Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 1 of 29
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`ECF CASE
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`No.: 1:21-cv-
`858
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`v.
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`PLANT DELIGHTS NURSERY,
`INCORPORATED,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
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`MILTON WILLIAMS, ON BEHALF OF
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`HIMSELF AND ALL OTHER PERSONS
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`SIMILARLY SITUATED​,
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`Plaintiffs,
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`Defendant.
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`INTRODUCTION
`Plaintiff, MILTON WILLIAMS​, on behalf of himself and all other
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`1.
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`persons similarly situated, asserts the following claims against Defendant, PLANT
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`DELIGHTS NURSERY, INCORPORATED, as follows.
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`2.
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`Plaintiff is a visually-impaired and legally blind person who requires
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`screen-reading software to read website content using his computer. Plaintiff uses the
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`terms “blind” or “visually-impaired” to refer to all people with visual impairments who
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`meet the legal definition of blindness in that they have a visual acuity with correction of
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`less than or equal to 20 x 200. Some blind people who meet their definition have limited
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`vision. Others have no vision.
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`3.
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`In a September 25, 2018 letter to U.S. House of Representative Ted Budd,
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`U.S. Department of Justice Assistant Attorney General Stephen E. Boyd confirmed that
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`public accommodations must make the websites they own, operate, or control equally
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`accessible to individuals with disabilities. Assistant Attorney General Boyd’s letter
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`provides:
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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 2 of 29
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`The Department [of Justice] first articulated its interpretation that
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`the ADA applies to public accommodations’ websites over 20
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`years ago. This interpretation is consistent with the ADA’s title III
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`requirement
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`the goods, services, privileges, or activities
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`provided by places of public accommodation be equally accessible
`to people with disabilities.​1
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`4.
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`Based on a 2010 U.S. Census Bureau report, approximately 8.1 million
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`people in the United States are visually-impaired, including 2.0 million who are blind,
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`and according to the American Foundation for the Blind’s 2015 report, approximately
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`400,000 visually-impaired persons live in the State of New York.
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`Plaintiff brings his civil
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`rights action against PLANT DELIGHTS
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`NURSERY, INCORPORATED, (“Defendant” or “Plant Delights”) for its failure to
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`design, construct, maintain, and operate its website to be fully accessible to and
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`independently usable by Plaintiff and other blind or visually-impaired people.
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`Defendant’s denial of full and equal access to its website, and therefore denial of its
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`products and services offered thereby,
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`is a violation of Plaintiff’s rights under the
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`Americans with Disabilities Act (“ADA”).
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`6.
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`Because Defendant’s website,
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`​https://www.plantdelights.com/​,
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`is not equally accessible to blind and
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`“Website” or “Defendant’s website”),
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`visually-impaired consumers, it violates the ADA. Plaintiff seeks a permanent injunction
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`to cause a change in Defendant’s corporate policies, practices, and procedures so that
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`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).
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`-2-
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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 3 of 29
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`Defendant’s website will become and remain accessible to blind and visually-impaired
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`consumers.
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`7.
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`By failing to make its Website available in a manner compatible with
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`computer screen reader programs, Defendant deprives blind and visually-impaired
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`individuals the benefits of its online goods, content, and services—all benefits it affords
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`nondisabled individuals—thereby increasing the sense of isolation and stigma among
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`those persons that Title III was meant to redress.
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`8.
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`This discrimination is particularly acute during the current COVID-19
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`global pandemic. According to the Centers for Disease Control and Prevention (“CDC”),
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`Americans living with disabilities are at higher risk for severe illness from COVID-19
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`and,
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`pandemic.​2 This underscores the importance of access to online retailers, such as
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`Defendant, for this especially vulnerable population.
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`9.
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`The COVID-19 pandemic is particularly dangerous
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`for disabled
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`individuals.​3 The overwhelming burden on hospitals is leading to a worry that the
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`emergency services will ration treatment. Disabled individuals are in fear that their
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`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.”).
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` ​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”).
`-3-
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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 4 of 29
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`diminished capacity to communicate will affect their treatment.​4 Public health experts
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`expect social distancing to extend through 2022, and with uncertainty surrounding
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`businesses transitioning back to normal operations, the importance of accessible online
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`services has been heightened. During these unprecedented times, disabled individuals
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`risk losing their jobs, experiencing difficulty acquiring goods and services like health
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`care, and not having the information they need to stay safe.​5
`JURISDICTION AND VENUE
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`10.
