Case 1:22-cv-05800 Document 1 Filed 07/07/22 Page 1 of 15
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`Civil Action No.:
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`CLASS ACTION COMPLAINT FOR
`VIOLATIONS OF THE AMERICANS WITH
`DISABILITIES ACT OF 1990 AND NEW
`YORK CITY HUMAN RIGHTS LAW
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`DEMAND FOR JURY TRIAL
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`RICHARD MEJIA, Individually, and On
`Behalf of All Others Similarly Situated,
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`Plaintiff,
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`Defendant.
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`vs.
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`J & M FOODS, INC.,
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`Case 1:22-cv-05800 Document 1 Filed 07/07/22 Page 2 of 15
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`Plaintiff RICHARD MEJIA (“Plaintiff”) brings this class action both on an individual basis
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`and, on behalf of all others similarly situated, for declaratory relief, injunctive relief and
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`compensatory damages—including statutory and punitive damages—against defendant named
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`herein, and alleges based upon the personal knowledge of Plaintiff, the investigation of counsel,
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`and upon information and belief, as follows:
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`NATURE OF THE ACTION
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`1.
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`Plaintiff is a visually-impaired and legally blind person1 who brings this civil rights
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`class action against defendant J & M Foods, Inc., (“Defendant”) for its failure to design, construct,
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`maintain, and operate its website to be fully accessible to—and independently usable by—Plaintiff
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`and other blind or visually-impaired people who use screen-reading software. Plaintiff asserts this
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`action individually and on behalf of all other visually-impaired and/or legally blind individuals in
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`the United States who have attempted to access Defendant’s website and have been denied access
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`to the equal enjoyment of goods and/or services offered on the website during the past three years
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`from the date of the filing of the complaint (the “Class” and “Class Period”).
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`2.
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`In June 2022, Plaintiff browsed and attempted to transact business on Defendant’s
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`website, www.janis-melanie.com (“website” or “Defendant’s website”). The main reason Plaintiff
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`visited the website was to, inter alia, purchase products, goods, and/or services. The website
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`sells/offers snacks and cookies. The website had the following accessibility issues:
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`(a)
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`The reader spells out a lot of text on the page, such as product names, which
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`occurs when the words are entirely in capital letters.
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`1 Plaintiff uses the terms “blind” or “visually-impaired” to refer to all people with visual
`impairments who meet the legal definition of blindness; namely, a visual acuity with correction of
`less than or equal to 20 x 200. Some blind people who meet this definition have limited vision;
`others have no vision.
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`1
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`(b)
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`(c)
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`(d)
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`The website does not have a button to return to the main page.
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`The reader stops reading mid-sentence.
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`The buttons that increase and decrease the quantity of what the user wants
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`to buy are not labeled.
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`3.
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`The accessibility issues Plaintiff experienced are still found on Defendant’s website
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`as of the date of the filing of this complaint. Plaintiff still intends to purchase certain goods and/or
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`services from Defendant’s website in the future, but currently cannot.
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`4.
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`Defendant and its website violate Title III of the Americans with Disabilities Act
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`of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the New York City Human Rights Law
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`(“NYCHRL”), N.Y.C. Administrative Code §§ 8-101 et seq., as the website is not equally
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`accessible to blind and visually-impaired consumers.
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`5.
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`Plaintiff and the Class bring this action against Defendant seeking, inter alia, a
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`preliminary and permanent injunction, other declaratory relief, statutory damages, actual and
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`punitive damages, pre-judgment and post-judgment interest, and reasonable attorneys’ fees and
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`expenses.
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`6.
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`7.
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`JURISDICTION AND VENUE
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`This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331.
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`This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s
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`NYCHRL claims.
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`8.
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`Defendant is subject to personal jurisdiction in this District. Defendant operates
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`and distributes its products and/or services throughout the United States, including to consumers
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`and others in this District. Plaintiff has been denied the full use and enjoyment of the goods and
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`services offered on Defendant’s website in this District. It was here that Defendant committed a
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`substantial part of the acts or omissions that caused injury to Plaintiff and the Class in violation of
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`the ADA and the NYCHRL.
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`9.
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` The access barriers that Plaintiff encountered have caused a denial of Plaintiff’s
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`full and equal access multiple times in the past, and now deter Plaintiff on a regular basis from
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`accessing the Defendant’s website in the future.
