Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 1 of 28
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`DONNA HEDGES, ON BEHALF OF HERSELF
`AND ALL OTHER PERSONS SIMILARLY
`SITUATED,
`
`
`Plaintiffs,
`
`
`v.
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`INTRODUCTION
`
`Plaintiff, DONNA HEDGES, on behalf of herself and all other persons
`
`
`ECF CASE
`
`
`No.: 20-cv-5388
`
`
`CLASS ACTION COMPLAINT
`
`JURY TRIAL DEMANDED
`
`
`
`GOYA FOODS, INC.,
`
` Defendant.
`
`1.
`
`similarly situated, asserts the following claims against Defendant, GOYA FOODS, INC.,
`
`as follows.
`
`2.
`
`Plaintiff is a visually-impaired and legally blind person who requires
`
`screen-reading software to read website content using her computer. Plaintiff uses the terms
`
`“blind” or “visually-impaired” to refer to all people with visual impairments who meet the
`
`legal definition of blindness in that they have a visual acuity with correction of less than or
`
`equal to 20 x 200. Some blind people who meet their definition have limited vision. Others
`
`have no vision.
`
`3.
`
`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:
`
`

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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 2 of 28
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`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
`provided by places of public accommodation be equally accessible
`to people with disabilities.1
`
`4.
`
`Based on a 2010 U.S. Census Bureau report, approximately 8.1 million
`
`people in the United States are visually impaired, including 2.0 million who are blind, and
`
`according to the American Foundation for the Blind’s 2015 report, approximately 400,000
`
`visually impaired persons live in the State of New York.
`
`5.
`
`Plaintiff brings her civil rights action against GOYA FOODS, INC.,
`
`(“Defendant” or “Goya”) for its failure to design, construct, maintain, and operate its
`
`website to be fully accessible to and independently usable by Plaintiff and other blind or
`
`visually-impaired people. Defendant’s denial of full and equal access to its website, and
`
`therefore denial of its products and services offered thereby, is a violation of Plaintiff’s
`
`rights under the Americans with Disabilities Act (“ADA”).
`
`6.
`
`Because Defendant’s website, https://www.goya.com/ (the “Website” or
`
`“Defendant’s website”), is not equally accessible to blind and visually-impaired
`
`consumers, it violates the ADA. Plaintiff seeks a permanent injunction to cause a change
`
`in Defendant’s corporate policies, practices, and procedures so that Defendant’s website
`
`will become and remain accessible to blind and visually-impaired consumers.
`
`
`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 July 13, 2020).
`
`
`
`
`-2-
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`7.
`
`By failing to make its Website available in a manner compatible with
`
`computer screen reader programs, Defendant deprives blind and visually-impaired
`
`individuals the benefits of its online goods, content, and services—all benefits it affords
`
`nondisabled individuals—thereby increasing the sense of isolation and stigma among those
`
`persons that Title III was meant to redress.
`
`8.
`
`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,
`
`therefore, are recommended to shelter in place throughout the duration of the pandemic.2
`
`This underscores the importance of access to online retailers, such as Defendant, for this
`
`especially vulnerable population.
`
`9.
`
`The COVID-19 pandemic
`
`is particularly dangerous for disabled
`
`individuals.3 The overwhelming burden on hospitals is leading to a worry that the
`
`emergency services will ration treatment. Disabled individuals are in fear that their
`
`diminished capacity to communicate will affect their treatment.4 Public health experts
`
`
`2 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 July 13, 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.”).
`
` 3
`
` 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 July 13, 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”).
`4 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 July 13, 2020) (explaining that disabled individuals are
`
`
`
`-3-
`
`

`

`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 4 of 28
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`expect social distancing to extend through 2022, and with 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 goods and services like health care, and
`
`not having the information they need to stay safe.5
`
`JURISDICTION AND VENUE
`
`10.
`
`The Court has subject-matter jurisdiction over this action under 28 U.S.C.
`
`§ 1331 and 42 U.S.C. § 12181, as Plaintiff’s claims arise under Title III of the ADA, 42
`
`U.S.C. § 12181, et seq., and 28 U.S.C. § 1332.
`
`11.
`
`The Court has supplemental jurisdiction under 28 U.S.C. § 1367 over
`
`Plaintiff’s New York State Human Rights Law, N.Y. Exec. Law Article 15, (“NYSHRL”)
`
`and New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.,
`
`(“NYCHRL”) claims.
`
`12.
`
`Venue is proper in this district under 28 U.S.C. §1391(b)(1) and (2) because
`
`Defendant conducts and continues to conduct a substantial and significant amount of
`
`business in this District, Defendant is subject to personal jurisdiction in this District, and a
`
`substantial portion of the conduct complained of herein occurred in this District.
