2:21-cv-02207-CSB-EIL # 1 Page 1 of 17
`E-FILED
` Thursday, 05 August, 2021 07:08:37 PM
` Clerk, U.S. District Court, ILCD
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF ILLINOIS
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`
`
`
`
`Civil Action No.
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`TERA DONAHUE,
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`
`
`
`
`NURTURE INC. DBA HAPPY FAMILY
`ORGANICS,
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`
`TERA DONAHUE (“Plaintiff”), by and through undersigned counsel, seeks a permanent
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`injunction requiring a change in NURTURE INC. DBA HAPPY FAMILY ORGANICS’s
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`(“Nurture”, and “Defendant”) corporate policies to cause its Website to become, and remain,
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`accessible to individuals with visual disabilities. In support thereof, Plaintiff respectfully asserts
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`as follows:
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`INTRODUCTION
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`1.
`
`In a September 25, 2018 letter to U.S. House of Representative Ted Budd, U.S.
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`Department of Justice Assistant Attorney General Stephen E. Boyd confirmed that public
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`accommodations must make the websites they own, operate, or control equally accessible to
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`individuals with disabilities. Assistant Attorney General Boyd’s letter provides:
`
`The Department [of Justice] first articulated its interpretation that the ADA applies
`to public accommodations’ Websites over 20 years ago. This interpretation is
`consistent with the ADA’s title III requirement that the goods, services, privileges,
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`2:21-cv-02207-CSB-EIL # 1 Page 2 of 17
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`or activities provided by places of public accommodation be equally accessible to
`people with disabilities.1
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`2.
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`Plaintiff Donahue has retinitis pigmentosa, a degenerative retinopathy disease
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`which has progressed over many years. Plaintiff has been legally blind since 1994. Ms. Donahue
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`uses an iPhone 6 with voice-over, and a desktop computer which runs JAWS.
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`3.
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`Screen reader “software translates the visual internet into an auditory equivalent.
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`At a rapid pace, the software reads the content of a webpage to the user.” Andrews v. Blick Art
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`Materials, LLC, 17-CV-767, 2017 WL 6542466, at *6 (E.D.N.Y. Dec. 21, 2017) (J. Weinstein).
`
`The screen reading software uses auditory cues to allow a visually impaired user to
`effectively use Websites. For example, when using the visual internet, a seeing user
`learns that a link may be “clicked,” which will bring his to another webpage,
`through visual cues, such as a change in the color of the text (often text is turned
`from black to blue). When the sighted user's cursor hovers over the link, it changes
`from an arrow symbol to a hand.
`
`The screen reading software uses auditory—rather than visual—cues to relay this
`same information. When a sight impaired individual reaches a link that may be
`“clicked on,” the software reads the link to the user, and after reading the text of
`the link says the word “clickable.”…Through a series of auditory cues read aloud
`by the screen reader, the visually impaired user can navigate a Website by listening
`and responding with his keyboard.
`
`Id. at *6-7.2
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`4.
`
`Defendant is a leader in the design, development, manufacture, and distribution of
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`children’s nutritional products, and similar products, under its recognized brand Happy Family
`
`Organics.
`
`
`1
`See Letter from Assistant Attorney General Stephen E. Boyd, U.S. Department of Justice,
`to Congressman Ted Budd, U.S. House of Representatives (Sept. 25, 2018) (available at
`https://images.cutimes.com/contrib/content/uploads/documents/413/152136/adaletter.pdf) (last
`accessed August 5, 2021).
`2
`See American Foundation for the Blind, Screen Readers, available at
`https://www.afb.org/node/16207/screen-readers (last accessed August 5 2021) (discussing screen
`readers and how they work).
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`2
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`5.
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`Consumers may purchase Defendant’s products and access other brand-related
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`content and services at https://www.happyfamilyorganics.com/ (“Website”), the Website
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`Defendant owns, operates, and controls.3
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`6.
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`In addition to researching and purchasing Defendant’s products and services from
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`the comfort and convenience of their homes, consumers may also use Defendant’s Website to
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`contact customer service by phone and email, sign up to receive product updates, product news,
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`and special promotions, review important legal notices like Defendant’s Privacy Policy and Terms
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`and Conditions, and more.4
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`7.
