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Suit Alleges Target Denies Blind Access to Online Shopping
The Recorder
February 14, 2006
Editor's note: This article was modified since its original publication to reflect attorney Mazen Basrawi's statement about the estimated number of plaintiffs and dollar amount. We regret any error.
Through careful negotiations and tactical lawsuits, plaintiffs attorneys have won greater access for the blind to essential 21st century technologies, such as ATMs and voting machines.
Now a nonprofit law firm based in Berkeley, Calif., is taking the fight to commercial Web sites, claiming a virtual store on the Internet is no different under the California Civil Code than a marketplace of the bricks-and-mortar sort. It's an untested strategy but not necessarily a difficult legal argument, some plaintiff class action attorneys say.
Disability Rights Advocates brought the suit against Target Corp., one of the largest online retailers, in an attempt to force the company to make its Web site more accessible to the blind.
The complaint was filed last week in Alameda County, where Target has two stores. It's been assigned to Superior Court Judge Robert Freedman, who was recently named to the court's complex litigation department.
"We're in a very unusual position with lawsuits like this ... suing retailers to force them to make more money," said Daniel Goldstein, a Maryland attorney who is representing the National Federation of the Blind along with DRA and San Francisco's Schneider & Wallace.
Consensus on the scope of the Americans with Disabilities Act is still developing, Goldstein said. But the California statute is clearer than federal law, he said.
"I don't think this is necessarily going to be a tough sell. I think we're on fairly solid ground," Goldstein said.
The suit is filed under the Unruh Civil Rights Act, which forbids organizations doing business with the public from discriminating on the basis of, among other things, disability.
Linda Dardarian, a plaintiffs attorney at Oakland, Calif.'s Goldstein, Demchak, Baller, Borgen & Dardarian who isn't involved in the case, pointed out that last year, in another access case, Alameda County Superior Court Judge Ronald Sabraw found that the Unruh Act could apply to Web sites.
In a statement, Target said it hadn't seen the complaint and couldn't comment on the specifics. But, the retailer said, "we strive to make our goods and services available to all of our guests, including those with disabilities."
Mazen Basrawi, an attorney at Disability Rights Advocates, suggests that Target could be on the hook for as much as $2.4 billion. The suit will seek $4,000 -- the minimum damages allowable under the Unruh Act -- for each member of the class. There are 600,000 blind people in California, though Basrawi notes that the class of injured plaintiffs could be substantially smaller than that. Robert Naeve, a class action defense specialist at Morrison & Foerster who represented Target during negotiations leading up to litigation, did not return calls seeking comment.
Blind people can use screen-reading software and specialized keyboards to access the Internet. But this suit says Target.com lacks several features blind people need to shop online. The Web site requires a mouse to make purchases, for example, and the suit says blind people "are incapable of making purchases using mouse commands." As a result, the suit says, "Target denies the blind access to goods, services and information made available on Target.com by preventing them from freely navigating Target.com."
Robert Naeve, a class action defense specialist at Morrison & Foerster who represented Target during negotiations leading up to litigation, did not return calls seeking comment by press time.
Basrawi said DRA entered structured negotiations with Target in September, but he said discussions broke down last month, and "we walked out with nothing."
Plaintiffs attorneys say there's a perception that it's easier to get class certification in state court. One drawback, however, is that damages can only be awarded to class members who reside in California.
On the other hand, federal disability statutes only allow for injunctive relief, not damages.
"Without a provision for damages there's always a question about the issue of deterrence," said Goldstein, a former prosecutor in the U.S. Attorney's Office.
"You select one case to deter 30 other people from committing that same offense," he said.
That logic paid off in 2000, after Goldstein sued AOL in federal court to make its Web services more accessible to the blind.
Not only did AOL agree to remove access barriers for the blind, Goldstein said, but other companies started calling the day after the case settled offering to make their Web sites fully accessible as well.
