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Through careful negotiations and tactical lawsuits, plaintiffs attorneys have won greater access for the blind to essential twenty-first-century technologies, such as ATMs and voting machines. Now a nonprofit law firm based in Berkeley is taking the fight to commercial Web sites. They contend that a virtual store is no different under the California Civil Code than a bricks-and-mortar shop. It’s an untested strategy, but according to some plaintiffs class action lawyers, it’s not necessarily a difficult legal argument. And if it prevails in California, it could have sweeping implications for the rest of the country. Disability Rights Advocates (DRA) brought the suit against Target Corporation, one of the nation’s largest online retailers, in an attempt to force the company to make its site more accessible to the blind. The complaint was filed in Alameda County, where Target has two stores, in February. It was assigned to a superior court judge. Blind people can use screen-reading software and specialized keyboards to access the Internet. But this suit says Target.com lacks several features that the blind need to shop online. To order an item on the site, for example, a buyer has to use a mouse. The suit argues that 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.” “We’re in a very unusual position with lawsuits like this . . . suing retailers to force them to make more money,” says Daniel Goldstein, a Maryland lawyer representing the National Federation of the Blind along with DRA and San Francisco’s Schneider & Wallace. Although consensus on the scope of the Americans with Disabilities Act is still developing, says Goldstein, the California statute is clearer. “I don’t think this is necessarily going to be a tough sell. I think we’re on fairly solid ground,” he says. The suit was filed under the Unruh Civil Rights Act, which forbids organizations doing business with the public to discriminate on the basis of disability, among other things. Linda Dardarian, a plaintiffs lawyer at Oakland firm Goldstein, Demchak, Baller, Borgen & Dardarian, who isn’t involved in the case, points 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 had not seen the complaint and could not 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.” DRA attorney Mazen Basrawi 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. Basrawi says DRA entered structured negotiations with Target in September 2005, but discussions broke down in January: “We walked out with nothing.” The DRA has focused its strategy on California. Getting class certification in state court is thought to be easier than in federal court, say plaintiffs lawyers. One drawback, however, is that damages can only be awarded to class members who reside in the state. On the other hand, federal disability statutes only allow for injunctive relief. Without a provision for damages, says Goldstein, there’s less deterrence: “You select one case to deter 30 other people from committing that same offense.” That logic paid off in 2000, after Goldstein sued America Online, Inc., 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 says, but other companies started calling the day after the case settled offering to make their Web sites fully accessible as well. A version of this article orignally appeared in The Recorder, a sibling publication of Corporate Counsel.

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