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`10.
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`This Court is empowered to issue declaratory relief under 28 U.S.C. §§ 2201 and
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`2202.
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`11.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b)(2), and (c)
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`because: (i) Defendant’s unlawful course of conduct occurred in large part in this District; and (ii)
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`Plaintiff attempted to utilize the website in this District.
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`PARTIES
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`Plaintiff
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`12.
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`Plaintiff is a resident of the Bronx, New York. Plaintiff is a blind, visually-impaired,
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`handicapped person and a member of a protected class of individuals as defined 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 et seq.
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`– and as defined under the NYCHRL.
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`Defendant
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`13.
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`Defendant is a corporation registered in Arizona. Defendant conducts business in
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`New York through its website, which is a place of public accommodation as defined under 42
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`U.S.C. § 12181(7).
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`SUBSTANTIVE ALLEGATIONS
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`The visually-impaired use screen-readers to access the Internet.
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`14.
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`In 2017, the Centers for Disease Control (“CDC”) estimated that the blind
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`population in the United States reached approximately 1.7 million. The American Foundation for
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`3
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`the Blind’s website states that the 2019 American Community Survey (conducted by the U.S.
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`Census Bureau) identified an estimated 388,524 New Yorkers with vision difficulty.
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`15.
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`The Internet has become a significant source of information, a portal, and a tool for
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`conducting business, doing everyday activities such as shopping, learning, banking, researching,
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`as well as many other activities for sighted, blind and visually-impaired persons alike. In today’s
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`tech-savvy world, blind and visually-impaired people have the ability to access websites using
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`keyboards in conjunction with screen access software that vocalizes the visual information found
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`on a computer screen. This technology is known as screen-reading software.2
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`16.
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`Blind and visually-impaired users of Microsoft Windows operating system-enabled
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`computers and devices have several screen-reading software programs available to them. Some
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`of these programs are available for purchase and other machines have built-in integrated software.
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`NonVisual Desktop Access, otherwise known as “NVDA” is currently one of the most popular
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`screen-reading software programs available for PCs.
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`17.
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`Unless websites are designed to be read by screen-reading software, blind and
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`visually-impaired persons are unable to fully access websites, and the information, products, goods
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`and services contained thereon.
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`A company’s website must accommodate the use of screen readers
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`18.
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`For screen-reading software to function, the information on a website must be
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`capable of being rendered into text. If the website content is not capable of being rendered into
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`2 As defined by the American Federation for the Blind, a refreshable Braille display used in
`conjunction with a computer can provide a blind person access to information on the computer
`screen by electronically raising and lowering different combinations of pins on internal cells.
`These raised pins correspond to, and adapt, as the user moves their cursor over the text on the
`computer screen.
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`text, the blind or visually-impaired user is unable to access the same content available to sighted
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`users.
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`19.
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`The
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`international website standards organization, the World Wide Web
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`Consortium, known universally as W3C, has published an updated version (version 2.1) of the
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`Web Content Accessibility Guidelines (“WCAG”). WCAG 2.1 is a set of well-established
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`guidelines promulgated to ensure that websites are accessible to blind and visually-impaired
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`people. Non-compliant websites usually contain numerous common access barriers that prevent
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`the blind and visually-impaired from enjoying the Internet in the same way sighted individuals do.
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`Defendant’s website discriminates against the visually-impaired by containing access
`barriers
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`20.
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`Defendant is an online retail company that owns and operates a website offering
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`products that Defendant delivers to New York and across the country. Defendant offers its website
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`so that, inter alia, the general public can transact business on it. The goods and services offered
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`by Defendant’s website include, but are not limited to: snacks and cookies.
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`21.
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`It is Defendant’s policy and practice to deny Plaintiff and the Class access to its
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`website, and to specifically deny the goods and services offered to the general public. Due to
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`Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and the Class
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`have been—and currently are—denied equal access to the website and the goods and/or services
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`offered thereon.
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`22.
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`Plaintiff is visually-impaired and/or legally blind. Plaintiff uses the NVDA screen-
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`reader to access websites on the Internet. During Plaintiff’s visits to Defendant’s website, the last
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`occurring in June 2022, Plaintiff encountered multiple access barriers that denied Plaintiff full and
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`equal access to the goods and/or services offered to (and made available for) the general public.
