Case 3:15-cv-30024-KAR Document 194 Filed 02/18/20 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`NATIONAL ASSOCIATION OF THE DEAF,
`on behalf of its members, C. WAYNE DORE,
`CHRISTY SMITH, LEE NETTLES, on behalf
`of themselves and a proposed class of similarly
`situated persons defined below,
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`Plaintiffs,
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`Civil Action No. 15-30024-KAR
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`MASSACHUSETTS INSTITUTE OF
`TECHNOLOGY,
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`v.
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`Defendant.
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`PLAINTIFFS’ ASSENTED-TO MOTION TO CERTIFY THE CLASS FOR
`SETTLEMENT PURPOSES AND FOR PRELIMINARY APPROVAL OF CLASS
`ACTION SETTLEMENT
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`After years of vigorous advocacy and negotiation, Plaintiffs National Association of the
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`Deaf (“NAD”), C. Wayne Dore, Christy Smith, and Lee Nettles (collectively, “Plaintiffs”) and
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`Defendant Massachusetts Institute of Technology (“MIT”) have resolved the instant action.
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`Now, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, Plaintiffs hereby move the
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`Court for an order conditionally certifying a class for settlement purposes, preliminarily
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`approving the settlement, approving the proposed Notice and Notice Plan, and setting dates for
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`the submission of any objections to the proposed Consent Decree and a fairness hearing. MIT
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`assents to this Motion. In further support of the Motion, Plaintiffs state as follows:
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`1.
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`In February 2015, Plaintiffs initiated this action for declaratory and injunctive relief
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`against MIT concerning the lack of closed captioning or unintelligible captioning of
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`videos and audio tracks publicly available online for free to anyone with an Internet
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`Case 3:15-cv-30024-KAR Document 194 Filed 02/18/20 Page 2 of 6
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`connection, on broad-ranging topics of educational or general interest, including Massive
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`Open Online Courses (“MOOCs”). Plaintiffs alleged that MIT violated two longstanding
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`civil rights statutes, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
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`(“Rehabilitation Act”), and Title III of the Americans with Disabilities Act of 1990, 42
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`U.S.C. § 12181 et seq. (“Title III”).
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`2.
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`MIT filed a motion to dismiss the action, which the Court denied in an order by
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`Magistrate Judge Robertson that was adopted, following MIT’s objections, by Judge
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`Mastroianni. See ECF 51 (denying MIT’s motion for the reasons set forth in Nat’l Ass’n
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`of the Deaf v. Harvard Univ., No. 15-30023-MGM, 2016 WL 3561622 (D. Mass. Feb. 9,
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`2016)).
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`3.
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`In August 2018, MIT filed a motion for judgment on the pleadings pursuant to Fed. R.
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`Civ. P. 12(c). On March 28, 2019, Judge Robertson issued an order granting the motion
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`in part and denying it in part. The Court did not agree with MIT’s arguments that: 1) its
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`websites are not places of public accommodation, and that Plaintiffs fail to allege a
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`sufficient nexus with a good or service provided at a physical location; and 2) Plaintiffs
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`failed to state a claim under Section 504. The Court did, however, dismiss claims seeking
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`captioning of content originating exclusively by third parties unaffiliated with MIT, based
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`on the immunity provisions in the Communications Decency Act of 1996, 47 U.S.C.
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`§ 230. Nat’l Ass’n of the Deaf v. Mass. Inst. of Tech., 2019 WL 1409301 (D. Mass.
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`March 28, 2019) (incorporating by reference Nat’l Ass’n of the Deaf v. Harvard Univ.,
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`377 F. Supp. 3d 49, 61-63 (D. Mass. 2019)).
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`4.
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`After engaging in good faith negotiations and mediations, on February 6, 2020, the
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`Parties reached a settlement and executed the proposed Consent Decree. See Ex. 1 to the
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`Case 3:15-cv-30024-KAR Document 194 Filed 02/18/20 Page 3 of 6
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`corresponding Memorandum. The proposed Consent Decree resolves this action and
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`defines the settlement class as follows:
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`[A]ll persons (other than students of MIT) who, at any time between February 11,
`2012 and the date of preliminary approval of this settlement, have claimed or
`could have claimed to assert a claim under Title III of the ADA, the
`Rehabilitation Act, and/or other federal, state or local statutes or regulations that
`set forth standards or obligations coterminous with or equivalent to Title III of the
`Americans with Disabilities Act and the rules or regulations promulgated
`thereunder, alleging that they are deaf or hard of hearing and that MIT has failed
`to make accessible to persons who are deaf or hard of hearing online content
`posted and available for the general public that is produced, created, hosted,
`linked to, or embedded by MIT.
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`5.
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`Under the terms of the proposed Consent Decree,1 MIT agrees:
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`to caption new video or audio content posted to Covered MIT Webpages on or
`after a date 60 days after the Effective Date;
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`to caption existing video or audio content posted to Covered MIT Webpages on or
`after January 1, 2019, within one year after the Effective Date;
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`to provide captions for existing video or audio content posted to Covered MIT
`Webpages prior to January 1, 2019, upon request within seven business days;
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`to provide industry-standard live captioning for events that are live-streamed
`publicly online by MIT Institute Events, and to add captions to any such video or
`audio content or “breaking news” that is later posted on a Covered MIT Webpage
`as soon as possible, but no later than seven business days after its posting;
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`to provide appropriate training regarding the captioning of audio and video
`content; and
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`to make periodic reports to Plaintiff NAD.