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`Defendant is responsible for the policies, practices, and procedures concerning the
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`Website’s development and maintenance.
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`8.
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`Unfortunately, Defendant denies approximately 8.1 million5 Americans who have
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`difficulty seeing access to its Website’s goods, content, and services because the Website is largely
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`incompatible with the screen reader programs these Americans use to navigate an increasingly
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`ecommerce world.
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`9.
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`This discrimination is particularly acute during the current COVID-19 global
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`pandemic. According to the Centers for Disease Control and Prevention (“CDC”), Americans
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`living with disabilities are at higher risk for severe illness from COVID-19 and, therefore, are
`
`
`Nurture Privacy Policy, available at
`3
`https://www.happyfamilyorganics.com/californiaprivacypolicy/ (last accessed August 5, 2021).
`4
`See, e.g., Nurture Home Page, available at https://www.happyfamilyorganics.com/ (last
`accessed August 5, 2021).
`5
`Press Release, United States Census Bureau, Nearly 1 in 5 People Have a Disability in
`the U.S., Census Bureau Reports Report Released to Coincide with 22nd Anniversary of the ADA
`(Jul. 25, 2012), available at
`https://www.census.gov/newsroom/releases/archives/miscellaneous/cb12-134.html (last
`accessed August 5, 2021) (“About 8.1 million people had difficulty seeing, including 2.0 million
`who were blind or unable to see.”).
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`3
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`2:21-cv-02207-CSB-EIL # 1 Page 4 of 17
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`recommended to shelter in place throughout the duration of the pandemic.6 This underscores the
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`importance of access to online retailers, such as Defendant, for this especially vulnerable
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`population.
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`10.
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`The COVID-19 pandemic is particularly dangerous for disabled individuals.7 The
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`overwhelming burden on hospitals is leading to a worry that emergency services will ration
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`treatment. Although the Department of Health has ensured that no priority treatment will occur,
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`disabled individuals are in fear that their diminished capacity to communicate will affect their
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`treatment.8 With public health experts expecting social distancing to extend through 2022, and the
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`uncertainty surrounding businesses transitioning back to normal operations, the importance of
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`accessible online services has been heightened. During these unprecedented times, disabled
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`individuals risk losing their jobs, experiencing difficulty acquiring goods and services like health
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`care, and not having the information they need to stay safe.9
`
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`6 See Centers for Disease Control and Prevention Website, Coronavirus Disease 2019 (2019),
`available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-
`higher-risk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-
`ncov%2Fspecific-groups%2Fhigh-risk-complications.html (last accessed August 5, 2021)
`(“Based on currently available information and clinical expertise, older adults and people of any
`age who have serious underlying medical conditions might be at higher risk for severe illness
`from COVID-19.”).
`7 See The New York Times, ‘It’s Hit Our Front Door’: Homes for the Disabled See a Surge of
`Covid-19 (2020), available at https://www.nytimes.com/2020/04/08/nyregion/coronavirus-
`disabilities-group-homes.html?smid=fb-nytimes&smtyp=cur (last accessed August 5, 2021) (“As
`of Monday, 1,100 of the 140,000 developmentally disabled people monitored by the state had
`tested positive for the virus, state officials said. One hundred five had died — a rate far higher
`than in the general population”).
`8 See The Atlantic, Americans With Disabilities Are Terrified (2020), available at
`https://www.theatlantic.com/politics/archive/2020/04/people-disabilities-worry-they-wont-get-
`treatment/609355/ (last accessed August 5, 2021) (explaining that disabled individuals are
`inherently more susceptible to the virus, leading to complications in hospital in which the
`individuals are unable to effectively communicate with doctors while intubated).
`9 See Slate, The Inaccessible Internet 2020, available at
`https://slate.com/technology/2020/05/disabled-digital-accessibility-pandemic.html (last accessed
`August 5, 2021).
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`11.
