Case 1:20-cv-09855 Document 1 Filed 11/23/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`RAMON JAQUEZ, on behalf of himself and all
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`others similarly situated,
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`Plaintiffs,
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`v.
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`BRILLIANT HOME TECHNOLOGY, INC.,
`
`Defendant.
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`CLASS ACTION COMPLAINT
`AND
`DEMAND FOR JURY TRIAL
`
`Plaintiff, RAMON JAQUEZ (hereinafter, “Plaintiff”), a New York resident,
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`brings this class complaint by and through the undersigned attorneys against Defendant
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`BRILLIANT HOME TECHNOLOGY, INC. (hereinafter “Defendant”), for its violations
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`of the Americans with Disabilities Act (“ADA”), individually and on behalf of a class of
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`all others similarly situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure,
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`based upon information and belief of Plaintiff’s counsel, except for allegations
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`specifically pertaining to Plaintiff, which are based upon Plaintiff’s personal knowledge.
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`INTRODUCTION/PRELIMINARY STATEMENT
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`1.
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`Congress enacted the ADA as a way of banning discrimination based on disability.
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`The ADA guarantees that people with disabilities, such as the Plaintiff, have the
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`same opportunities as everyone else to participate in the mainstream of American
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`life.
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`2.
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`Case law is clear that those opportunities include access to web content, by
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`requiring business websites to include screen readers and other assistive
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`Case 1:20-cv-09855 Document 1 Filed 11/23/20 Page 2 of 14
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`technologies to ensure consumers with disabilities have the same access as
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`everyone else.
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`3.
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`The ADA contemplates injunctive relief when the ADA is violated:
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`4.
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`5.
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`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 disabilities . . . Where appropriate, injunctive relief shall also include requiring
`the . . . modification of a policy . . .
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`42 U.S.C. § 12188(a)(2).
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`NATURE OF THE ACTION
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`Plaintiff brings this civil rights action, individually and on behalf of those similarly
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`situated, seeking redress for Defendant’s actions which violate the ADA.
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`Plaintiff, like approximately 2.0 million other people in the United States, is
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`visually impaired and legally blind, in that he has visual acuity with correction of
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`less than or equal to 20 x 200.
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`6.
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`Upon visiting Defendant’s website, www.brilliant.tech (hereinafter referred to as
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`“Website”), Plaintiff quickly became aware of Defendant’s failure to maintain and
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`operate its website in a way to make it fully accessible for himself and for other
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`blind or visually-impaired people.
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`7.
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`The Internet has become a significant source of information, if not the most
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`significant source, for conducting all types of necessary activities, such as banking
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`and shopping.
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`8.
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`This is equally true for people with disabilities and those without disabilities.
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`9.
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`Fortunately, technology known as screen-reading software provides the blind and
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`visually-impaired the ability to fully access websites, and the information, products,
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`goods and contained thereon.
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`10.
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`However, for screen-reading software to function, the information on a website
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`must be capable of being rendered into text. If the website content is not capable of
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`being rendered into text, the blind or visually-impaired user is unable to access the
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`same content available to sighted users.
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`11.
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`The international website standards organization known throughout the world as
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`W3C, has published guidelines that should be followed to ensure website
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`accessibility. The most recent version, version 2.1, is referred to as the Web Content
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`Accessibility Guidelines (“WCAG 2.1”).
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`12.
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`Defendant’s denial of full and equal access to its website, and therefore denial of
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`its goods and services offered thereby, is a violation of Plaintiff’s rights under the
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`Americans with Disabilities Act (“ADA”).
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`13.
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`Plaintiff seeks a permanent injunction to cause a change in Defendant’s corporate
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`policies, practices, and procedures so that Defendant’s website will become and
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`remain accessible to blind and visually-impaired consumers.
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`JURISDICTION AND VENUE
`This Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331
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`14.
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`and 42 U.S.C. § 12181, as Plaintiff’s claims arise under Title III of the ADA, 42
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`U.S.C. § 12181, et seq., and 28 U.S.C. § 1332. The Court also has pendent
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`jurisdiction over the state law claims in this action pursuant to 28 U.S.C. § 1367.
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`15.
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`Venue is proper in this district under 28 U.S.C. §1391(b)(1) and (2).
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`Case 1:20-cv-09855 Document 1 Filed 11/23/20 Page 4 of 14
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`16.
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`This Court is empowered to issue a declaratory judgment under 28 U.S.C. §§ 2201
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`and 2202.
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`PARTIES
`Plaintiff RAMON JAQUEZ, at all relevant times, is and was a resident of Bronx,
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`17.
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`New York.
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`18.
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`Plaintiff is a blind, visually-impaired handicapped person and a member of member
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`of a protected class of individuals under the ADA, under 42 U.S.C. § 12102(1)-(2),
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`and the regulations implementing the ADA set forth at 28 CFR § 36.101 et seq.,
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`and NYCHRL.
