Rimantas Liubertas wrote:
I think these were mentioned in the part of the post you did not
include in your quote... Interesting quoting tactics.
Oh, please! Guilt by assertion?
Jim Davies made no mention of taxes in his post. What he did say was:
"Of course the private businesses should do some things"
which you might construe to mean pay taxes, except that paying taxes is
compulsory - if you don't then you are breaking the law. This use of
'should' is somewhat less than perfect. 'Must' would be better, if you
are to remain a solid citizen or corporate entity.
Jim Davies followed this with:
"accessible websites may be one of them but it is not the governments
job to force it."
And, actually that's what this whole thing is about - finding out
whether or not Target has broken the law. If they have, the legal system
_is_ required to enforce it.
What has happened so far is that:
* Bruce Sexton, with the help of the National Federation of the Blind,
has brought a suit against Target, claiming they are violating the
Americans With Disabilities Act, and two California statutes - the
California Unruh Civil Rights Act and the California Disabled Persons Act.
* Target claim that a) they haven't broken those laws and b) they have
changed their site since the suit was issued and so they asked for
summary judgment and dismissal of the case. The judge has denied their
plea for summary judgment. (For the non-legal out there, summary
judgment is usually sought when a party claims that there are no grounds
for a suit to proceed but the plaintiff won't withdraw it, or when there
is no opposition to a claim and everybody wants to avoid the cost of a
pointless trial - yes, I know that is a simplistic explanation)
* The judge further granted the plaintiff's motion to certify a
nationwide class under the ADA for injunctive relief - that means that
others with similar claims against Target are joined to this dispute and
these proceedings and will share equally in any damages that the court
may award. The district court must find that the claims of the class
members contain questions of law or fact in common before the lawsuit
can proceed as a class action.
The judge has _not_ ruled on the case, as to whether or not Target is in
breach of those statutes. She has ruled that there is a case to answer
and, as I understand it, the certification of the class action means she
thinks it is wide ranging and needs to be dealt with in one hit, rather
than claim by claim which could drag on for years.
I think, therefore, that the NFB press release is a little premature.
It's a sign that the courts are going to take the matter seriously but
it's hardly the momentous victory Maurer seems to be claiming.
To quote from the judge's order:
"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."
We clear on that? The plaintiffs (Sexton and the NFB) asked the judge in
February to certify the case as a class action, which enables them to
bring in lots more blind people to give testimony to the jury, whether
they know Sexton or not. She, rightly IMHO, asked for more information
from both sides and then spent 8 months considering it. By my reading of
the US legal system, that's pretty swift work, but it's hardly the
knee-jerk activism that Malkin's commentators were bemoaning. However I
am neither a lawyer nor an American (IANALOAA - catchy, no?) so I stand
to be corrected by someone who is both.
On the matter summary judgment, the judge says:
"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."
So, as far as the judge is concerned, there are issues as to the facts
of the matter, as claimed by both parties. That's all that means. "No,"
she said to Target, "there is a case here. It has a broad bearing on the
population as a whole, not just in California." Target claimed that
"[a]fter 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." and for this
reason the case was no longer valid. The judge did not agree.
And please remember that it was Target who got the case moved from the
Supreme Court of California to federal court, not the plaintiff, and
that's what opened this up to a nationwide class action.
Actually, it's probably better for Target to get to deal with this as a
class action. If they win, they win everywhere (I believe that once a
class action is decided, any party joined to it cannot bring an
additional private claim) and if they lose, it's one big write-down and
set of lawyer fees, as opposed to potentially thousands over years. That
sort of activity can bleed even the biggest behemoth.
It would appear that Target's main claim for dismissal is that the web
does not constitute "public accommodations", which was the basis for the
Southwest airlines decision in 2002. The world and the web have moved on
and I doubt that the users of Second Life would agree with that now, as
well as many other sites. Perhaps the educated judiciary we've been
asking for in so many matters is finally arriving.
The judge's decision and other documents are available from
http://www.dralegal.org/cases/private_business/nfb_v_target.php
Sorry to bring all these facts in on an otherwise political stoush, but
I think it's an important matter that will have big implications. I've
been saying for years that someone, sometime is going to be sued and
that's what it will take to make the corporates sit up and take notice.
I would have written a shorter post, but I ran out of time ;-)
Mark Harris
Principal Consultant
Technology Research and Consultancy Services Ltd.
Waikanae, New Zealand
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