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`Plaintiff brings this civil rights action against Defendant to enforce Title III of the
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`Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“Title III”), which requires, among
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`other things, that a public accommodation (1) not deny persons with disabilities the benefits of its
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`services, facilities, privileges and advantages; (2) provide such persons with benefits that are equal
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`to those provided to nondisabled persons; (3) provide auxiliary aids and services—including
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`electronic services for use with a computer screen reading program—where necessary to ensure
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`effective communication with individuals with a visual disability, and to ensure that such persons
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`are not excluded, denied services, segregated or otherwise treated differently than sighted
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`individuals; and (4) utilize administrative methods, practices, and policies that provide persons
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`with disabilities equal access to online content.
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`12.
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`By failing to make its Website available in a manner compatible with computer
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`screen reader programs, Defendant, a public accommodation subject to Title III, deprives blind
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`and visually-impaired individuals the benefits of its online goods, content, and services—all
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`benefits it affords nondisabled individuals—thereby increasing the sense of isolation and stigma
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`among these Americans that Title III was meant to redress.
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`13.
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`Because Defendant’s Website is not and has never been fully accessible, and
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`because upon information and belief Defendant does not have, and has never had, adequate
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`corporate policies that are reasonably calculated to cause its Website to become and remain
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`accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring
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`Defendant to:
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`a) Retain a qualified consultant acceptable to Plaintiff (“Web Accessibility
`Consultant”) who shall assist in improving the accessibility of its Website,
`including all third-party content and plug-ins, so the goods and services on the
`Website may be equally accessed and enjoyed by individuals with vision related
`disabilities;
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`b) Work with the Web Accessibility Consultant to ensure all employees involved in
`Website and content development be given web accessibility training on a biennial
`basis, including onsite training to create accessible content at the design and
`development stages;
`
`c) Work with the Web Accessibility Consultant to perform an automated accessibility
`audit on a periodic basis to evaluate whether Defendant’s Website may be equally
`accessed and enjoyed by individuals with vision related disabilities on an ongoing
`basis;
`
`d) Work with
`to perform end-user
`the Web Accessibility Consultant
`accessibility/usability testing on at least a quarterly basis with said testing to be
`performed by humans who are blind or have low vision, or who have training and
`experience in the manner in which persons who are blind use a screen reader to
`navigate, browse, and conduct business on Websites, in addition to the testing, if
`applicable, that is performed using semi-automated tools;
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`e) Incorporate all of the Web Accessibility Consultant’s recommendations within
`sixty (60) days of receiving the recommendations;
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`f) Work with the Web Accessibility Consultant to create a Web Accessibility Policy
`that will be posted on its Website, along with an e-mail address, instant messenger,
`and toll-free phone number to report accessibility-related problems;
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`g) Directly link from the footer on each page of its Website, a statement that indicates
`that Defendant is making efforts to maintain and increase the accessibility of its
`Website to ensure that persons with disabilities have full and equal enjoyment of
`the goods, services, facilities, privileges, advantages, and accommodations of the
`Defendant through the Website;
`
`h) Accompany the public policy statement with an accessible means of submitting
`accessibility questions and problems, including an accessible form to submit
`feedback or an email address to contact representatives knowledgeable about the
`Web Accessibility Policy;
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`i) Provide a notice, prominently and directly linked from the footer on each page of
`its Website, soliciting feedback from visitors to the Website on how the
`accessibility of the Website can be improved. The link shall provide a method to
`provide feedback, including an accessible form to submit feedback or an email
`address to contact representatives knowledgeable about the Web Accessibility
`Policy;
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`j) Provide a copy of the Web Accessibility Policy to all web content personnel,
`contractors responsible for web content, and Client Service Operations call center
`agents (“CSO Personnel”) for the Website;
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`k) Train no fewer than three of its CSO Personnel to automatically escalate calls from
`users with disabilities who encounter difficulties using the Website. Defendant
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`2:21-cv-02207-CSB-EIL # 1 Page 7 of 17
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`shall have trained no fewer than 3 of its CSO personnel to timely assist such users
`with disabilities within CSO published hours of operation. Defendant shall
`establish procedures for promptly directing requests for assistance to such
`personnel including notifying the public that customer assistance is available to
`users with disabilities and describing the process to obtain that assistance;
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`l) Modify existing bug fix policies, practices, and procedures to include the
`elimination of bugs that cause the Website to be inaccessible to users of screen
`reader technology;
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`m) Plaintiff, her counsel, and their experts monitor the Website for up to two years
`after the Mutually Agreed Upon Consultant validates the Website are free of
`accessibility errors/violations to ensure Defendant has adopted and implemented
`adequate accessibility policies. To this end, Plaintiff, through her counsel and their
`experts, shall be entitled to consult with the Web Accessibility Consultant at their
`discretion, and to review any written material, including but not limited to any
`recommendations the Website Accessibility Consultant provides Defendant.