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`These access barriers were the reason that Plaintiff was denied the full enjoyment of the goods
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`and/or services offered on the website.
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`23. While attempting to navigate the website, Plaintiff encountered multiple
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`accessibility barriers, including, but not limited to, the following:
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`(a)
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`The reader spells out a lot of text on the page, such as product names, which
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`occurs when the words are entirely in capital letters.
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`(b)
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`(c)
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`(d)
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`The website does not have a button to return to the main page.
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`The reader stops reading mid-sentence.
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`The buttons that increase and decrease the quantity of what the user wants
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`to buy are not labeled.
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`24.
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`Plaintiff was highly interested in purchasing the products offered by Defendant.
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`Plaintiff remains hopeful that the accessibility barriers will be cured expeditiously, as Plaintiff
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`intends to return to the website in order to transact business there as soon as the accessibility
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`barriers are cured.
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`Defendant must remove the website’s accessibility barriers
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`25.
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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 now deter Plaintiff on a regular basis from visiting the website,
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`presently and in the future. These access barriers have deterred Plaintiff from learning about the
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`various products sold to sighted individuals because Plaintiff was unable to determine and or
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`purchase items from its website, among other things. If the website were equally accessible to all,
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`Plaintiff and the Class could independently navigate the website and complete a desired transaction
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`as sighted individuals do.
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`26.
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`Plaintiff has actual knowledge of the access barriers that make these services
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`inaccessible and independently unusable by blind and visually-impaired people. Because simple
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`compliance with the WCAG 2.1 Guidelines would provide Plaintiff and the Class equal access to
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`the website, 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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`(a)
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`constructing and maintaining a website that is inaccessible to visually-
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`impaired individuals, including Plaintiff and the Class;
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`(b)
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`failing to construct and maintain a website that is sufficiently intuitive so as
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`to be equally accessible to visually-impaired individuals, including Plaintiff and the Class; and
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`(c)
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`failing to take actions to correct these access barriers in the face of
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`substantial harm and discrimination to blind and visually-impaired consumers (a protected class),
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`including Plaintiff and the Class.
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`27.
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`Defendant therefore uses standards, criteria or methods of administration that have
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`the effect of discriminating or perpetuating the discrimination of others, as alleged herein. Since
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`Defendant’s website is not equally accessible—and because Defendant lacks a corporate policy
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`that is reasonably calculated to cause its website to become and remain accessible—it must retain
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`a qualified consultant acceptable to Plaintiff to assist Defendant to comply with WCAG 2.1
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`guidelines for its website. Defendant must cooperate with the agreed upon consultant to:
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`(a)
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`train its employees and agents who develop the website on accessibility
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`compliance under the WCAG 2.1 guidelines;
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`(b)
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`regularly check the accessibility of the website under the WCAG 2.1
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`guidelines;
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`(c)
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`regularly test user accessibility by blind or vision-impaired persons to
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`ensure that Defendant’s website complies under the WCAG 2.1 guidelines; and
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`(d)
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` develop an accessibility policy (clearly posted on its website(s)) with
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`contact information for users to report accessibility-related problems.
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`28.
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`If the website were accessible, Plaintiff and the Class would be able to
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`independently view service items, and/or shop for goods via the website. Defendant has, upon
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`information and belief, invested substantial sums in developing and maintaining its website and
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`has generated significant revenue thereon. The revenues procured by Defendant far exceed the
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`associated cost of making the website equally accessible to visually-impaired consumers.
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`CLASS ACTION ALLEGATIONS
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`29.
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`Plaintiff brings this action as a nationwide class action pursuant to Rules 23(a) and
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`(b)(2) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), both individually and on behalf
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`of the Class currently defined as: all visually-impaired or legally blind individuals in the United
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`States who have attempted to access Defendant’s website and have been denied access to the equal
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`enjoyment of goods and/or services offered on the website during the Class Period. Plaintiff also
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`seeks certification of a sub-class of all visually-impaired and/or legally blind individuals in the
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`City of New York who have attempted to access Defendant’s website and have been denied access
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`to the equal enjoyment of goods and services offered on the website during the Class Period (the
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`“NYC Sub-Class”).3
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`30.
