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Settlement Over Target's Web Site Marks a Win for ADA Plaintiffs
Evan Hill
08-28-2008
Resolving a lawsuit that caught the attention of online retailers across the United States, Target Corp. will pay out $6 million in damages and make its Web site fully accessible to blind customers as part of a class action settlement filed on Wednesday.
The National Federation of the Blind, which sued the Minneapolis-based corporation in 2006 in San Francisco federal court for maintaining a site that blind people said they couldn't use, will also be paid to oversee the changes and train the coders responsible for reprogramming the site.
The case will "send a message to the entire Internet industry that access for people with disabilities is not only good business sense but an absolutely legal civil right; it's mandatory," said Laurence Paradis, a lawyer at Berkeley, Calif.-based Disability Rights Advocates who worked on the case.
Target released a statement saying it was "pleased to have resolved the matter" and has made changes to its Web site "to improve the experience for guests who require assistive technology."
Stanley Jaskiewicz, a Philadelphia-based e-commerce attorney who has written about the Target case, said the suit has been on the business world's radar since 2006 and that Wednesday's settlement will send a signal.
"Now that businesses know the courts will pay attention to this, if a barrier is brought to their attention, it gives them all the more reason to say, 'Let's deal with this and accommodate,' rather than say, 'The law doesn't apply to me, I'm not affected by this,'" he said.
Blind people can use specialized keyboards as well as software that converts Web sites and documents into speech or Braille. But such technology won't work if a site is improperly coded, as the plaintiffs alleged about Target.com. The case pressed the legal question of whether the protections of the federal Americans with Disabilities Act could be extended to businesses' Web sites.
Paradis said Target fought the suit "tooth and nail" and that settlement negotiations broke down twice, first because the company wouldn't agree to fix the problems and second because the two sides couldn't agree on damages. Only after Northern District of California Judge Marilyn Hall Patel certified a state and national class in November 2007 was a settlement possible, he said.
Matthew Kreeger, a San Francisco-based partner at Morrison & Foerster who represented Target, declined to comment and directed inquiries to Target.
Patel's rulings that the federal ADA and state Unruh Civil Rights Act both apply to businesses' Web sites were particularly crucial, Paradis said.
A separate advocacy group for the blind lost a similar ADA suit against Southwest Airlines in 2004 before the 11th U.S. Circuit Court of Appeals. Experts assessing the result in the legal media wrote that the plaintiffs had failed to make the case that a discriminating Web site was a "place of public accommodation," the official scope of the ADA.
"One of the reasons this case was so risky is that that Southwest case came out very badly. ... We were very worried about the fact that the one precedent in the area was very bad," Paradis said.
But the plaintiffs in National Federation of the Blind et al v. Target Corporation, 06-01802, successfully argued that a "nexus" existed between the brick-and-mortar Target store itself and its Web site.
Though Southwest and Target elected to play their hand in litigation, other companies seem to have seen the writing on the wall. Last year, both Amazon.com and RadioShack announced agreements with national blindness organizations to improve their Web sites for visually impaired customers.
Daniel Goldstein, a Baltimore-based attorney at Brown, Goldstein & Levy who has represented the Federation for 20 years and worked on the case, said the Target suit is a "bellwether case in that it announces loud and clear to those who have Web sites that they need to be accessible to everyone."
"The cost of making a Web site accessible, if it's done at the beginning, is fairly nominal," he said, "and the increase in market share is always going to be greater than the cost."
The settlement is still subject to Patel's approval. Despite participating in mediation, Target and the plaintiffs have not agreed on attorney fees. Paradis said the plaintiffs firms are asking for $4.6 million. Target will pay up to $3,500 to each member of the California class. The national class isn't entitled to damages because the ADA only provides for injunctive relief. Target will also pay the Federation tens of thousands of dollars each year for three years for monitoring their Web site and $15,000 for each session at which they help train Target's employees.
"This has gotten enough publicity that ... it just makes a lot more sense legally and as a business matter to accept it as an education," Jaskiewicz said.