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`14. Web-based technologies have features and content that are modified on a daily, and
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`in some instances an hourly, basis, and a one time “fix” to an inaccessible website will not cause
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`the website to remain accessible without a corresponding change in corporate policies related to
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`those web-based technologies. To evaluate whether an inaccessible website has been rendered
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`accessible, and whether corporate policies related to web-based technologies have been changed
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`in a meaningful manner that will cause the website to remain accessible, the website must be
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`reviewed on a periodic basis using both automated accessibility screening tools and end user
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`testing by disabled individuals.
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`JURISDICTION AND VENUE
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`15.
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`The claims alleged arise under Title III such that this Court’s jurisdiction is invoked
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`pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 12188.
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`16.
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`Defendant participates in the state’s economic life by clearly performing business
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`over the Internet. Through its Website, Defendant entered into contracts for the sale of its products
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`and services with residents of Illinois. These online sales contracts involve, and indeed require,
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`Defendant’s knowing and repeated transmission of computer files over the Internet. See Hetz v.
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`7
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`2:21-cv-02207-CSB-EIL # 1 Page 8 of 17
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`Aurora Med. Ctr. of Manitowoc Cnty., No. 06-C-636, 2007 U.S. Dist. LEXIS 44115, at *6 (E.D.
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`Wis. June 18, 2007).
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`17.
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`Plaintiff was injured when she attempted to access Defendant’s Website from her
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`home in this District but encountered barriers that denied her full and equal access to Defendant’s
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`online goods, content, and services.
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`18.
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`Venue in this District is proper under 28 U.S.C. § 1391(b)(2) because this is the
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`judicial district in which a substantial part of the acts and omissions giving rise to Plaintiff’s claim
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`occurred.
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`PARTIES
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`19.
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`Plaintiff Donahue is and, at all times relevant hereto, has been a resident of Rantoul,
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`Illinois, located in Champaign County. Plaintiff is and, at all times relevant hereto, has been legally
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`blind and is therefore a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the
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`regulations implementing the ADA set forth at 28 CFR §§ 36.101et seq.
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`20.
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`Defendant Nurture is a Delaware corporation with its principal place of business at
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`40 Fulton Street, Floor 17, New York, New York, 10038.
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`FACTS APPLICABLE TO ALL CLAIMS
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`21. While
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`the
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`increasing pervasiveness of digital
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`information presents an
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`unprecedented opportunity to increase access to goods, content, and services for people with
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`perceptual or motor disabilities, website developers and web content developers often implement
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`digital technologies without regard to whether those technologies can be accessed by individuals
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`with disabilities. This is notwithstanding the fact that accessible technology is both readily
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`available and cost effective.
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`2:21-cv-02207-CSB-EIL # 1 Page 9 of 17
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`DEFENDANT’S ONLINE CONTENT
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`22.
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`Defendant’s Website allows consumers to research and participate in Defendant’s
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`services and products from the comfort and convenience of their own homes.
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`23.
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`The Website also enables consumers to contact customer service by phone and
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`instant messenger, sign up to receive product updates, product news, and special promotions,
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`review important legal notices like Defendant’s Privacy Policy and Terms and Conditions, and
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`more.
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`24.
