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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`RUSSELL KANE & CHRISTOPHER
`
` CLASS ACTION COMPLAINT
`MYERS, individually and on behalf of
`all others similarly situated,
`
` Case No.:
`
`
`
` Jury Demanded
`
` Plaintiffs,
`
`-against-
`
`
`
`
`
`ZOOM VIDEO COMMUNICATIONS,
`INC.; and, DOES 1-10,
`
`
` Defendant.
`
`
`
`Russell Kane and Christopher Myers (“Plaintiffs”), individually and on behalf
`of all others similarly situated, by and through undersigned counsel, allege the
`following upon information and belief, except for those allegations pertaining to
`Plaintiffs, which are based on their personal knowledge:
`NATURE OF THE ACTION
`1.
`In a September 25, 2018, letter to U.S. House of Representative Ted
`Budd, U.S. Department of Justice Assistant Attorney General Stephen E. Boyd
`confirmed that public accommodations must make the websites they own, operate,
`or control equally accessible to 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, or activities
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`provided by places of public accommodation be equally accessible
`to people with disabilities.1
`
`2.
`Plaintiffs Russell Kane and Christopher Myers are hearing-impaired
`individuals who rely upon auxiliary aids and services, interpreters, and Video
`Remote Interpreting (“VRI”) communication software, to remain as independent as
`possible. These auxiliary aids and services allow hearing-impaired individuals to
`participate in and receive the full and equal enjoyment of the goods, services,
`facilities, privileges, advantages, or accommodations of any place of public
`accommodation.
`3.
`Defendant Zoom Video Communications, Inc. (“Defendant” or
`“Zoom”) discriminated against Plaintiffs and those similarly situated by imposing a
`surcharge in order to effectively participate in and benefit from Defendant’s services
`free from discrimination.
`4.
`The individual Plaintiffs bring this action individually and on behalf of
`all others similarly situated to compel Defendant to cease unlawful discriminatory
`practices and implement policies and procedures that will ensure Plaintiffs full and
`equal enjoyment, and a meaningful opportunity to participate in and benefit from
`Defendant’s services without the surcharge for their disability. Plaintiffs seek
`declaratory, injunctive, and equitable relief and attorneys’ fees and costs to redress
`Defendant’s unlawful discrimination on the basis of disability in violation of Title
`III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”),
`and its implementing regulations.
`5.
`Plaintiff Christopher Myers also brings this action individually and on
`behalf of all other similarly situated California residents and seeks declaratory,
`
`See Letter from Assistant Attorney General Stephen E. Boyd, U.S. Department of Justice,
`1
`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
`visited December 16, 2020).
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`injunctive, and equitable relief, and attorneys’ fees and costs to redress Defendant’s
`unlawful discrimination on the basis of disability in violation of California’s Unruh
`Civil Rights Act, California Civil Code § 51 et seq. (“Unruh Act”), and for statutory
`damages, in accordance with California Civil Code § 52(a).
`6.
`Plaintiff Russell Kane also brings this action individually and on behalf
`of all other similarly situated New York residents and seeks declaratory, injunctive,
`and equitable relief, and attorneys’ fees and costs to redress Defendant’s unlawful
`discrimination on the basis of disability in violation of New York’s Human
`Rights Laws, N.Y. Exec. Law § 290 et seq., and for statutory damages, in accordance
`with N.Y. Exec. Law § 296.
`7.
`The individual Plaintiffs have utilized Defendant’s video conference
`and web conferencing services and were denied full and equal access as a result of
`Defendant’s surcharge on the technology required for closed captioning. Without
`this technology, Plaintiffs’ only option to equally use and communicate on
`Defendant’s video conference service is to attempt lip-reading through a video chat.
`8.
`Lip-reading, or speech reading, is the ability to understand the
`speech of another by watching the speaker’s mouth and face. It is an extremely
`speculative means of communication and no substitute for closed captioning on a
`video call. Approximately 40% of the spoken sounds of aural language are visible,
`and many of those appear identical on the lips.2 Even the most accomplished lip-
`readers, in a well-lit room, in a one-to-one situation, have been found to understand
`
`
`2 See Centers for Disease Control and Prevention, Speech Reading,
`https://www.cdc.gov/ncbddd/hearingloss/parentsguide/building/speech-reading.html (Last
`visited December 17, 2020). See also Altieri NA, Pisoni DB, Townsend JT. Some normative
`data on lip-reading skills, found at
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3155585/#:~:text=A%20lip%2Dreading%20rec
`ognition%20accuracy,standard%20deviations%20above%20the%20mean.&text=With%20these
`%20results%2C%20it%20is,to%20a%20normal%2Dhearing%20population (Last visited
`December 17, 2020).