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`The Court has subject-matter jurisdiction over this action under 28 U.S.C.
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`§ 1331 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.
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`The Court has supplemental jurisdiction under 28 U.S.C. § 1367 over
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`Plaintiff’s New York State Human Rights Law, N.Y. Exec. Law Article 15,
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`(“NYSHRL”) and New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 ​et
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`seq.​, (“NYCHRL”) claims.
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`Venue is proper in this district under 28 U.S.C. §1391(b)(1) and (2)
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`because Defendant conducts and continues to conduct a substantial and significant
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`amount of business in this District, Defendant is subject to personal jurisdiction in this
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`District, and a substantial portion of the conduct complained of herein occurred in this
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`District.
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`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-tre
`atment/609355/ (last accessed July 13, 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).
`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).
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`-4-
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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 5 of 29
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`13.
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`Defendant is subject to personal jurisdiction in this District. Defendant has
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`been and is committing the acts or omissions alleged herein in the Southern District of
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`New York that caused injury and violated rights the ADA prescribes to Plaintiff and to
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`other blind and other visually-impaired consumers. A substantial part of the acts and
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`omissions giving rise to Plaintiff’s claims occurred in this District: on several separate
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`occasions, Plaintiff has been denied the full use and enjoyment of the facilities, goods,
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`and services of Defendant’s Website while attempting to access the website from his
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`home in New York County. These access barriers that Plaintiff encountered have caused
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`a denial of Plaintiff’s full and equal access multiple times in the past, and now deter
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`Plaintiff on a regular basis from visiting Defendant’s Website. This includes, Plaintiff
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`attempting to obtain information about Defendant’s online retail merchandise.
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`Defendant participates in New York’s economic life by clearly performing
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`14.
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`business over the Internet. Through its Website, Defendant entered into contracts for the
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`sale of its products and services with residents of New York. These online sales contracts
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`involve, and require, Defendant’s knowing and repeated transmission of computer files
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`over the Internet. ​See Reed v. 1-800-Flowers.com, Inc.​, 327 F. Supp. 3d 539 (E.D.N.Y.
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`2018) (exercising personal jurisdiction over forum plaintiff’s website accessibility claims
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`against out-of-forum website operator); ​Andrews v. Blick Art Materials​, LLC, 286 F.
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`Supp. 3d 365 (E.D.N.Y. 2017).
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`15.
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`The Court is empowered to issue a declaratory judgment under 28 U.S.C.
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`§§ 2201 and 2202.
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`THE PARTIES
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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 6 of 29
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`16.
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`Plaintiff, MILTON WILLIAMS​, at all relevant times, is a resident of New
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`York, New York.
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`17.
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`Plaintiff is a blind, visually-impaired handicapped person and a member of
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`member of a protected class of individuals under the ADA, under 42 U.S.C. §
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`12102(1)-(2), and the regulations implementing the ADA set forth at 28 CFR §§ 36.101
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`et seq​., the NYSHRL and NYCHRL.
`18.
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`Defendant, PLANT DELIGHTS NURSERY, INCORPORATED, is and
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`operates the Plant Delights online retail store as well as the Plant Delights website and
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`advertises, markets, and operates in the State of New York and throughout the United
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`19.
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`Defendant, PLANT DELIGHTS NURSERY, INCORPORATED, operates
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`the Plant Delights online retail store across the United States. This online retail store
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`constitutes a place of public accommodation. Defendant’s Website provides consumers
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`with access to an array of goods including information about purchasing plants, flowers
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`and other products available online for purchase, and to ascertain information relating to
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`pricing, shipping, ordering merchandise and return and privacy policies.
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`20.
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`Defendant’s online retail store is a place of public accommodation within
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`the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a
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`service, privilege, or advantage of Defendant’s online retail stores.
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`NATURE OF ACTION
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`-6-
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`

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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 7 of 29
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`The Internet has become a significant source of information, a portal, and
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`a tool for conducting business, doing everyday activities such as shopping, learning,
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`researching, as well as many other activities for sighted, blind and
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`banking,
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`visually-impaired persons alike.
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`In today’s tech-savvy world, blind and visually-impaired people have the
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`ability to access websites using keyboards in conjunction with screen access software that
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`vocalizes the visual information found on a computer screen or displays the content on a
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`refreshable Braille display. This technology is known as screen-reading software.