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`Consumers may use the Website to connect with Defendant on social media, using
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`sites like Facebook, Twitter, Instagram, and YouTube.
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`HARM TO PLAINTIFF
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`25.
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`Plaintiff attempted to access the Website from her home in Rantoul, Illinois, located
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`in Champaign County. Unfortunately, because of Defendant’s failure to build the Website in a
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`manner that is compatible with screen reader programs, Plaintiff is unable to understand, and thus
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`is denied the benefit of, much of the content and services she wishes to access on the Website. The
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`following are illustrative (but, importantly, not exhaustive) examples of a few of the accessibility
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`barriers observed on the Website:
`
`a.
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`Defendant’s Website contains a location pop-up that “traps” screen reader
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`users. A pop-up is shown on the product page after pressing the “Buy Now” button. The close
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`button does not receive focus using either the tab or arrow key. Screen reader users are not able to
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`exit the pop-up section.
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`b.
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`The submenu items are not accessible by keyboard on Defendant’s Website.
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`Submenu items are only displayed upon mouse hover. Screen reader users are not able to easily
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`navigate to the other pages without being able to access the submenu options. The “Kid” submenu
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`displays two coupons, but screen reader users will not be aware of these since they cannot open
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`the submenu items.
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`c.
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`Defendant’s Website has an image for “milk formula preparation and use”
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`that is not accessible. The directions for the milk formula preparation are presented as an image
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`2:21-cv-02207-CSB-EIL # 1 Page 11 of 17
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`on the product page. This includes a chart and three steps. The image does not receive focus using
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`either the tab or arrow key navigation. Screen reader users do not hear a label for this image, nor
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`do they hear the content in the image.
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`26.
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`These barriers, and others, deny Plaintiff full and equal access to all of the services
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`the Website offers, and now deter her from attempting to use the Website. Still, Plaintiff would
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`like to, and intends to, attempt to access the Website in the future to research the products and
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`services the Website offer, or to test the Website for compliance with the ADA.
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`27.
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`If the Website was accessible, i.e. if Defendant removed the access barriers
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`described above, Plaintiff could independently research and purchase Defendant’s products and
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`access its other online content and services.
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`28.
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`Though Defendant may have centralized policies regarding the maintenance and
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`operation of the Website, Defendant has never had a plan or policy that is reasonably calculated to
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`make the Website fully accessible to, and independently usable by, individuals with vision related
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`disabilities. As a result, the complained of access barriers are permanent in nature and likely to
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`persist.
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`2:21-cv-02207-CSB-EIL # 1 Page 12 of 17
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`29.
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`The law requires that Defendant reasonably accommodates Plaintiff’s disabilities
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`by removing these existing access barriers. Removal of the barriers identified above is readily
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`achievable and may be carried out without much difficulty or expense.
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`30.
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`Plaintiff has been, and in the absence of an injunction will continue to be, injured
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`by Defendant’s failure to provide its online content and services in a manner that is compatible
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`with screen reader technology.
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`DEFENDANT’S KNOWLEDGE OF WEBSITE ACCESSIBILITY REQUIREMENTS
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`31.
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`Defendant has long known that sufficient contrast and skip navigation links are
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`necessary for individuals with visual disabilities to access its online content and services, and that
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`it is legally responsible for providing the same in a manner that is compatible with these auxiliary
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`aids.
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`32.
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`Indeed, the “Department [of Justice] first articulated its interpretation that the ADA
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`applies to public accommodations’ Websites over 20 years ago.” As described above, on
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`September 25, 2018, Assistant Attorney General Stephen E. Boyd confirmed nothing about the
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`ADA, nor the Department’s enforcement of it, has changed this interpretation.
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`THE PARTIES HAVE NO ADMINISTRATIVE REMEDIES TO PURSUE
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`33.
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`There is no DOJ administrative proceeding that could provide Plaintiff with Title
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`III injunctive relief.
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`34. While the DOJ has rulemaking authority and can bring enforcement actions in
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`court, Congress has not authorized it to provide an adjudicative administrative process to provide
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`Plaintiff with relief.
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`35.
