RESPONSE TO RELIEF REQUESTED
Target denies that Plaintiffs are entitled to any substantive or procedural remedy or relief, including the relief and certification requested in paragraphs 1 through 8 of the “Relief Requested” portion of Plaintiffs’ complaint. Target further denies that Plaintiffs, or any of them, have suffered or incurred any injury or damage in this matter.
AFFIRMATIVE DEFENSES
Without admitting or acknowledging that Target bears any burden of proof as to any of them, Target asserts the following affirmative defenses. Target intends to rely upon any additional defenses that become available or apparent during pretrial proceedings in this action and hereby reserves the right to amend this Answer in order to assert all such further defenses.
First Affirmative Defense
(Failure to State a Claim)
As an affirmative defense to each and every claim in the Complaint, Target alleges that Plaintiffs have failed to state a claim upon which relief can be granted.
Second Affirmative Defense
(Commerce Clause)
As an affirmative defense to the First and Second Causes of Action in the Complaint, Target alleges that any application of California law to the website located at www.target.com violates the Commerce Clause of the United States Constitution.
Third Affirmative Defense
(Good Faith Conformity with Applicable Standards)
As an affirmative defense to each and every claim in the Complaint, Target alleges that it acted in good faith and/or its conduct was in conformity with all applicable statutes, governmental regulations, and industry standards existing at the time of such conduct.
Fourth Affirmative Defense
(Due Process – Vagueness)
As an affirmative defense to each and every claim in the Complaint, Target alleges that, to the extent federal or state statutes are applied in this action to mandate the manner in which Target must program or design its website, the statutes are unconstitutionally vague and
application of the statutes in this action would therefore violate the Due Process Clause of the United States Constitution.
Fifth Affirmative Defense
(Due Process – Damages)
As an affirmative defense to each and every claim in the Complaint, Target alleges that the claims for damages are so disproportionate to the injuries, if any, suffered as to violate the Due Process Clause of the United States Constitution.
Sixth Affirmative Defense
(Rule of Lenity)
As an affirmative defense to each and every claim in the Complaint, Target alleges that Plaintiffs’ claims are barred by the rule of lenity.
Seventh Affirmative Defense
(No Modification or Alteration Required)
As an affirmative defense to the First and Second Causes of Action in the Complaint, Target alleges that California law does not require Target to modify or alter its website.
Eighth Affirmative Defense
(No Intentional Discrimination)
As an affirmative defense to the First Cause of Action in the Complaint, Target alleges that it has not engaged in intentional discrimination with respect to the accessibility of its website.
Ninth Affirmative Defense
(No Denial of Physical Access)
As an affirmative defense to each and every claim in the Complaint, Target alleges that it has not denied Plaintiffs, or any blind persons, physical access to the goods and services of Target’s retail stores.
Tenth Affirmative Defense
(Auxiliary Aids and Services – Effective Communication)
As an affirmative defense to each and every claim in the Complaint, Target alleges that, b the extent Target.com allegedly does not effectively communicate information regarding goods and services through its website to Plaintiffs, or to any blind persons, effective communication is provided via reasonable and appropriate alternative means.
Eleventh Affirmative Defense
(No Denial of Access to Service of Place of Public Accommodation)
As an affirmative defense to each and every claim in the Complaint, Target alleges that it has not denied access to Plaintiffs, or to any blind person, to a service offered by a place of public accommodation.
Twelfth Affirmative Defense
(Modifications – Undue Burden/Not Readily Achievable)
As an affirmative defense to each and every claim in the Complaint, Target alleges that, insofar as Target has not made the alterations to Target.com that Plaintiffs contend should have been made, those changes were not and are not required under California or federal law, and any requirement to make those changes would impose an undue burden upon Target and would not b readily achievable.
Thirteenth Affirmative Defense
(Modifications – Fundamentally Alter Nature of Goods and Services)
As an affirmative defense to each and every claim in the Complaint, Target alleges that modifications of Target’s policies, practices, and procedures, or the provision of auxiliary aids or services, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations, and there is no duty to modify.
Fourteenth Affirmative Defense
(Statute of Limitations)
As an affirmative defense to each and every claim in the Complaint, Target alleges that the claims are barred in whole or in part by the applicable statutes of limitations.
Fifteenth Affirmative Defense
(Failure to Mitigate)
As an affirmative defense to each and every claim in the Complaint, Target alleges that Plaintiffs have failed to take reasonable steps to protect themselves from the damage alleged in the Complaint and have failed to mitigate any such alleged damage.
Sixteenth Affirmative Defense
(Waiver and Estoppel)
As an affirmative defense to each and every claim in the Complaint, Target alleges that, a a consequence of the conduct of or attributable to Plaintiffs in connection with the alleged lack oil access to Target.com (which is the subject of this litigation) Plaintiffs have waived any right to secure relief from Target, and are estopped from securing any relief from Target.
Seventeenth Affirmative Defense
(Lack of Standing)
As an affirmative defense to each and every claim in the Complaint, Target alleges that Plaintiffs lack standing to pursue the claims asserted, either individually or on behalf of a class.
Eighteenth Affirmative Defense
(Claims of Putative Class Members Barred)
As an affirmative defense to each and every claim in the Complaint, Target alleges that the claims of the putative class members are barred by some or all of the defenses that bar Plaintiffs’ claims.
Nineteenth Affirmative Defense
(Modifications Not Required)
Plaintiffs claims are barred to the extent that the relief they request is not mandated by an applicable regulations adopted by the United States Department of Justice, or by the State of California, for privately-owned commercial websites.
Twentieth Affirmative Defense
(Adequate Legal Remedy)
Plaintiffs are not entitled to injunctive or equitable relief the extent they have adequate legal remedies.
Twenty-first Affirmative Defense
(No Irreparable Harm)
Plaintiffs are not entitled to injunctive or equitable relief to the extent that they have not suffered, and will not suffer, irreparable harm or injury.
WHEREFORE, Target requests that the Court:
1. Enter judgment in its favor and against Plaintiffs;
2. Award appropriate fees and expenses to Target; and
3. Award such other relief as the Court deems just and proper.
Dated: January 17, 2008.
HAROLD J. McELHINNY (CA SBN 66781)
MATTHEW I. KREEGER (CA SBN 153793)
KRISTINA PASZEK (CA SBN 226351)[email protected]@[email protected] & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
By: ________/s/___________________
Matthew I. Kreeger
Attorneys for Defendant
TARGET CORPORATION

SECOND AMENDED COMPLAINT

LAURENCE W. PARADIS (California Bar No. 122336)
ROGER N. HELLER (California Bar No. 215348)
DISABILITY RIGHTS ADVOCATES
2001 Center Street, Third Floor
Berkeley, California 94704
Telephone: (510) 665-8644
Facsimile: (510) 665-8511
TTY: (510) 665-8716
JOSHUA KONECKY (California Bar No. 182897)
RACHEL BRILL (California Bar No. 233294)
SCHNEIDER & WALLACE
180 Montgomery Street, Suite 2000
San Francisco, CA 94104
Telephone: (415) 421-7100
Fax: (415) 421-7105
TTY: (415) 421-1655
DANIEL F. GOLDSTEIN (pro hac vice)
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore St., Suite 1700
Baltimore, MD 21202
Telephone: (410) 962-1030
Fax: (410) 385-0869
PETER BLANCK (pro hac vice)
900 S. Crouse Avenue
Syracuse, NY 13244-2130
Telephone: (315) 443-9703
Fax: (315) 443-9725