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`Excluded from the Class are Defendant, any entity in which Defendant has a
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`controlling interest, and the officers, directors, affiliates, legal representatives, heirs, successors,
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`subsidiaries, and/or assigns of any such individual or entity.
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`3 The Class and NYC Sub-Class are hereinafter identified, collectively, as “the Class,” unless
`otherwise stated.
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`31.
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`Upon information and belief, there are hundreds of members in the Class who have
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`suffered from Defendant’s conduct complained of herein during the Class Period. Accordingly,
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`joinder is impracticable pursuant to Fed. R. Civ. P. Rule 23(a)(1).
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`32.
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`Common issues of fact or law predominate over individual issues within the
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`meaning of Fed. R. Civ. P. Rule 23(a)(2). Common issues of law and fact include, but are not
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`limited to, whether:
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`(a)
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`(b)
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`NYCHRL; and
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`the website is a place of “public accommodation” under the ADA;
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`the website is a “place or provider of public accommodation” under the
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`(c)
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`the website denies the full and equal enjoyment of its products, services,
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`facilities, privileges, advantages, or accommodations to people with visual disabilities, violating
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`the ADA and/or NYCHRL;
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`33.
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`Plaintiff’s interests are typical of, and not antagonistic to the interests of, the Class
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`and the claims arising out of Defendant’s common uniform course of conduct are all based upon
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`the same facts and legal theories.
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`34.
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`Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff has
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`retained competent counsel experienced with class actions and civil rights litigation who intend to
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`vigorously prosecute this action. Plaintiff has similar legal bases for statutory and punitive
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`damages that are sought on the behalf of members of the Class in this action. Class certification
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`of the claims is 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 declaratory and
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`injunctive relief with respect to Plaintiff and the Class as a whole.
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`35.
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`Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3). A
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`class action is superior to other available methods for the fair and efficient adjudication of this
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`controversy since a multiplicity of actions could result in an unwarranted burden on the court
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`system and could create the possibility of inconsistent judgments. Moreover, a class action will
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`allow redress for many persons whose claims would otherwise be too small to litigate individually.
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`There will be no difficulty in the management of this action as a class action.
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`36.
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`Class members’ identities can be identified by Defendant’s records. Plaintiff
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`reserves the right to amend the definition of the Class at any point of the litigation, especially after
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`being provided the opportunity to review the documents and records produced in discovery.
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`COUNT I
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`Against Defendant for Violations of the ADA, 42 U.S.C. §§ 12101 et seq., on behalf of
`Plaintiff and the Class
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`37.
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` Plaintiff incorporates by reference the preceding allegations as though fully set
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`forth herein.
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`38.
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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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`39.
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`Defendant’s website is a place of public accommodation within the definition of 42
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`U.S.C. § 12181(7). The website is a service that is offered to the general public, and as such, must
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`be equally accessible to all potential consumers.
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`40.
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`Under 42 U.S.C. § 12182(b)(1)(A)(i), it is unlawful discrimination to deny
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`individuals with disabilities the opportunity to participate in – or benefit from – the products,
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`services, facilities, privileges, advantages, or accommodations of an entity.
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`41.
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`Under 42 U.S.C. § 12182(b)(1)(A)(ii), it is unlawful discrimination to deny
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`individuals with disabilities an opportunity to participate in or benefit from the products, services,
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`facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded
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`to other individuals.
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`42.
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`Under 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii), unlawful discrimination also includes,
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`among other things:
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`“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…and a
`failure to take such steps as may be necessary to ensure that no individual with a
`disability is excluded...”
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`43.
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`Plaintiff is a member of a protected class of persons who has a physical disability
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`that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§
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`12102(1)(A)-(2)(A).
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`44.
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`Furthermore, Plaintiff has been denied full and equal access to the website, has not
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`been provided goods and/or services that are provided to other patrons who are not disabled, and
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`has been provided goods and/or services that are inferior to the services provided to non-disabled
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`persons.
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`45.
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`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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`COUNT II
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`Against Defendant for Violations of the New York City Human Rights Law, N.Y.C.
`Administrative Code §§ 8-101 et seq., on behalf of Plaintiff and the NYC Sub-Class
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`46.
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`Plaintiff incorporates by reference the preceding allegations as though fully set
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`forth herein.
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`47.