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`Plaintiff alleges violations of existing and longstanding statutory and regulatory
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`requirements to provide auxiliary aids or services necessary to ensure effective communication,
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`and courts routinely decide these types of effective communication matters.
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`2:21-cv-02207-CSB-EIL # 1 Page 13 of 17
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`36.
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`Resolution of Plaintiff’s claims does not require the Court to unravel intricate,
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`technical facts, but rather involves consideration of facts within the conventional competence of
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`the courts, e.g. (a) whether Defendant offers content and services on its Website, and (b) whether
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`Plaintiff can access the content and services.
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`SUBSTANTIVE VIOLATIONS
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`COUNT I
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`Title III of the ADA, 42 U.S.C. § 12181 et seq.
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`37. The assertions contained in the previous paragraphs are incorporated by reference.
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`38. Defendant’s Website is a place of public accommodation within the definition of
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`Title III of the ADA, 42 U.S.C. § 12181(7).
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`39.
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`In the broadest terms, the ADA prohibits discrimination on the basis of a disability
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`in the full and equal enjoyment of goods and services of any place of public accommodation. 42
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`U.S.C. § 12182(a). Thus, to the extent Defendant does not provide Plaintiff with full and equal
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`access to its Website, it has violated the ADA.
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`40.
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`In more specific terms, Title III of the ADA imposes statutory and regulatory
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`requirements to ensure persons with disabilities are not excluded, denied services, segregated or
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`otherwise treated differently than other individuals as a result of the absence of auxiliary aids and
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`services. 42 U.S.C. § 12182(b)(2)(A); 28 C.F.R. §§ 36.303(a), (c). Under these provisions, public
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`accommodations must furnish appropriate auxiliary aids and services that comply with their
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`effective communication obligations. Id.
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`41. Auxiliary aids and services are necessary when their absence effectively excludes
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`an individual from participating in or benefiting from a service or fails to provide a like experience
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`to the disabled person.
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`2:21-cv-02207-CSB-EIL # 1 Page 14 of 17
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`42. Auxiliary aids and services include, but are not limited to, audio recordings, screen
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`reader software, magnification software, optical readers, secondary auditory programs, large print
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`materials, accessible electronic and information technology, other effective methods of making
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`visually delivered materials available to individuals who are blind or have low vision, and other
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`similar services and actions. 28 C.F.R. §§ 36.303(b)(2), (4).
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`43.
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`In order to be effective, auxiliary aids and services must be provided in accessible
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`formats, in a timely manner, and in such a way as to protect the privacy and independence of the
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`individual with a disability. 28 C.F.R. §§ 36.303(c)(1)(ii). To this end, the Ninth Circuit, among
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`other Courts, has explained, “assistive technology is not frozen in time: as technology advances, [
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`] accommodations should advance as well.” Enyart v. Nat'l Conference of Bar Examiners, Inc.,
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`630 F.3d 1153, 1163 (9th Cir. 2011); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381,
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`395 (E.D.N.Y. 2017).
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`44. By failing to provide its Website’s content and services in a manner that is
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`compatible with auxiliary aids, Defendant has engaged, directly, or through contractual, licensing,
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`or other arrangements, in illegal disability discrimination, as defined by Title III, including without
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`limitation:
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`(a)
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`denying individuals with visual disabilities opportunities to participate in
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`and benefit from the goods, content, and services available on its Website;
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`(b)
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`affording individuals with visual disabilities access to its Website that is not
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`equal to, or effective as, that afforded others;
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`(c)
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`utilizing methods of administration that (i) have the effect of discriminating
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`on the basis of disability; or (ii) perpetuate the discrimination of others who are subject to common
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`administrative control;
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`2:21-cv-02207-CSB-EIL # 1 Page 15 of 17
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`(d)
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`denying individuals with visual disabilities effective communication,
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`thereby excluding or otherwise treating them differently than others; and/or
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`(e)
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`failing to make reasonable modifications in policies, practices, or
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`procedures where necessary to afford its services, privileges, advantages, or accommodations to
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`individuals with visual disabilities.
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`45.