`
`13.
`
`Defendant is subject to personal jurisdiction in this District. Defendant has
`
`been and is committing the acts or omissions alleged herein in the Southern District of New
`
`York that caused injury and violated rights the ADA prescribes to Plaintiff and to other
`
`
`inherently more susceptible to the virus, leading to complications in hospital in which the
`individuals are unable to effectively communicate with doctors while intubated).
`5 See Slate, The Inaccessible Internet 2020, available at
`https://slate.com/technology/2020/05/disabled-digital-accessibility-pandemic.html (last accessed
`July 13, 2020).
`
`
`
`
`-4-
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`

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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 5 of 28
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`blind and other visually-impaired consumers. A substantial part of the acts and omissions
`
`giving rise to Plaintiff’s claims occurred in this District: on several separate occasions,
`
`Plaintiff has been denied the full use and enjoyment of the facilities, goods, and services
`
`of Defendant’s Website while attempting to access the website from her home in New York
`
`County. These access barriers that Plaintiff encountered have caused a denial of Plaintiff’s
`
`full and equal access multiple times in the past, and now deter Plaintiff on a regular basis
`
`from visiting Defendant’s Website. This includes, Plaintiff attempting to obtain
`
`information about Defendant’s online retail merchandise.
`
`14.
`
`Defendant participates in New York’s economic life by clearly performing
`
`business over the Internet. Through its Website, Defendant entered into contracts for the
`
`sale of its products and services with residents of New York. These online sales contracts
`
`involve, and require, Defendant’s knowing and repeated transmission of computer files
`
`over the Internet. See Reed v. 1-800-Flowers.com, Inc., 327 F. Supp. 3d 539 (E.D.N.Y.
`
`2018) (exercising personal jurisdiction over forum plaintiff’s website accessibility claims
`
`against out-of-forum website operator); Andrews v. Blick Art Materials, LLC, 286 F. Supp.
`
`3d 365 (E.D.N.Y. 2017).
`
`15.
`
`The Court is empowered to issue a declaratory judgment under 28 U.S.C.
`
`§§ 2201 and 2202.
`
`
`
`THE PARTIES
`
`16.
`
`Plaintiff, DONNA HEDGES, at all relevant times, is a resident of New
`
`York, New York.
`
`17.
`
`Plaintiff is a blind, visually-impaired handicapped person and a member of
`
`member of a protected class of individuals under the ADA, under 42 U.S.C. § 12102(1)-
`
`
`
`-5-
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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 6 of 28
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`(2), and the regulations implementing the ADA set forth at 28 CFR §§ 36.101 et seq., the
`
`NYSHRL and NYCHRL.
`
`18.
`
`Defendant, GOYA FOODS, INC., is and was, at all relevant times herein,
`
`registered to do business in New York and is a Delaware Foreign Business Corporation
`
`with its principal executive office located at 350 County Road, Jersey City, NJ 07307.
`
`Defendant operates the Goya online retail store as well as the Goya website and advertises,
`
`markets, and operates in the State of New York and throughout the United States.
`
`19.
`
`Defendant, GOYA FOODS, INC., operates the Goya online retail store
`
`across the United States. This online retail store constitutes a place of public
`
`accommodation. Defendant’s Website provides consumers with access to an array of goods
`
`including information about purchasing consumable food products, cooking products,
`
`seasonings, fruit drinks and other products available online for purchase, and to ascertain
`
`information relating to pricing, nutritional facts, recipes, promotions, ordering merchandise
`
`and return and privacy policies.
`
`20.
`
`Defendant’s online retail store is a place of public accommodation within
`
`the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a
`
`service, privilege, or advantage of Defendant’s online retail stores.
`
`NATURE OF ACTION
`
`21.
`
`The Internet has become a significant source of information, a portal, and a
`
`tool for conducting business, doing everyday activities such as shopping, learning, banking,
`
`researching, as well as many other activities for sighted, blind and visually-impaired
`
`persons alike.
`
`
`
`-6-
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`

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`22.
`
`In today’s tech-savvy world, blind and visually-impaired people have the
`
`ability to access websites using keyboards in conjunction with screen access software that
`
`vocalizes the visual information found on a computer screen or displays the content on a
`
`refreshable Braille display. This technology is known as screen-reading software. Screen-
`
`reading software is currently the only method a blind or visually-impaired person may
`
`independently utilize in order to access the internet. Unless websites are designed to be
`
`read by screen-reading software, blind and visually-impaired persons are unable to fully
`
`access websites, and the information, products, and services contained thereon.