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`four to five words in a twelve-word sentence.3 Absent the purchase of the additional
`technology, lip-reading is the only way to attempt to participate in Zoom Video
`Chats.
`9.
`to purchase
`individuals
`Defendant requires hearing-impaired
`additional technology to participate fully in the services it offers. While Defendant
`already possesses the technology to support the closed captioning software, the
`services can cost $200.00 per hour or higher.4 Defendant permits third-party
`software companies to integrate a closed captioning service into its software. This
`is the only tool for Plaintiffs to fully participate in the use of Defendant’s services.
`10. By failing to make its services accessible to hearing impaired persons,
`Defendant, a public accommodation subject to Title III of the ADA and the Unruh
`Act, deprives deaf and hearing-impaired individuals of the full benefits of
`Defendant’s services—all benefits it affords nondisabled individuals—thereby
`increasing the sense of isolation and stigma among these Americans that Title III of
`the ADA, N.Y. Exec. Law § 290 et seq. and the Unruh Act were meant to redress.
`11. Defendant’s discrimination sends a message that it is acceptable for
`service providers to adopt policies, procedures, and practices that deprive deaf and
`hearing-impaired individuals of the opportunity to fully participate in its services.
`12. This discrimination is particularly acute during the current COVID-19
`global pandemic. According to the Centers for Disease Control and Prevention
`(“CDC”), Americans living with disabilities are at higher risk for severe illness from
`COVID-19 and are therefore recommended to shelter in place throughout the
`duration of the pandemic.5 This underscores the importance of access to online
`
`3 Id.
`4 https://support.zoom.us/hc/en-us/articles/207279736-Managing-and-viewing-closed-captioning
`5 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-
`
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`services, such as Defendant’s video conferencing platform, for this especially
`vulnerable population. For many disabled individuals, they are relying on
`Defendant’s video services for contact with friends and family – a service that is free
`for those who can hear, but requires a surcharge for the hearing-impaired.
`13. The COVID-19 pandemic is particularly dangerous for disabled
`individuals.6 The overwhelming burden on hospitals is leading to a concern that the
`emergency services will ration treatment. Although the U.S. Department of Health
`and Human Services has issued guidance that no priority treatment will occur,
`disabled individuals are in fear that their diminished capacity to communicate will
`affect their treatment.7 With public health experts expecting social distancing to
`extend through 2022, and the uncertainty surrounding businesses transitioning back
`to normal operations, the importance of accessible online services has been
`heightened. During these unprecedented times, disabled individuals risk losing their
`jobs, experiencing difficulty acquiring services like health care, and lacking the
`information they need to stay safe.8
`
`
`ncov%2Fspecific-groups%2Fhigh-risk-complications.html (last visited December 4, 2020)
`(“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.”).
`6 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 December 4, 2020)
`(“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”).
`7 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 visited December 4, 2020) (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).
`8 See Slate, The Inaccessible Internet 2020, available at
`https://slate.com/technology/2020/05/disabled-digital-accessibility-pandemic.html (last visited
`December 4, 2020).
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`14.
`In contrast to the incredible strain the pandemic has caused the disabled
`community, Defendant has directly benefited from the pandemic. Defendant rapidly
`became the number one internet video conferencing software to use while people
`work and learn from home. This is evidenced by its surge from 10 million daily users
`prior to the pandemic to an estimated 300 million daily users now.9 Consistent with
`this growth, the business itself is seeing unprecedented success, while still requiring
`hearing-impaired individuals to pay extra for equal access.10
`15. Plaintiffs bring this civil rights action against Defendant to enforce Title
`III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“Title III”),
`which requires, among other things, that a public accommodation (1) not deny
`persons with disabilities the benefits of its services, facilities, privileges, and
`advantages; (2) provide such persons with benefits that are equal to those provided
`to nondisabled persons; (3) provide auxiliary aids and services where necessary to
`ensure effective communication with individuals with a hearing disability, and to
`ensure that such persons are not excluded, denied services, segregated or otherwise
`treated differently than hearing-abled individuals; and (4) utilize administrative
`methods, practices, and policies that provide persons with disabilities equal access
`to online content.