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`19.
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`Defendant is and was at all relevant times a Delaware Corporation doing business
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`in New York.
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`20.
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`Defendant is a smart home technology company that owns and operates the website,
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`www.brilliant.tech (its “Website”), offering features which should allow all
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`consumers to access the goods and services which Defendant ensures the delivery
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`of throughout the United States, including New York State.
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`21.
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`Defendant’s Website, and its goods and services offered thereupon, is a public
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`accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7).
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`ALLEGATIONS OF FACTS
`On or around October of 2020, Plaintiff visited the Website, using a popular screen
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`22.
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`reading software called NonVisual Desktop Access, with the intent of browsing
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`and potentially making a purchase.
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`23.
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`Despite his efforts, however, Plaintiff, a visually impaired or blind person, was
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`denied access similar to that of a sighted individual due to the website’s lack of a
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`variety of features and accommodations, which effectively barred Plaintiff from
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`being able
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`to enjoy
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`the privileges and benefits of Defendant’s public
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`accommodation.
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`24.
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`As a result of visiting the Website, Plaintiff is aware that the Website includes
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`multiple barriers making it impossible for himself, and any other visually impaired
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`or blind person, from enjoying access to the Website’s content equally to that of a
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`sighted user.
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`25.
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`For example, many features on the Website fail to accurately describe the contents
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`of graphical images, fail to properly label title, fails to distinguish one page from
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`another, contain multiple broken links, contain headings that do not describe the
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`topic or purpose, and the keyboard user interfaces lack a mode of operation where
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`the keyboard focus indicator is visible.
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`26.
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`These access barriers effectively denied Plaintiff the ability to use and enjoy
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`Defendant’s website the same way sighted individuals do.
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`27.
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`Upon information and belief, Defendant has not, and have never, had adequate
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`policies and procedures in place to ensure the Website is and will remain accessible
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`to the blind and/or visually impaired.
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`28.
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`Due to Defendant’s failure and refusal to remove access barriers to its website,
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`Plaintiff and visually-impaired persons, who need screen-readers to access
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`websites, have been and are still being denied equal access to Defendant’s Website,
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`and the numerous goods and services and benefits offered to the public through the
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`Website.
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`29.
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`The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and
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`equal access in the past, and have caused the Plaintiff real harm.
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`30.
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`If the Website were equally accessible to all, and if simple compliance with the
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`WCAG 2.1 guidelines were met, Plaintiff could independently navigate the
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`Website and complete a desired transaction as sighted individuals do.
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`31.
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`Because of this, Plaintiff alleges that Defendant has engaged in acts of intentional
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`discrimination, including maintaining a website that is inaccessible to members of
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`a protected class.
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`32.
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`Due to Defendant’s violations of the ADA, and the harm it has caused, Plaintiff
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`seeks damages, fees, costs, and injunctive relief.
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`33. Without injunctive relief, Plaintiff and other visually-impaired consumers will
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`continue to be unable to independently use the Website, violating their rights.
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`CLASS ACTION ALLEGATIONS
`Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a
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`34.
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`nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
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`individuals in the United States who have attempted to access Defendant’s Website
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`and as a result have been denied access to the equal enjoyment of goods and services,
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`during the relevant statutory period.
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`35.
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`Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New
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`York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
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`individuals in the City of New York who have attempted to access Defendant’s
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`Website and as a result have been denied access to the equal enjoyment of goods and
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`services offered, during the relevant statutory period.
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`36.
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`Common questions of law and fact exist amongst Class, including:
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`a.
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`Whether Defendant’s Website is a “public accommodation” under
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`the ADA;
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`b.
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`Whether Defendant’s Website is a “place or provider of public
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`accommodation” under the NYCHRL;
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`c.
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`Whether Defendant’s Website denies the full and equal enjoyment
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`of
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`its products,
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`services,
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`facilities, privileges, advantages, or
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`accommodations to people with visual disabilities, violating the ADA; and
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`d.
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`Whether Defendant’s Website denies the full and equal enjoyment
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`of
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`its products,
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`services,
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`facilities, privileges, advantages, or
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`accommodations to people with visual disabilities, violating the NYCHRL.
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`37.
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`Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are
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`severely visually impaired or otherwise blind, and claim that Defendant has
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`violated the ADA or NYCHRL by failing to update or remove access barriers on
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`its Website so either can be independently accessible to the Class.
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`38.
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`Plaintiff will fairly and adequately represent and protect the interests of the Class
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`Members because Plaintiff has retained and is represented by counsel competent
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`and experienced in complex class action litigation, and because Plaintiff has no
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`interests antagonistic to the Class Members. Class certification of the claims is
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`appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused
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`to act on grounds generally applicable to the Class, making appropriate both
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`declaratory and injunctive relief with respect to Plaintiff and the Class as a whole.
