National Federation of the Blind v. Target Class Certified

By Eric Goldman

National Federation of the Blind v. Target Corp., 3:06-cv-01802-MHP (N.D. Cal. Sept. 28, 2007)

Judge Patel has certified two classes in the lawsuit over Target.com’s compliance with the Americans with Disabilities Act. See my previous blog post on the lawsuit. NFB’s press release on the latest ruling.

The court certified the following classes:

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.

The ADA Claim

The ADA class definition is fairly explicit that the user’s inability to use the website affects their ultimate ability to shop in physical space stores. This could be a fairly narrow class of users, as illustrated by the fact that the court evaluates one of the named plaintiff’s facts (Sexton) and kicks him out of the class. In Sexton’s case, he did some comparison shopping on the web across multiple sites and then would select a winner to purchase at a physical space store (the court calls the process of reviewing a website before going to a physical space store “pre-shopping”) . The court says Sexton’s inability to pre-shop didn’t, in his case, create a recognizable harm. So it remains to be seen just how many class members are actually covered by the court’s class definition.

More generally, the ADA only applies if the retailer is a “bricks-to-clicks” retailer where website usability issues degrade the offline shopping experience. On the surface, all other websites are (so far) immune from the ADA’s reach. Therefore, it would be a mistake to treat this ruling as imposing an across-the-web ADA compliance requirement. On the other hand, it would also be a mistake for websites to ignore ADA compliance–doing so may violate the spirit of the law, even if it doesn’t violate the letter, and it does mean that the websites are cutting off a valuable customer segment and missing out on good karma.

The State Law Claims

In my opinion, the more important and interesting ruling relates to the California state law claims, where the court explicitly says “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” even if there’s no nexus between the website and the ability to shop in the physical space store. On its face, this ruling seems to apply to all commercial websites, even those without any physical space outlets. Indeed, even though Sexton’s ADA claims were dismissed, his state law claims are continuing.

However, the court’s ruling raises other important and interesting problems, like whether these laws, as applied to commercial websites without California operations, violate the dormant commerce clause (see my previous discussion of this issue in the prior ruling), and whether plaintiffs can establish jurisdiction over these websites. Because Target has California operations, the court didn’t need to explore these issues in this ruling, but they could have significant implications for the scope of this ruling.

But even if the holding is limited to commercial websites with California operations, that still covers plenty of websites. So I have to assume more lawsuits are coming. Alternatively, I wouldn’t be surprised if the big dot coms in the Silicon Valley take this issue up with the legislature to get it to clarify its intent about the laws’ (in?)applicability to websites.

Conclusion

In all cases, it bears repeating that the court has not adjudicated the merits of the plaintiff’s claims, so it could be proven that Target fulfilled its duties under the ADA and state laws. Target still could win this lawsuit. But even if Targets wins, the interpretation of the ADA and the state law claims will stand for now. Get ready for more lawsuits.

UPDATE: Tom O’Toole writes: “Executives at retailers who also operate Web sites should stop whatever they are doing right now and read [this opinion]…The bar set by Judge Patel is a low one. All retail shoppers benefit from reviewing the availability of merchandise online prior to visiting the retail store. If Target’s online operation is ultimately found to violate the Americans With Disabilities Act, I am sure that most, of not all, large retailers suffer the same problem.”

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