`16. When Defendant provides such auxiliary aids mandated under 42
`U.S.C. § 12101, et seq., the ADA directs that such cost shall be borne by the
`Defendant, and cannot be reimbursed by the disabled individual:
`A public accommodation may not impose a surcharge on a
`particular individual with a disability or any group of individuals
`with disabilities to cover the costs of measures, such as the
`provision of auxiliary aids, barrier removal, alternatives to barrier
`removal, and reasonable modifications in policies, practices, or
`
`9 https://www.wusa9.com/article/news/nation-world/zoom-boom-during-coronavirus-
`pandemic/507-96bec5cb-4d11-4ef6-812d-aaffda4650f1
`10 https://www.wsj.com/articles/zooms-pandemic-fueled-boom-continues-11606772231
`
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`procedures, that are required to provide that individual or group
`with the nondiscriminatory treatment required by the Act or this
`part. 28 C.F.R. § 36.301(c).
`17. Because Defendant’s service is not and has never been fully accessible,
`and because upon information and belief Defendant does not have, and has never
`had, adequate corporate policies that are reasonably calculated to cause its service to
`become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks
`a permanent injunction requiring Defendant to:
`
`
`a) Offer the closed captioning service free of any surcharge to all
`individuals with hearing related disabilities;
`b) Retain a qualified consultant acceptable to Plaintiffs (“Accessibility
`Consultant”) who shall assist in improving the accessibility of its
`service, including all third-party content and plug-ins, so the goods and
`services on the service may be equally accessed and enjoyed by
`individuals with hearing related disabilities;
`c) Work with the Accessibility Consultant to ensure all employees
`involved in service and content development be given accessibility
`training on a biennial basis, including onsite training to create
`accessible content at the design and development stages;
`d) Work with the Accessibility Consultant to perform an automated
`accessibility audit on a periodic basis to evaluate whether Defendant’s
`service may be equally accessed and enjoyed by individuals with
`hearing related disabilities on an ongoing basis;
`e) Work with
`to perform end-user
`the Accessibility Consultant
`accessibility/usability testing on at least a quarterly basis with said
`testing to be performed by humans who are hearing disabled, or who
`have training and experience in the manner in which persons who are
`deaf use closed captioning to communicate, in addition to the testing, if
`applicable, that is performed using semi-automated tools;
`f) Incorporate all of the Accessibility Consultant’s recommendations
`within sixty (60) days of receiving the recommendations;
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`g) Work with the Accessibility Consultant to create an Accessibility
`Policy that will be posted on its service, along with an e-mail address,
`instant messenger, and toll-free phone number to report accessibility-
`related problems;
`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 Accessibility Policy;
`i) Provide a copy of the Accessibility Policy to all web content personnel,
`contractors responsible for web content, and Client Service Operations
`call center agents (“CSO Personnel”) for the Website;
`j) Train no fewer than three of its CSO Personnel to automatically escalate
`calls from users with disabilities who encounter difficulties using the
`service. Defendant 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;
`k) Modify existing bug fix policies, practices, and procedures to include
`the elimination of bugs that cause the service to be inaccessible to users
`of closed captioning technology;
`l) Plaintiffs, their counsel, and their experts monitor the service for up to
`two years after the Mutually Agreed Upon Consultant validates the
`service is free of accessibility violations to ensure Defendant has
`adopted and implemented adequate accessibility policies. To this end,
`Plaintiffs, through their counsel and their experts, shall be entitled to
`consult with the Accessibility Consultant at their discretion, and to
`review any written material, including but not limited to any
`recommendations the Accessibility Consultant provides Defendant.