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`Screen-reading software is currently the only method a blind or visually-impaired person
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`may independently utilize in order to access the internet. Unless websites are designed to
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`be read by screen-reading software, blind and visually-impaired persons are unable to
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`fully access websites, and the information, products, and services contained thereon.
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`23.
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`Blind and visually-impaired users of Windows operating system-enabled
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`computers and devices have several screen reading software programs available to them.
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`Some of these programs are available for purchase and other programs are available
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`without the user having to purchase the program separately. Job Access With Speech,
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`otherwise known as “JAWS” is currently the most popular, separately purchased and
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`24.
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`For screen-reading software to function, the information on a website must
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`be capable of being rendered into text. If the website content is not capable of being
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`rendered into text, the blind or visually-impaired user is unable to access the same
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`content available to sighted users.
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`-7-
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`

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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 8 of 29
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`25.
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`The international website standards organization, the World Wide Web
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`Consortium, known throughout the world as W3C, has published version 2.0 of the Web
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`Content Accessibility Guidelines (“WCAG 2.0”). WCAG 2.0 are well-established
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`guidelines for making websites accessible to blind and visually-impaired persons. These
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`guidelines are universally followed by most large business entities and government
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`agencies to ensure their websites are accessible.
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`26.
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`Non-compliant websites pose common access barriers to blind and
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`visually-impaired persons. Common barriers encountered by blind and visually-impaired
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`A text equivalent for every non-text element is not provided;
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`Title frames with text are not provided for identification and
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`Equivalent text is not provided when using scripts;
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`Forms with the same information and functionality as for sighted
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`navigation;
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`persons are not provided;
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`Information about
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`the meaning and structure of content is not
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`conveyed by more than the visual presentation of content;
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`Text cannot be resized without assistive technology up to 200%
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`f.
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`adjust or disable it;
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`If the content enforces a time limit, the user is not able to extend,
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`Web pages do not have titles that describe the topic or purpose;
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`-8-
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`

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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 9 of 29
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`The purpose of each link cannot be determined from the link text
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`alone or from the link text and its programmatically determined link context;
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`operation where the keyboard focus indicator is discernible;
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`The default human language of each web page cannot be
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`programmatically determined;
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`One or more keyboard operable user interface lacks a mode of
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`context;
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`When a component receives focus, it may initiate a change in
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`interface component may
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`Changing the setting of a user
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`Labels or instructions are not provided when content requires user
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`automatically cause a change of context where the user has not been advised before using
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`input, which include captcha prompts that require the user to verify that he or she is not a
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`robot;
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`In content which is implemented by using markup languages,
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`elements do not have complete start and end tags, elements are not nested according to
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`their specifications, elements may contain duplicate attributes and/or any IDs are not
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`Inaccessible Portable Document Format (PDFs); and,
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`The name and role of all User Interface elements cannot be
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`unique;
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`items
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`that can be set by the user cannot be
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`programmatically set; and/or notification of changes to these items is not available to user
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`agents, including assistive technology.
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`-9-
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`

`

`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 10 of 29
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`STATEMENT OF FACTS
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`Defendant’s Barriers on Its Website
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`27.
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`Defendant
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`offers
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`https://www.plantdelights.com/​, to the public. The website offers features which should
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`allow all consumers to access the goods and services offered by the Defendant and which
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`Defendant ensures delivery of such goods throughout the United States including New
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`York State. The goods and services offered by Defendant include, but are not limited to,
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`the following, which allow consumers to: purchase plants, flowers and other products
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`available online for purchase, and to ascertain information relating to pricing, shipping,
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`ordering merchandise and return and privacy policies.
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`28.
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`It is, upon information and belief, Defendant’s policy and practice to deny
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`Plaintiff, along with other blind or visually-impaired users, access to Defendant’s
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`website, and to therefore specifically deny the goods and services that are offered
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`thereby. Due to Defendant’s failure and refusal to remove access barriers to its website,
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`Plaintiff and visually-impaired persons have been and are still being denied equal access
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`to Defendant’s numerous goods, services and benefits offered to the public through the
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`29.
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`Plaintiff is a visually-impaired and legally blind person, who cannot use a
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`computer without
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`the assistance of screen-reading software. Plaintiff is, however, a
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`proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited
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`30.