`
`23.
`
`Blind and visually-impaired users of Windows operating system-enabled
`
`computers and devices have several screen reading software programs available to them.
`
`Some of these programs are available for purchase and other programs are available
`
`without the user having to purchase the program separately. Job Access With Speech,
`
`otherwise known as “JAWS” is currently the most popular, separately purchased and
`
`downloaded screen-reading software program available for a Windows computer.
`
`24.
`
`For screen-reading software to function, the information on a website must
`
`be capable of being rendered into text. If the website content is not capable of being
`
`rendered into text, the blind or visually-impaired user is unable to access the same content
`
`available to sighted users.
`
`25.
`
`The international website standards organization, the World Wide Web
`
`Consortium, known throughout the world as W3C, has published version 2.0 of the Web
`
`Content Accessibility Guidelines (“WCAG 2.0”). WCAG 2.0 are well-established
`
`guidelines for making websites accessible to blind and visually-impaired persons. These
`
`
`
`-7-
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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 8 of 28
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`guidelines are universally followed by most large business entities and government
`
`agencies to ensure their websites are accessible.
`
`26.
`
`Non-compliant websites pose common access barriers to blind and visually-
`
`impaired persons. Common barriers encountered by blind and visually impaired persons
`
`include, but are not limited to, the following:
`
`navigation;
`
`a.
`
`b.
`
`c.
`
`d.
`
`A text equivalent for every non-text element is not provided;
`
`Title frames with text are not provided for identification and
`
`Equivalent text is not provided when using scripts;
`
`Forms with the same information and functionality as for sighted
`
`persons are not provided;
`
`e.
`
`Information about the meaning and structure of content is not
`
`conveyed by more than the visual presentation of content;
`
`f.
`
`Text cannot be resized without assistive technology up to 200%
`
`without losing content or functionality;
`
`g.
`
`If the content enforces a time limit, the user is not able to extend,
`
`adjust or disable it;
`
`h.
`
`i.
`
`Web pages do not have titles that describe the topic or purpose;
`
`The purpose of each link cannot be determined from the link text
`
`alone or from the link text and its programmatically determined link context;
`
`j.
`
`One or more keyboard operable user interface lacks a mode of
`
`operation where the keyboard focus indicator is discernible;
`
`
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`-8-
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`

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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 9 of 28
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`k.
`
`The default human language of each web page cannot be
`
`programmatically determined;
`
`l.
`
`When a component receives focus, it may initiate a change in
`
`context;
`
`m.
`
`Changing
`
`the setting of a user
`
`interface component may
`
`automatically cause a change of context where the user has not been advised before using
`
`the component;
`
`n.
`
`Labels or instructions are not provided when content requires user
`
`input, which include captcha prompts that require the user to verify that he or she is not a
`
`robot;
`
`o.
`
`In content which is implemented by using markup languages,
`
`elements do not have complete start and end tags, elements are not nested according to
`
`their specifications, elements may contain duplicate attributes and/or any IDs are not
`
`unique;
`
`p.
`
`q.
`
`Inaccessible Portable Document Format (PDFs); and,
`
`The name and role of all User Interface elements cannot be
`
`programmatically determined; items that can be set by the user cannot be programmatically
`
`set; and/or notification of changes to these items is not available to user agents, including
`
`assistive technology.
`
`STATEMENT OF FACTS
`
`Defendant’s Barriers on Its Website
`
`27.
`
`Defendant offers the commercial website, https://www.goya.com/, to the
`
`public. The website offers features which should allow all consumers to access the goods
`
`
`
`-9-
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`

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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 10 of 28
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`and services offered by the Defendant and which Defendant ensures delivery of such goods
`
`throughout the United States including New York State. The goods and services offered by
`
`Defendant include, but are not limited to, the following, which allow consumers to:
`
`purchase consumable food products, cooking products, seasonings, fruit drinks and other
`
`products available online for purchase, as well as information relating to pricing, nutritional
`
`facts, recipes, promotions, ordering merchandise and return and privacy policies.
`
`28.
`
`It is, upon information and belief, Defendant’s policy and practice to deny
`
`Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website,
`
`and to therefore specifically deny the goods and services that are offered thereby. Due to
`
`Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and
`
`visually-impaired persons have been and are still being denied equal access to Defendant’s
`
`numerous goods, services and benefits offered to the public through the Website.
`
`29.
`
`Plaintiff is a visually-impaired and legally blind person, who cannot use a
`
`computer without the assistance of screen-reading software. Plaintiff is, however, a
`
`proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited
`
`the Website on separate occasions using the JAWS screen-reader.