`
`18. Web-based technologies have features and content that are modified on
`a daily, and in some instances an hourly, basis. A one-time “fix” to an inaccessible
`service will not cause the service to remain accessible without a corresponding
`
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`change in corporate policies related to those web-based technologies. To evaluate
`whether an inaccessible service has been rendered accessible, and whether corporate
`policies related to web-based technologies have been changed in a meaningful
`manner that will cause the website to remain accessible, the service must be
`reviewed on a periodic basis using both automated accessibility screening tools and
`end user testing by disabled individuals.
`19. Plaintiffs’ claims for permanent injunctive relief are asserted as a
`nationwide class claim pursuant to Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) was
`specifically intended to be utilized in civil rights cases where the Plaintiffs seek
`injunctive relief for his or her own benefit and the benefit of a class of similarly
`situated individuals. To that end, the note to the 1966 amendment to Rule 23 states:
`
`Subdivision(b)(2). This subdivision is intended to reach situations
`where a party has taken action or refused to take action with respect to
`a class, and final relief of an injunctive nature or a corresponding
`declaratory nature, settling the legality of the behavior with respect to
`the class as a whole, is appropriate . . .. Illustrative are various actions
`in the civil rights field where a party is charged with discriminating
`unlawfully against a class, usually one whose members are incapable
`of specific enumeration.
`
`
`Fed. R. Civ. P. 23(b)(3).
`
`
`20.
`In addition, Plaintiff Myers’ claims for statutory damages pursuant to
`California Civil Code section 52(a) are asserted as a California statewide class claim
`pursuant to Fed. R. Civ. P. 23(b)(3).
`21. Plaintiff Kane’s claims for statutory and compensatory damages
`pursuant to N.Y. Exec. Law § 296 are also asserted as a New York statewide class
`claim pursuant to Fed. R. Civ. P. 23(b)(3).
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`PARTIES
`22. Plaintiff Russell Kane was, at all relevant times hereto, a resident of
`Freeport, New York. Plaintiff has a hearing impairment that has rendered him with
`profound deafness in both ears.
`23. As described above, Plaintiff Kane is deaf. While Plaintiff remains as
`independent as possible, he relies on closed captioning to communicate effectively.
`24. Plaintiff is therefore a member of a protected class under the ADA, 42
`U.S.C. § 12102(2), and the regulations implementing the ADA set forth at 28 C.F.R.
`§§ 36.101, et seq., and N.Y. Exec. Law § 296.
`25. Plaintiff Christopher Myers was, at all relevant times hereto, a resident
`of South Pasadena, California. Plaintiff has a hearing impairment that has rendered
`him with profound hearing loss in both ears.
`26. As described above, Plaintiff Myers is deaf. While Plaintiff remains as
`independent as possible, he relies on closed captioning to communicate effectively.
`27. Plaintiff is therefore a member of a protected class under the ADA, 42
`U.S.C. § 12102(2), and the regulations implementing the ADA set forth at 28 C.F.R.
`§§ 36.101, et seq., and the Unruh Act, Cal. Civ. Code, § 51 et seq.
`28. Defendant Zoom Video Communications, Inc. is, and at all times
`relevant hereto was, a Delaware Corporation, with its headquarters at 55 Almaden
`Boulevard, 6th Floor, San Jose, California, 95113. Defendant owns and operates its
`service throughout the United States. Defendant is “leader in modern enterprise
`video communications, with an easy, reliable cloud platform for video and audio
`conferencing, chat, and webinars . . . .” See, “Zoom Homepage” https://zoom.us/
`(last visited December 17, 2020).
`29. Defendant’s Website and video conferencing service is a place of
`public accommodation within the definition of Title III of the ADA, 42 U.S.C. §
`12181(7).
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`HARM TO PLAINTIFFS
`30. Plaintiffs have attempted to access Zoom from their homes in
`California and New York, respectively. Unfortunately, because of the surcharge for
`the closed captioning technology, Plaintiffs are unable to access, and thus are denied
`the benefit of, much of the content and services they wish to access via the service.
`31. This surcharge barrier denies Plaintiffs full and equal access to all of
`the services Defendant offers, and now deter them from attempting to use the
`Website. Still, Plaintiffs would like to, and intend to, attempt to access the service in
`the future. The service is a vital tool in communication in today’s climate,
`particularly during the time of the global COVID-19 pandemic, and as such,
`Plaintiffs have a need to access the service to fully participate in their work, personal,
`and educational lives.
