Unruh: It’s Not the ADA that’s the Big Concern in Web Accessibility

At its core, Fairfield isn't directly about Unruh. Instead, it's about how far state courts can reach. To understand the case, it helps to start with the facts. Fairfield is the largest retail seller of diecast models in the United States. It sells its models through its catalog and website. It is based in Georgia and neither has an office nor any employees in California. However, a little over 10% of its sales (about $320,000 to $375,000 annually) are to California customers. Cheryl Thurston is blind and lives in California and is a serial plaintiff in web accessibility cases. She has never been a customer of Fairfield and visited the site as a "tester". When she visited the Fairfield site, she encountered several barriers that interfered with her screen reader. Then, she filed a lawsuit under Unruh against Fairfield. The company responded by arguing that the lawsuit should be dismissed because Fairfield did not have a business presence in California. Initially, the trial court agreed with Fairfield and so Ms. Thurston appealed. The appellate court reversed, holding that Fairfield could be sued by Ms. Thurston because personal jurisdiction existed.

Not to oversimplify the law, but lawyers talk generally about two kinds of jurisdiction in these kind of cases. One is "subject matter jurisdiction"-- and the issue here is whether the law covers this type of conduct. I may get annoyed that my neighbor likes to wear plaid shirts with striped pants, but bad fashion isn't prohibited and so I can't sue him over it. Another type of "personal jurisdiction" and the issue here becomes whether a particular court has any authority over a specific defendant. If a defendant resides in the district where the court is located, then it's easy to say that the court has personal jurisdiction. But if the defendant is located far away, it may be unfair to make him defend a lawsuit in California and so the court would not have personal jurisdiction.

So what did Fairfield do to make it fair to defend itself in California state court? In this case, the court held that Fairfield had "purposefully availed" itself in California by conducting business through its website. When does business over a website constitute purposefully availment of the company in California? Here the court looked to Snowney v. Harrah's Entertainment, 112 P.3d 28, 33 (Cal. 2005), a California Supreme Court case which had previously given a very thoughtful analysis worth reading.

At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.

In theory, this means that any eCommerce site can potentially be sued in California-- and even this blog potentially could because it falls in the "middle ground" of interactive sites. But the Fairfield court was reluctant to go the extremes of personal jurisdiction permitted by the Snowney decision.

The Fairfield court reviewed other decisions where a more limited approach was taken. For instance, some courts extended personal jurisdiction when the total sales volume that a company had in California was significant or where a company made efforts to deliberately target customers in California. On the other hand, in As You Sow v. Crawford Laboratories, 50 Cal. App. 4th 1859 (Cal. App. Dep't Super. Ct. 1996), the court noted that a company that only made 16 sales in six years (less than 1% of its annual sales) could be expected to defend a lawsuit in California. Appearing to disagree with the As You Sow opinion, the Fairfield court held that a company's sales in California need to be "substantial". The Fairfield court noted,

But even assuming As You Sow was erroneous in predicatingjurisdiction on less than one percent of sales, here Fairfield made eight percent of its sales to residents of California. These sales totaled some $320,000 to $375,000 a year. That is the equivalent of having a brick-and-mortar store in California—a “virtual store... Given that volume of transactions, Fairfield was on notice that it could be sued in California...The benefit of making substantial sales to California consumers comes at the cost of potentially being sued in California. If Fairfield finds that too burdensome, it can simply choose not to sell to Californians and to post a notice to that effect on its website.