`
`30.
`
`During Plaintiff’s visits to the Website, the last occurring in July, 2020, in
`
`an attempt to purchase a product from the Defendant, the Plaintiff encountered multiple
`
`access barriers that denied Plaintiff a shopping experience similar to that of a sighted
`
`person and full and equal access to the goods and services offered to the public and made
`
`available to the public; and that denied Plaintiff the full enjoyment of the goods, and
`
`services of the Website by being unable to purchase consumable food products, cooking
`
`products, seasonings, fruit drinks and other products available online for purchase, and to
`
`
`
`-10-
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`

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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 11 of 28
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`ascertain information relating to pricing, nutritional facts, recipes, promotions, ordering
`
`merchandise and return and privacy policies.
`
`31. While attempting to navigate the Website, Plaintiff encountered multiple
`
`accessibility barriers for blind or visually-impaired persons that include, but are not limited
`
`to, the following:
`
`a.
`
`Lack of Alternative Text (“alt-text”), or a text equivalent. Alt-text is
`
`an invisible code embedded beneath a graphical image on a website. Web accessibility
`
`requires that alt-text be coded with each picture so that screen-reading software can speak
`
`the alt-text where a sighted user sees pictures, which includes captcha prompts. Alt-text
`
`does not change the visual presentation, but instead a text box shows when the keyboard
`
`moves over the picture. The lack of alt-text on these graphics prevents screen readers from
`
`accurately vocalizing a description of the graphics. As a result, Defendant’s visually-
`
`impaired customers are unable to determine what is on the website, browse, or make any
`
`purchases;
`
`b.
`
`Empty Links That Contain No Text causing the function or purpose
`
`of the link to not be presented to the user. They can introduce confusion for keyboard and
`
`screen-reader users;
`
`c.
`
`Redundant Links where adjacent links go to the same URL address
`
`which results in additional navigation and repetition for keyboard and screen-reader users;
`
`and
`
`d.
`
`Linked Images Missing Alt-text, which causes problems if an image
`
`within a link contains no text and that image does not provide alt-text. A screen reader then
`
`
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`-11-
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`has no content to present the user as to the function of the link, including information
`
`contained in PDFs.
`
`32. Many pages on the Website also contain the same title elements. This
`
`is a problem for the visually-impaired because the screen reader fails to distinguish
`
`one page from another. In order to fix this problem, Defendant must change the title
`
`elements for each page.
`
`33.
`
`The Website also contained a host of broken links, which is a
`
`hyperlink to a non-existent or empty webpage. For the visually-impaired this is
`
`especially paralyzing due to the inability to navigate or otherwise determine where
`
`one is on the website once a broken link is encountered. For example, upon coming
`
`across a link of interest, Plaintiff was redirected to an error page. However, the
`
`screen-reader failed to communicate that the link was broken. As a result, Plaintiff
`
`could not get back to her original search.
`
`Defendant Must Remove Barriers To Its Website
`
`34.
`
`Due to the inaccessibility of Defendant’s Website, blind and visually-
`
`impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally
`
`use or enjoy the goods, and services Defendant offers to the public on its Website. The
`
`access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal
`
`access in the past, and now deter Plaintiff on a regular basis from accessing the Website.
`
`35.
`
`These access barriers on Defendant’s Website have deterred Plaintiff from
`
`visiting Defendant’s Website and enjoying it equal to sighted individuals because: Plaintiff
`
`was unable to use and enjoy the Website in the same manner as sighted individuals do,
`
`preventing Plaintiff from using the Website to purchase items and to view the items.
`
`
`
`-12-
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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 13 of 28
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`36.
`
`If the Website was equally accessible to all, Plaintiff could independently
`
`navigate the Website and complete a desired transaction as sighted individuals do.
`
`37.
`
`Through her attempts to use the Website, Plaintiff has actual knowledge of
`
`the access barriers that make these services inaccessible and independently unusable by
`
`blind and visually-impaired persons.
`
`38.
`
`Because simple compliance with the WCAG 2.0 Guidelines would provide
`
`Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff
`
`alleges that Defendant has engaged in acts of intentional discrimination, including but not
`
`limited to the following policies or practices:
`
`a.
`
`Constructing and maintaining a website that is inaccessible to
`
`visually-impaired individuals, including Plaintiff;
`
`b.
`
`Failure to construct and maintain a website that is not sufficiently
`
`intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff;
`
`and,
`
`c.
`
`Failing to take actions to correct these access barriers in the face of
`
`substantial harm and discrimination to blind and visually-impaired consumers, such as
`
`Plaintiff, as a member of a protected class.