`32. As a result of Defendant’s failure to ensure effective communications
`with the individual Plaintiffs, and denial of auxiliary aid and services without a
`surcharge, the individual Plaintiffs received services that were objectively
`substandard, inaccessible, and inferior to those provided to hearing-abled users, and
`were subjected to discriminatory treatment because of their disability.
`33. Though Defendant may have centralized policies regarding the
`maintenance and operation of the service, Defendant has never had a plan or policy
`that is reasonably calculated to make the service fully accessible to, and
`independently usable by, individuals with hearing related disabilities. As a result,
`the surcharge for closed captioning is permanent in nature and likely to persist.
`34. The law requires that Defendant reasonably accommodates Plaintiffs’
`disabilities by removing these existing access barriers and provide the service free
`of surcharge. Removal of the barriers identified above is readily achievable and may
`be carried out without much difficulty or expense.
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`35. Plaintiffs have been, and in the absence of an injunction will continue
`to be, injured by Defendant’s failure to provide its online content and services in a
`manner that does not require a surcharge for a deaf individual to use.
`JURISDICTION AND VENUE
`36. This Court has federal question jurisdiction pursuant to 28 U.S.C. §§
`1331, 1343, 2201 and 42 U.S.C. § 12188. This Court has supplemental jurisdiction
`over state law claims pursuant to 28 U.S.C. § 1367.
`37. Plaintiffs’ claims asserted herein arose in this judicial district, as
`Plaintiff Kane resides in this judicial district. Defendant also does substantial
`business in this judicial district. Specifically, Defendant is registered to do business
`in California and New York.
`38. Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(2).
`Defendant is subject to personal jurisdiction in this District because Defendant does
`substantial business in this District, and a substantial part of the events or omissions
`giving rise to these claims occurred in this District. Defendant engaged in the
`extensive promotion, marketing, distribution, and sales of the services at issue in this
`District. Injunctive relief is authorized by Rule 65 of the Federal Rules of Civil
`Procedure.
`
`CLASS ASSERTIONS
`39. Plaintiffs Christopher Myers and Russell Kane (“the Individual
`Plaintiffs”) bring this matter on behalf of themselves and those similarly situated.
`40. The Individual Plaintiffs seek certification of the following Nationwide
`Class: “all legally deaf individuals who have used Zoom in the United States and
`were denied full and equal enjoyment of the goods, services, facilities, privileges,
`advantages, or accommodations due to Zoom’s surcharge on the closed captioning,
`and subsequent failure to comply with the ADA’s auxiliary aids and services
`requirements during the Class Period.” (The “Nationwide Injunctive Class”). The
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`Individual Plaintiffs reserve the right to amend or modify the Class definition in
`connection with a motion for Class certification and/or the result of discovery.
`41. Plaintiff Myers also seeks certification of the following California sub-
`class: “all legally deaf individuals who have used Zoom in California and were
`denied full and equal enjoyment of the goods, services, facilities, privileges,
`advantages, or accommodations due to Zoom’s surcharge on the closed captioning,
`and subsequent failure to comply with the Unruh Act’s auxiliary aids and services
`requirements during the Class Period.” Plaintiff Myers reserves the right to amend
`or modify the sub-Class definition in connection with a motion for Class certification
`and/or the result of discovery.
`42. The California sub-class seeks class wide damages pursuant to
`California Civil Code § 52(a) in the amount of $4,000 per violation and, pursuant to
`California Civil Code § 54.3 in the amount of $1,000 per violation, based on
`Defendant’s wrongful policy and practice of failing to provide full and equal access
`to hearing impaired Californians as alleged herein. This action does not seek class
`recovery for actual damages, personal injuries, or emotional distress that may have
`been caused by Defendant’s conduct alleged herein.
`43. Plaintiff Kane also seeks certification of the following New York sub-
`class: “all legally deaf individuals who have used Zoom in New York and were
`denied full and equal enjoyment of the goods, services, facilities, privileges,
`advantages, or accommodations due to Zoom’s surcharge on the closed captioning,
`and subsequent failure to comply with the Unruh Act’s auxiliary aids and services
`requirements during the Class Period.” Plaintiff Kane reserves the right to amend or
`modify the sub-Class definition in connection with a motion for Class certification
`and/or the result of discovery.