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`6.
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`The Parties have agreed to issue written notice to the settlement class through electronic
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`information technology. As the settlement and Notice will be most important to
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`consumers of MIT’s public-facing web content, MIT will post links to the Notice on key
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`1 The primary terms of the proposed Consent Decree are explained more fully in the
`corresponding Memorandum at Section III.
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`Case 3:15-cv-30024-KAR Document 194 Filed 02/18/20 Page 4 of 6
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`webpages. In addition, Plaintiffs’ Counsel will create a case website on which they will
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`post the Notice and Consent Decree, and the four nonprofit organizations serving among
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`Plaintiffs’ Counsel will post a link to the case website on their respective websites and
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`distribute it to their mailing lists. Plaintiffs’ Counsel will make the online Notice
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`available in English and American Sign Language. Plaintiffs’ Counsel will also send a
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`copy of the Notice to relevant nonprofit organizations and agencies whose members or
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`constituents include and/or whose work is relevant to people who are deaf or hard of
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`hearing.
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`7.
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`In light of the substantial relief obtained and in consideration of the inherent risks of
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`continued litigation, the settlement is fair, reasonable, and adequate. It was reached after
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`counsel participated in two separate days of mediation with Magistrate Judge Judith Dein
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`and extensively negotiated the settlement terms at arm’s length. Further, the settlement
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`came after years of motion practice, extensive factual investigation by Plaintiffs, and the
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`Parties’ exchange of substantial fact discovery; as a result of these efforts, Plaintiffs
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`assessed the strengths of their positions and negotiated the proposed Consent Decree
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`based on that assessment.
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`WHEREFORE, Plaintiffs respectfully request that the Court:
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`(a)
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`certify the class for settlement purposes, appointing Lee Nettles, C. Wayne Dore,
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`and Christy Smith as class representatives and Plaintiffs’ Counsel as Class
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`Counsel;
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`preliminarily approve the settlement as set forth in the proposed Consent Decree;
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`approve the Notice and Notice Plan;
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`(b)
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`(c)
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`Case 3:15-cv-30024-KAR Document 194 Filed 02/18/20 Page 5 of 6
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`(d)
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`set a date six (6) weeks after the Court grants preliminary approval as the deadline
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`for submission of any objections to the proposed Consent Decree; and
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`(e)
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`schedule a fairness hearing for four weeks after the deadline for class members to
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`object to the proposed Consent Decree, or such time thereafter as is convenient
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`for the Court.
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`Respectfully submitted,
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`/s/ Joseph M. Sellers
`Joseph M. Sellers (pro hac vice)
`Shaylyn Cochran (pro hac vice)
`COHEN MILSTEIN SELLERS &
`TOLL PLLC
`1100 New York Ave NW, Fifth Floor
`Washington DC 20005
`Tel.: 202.408.4600
`jsellers@cohenmilstein.com
`scochran@cohenmilstein.com
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`/s/ Amy Farr Robertson
`Amy Farr Robertson (pro hac vice)
`CIVIL RIGHTS EDUCATION AND
`ENFORCEMENT CENTER
`1245 E. Colfax Ave., Suite 400
`Denver, CO 80218
`Tel.: 303.757.7901
`arobertson@creeclaw.org
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`Thomas P. Murphy (BBO# 630527)
`DISABILITY LAW CENTER, INC.
`32 Industrial Drive East
`Northampton, MA 01060
`Tel.: 413.584.6337
`tmurphy@dlc-ma.org
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`Attorneys for Plaintiffs
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`Dated: February 18, 2020
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`Tatum A. Pritchard (BBO# 664502)
`DISABILITY LAW CENTER, INC.
`11 Beacon Street, Suite 925
`Boston, MA 02108
`Tel.: 617.723.8455
`tpritchard@dlc-ma.org
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`Arlene B. Mayerson (pro hac vice)
`Carly A. Myers (pro hac vice)
`DISABILITY RIGHTS EDUCATION AND
`DEFENSE FUND, INC.
`3075 Adeline Street Suite 210
`Berkeley, CA 94703
`Tel: 510.644.2555
`amayerson@dredf.org
`cmyers@dredf.org
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`Howard A. Rosenblum (pro hac vice)
`NATIONAL ASSOCIATION OF THE
`DEAF
`8630 Fenton Street, Suite 820
`Silver Spring, MD 20910
`howard.rosenblum@nad.org
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`Case 3:15-cv-30024-KAR Document 194 Filed 02/18/20 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`I, Shaylyn Cochran, hereby certify that a copy of the foregoing document, filed through
`the CM/ECF system, will be sent electronically to the registered participants as identified on the
`Notice of Electronic Filing (NEF) and paper copies shall be served by first class mail postage
`prepaid on all counsel who are not served through the CM/ECF system on February 18, 2020.
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`/s/ Shaylyn Cochran
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