`
`39.
`
`Defendant therefore uses standards, criteria or methods of administration
`
`that have the effect of discriminating or perpetuating the discrimination of others, as
`
`alleged herein.
`
`40.
`
`The ADA expressly contemplates the injunctive relief that Plaintiff seeks in
`
`this action. In relevant part, the ADA requires:
`
`In the case of violations of . . . this title, injunctive relief shall include an order to alter
`facilities to make such facilities readily accessible to and usable by individuals with
`
`
`
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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 14 of 28
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`disabilities . . . Where appropriate, injunctive relief shall also include requiring the
`. . . modification of a policy . . .
`
`
`42 U.S.C. § 12188(a)(2).
`
`
`41.
`
`Because Defendant’s Website 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 Website to become
`
`and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seek a permanent
`
`injunction requiring Defendant to:
`
`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 visually-impaired persons;
`
`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 visually-impaired persons on an ongoing basis;
`
`to perform end-user
`the Web Accessibility Consultant
`d) Work with
`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;
`
`e) Incorporate all of the Web Accessibility Consultant’s recommendations within
`sixty (60) days of receiving the recommendations;
`
`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;
`
`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 visually-impaired persons have full and equal
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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 15 of 28
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`the goods, services, facilities, privileges, advantages, and
`enjoyment of
`accommodations of the Defendant’s 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;
`
`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;
`
`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;
`
`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 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;
`
`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; and
`
`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.
`
`42. Web-based technologies have features and content that are modified on a
`
`daily, and in some instances an hourly, basis, and a one time “fix” to an inaccessible
`
`website will not cause the website to remain accessible without a corresponding change in
`
`corporate policies related to those web-based technologies. To evaluate whether an
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`Case 1:20-cv-05388 Document 1 Filed 07/13/20 Page 16 of 28
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`inaccessible website 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 website must be reviewed on a periodic basis using both
`
`automated accessibility screening tools and end-user testing by visually-impaired persons.
`
`43.
`
`If the Website was accessible, Plaintiff and similarly situated blind and
`
`visually-impaired persons could independently shop for and otherwise research the
`
`Defendant’s products via the Website.
`
`44.
`
`Although Defendant may currently have centralized policies regarding
`
`maintaining and operating its Website, Defendant lacks a plan and policy reasonably
`
`calculated to make them fully and equally accessible to, and independently usable by, blind
`
`and other visually-impaired consumers.
`
`45.
`
`Defendant has, upon information and belief, invested substantial sums in
`
`developing and maintaining their Website and has generated significant revenue from the
`
`Website. These amounts are far greater than the associated cost of making their Website
`
`equally accessible to visually-impaired consumers.
`
`46. Without injunctive relief, Plaintiff and other visually-impaired consumers
`
`will continue to be unable to independently use the Website, violating their rights.
`
`CLASS ACTION ALLEGATIONS
`
`47.
`
`Plaintiff, on behalf of herself and all others similarly situated, seeks to
`
`certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
`
`individuals in the United States who have attempted to access Defendant’s Website and as
`
`a result have been denied access to the equal enjoyment of goods and services offered by
`
`Defendant’s Website, during the relevant statutory period.
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`48.
`
`Plaintiff, on behalf of herself and all others similarly situated, seeks to
`
`certify a New York State Sub-Class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally
`
`blind individuals in the State of New York who have attempted to access Defendant’s
`
`Website and as a result have been denied access to the equal enjoyment of goods and
`
`services offered by Defendant’s Website, during the relevant statutory period.
`
`49.
`
`Plaintiff, on behalf of herself and all others similarly situated, seeks to
`
`certify a New York City Sub-Class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally
`
`blind individuals in the City of New York who have attempted to access Defendant’s
`
`Website and as a result have been denied access to the equal enjoyment of goods and
`
`services offered by Defendant’s Website, during the relevant statutory period.
`
`50.
`
`Common questions of law and fact exist amongst the Class and Sub-
`
`Classes, including:
`
`a.
`
`Whether Defendant’s Website is a “public accommodation” under
`
`the ADA;
`
`b.
`
`Whether Defendant’s Website is a “place or provider of public
`
`accommodation” under the NYSHRL or NYCHRL;
`
`c.
`
`Whether Defendant’s Website denies the full and equal enjoyment
`
`of its goods, services, facilities, privileges, advantages, or accommodations to visually-
`
`impaired persons, violating the ADA; and
`
`d.
`
`Whether Defendant’s Website denies the full and equal enjoyment
`
`of its goods, services, facilities, privileges, advantages, or accommodations to visually-
`
`impaired persons, violating the NYSHRL or N