motion, Memorandum and Affidavit) Notice of Motion and Motion
for
Bifurcation of Issues at Trial; Memorandum of Points and Authorities in Support of
Motion for
Bifurcation of Issues at Trial (Feb. 1, 2007)
Original Image of this Document (PDF)
. 2007 WL 5203881 (Trial Motion, Memorandum and Affidavit) Declaration of Joshua
Konecky in
Support of Plaintiffs' Motion for Class Certification (Feb. 1, 2007)
Original Image of this Document
with Appendix (PDF)
. 2007 WL 5203882 (Trial Motion, Memorandum and Affidavit) Declaration of Daniel
F. Goldstein in
Support of Plaintiffs' Motion for Class Certificatio (Feb. 1, 2007)
Original Image of this Document
(PDF)
. 2006 WL 3267475 (Trial Filing) Joint Case Management Statement (Oct. 13, 2006)
Original
Image of this Document (PDF)
.
2006 WL 3267474 (Trial Pleading) Target Corporation's Answer to Amended Complaint
(Sep. 20,
2006)
Original Image of this Document (PDF)
.
2006 WL 2864563 (Verdict and Settlement Summary) (Sep. 12, 2006)
.
2006 WL 3267472 (Trial Motion, Memorandum and Affidavit) Target Corporation's Opposition
to
Motion for Administrative Relief from General Order (Sep. 5, 2006)
Original Image of this
Document (PDF)
. 2006 WL 5713635 (Trial Motion, Memorandum and Affidavit) Class Action (Jul. 20,
2006)
Original
Image of this Document (PDF)
. 2006 WL 2430671 (Trial Motion, Memorandum and Affidavit) Target Corporation's Objections
to,
and Motion to Strike, Evidence Offered in Support of Plaintiffs' Motion for Preliminary
Injunction (Jul.
18, 2006)
Original Image of this Document (PDF)
.
2006 WL 2305565 (Trial Motion, Memorandum and Affidavit) Target Corpora Tion's Reply
in Support
of its Motion to Dismiss (Jul. 10, 2006)
Original Image of this Document (PDF)
.
2006 WL 2305566 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Reply to Defendant's
Opposition to Motion for Preliminary Injunction (Jul. 10, 2006)
Original Image of this Document
(PDF)
.
2006 WL 2236429 (Expert Report and Affidavit) Reply Declaration of Dr. James W. Thatcher
in
Support of Plaintiffs' Motion for Preliminary Injunction (Jul. 6, 2006)
.
2006 WL 2236426 (Partial Expert Testimony) Deposition of Charles Letourneau San Francisco,
California (Jul. 5, 2006)
.
2006 WL 2236428 (Partial Expert Testimony) Deposition of Dr. James Thatcher (Jul.
2, 2006)
.
2006 WL 5735189 (Trial Motion, Memorandum and Affidavit) Declaration of Dawn wilkinson
in
Support of Target Corporation's Opposition to Plaintiffs' Motion for Preliminary
Injunction (Jun. 13,
2006)
Original Image of this Document (PDF)
.
2006 WL 2186906 (Trial Motion, Memorandum and Affidavit) Target Corporation's Opposition
to
Plaintiffs' Motion for Preliminary Injunction (Jun. 12, 2006)
Original Image of this Document (PDF)
.
2006 WL 2186954 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Opposition to
Defendant
Target Corporation's Motion to Dismiss (Jun. 12, 2006)
Original Image of this Document (PDF)
.
2006 WL 2186956 (Trial Deposition and Discovery) Declaration of Charles Letourneau
in Support of
Original Image of this Document (PDF)
.
2006 WL 2094364 (Partial Expert Testimony) Deposition of Dr. James Thatcher (Jun.
4, 2006)
.
2006 WL 1417407 (Trial Motion, Memorandum and Affidavit) Defendant Target Corporation's
Notice
2006)
of Motion
Memorandum of Points and Authorities; Proposed¨ Order Fed. R. Civ. P. 12(b)(6), (f)¨
(Apr. 27,
and Motion to Dismiss Amended Complaint or, in the Alternative, Motion to Strike;
Original Image of this Document (PDF)
.
2006 WL 4821432 (Expert Report and Affidavit) Expert Declaration of Dr. James W.
Thatcher in
Support of Plaintiffs' Motion for Preliminary Injunction (Apr. 12, 2006)
.
2006 WL 1045357 (Trial Pleading) Amended Complaint for Injunctive and Declaratory
Relief and
Damages for Violations of the Unruh Civil Rights Act, Cal. Civ. Code s 51, the California
Disabled
(Mar. 30, 2006)
Persons Act, Cal. Civ. Code s 54, and the Americans With Disabilities Act, 42 U.S.C.
ss 121 01, et seq.
Original Image of this Document (PDF)
.
2006 WL 1045356 (Trial Motion, Memorandum and Affidavit) Defendant Target Corporation's
Notice
Target Corporation's Opposition to Plaintiffs' Motion for Preliminary Injunction
(Jun. 12, 2006)
for Preliminary Injunction: Memorandum of Points and Authorities (May 8, 2006)
. 2006 WL 5735188 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Notice of
Motion and Motion
Original Image of
this Document (PDF)
of Motion and Motion to Dismiss, or in the Alternative, Motion to Strike; Memorandum
of Points and
Authorities; (Proposed) Order (Mar. 15, 2006)
Original Image of this Document (PDF)
. 2006 WL 5347000 (Trial Pleading) Notice of Removal (Mar. 8, 2006)
Original Image of this
Document with Appendix (PDF)
.
3:06cv01802 (Docket) (Mar. 8, 2006)
.
2005 WL 5352866 (Expert Report and Affidavit) Accessibility Assessment of Target.com
(Jul. 2005)
END OF DOCUMENT
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