The upside, he noted, is that companies such as Target will have a new group of customers.
Evan Hill
08-28-2008
Resolving a lawsuit that caught the attention of online retailers across the United States, Target Corp. will pay out $6 million in damages and make its Web site fully accessible to blind customers as part of a class action settlement filed on Wednesday.
The National Federation of the Blind, which sued the Minneapolis-based corporation in 2006 in San Francisco federal court for maintaining a site that blind people said they couldn't use, will also be paid to oversee the changes and train the coders responsible for reprogramming the site.
The case will "send a message to the entire Internet industry that access for people with disabilities is not only good business sense but an absolutely legal civil right; it's mandatory," said Laurence Paradis, a lawyer at Berkeley, Calif.-based Disability Rights Advocates who worked on the case.
Target released a statement saying it was "pleased to have resolved the matter" and has made changes to its Web site "to improve the experience for guests who require assistive technology."
Stanley Jaskiewicz, a Philadelphia-based e-commerce attorney who has written about the Target case, said the suit has been on the business world's radar since 2006 and that Wednesday's settlement will send a signal.
"Now that businesses know the courts will pay attention to this, if a barrier is brought to their attention, it gives them all the more reason to say, 'Let's deal with this and accommodate,' rather than say, 'The law doesn't apply to me, I'm not affected by this,'" he said.
Blind people can use specialized keyboards as well as software that converts Web sites and documents into speech or Braille. But such technology won't work if a site is improperly coded, as the plaintiffs alleged about Target.com. The case pressed the legal question of whether the protections of the federal Americans with Disabilities Act could be extended to businesses' Web sites.
Paradis said Target fought the suit "tooth and nail" and that settlement negotiations broke down twice, first because the company wouldn't agree to fix the problems and second because the two sides couldn't agree on damages. Only after Northern District of California Judge Marilyn Hall Patel certified a state and national class in November 2007 was a settlement possible, he said.
Matthew Kreeger, a San Francisco-based partner at Morrison & Foerster who represented Target, declined to comment and directed inquiries to Target.
Patel's rulings that the federal ADA and state Unruh Civil Rights Act both apply to businesses' Web sites were particularly crucial, Paradis said.
A separate advocacy group for the blind lost a similar ADA suit against Southwest Airlines in 2004 before the 11th U.S. Circuit Court of Appeals. Experts assessing the result in the legal media wrote that the plaintiffs had failed to make the case that a discriminating Web site was a "place of public accommodation," the official scope of the ADA.
"One of the reasons this case was so risky is that that Southwest case came out very badly. ... We were very worried about the fact that the one precedent in the area was very bad," Paradis said.
But the plaintiffs in National Federation of the Blind et al v. Target Corporation, 06-01802, successfully argued that a "nexus" existed between the brick-and-mortar Target store itself and its Web site.
Though Southwest and Target elected to play their hand in litigation, other companies seem to have seen the writing on the wall. Last year, both Amazon.com and RadioShack announced agreements with national blindness organizations to improve their Web sites for visually impaired customers.
Daniel Goldstein, a Baltimore-based attorney at Brown, Goldstein & Levy who has represented the Federation for 20 years and worked on the case, said the Target suit is a "bellwether case in that it announces loud and clear to those who have Web sites that they need to be accessible to everyone."
"The cost of making a Web site accessible, if it's done at the beginning, is fairly nominal," he said, "and the increase in market share is always going to be greater than the cost."
The settlement is still subject to Patel's approval. Despite participating in mediation, Target and the plaintiffs have not agreed on attorney fees. Paradis said the plaintiffs firms are asking for $4.6 million. Target will pay up to $3,500 to each member of the California class. The national class isn't entitled to damages because the ADA only provides for injunctive relief. Target will also pay the Federation tens of thousands of dollars each year for three years for monitoring their Web site and $15,000 for each session at which they help train Target's employees.
"This has gotten enough publicity that ... it just makes a lot more sense legally and as a business matter to accept it as an education," Jaskiewicz said.
The upside, he noted, is that companies such as Target will have a new group of customers.