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`39.
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`Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because
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`fact and legal questions common to Class Members predominate over questions
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`affecting only individual Class Members, and because a class action is superior to
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`other available methods for the fair and efficient adjudication of this litigation.
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`40.
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`Judicial economy will be served by maintaining this lawsuit as a class action in that
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`it is likely to avoid the burden that would be otherwise placed upon the judicial
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`system by the filing of numerous similar suits by people with visual disabilities
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`throughout the United States.
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`FIRST CAUSE OF ACTION
`VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.
`Plaintiff, on behalf of himself and the Class Members, repeats and realleges every
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`41.
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`allegation of the preceding paragraphs as if fully set forth herein.
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`42.
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`Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides:
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`No individual shall be discriminated against on the basis of disability in the full and
`equal enjoyment of the goods, services, facilities, privileges, advantages, or
`accommodations of any place of public accommodation by any person who owns,
`leases (or leases to), or operates a place of public accommodation.
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`42 U.S.C. § 12182(a).
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`43.
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`Defendant’s Website is a public accommodations within the definition of Title III
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`of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the
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`general public, and as such, must be equally accessible to all potential consumers.
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`44.
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`Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to
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`deny individuals with disabilities the opportunity to participate in or benefit from
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`the products, services, facilities, privileges, advantages, or accommodations of an
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`entity. 42 U.S.C. § 12182(b)(1)(A)(i).
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`45.
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`Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to
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`deny individuals with disabilities an opportunity to participate in or benefit from
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`the products, services, facilities, privileges, advantages, or accommodation, which
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`is equal to the opportunities afforded to other individuals. 42 U.S.C. §
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`12182(b)(1)(A)(ii).
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`46.
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`Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also
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`includes, among other things:
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`[A] failure to make reasonable modifications in policies, practices, or procedures,
`when such modifications are necessary to afford such goods, services, facilities,
`privileges, advantages, or accommodations to individuals with disabilities, unless
`the entity can demonstrate that making such modifications would fundamentally
`alter the nature of such goods, services, facilities, privileges, advantages or
`accommodations; and a failure to take such steps as may be necessary to ensure that
`no individual with a disability is excluded, denied services, segregated or otherwise
`treated differently than other individuals because of the absence of auxiliary aids
`and services, unless the entity can demonstrate that taking such steps would
`fundamentally alter the nature of the good, service, facility, privilege, advantage,
`or accommodation being offered or would result in an undue burden.
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`42 U.S.C. § 12182(b)(2)(A)(ii)-(iii).
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`47.
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`The acts alleged herein constitute violations of Title III of the ADA, and the
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`regulations promulgated thereunder. Plaintiff, who is a member of a protected class
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`of persons under the ADA, has a physical disability that substantially limits the
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`major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A).
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`Furthermore, Plaintiff has been denied full and equal access to the Website, has not
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`been provided services that are provided to other patrons who are not disabled, and
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`has been provided services that are inferior to the services provided to non-disabled
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`persons. Defendant has failed to take any prompt and equitable steps to remedy its
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`discriminatory conduct. These violations are ongoing.
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`48.
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`Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and
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`incorporated therein, Plaintiff, requests relief as set forth below.
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`SECOND CAUSE OF ACTION
`VIOLATIONS OF THE NYCHRL
`Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats
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`49.
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`and realleges every allegation of the preceding paragraphs as if fully set forth herein.
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`50.
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`N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful
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`discriminatory practice for any person, being the owner, lessee, proprietor,
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`manager, superintendent, agent or employee of any place or provider of public
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`accommodation, because of . . . disability . . . directly or indirectly, to refuse,
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`withhold from or deny to such person, any of the accommodations, advantages,
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`facilities or privileges thereof.”
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`51.
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`Defendant’s Website is a sales establishment and public accommodations within
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`the definition of N.Y.C. Admin. Code § 8-102(9).
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`52.
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`Defendant is subject to NYCHRL because it owns and operates its Website, making
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`it a person within the meaning of N.Y.C. Admin. Code § 8-102(1).
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`53.
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`Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to
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`update or remove access barriers to Website, causing its Website and the services
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`integrated with such Website to be completely inaccessible to the blind. This
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`inaccessibility denies blind patrons full and equal access to the facilities, products,
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`and services that Defendant makes available to the non-disabled public.
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`54.
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`Defendant is required to “make reasonable accommodation to the needs of persons
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`with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.]
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`from discriminating on
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`the basis of disability shall make reasonable
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`accommodation to enable a person with a disability to . . . enjoy the right or rights
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`in question provided that the disability is known or should have been known by the
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`covered entity.” N.Y.C. Admin. Code § 8-107(15)(a).