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`During Plaintiff’s visits to the Website, the last occurring in December,
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`2020, in an attempt to purchase a product from the Defendant, the Plaintiff encountered
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`-10-
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`

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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 11 of 29
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`multiple access barriers that denied Plaintiff a shopping experience similar to that of a
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`sighted person and full and equal access to the goods and services offered to the public
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`and made available to the public; and that denied Plaintiff the full enjoyment of the
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`goods, and services of the Website by being unable to purchase plants, flowers and other
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`products available online for purchase, and to ascertain information relating to pricing,
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`shipping, ordering merchandise and return and privacy policies.
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`31. While attempting to navigate the Website, Plaintiff encountered multiple
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`accessibility barriers for blind or visually-impaired persons that include, but are not
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`limited to, the following:
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`a.
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`Lack of Alternative Text (“alt-text”), or a text equivalent. Alt-text
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`is an invisible code embedded beneath a graphical image on a website. Web accessibility
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`requires that alt-text be coded with each picture so that screen-reading software can speak
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`the alt-text where a sighted user sees pictures, which includes captcha prompts. Alt-text
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`does not change the visual presentation, but instead a text box shows when the keyboard
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`moves over the picture. The lack of alt-text on these graphics prevents screen readers
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`from accurately vocalizing a description of the graphics. As a result, Defendant’s
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`visually-impaired customers are unable to determine what is on the website, browse, or
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`make any purchases;
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`b.
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`Empty Links That Contain No Text causing the function or
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`purpose of the link to not be presented to the user. They can introduce confusion for
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`keyboard and screen-reader users;
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`-11-
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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 12 of 29
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`Redundant Links where adjacent links go to the same URL address
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`which results in additional navigation and repetition for keyboard and screen-reader
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`users; and
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`d.
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`Linked Images Missing Alt-text, which causes problems if an
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`image within a link contains no text and that image does not provide alt-text. A screen
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`reader then has no content to present the user as to the function of the link, including
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`information contained in PDFs.
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`32. Many pages on the Website also contain the same title elements. This
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`is a problem for the visually-impaired because the screen reader fails to distinguish
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`one page from another. In order to fix this problem, Defendant must change the title
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`elements for each page.
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`33.
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`The Website also contained a host of broken links, which is a
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`hyperlink to a non-existent or empty webpage. For the visually-impaired this is
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`especially paralyzing due to the inability to navigate or otherwise determine where
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`one is on the website once a broken link is encountered. For example, upon coming
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`across a link of interest, Plaintiff was redirected to an error page. However, the
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`screen-reader failed to communicate that the link was broken. As a result, Plaintiff
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`could not get back to his original search.
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`Defendant Must Remove Barriers To Its Website
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`34.
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`Due
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`to the
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`inaccessibility of Defendant’s Website, blind and
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`visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and
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`equally use or enjoy the goods, and services Defendant offers to the public on its
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`Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full
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`-12-
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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 13 of 29
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`and equal access in the past, and now deter Plaintiff on a regular basis from accessing the
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`Website.
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`35.
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`These access barriers on Defendant’s Website have deterred Plaintiff from
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`to sighted individuals because:
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`individuals do, preventing Plaintiff from using the Website to purchase items and to view
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`the items.
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`36.
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`If the Website was equally accessible to all, Plaintiff could independently
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`navigate the Website and complete a desired transaction as sighted individuals do.
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`visiting Defendant’s Website and enjoying it equal
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`Plaintiff was unable to use and enjoy the Website in the same manner as sighted
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`37.
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`Through his attempts to use the Website, Plaintiff has actual knowledge of
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`the access barriers that make these services inaccessible and independently unusable by
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`blind and visually-impaired persons.
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`38.
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`Because simple compliance with the WCAG 2.0 Guidelines would
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`provide Plaintiff and other visually-impaired consumers with equal access to the Website,
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`Plaintiff alleges that Defendant has engaged in acts of intentional discrimination,
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`including but not limited to the following policies or practices:
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`Constructing and maintaining a website that is inaccessible to
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`visually-impaired individuals, including Plaintiff;
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`Failure to construct and maintain a website that is not sufficiently
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`a.
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`b.
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`including
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`intuitive so as to be equally accessible to visually-impaired individuals,
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`Plaintiff; and,
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`-13-
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`Case 1:21-cv-00858 Document 1 Filed 01/29/21 Page 14 of 29
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`Failing to take actions to correct these access barriers in the face of
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`c