Two women who sued Apple last year for violations of the Americans With Disabilities Act (ADA) will head to mediation after the two sides were unable to reach any agreement on what changes were necessary at the San Francisco store to accommodate disabled persons. Jana Overbo and Nicole Brown-Booker filed the lawsuit last September, alleging the store was unfriendly to those in wheelchairs. They cited elevator buttons and products out-of-reach, no wheelchair spaces in the theater, and a Genius Bar counter that was too high for their access. Attorneys for both sides visited the San Francisco store on November 12, 2007 and inspected the premise for accessibility. However, the attorneys could not reach an agreement within the standard 45-day period, and so mediation is the next step.
In its legal answer to the women’s lawsuit, Apple and building owner Deka Immobilien Investment GmbH denied all the allegations contained in the lawsuit, and said the women had never encountered any barriers. The property is readily accessible to the disabled, the companies stated, and the women’s suggested changes to the property are not required by law.
Much of Apple’s legal filing in response to the lawsuit’s 22 allegations is standard, boiler-plate language that offers no specifics. It was filed by David Walsh and Jeff Michalowski of the San Francisco law firm Paul, Hastings, Janofsky and Walker LLP. The firm was formed in Los Angeles, but now has 18 offices around the world staffed by 1,200 attorneys. The firm handles a wide range of legal matters for diverse clients.
In a 15-paragraph section setting out their defense, Apple’s attorneys denied that the two women are entitled to “any relief whatsoever, of any kind and nature.” The answer claimed the women’s lawsuit “fails to state facts sufficient to constitute a claim of relief.” It adds that the women are not entitled to damages, “to the extent that they failed to mitigate their alleged damages.”
However, if Apple is judged to be liable, the company’s answer says, “Then any such judgement must be reduced by an amount equal to that portion of the judgment in proportion to the comparative negligence and/or fault of the Plaintiffs and/or other individuals or entities causing plaintiffs damages.”
These sections don’t set out specific actions that might make the two plaintiffs partly liable, but are merely standard legal sections that are commonly included in liability cases.
Apple’s answer continued that the women had failed to satisfy jurisdiction and/or statutory prerequisites for the causes of action, “and/or exhaust the appropriate administrative remedies.”
More to the point, Apple said, “Plaintiffs’ claims as set forth in the Complaint are barred because the accommodations and modifications sought by the Plaintiffs are not required by law.” The attorneys added that, “Defendants are in compliance with the applicable law and the Property is readily accessible to the disabled.”
Perhaps more noteworthy, Apple says the women have no standing to bring a complaint because, “Plaintiffs did not encounter any barriers to access within the Property.” To the extent that Overbo and Brown-Booker were not provided with full accommodation, Apple said, “It was because the Plaintiffs failed to give Defendants sufficient notice of the need and sufficient opportunity to meet that need.”
Apple’s attorneys also added several other defenses to the lawsuit: the statute of limitations, good faith effort to comply with the ADA, the responsibility of third-parties, buildings plan approvals by government agencies, industry standards, and “as yet unstated defenses.”
One defense even claims the suggested modifications would, “fundamentally alter the benefits offered to the public or result in an undue burden.”
The attorneys asked that the lawsuit be dismissed, and that the plaintiffs pay their legal costs.
Apple legal filing contained one interesting tidbit related to its lease on the property. The answer noted that its lease on 1 Stockton Street began on July 24, 1998, or two years and nine months before Apple opened their first retail stores. In fact, the lease began over five years before construction began on the San Francisco store. During that time, cosmetics retailer Sephora was presumably paying Apple some part of their lease, until they moved out and around the corner to a new space.
The court assigned mediator on January 18th. Under court rules, the mediator hold a preliminary conference call with the two sides soon, and then schedule a mediation session to be held within 90 days.
Download (pdf) the two companies’ latest legal filing here.
Download (pdf) the original lawsuit filing here.