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`55.
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`Defendant’s actions constitute willful intentional discrimination against the Sub-
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`Class on the basis of a disability in violation of the N.Y.C. Administrative Code §
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`8-107(4)(a) and § 8-107(15)(a) in that Defendant has:
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`a.
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`constructed and maintained a website that is inaccessible to blind
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`class members with knowledge of the discrimination; and/or
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`b.
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`constructed and maintained a website that is sufficiently intuitive
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`and/or obvious that is inaccessible to blind class members; and/or
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`c.
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`failed to take actions to correct these access barriers in the face of
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`substantial harm and discrimination to blind class members.
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`56.
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`Defendant has failed to take any prompt and equitable steps to remedy their
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`discriminatory conduct. These violations are ongoing.
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`57.
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`As such, Defendant discriminates, and will continue in the future to discriminate
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`against Plaintiff and members of the proposed class and subclass on the basis of
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`disability in the full and equal enjoyment of the products, services, facilities,
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`privileges, advantages, accommodations and/or opportunities of its Website under
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`§ 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins
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`Defendant from continuing to engage in these unlawful practices, Plaintiff and
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`members of the class will continue to suffer irreparable harm.
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`58.
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`Defendant’s actions were and are in violation of the NYCHRL and therefore
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`Plaintiff invokes his right to injunctive relief to remedy the discrimination.
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`59.
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`Plaintiff is also entitled to compensatory damages, as well as civil penalties and
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`fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense
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`as well as punitive damages pursuant to § 8-502.
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`60.
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`61.
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`Plaintiff is also entitled to reasonable attorneys’ fees and costs.
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`Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies,
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`procedures, and rights set forth and incorporated therein Plaintiff prays for
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`judgment as set forth below.
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`THIRD CAUSE OF ACTION
`DECLARATORY RELIEF
`Plaintiff, on behalf of himself and the Class and New York City Sub-Classes
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`62.
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`Members, repeats and realleges every allegation of the preceding paragraphs as if
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`fully set forth herein.
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`63.
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`An actual controversy has arisen and now exists between the parties in that Plaintiff
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`contends, and is informed and believes that Defendant denies, that its Website
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`contains access barriers denying blind customers the full and equal access to the
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`products, services and facilities of its Website, which Defendant owns, operations
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`and controls, fails to comply with applicable laws including, but not limited to, Title
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`III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., and N.Y.C.
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`Admin. Code § 8-107, et seq. prohibiting discrimination against the blind.
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`64.
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`A judicial declaration is necessary and appropriate at this time in order that each of
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`the parties may know their respective rights and duties and act accordingly.
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`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff respectfully requests this Court grant the following relief:
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`a.
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`A preliminary and permanent injunction to prohibit Defendant from
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`violating the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq.,
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`N.Y.C. Administrative Code § 8-107, et seq., and the laws of New York;
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`b.
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`A preliminary and permanent injunction requiring Defendant to take
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`all the steps necessary to make its Website into full compliance with the
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`requirements set forth in the ADA, and its implementing regulations, so that
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`the Website is readily accessible to and usable by blind individuals;
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`c.
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`A declaration that Defendant owns, maintains and/or operates its
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`Website in a manner that discriminates against the blind and which fails to
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`provide access for persons with disabilities as required by Americans with
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`Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y.C. Administrative Code
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`§ 8-107, et seq., and the laws of New York
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`d.
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`An order certifying the Class and Sub-Classes under Fed. R. Civ. P.
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`23(a) & (b)(2) and/or (b)(3), appointing Plaintiff as Class Representative,
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`and his attorneys as Class Counsel;
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`e.
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`Compensatory damages in an amount to be determined by proof,
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`including all applicable statutory and punitive damages and fines, to
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`Plaintiff and the proposed class and subclasses for violations of their civil
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`rights under New York City Human Rights Law and City Law;
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`f.
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`g.
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`Pre- and post-judgment interest;
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`An award of costs and expenses of this action together with
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`reasonable attorneys’ and expert fees; and
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`h.
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`Such other and further relief as this Court deems just and proper.
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`DEMAND FOR TRIAL BY JURY
`Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury on all questions
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`of fact the Complaint raises.
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`Dated: Asbury Park, New Jersey
` November 23, 2020
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`Case 1:20-cv-09855 Document 1 Filed 11/23/20 Page 14 of 14
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`MARCUS & ZELMAN, LLC
`
`By: /s/ Yitzchak Zelman, Esq.
`Yitzchak Zelman, Esq.
`Yzelman@MarcusZelman.com
`701 Cookman Avenue, Suite 300
`Asbury Park, New Jersey 07712
`Tel: (732) 695-3282
`Fax: (732) 298-6256
`ATTORNEYS FOR PLAINTIFF
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