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`N.Y.C. Administrative Code § 8-107(4)(a) provides that:
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`“It shall be an unlawful discriminatory practice for any person, being the owner,
`franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or
`employee of any place or provider of public accommodation, because of . . .
`disability . . . directly or indirectly, to refuse, withhold from or deny to such person,
`the full and equal enjoyment on equal terms and conditions, of any of the
`accommodations, advantages, facilities or privileges of the place or provide of
`public accommodation.”
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`48.
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`Defendant’s website is a “sales establishment” and “public accommodation” within
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`the definition of N.Y.C. Admin. Code § 8-102(9). Defendant owns and operates its website,
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`making it a “person” within the meaning of N.Y.C. Admin. Code § 8-102(1).
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`49.
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`By maintaining a website with accessibility barriers, Defendant violates N.Y.C.
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`Administrative Code § 8-107(4)(a). This inaccessibility denies blind patrons full and equal access
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`to the facilities, products, and services that Defendant makes available to the non-disabled public.
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`50.
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`Under N.Y.C. Admin. Code § 8-107(15)(a), Defendant is required to:
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`“make reasonable accommodation to the needs of persons with disabilities . . . it is
`an unlawful discriminatory practice for any person prohibited by the provisions of
`[§ 8-107 et seq.] from discriminating on the basis of disability not to provide a
`reasonable accommodation to enable a person with a disability to . . . enjoy the right
`or rights in question provided that the disability is known or should have been
`known by the covered entity.”
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`51.
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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 § 8-107(4)(a) and
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`§ 8-107(15)(a) in that Defendant has constructed and maintained a website with accessibility
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`barriers and failed to take action to fix the access barriers. These violations are ongoing.
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`52.
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`As such, under § 8-107(4)(a) and/or its implementing regulations, Defendant
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`discriminates, and will continue in the future to discriminate, against Plaintiff and the NYC Sub-
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`Class. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices,
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`Plaintiff and the NYC Sub-Class will continue to suffer irreparable harm. Plaintiff is also entitled
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`to compensatory damages, as well as civil penalties and fines under §§ 8-120(8) and 8-126(a) for
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`each offense, as well as punitive damages pursuant to § 8-502.
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`COUNT III
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`Against Defendant for Declaratory Relief, on behalf of Plaintiff and the Class
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`53.
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`Plaintiff incorporates by reference the preceding allegations as though fully set
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`forth herein.
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`54.
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`Defendant’s website contains access barriers denying blind customers full and
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`equal access to the products and/or services. The website violates 42 U.S.C. §§ 12182, et seq.,
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`and N.Y.C. Admin. Code § 8-107, et seq., which prohibit discrimination against the blind.
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`55.
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`A judicial declaration is, therefore, necessary and appropriate.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff demands a judgment:
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`(a)
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`awarding Plaintiff statutory money damages, actual damages and punitive
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`damages, including pre-judgment and post-judgment interest;
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`(b)
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`granting a preliminary and permanent injunction requiring Defendant to
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`take all the steps necessary to make its website fully comply with the requirements set forth in the
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`ADA and NYCHRL;
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`(c)
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`providing a declaration that Defendant owns, maintains and/or operates its
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`website in a manner that discriminates against the blind and visually-impaired;
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`(d)
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`certifying the Class and the NYC Sub-Class under Fed. R. Civ. P. 23(a) &
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`(b)(2) and/or (b)(3), appointing Plaintiff as class representative, and Plaintiff’s attorneys as class
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`counsel;
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`(e)
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`(f)
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`awarding attorneys’ fees and costs, and other relief; and
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`awarding such other relief as this Court deems just and proper.
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`Case 1:22-cv-05800 Document 1 Filed 07/07/22 Page 15 of 15
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`JURY DEMAND
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`Plaintiff demands a trial by jury.
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`DATED: July 6, 2022
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`MIZRAHI KROUB LLP
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`
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`Edward Y. Kroub
`Jarrett S. Charo
`William J. Downes
`200 Vesey Street, 24th Floor
`New York, NY 10281
`Telephone: 212/595-6200
`212/595-9700 (fax)
`ekroub@mizrahikroub.com
`jcharo@mizrahikroub.com
`wdownes@mizrahikroub.com
`
`Attorneys for Plaintiff
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