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`Defendant has violated Title III by, without limitation, failing to make its Website’s
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`services accessible by screen reader programs, thereby denying individuals with visual disabilities
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`the benefits of the Website, providing them with benefits that are not equal to those it provides
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`others, and denying them effective communication.
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`46.
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`Defendant has further violated Title III by, without limitation, utilizing
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`administrative methods, practices, and policies that allow its Website to be made available without
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`consideration of consumers who can only access the company’s online goods, content, and services
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`with screen reader programs.
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`47. Making its online goods, content, and services compatible with screen reader
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`programs does not change the content of Defendant’s Website or result in making the Website
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`different, but rather enables individuals with visual disabilities to access the Website Defendant
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`already provides.
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`48.
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`Defendant’s ongoing violations of Title III have caused, and in the absence of an
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`injunction, will continue to cause harm to Plaintiff and other individuals with visual disabilities.
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`49.
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`Plaintiff’s claims are warranted by existing law or by non-frivolous argument for
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`extending, modifying, or reversing existing law or for establishing new law.
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`50.
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`Pursuant to 42 U.S.C. § 12188 and the remedies, procedures and rights set forth
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`and incorporated therein, Plaintiff requests relief as set forth below.
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`2:21-cv-02207-CSB-EIL # 1 Page 16 of 17
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for:
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`(A) A Declaratory Judgment that at the commencement of this action Defendant was in
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`violation of the specific requirements of Title III of the ADA described above, and the relevant
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`implementing regulations of the ADA, in that Defendant took no action that was reasonably
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`calculated to ensure that its Website was fully accessible to, and independently usable by,
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`individuals with visual disabilities;
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`(B) A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR §
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`36.504(a) which directs Defendant to take all steps necessary to bring its Website into full
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`compliance with the requirements set forth in the ADA, and its implementing regulations, so that
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`its Website is fully accessible to, and independently usable by, blind individuals, and which further
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`directs that the Court shall retain jurisdiction for a period to be determined to ensure that Defendant
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`has adopted and is following an institutional policy that will in fact cause them to remain fully in
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`compliance with the law—the specific injunctive relief requested by Plaintiff is described more
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`fully in paragraph 13 above.
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`(C)
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`Payment of costs of suit;
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`(D)
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`Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR
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`§ 36.505, including costs of monitoring Defendant’s compliance with the judgment (see
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`Gniewkowski v. Lettuce Entertain You Enterprises, Inc., Case No. 2:16-cv-01898-AJS (W.D. Pa.
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`Jan. 11, 2018) (ECF 191) (“Plaintiffs, as the prevailing party, may file a fee petition before the
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`Court surrenders jurisdiction. Pursuant to Pennsylvania v. Delaware Valley Citizens’ Council for
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`Clean Air, 478 U.S. 546, 559 (1986), supplemented, 483 U.S. 711 (1987), the fee petition may
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`2:21-cv-02207-CSB-EIL # 1 Page 17 of 17
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`include costs to monitor Defendant’s compliance with the permanent injunction.”); see also Access
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`Now, Inc. v. LAX World, LLC, No. 1:17-cv-10976-DJC (D. Mass. Apr. 17, 2018) (ECF 11) (same);
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`(E)
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`The provision of whatever other relief the Court deems just, equitable and
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`appropriate; and
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`(F)
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`An Order retaining jurisdiction over this case until Defendant has complied with
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`the Court’s Orders.
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`Dated: August 5, 2021
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`Respectfully Submitted,
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` /s/ Benjamin J. Sweet
`Benjamin J. Sweet
`ben@nshmlaw.com
`NYE, STIRLING, HALE & MILLER, LLP
`1145 Bower Hill Road, Suite 104
`Pittsburgh, Pennsylvania 15243
`Phone: (412) 857-5350
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`Jonathan D. Miller
`jonathan@nshmlaw.com
`NYE, STIRLING, HALE & MILLER, LLP
`33 W. Mission Street, Suite 201
`Santa Barbara, California 93101
`Phone: (805) 963-2345
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`Attorneys for Plaintiff Tera Donahue
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`17
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