`44. The New York sub-class seeks class wide damages pursuant to New
`York Exec. Law § 296, based on Defendant’s wrongful policy and practice of failing
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`to provide full and equal access to hearing impaired New Yorkers as alleged herein.
`This action does not seek class recovery for actual damages, personal injuries, or
`emotional distress that may have been caused by Defendant’s conduct alleged
`herein.
`45. This action should be certified as a class action under Federal Rule of
`Civil Procedure 23(a) and (b)(2) for the Nationwide Injunctive Class. It satisfies the
`class action prerequisites of numerosity, commonality, typicality, and adequacy
`because:
`A. Numerosity: Class Members are so numerous that joinder of all
`members is impracticable. Plaintiffs believe that there are tens of thousands
`of hearing-impaired individuals who are Class Members who have been
`harmed and suffered discrimination due to Defendant’s failure to comply with
`the ADA’s auxiliary aids and services requirements.
`B.
`Commonality: There is a well-defined community of interest and
`common questions of fact and law affecting members of the class in that they
`all have been and/or are denied their civil rights to full and equal access to,
`and use and enjoyment of, Defendant’s facilities and/or services due to
`Defendant’s failure to make its facilities fully accessible and independently
`usable as described above.
`C.
`Typicality: The Individual Plaintiffs’ claims are typical of the claims of
`the members of the proposed Nationwide Injunctive Class. The claims of
`Plaintiffs and members of the class are based on the same legal theories and
`arise from the same unlawful conduct.
`D. Adequacy: The
`Individual Plaintiffs are all adequate Class
`representatives. None of their interests conflict with the interests of the Class
`Members they seek to represent; Plaintiffs will fairly, adequately, and
`vigorously represent and protect the interests of the members of the class, all
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`of whom are similarly situated individuals with hearing impairments, and they
`have a strong interest in vindicating their own and others civil rights; and, they
`have retained counsel competent and experienced in complex class action
`litigation, generally, and who possess specific expertise in the context of class
`litigation under the ADA and Unruh Act.
`46. Class certification of the Nationwide Injunctive Class is appropriate
`under Fed. R. Civ. P. 23(b)(2) because Defendant has acted on or refused to act on
`grounds generally applicable to the Class, making appropriate declaratory,
`injunctive, and equitable relief with respect to the Individual Plaintiffs and the Class
`as a whole.
`47. This action should be further certified as a class action under Federal
`Rule of Civil Procedure 23(a) and (b)(3) for the California Unruh Damages Sub-
`Class. Plaintiff Myers asserts the California subclass, limited to class members who
`are, or during the relevant time were, residents of California, satisfies the class action
`prerequisites of numerosity, commonality, typicality, and adequacy for the same
`reasons set forth in preceding paragraph. In addition:
`A.
`Predominance: Pursuant to Rule 23(b)(3), the common issues of law
`and fact identified above predominate over any other questions affecting only
`individual members of the California Unruh Damages Sub-Class. The Class
`issues fully predominate over any individual issue because no inquiry into
`individual conduct is necessary; all that is required is a narrow focus on
`Defendant’s provision of services to hearing impaired California residents on
`its video conferencing platform.
`B.
`Superiority: A class action is superior to the other available methods
`for the fair and efficient adjudication of this controversy because:
`
`
`
`15
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`Case 2:20-cv-06136-ENV-AKT Document 1 Filed 12/18/20 Page 16 of 28 PageID #: 49
`
`The joinder of thousands of individual Class Members is
`i.
`impracticable, cumbersome, unduly burdensome, and a waste of judicial
`and/or litigation resources.
`ii.
`The individual claims of the Class Members are relatively
`modest compared with the expense of litigating the claims, thereby making it
`impracticable, unduly burdensome, and expensive—if not
`totally
`impossible—to justify individual actions.
`iii. When Defendant’s liability has been adjudicated, all Class
`Members’ claims can be determined by the Court and administered efficiently
`in a manner far less burdensome and expensive than if it were attempted
`through filing, discovery, and trial of all individual cases.
`iv.
`This class action will promote orderly, efficient, expeditious, and
`appropriate adjudication and administration of Class claims.
`v.
`Plaintiffs know of no difficulties to be encountered in the
`management of this act