Days after choosing a voluntary dismissal of their case from federal court due to the judge’s “aggressive scheduling,” the civil rights group suing Kozmo.com, Inc. has announced its plans to re-file their discrimination suit in Washington D.C. Superior Court instead.
The case alleges that Kozmo, an Internet service that delivers videos, snacks and other goods to doorsteps in eleven U.S. cities, intentionally refuses delivery to predominantly black neighborhoods.
The Equal Rights Center and Washington, D.C. residents Winona Lake and James Warren originally filed suit in April. The suit came two days after an MSNBC report stating that although the Washington, D.C. population is 66 percent African-American, the neighborhoods served by Kozmo are 65 percent white and 25 percent African-American, while the areas denied service are 86 percent African-American.
Time To Investigate
In an interview with the E-Commerce Times, David Berenbaum, Executive Director of the Washington, D.C.-based Equal Rights Center, said that U.S. District Court Judge June Green issued a memorandum that was “very supportive of the plaintiff’s case, but which denied their request for a 30-day extension of time to conduct discovery.”
Instead, the court granted the plaintiff’s alternative motion for a voluntary dismissal of the federal suit. The plaintiffs say they intend to re-file the case in the local court. If they do so, the plaintiffs must give up their federal claims, and can only sue under Washington, D.C.’s Human Rights Act.
Berenbaum told the E-Commerce Times that several other potential plaintiffs have been identified throughout the country, but they have not determined whether the suit will be expanded to include such parties.
Alleged Denial of Service
Berenbaum believes that the case against Kozmo is significant for several reasons.
“Not only is it the first civil rights case brought against an Internet company, but it examines something that has been going on in retail for several years — the fact that retailers don’t serve the African-American community despite their purchasing power. In Washington D.C., we have some of the most educated and affluent African-Americans in the country, yet Kozmo does not serve them,” Berenbaum said.
Andrew Marks, a pro bono attorney for plaintiffs from the law firm of Crowell & Moring, contends that Kozmo refuses to deliver to a neighborhood steps away from their D.C. warehouse because it is in a “wrong zip code.”
Marks told the E-Commerce Times that Kozmo claims to be able to justify its delivery requirements, “but it all sounds pretextual.”
Failure To Prove
For its part, Kozmo said the plaintiffs had to drop the federal case because they were not able to prove their claims within the time allowed.
“We don’t believe there is any more merit to the case under state law than there was under federal law,” said Kozmo spokesperson Michael Gordon.
Kozmo counsel Irene Chang told the E-Commerce Times that the plaintiffs have put a “good spin” on the judge’s order, but that the court’s decision was more neutral than the plaintiffs characterized.
“If Judge Green wanted to be supportive, she would have given them more time for discovery,” Chang said.
Trying Case in the Media
In its brief filed with the federal court, Kozmo argued that the plaintiffs’ lack of diligence was the reason they had difficulty meeting deadlines.
Kozmo stated that although the plaintiffs attended a few informal sessions with Kozmo and its attorneys, the focus of their effort appeared to be a media promotion of the lawsuit as a “ground-breaking digital redlining case” and “the first of its kind in the nation.”
According to Kozmo, the plaintiffs have shown no interest in discovering whether there are facts to support their allegations.
With respect to the claim that Kozmo refuses to deliver to certain African-American neighborhoods, the company argued that “In determining who is most likely to place frequent orders, Kozmo looks for zip codes with the highest Internet penetration, simply because ordering from Kozmo requires access to the Internet.”
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