Case 1:23-cv-04276-JPO Document 1 Filed 05/23/23 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`YORDALIZA TAVERAS, Individually, and
`On Behalf of All Others Similarly Situated,
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`Plaintiff,
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`vs.
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`SMART SNACKS LLC,
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`Defendant.
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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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`Case 1:23-cv-04276-JPO Document 1 Filed 05/23/23 Page 2 of 18
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`Plaintiff Yordaliza Taveras (“Plaintiff”) brings this class action on an individual basis, and
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`on behalf of all others similarly situated, for declaratory relief, injunctive relief, and compensatory
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`damages—including statutory and punitive damages—against defendant Smart Snacks LLC
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`(“Defendant”), and alleges based upon information and belief, personal knowledge of Plaintiff,
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`and the investigation of counsel, 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 for its failure to design, construct, maintain, and operate its
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`website, unboundsnacks.com (“Website”), to be fully accessible to—and independently usable
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`by—Plaintiff and the Class who use screen-reading software. Plaintiff asserts this action
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`individually and on behalf of all other visually impaired and/or legally blind individuals in the
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`United States who have attempted to access the Website and have been denied equal access to the
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`enjoyment of walnuts offered thereon during the past three years from the date of the filing of the
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`complaint (the “Class” and “Class Period”).
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`2.
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`Defendant denies Plaintiff and the Class full and equal access to both the goods
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`and features offered on the Website, which are accessible to non-disabled individuals. The
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`Website’s features include, but are not limited to, the following: shipping policy, terms of service,
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`contact information, blog, promotional offers, and more.
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`3.
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`Congress enacted the Americans with Disabilities Act of 1990 (the “ADA”) to
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`prohibit discrimination against individuals with disabilities. Its drafters intended that the statute
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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 individuals who meet the definition of the term “legally
`blind” have limited vision, while others have no vision at all.
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`Case 1:23-cv-04276-JPO Document 1 Filed 05/23/23 Page 3 of 18
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`keep pace with the times and rapidly changing technology. The Internet has become an
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`increasingly prominent part of everyday life, specifically providing blind and/or visually impaired
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`individuals with the ability, via screen-readers, to access a variety of products and services fully
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`and independently. The ADA applies to websites and is a powerful tool to stem the harmful and
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`discriminatory effects of access barriers. Unfortunately, the Website that Plaintiff attempted to
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`access currently has access barriers.
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`4.
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`To clarify the ADA’s application to websites, in March 2022, the United States
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`Department of Justice issued guidance on accessibility. It stated, in relevant part, that:
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`Inaccessible web content means that people with disabilities are denied equal access
`to information. An inaccessible website can exclude people just as much as steps at
`an entrance to a physical location. A website with inaccessible features can limit
`the ability of people with disabilities to access public accommodation’s goods,
`services, and privileges available through that website.2
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`5.
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`Snubbing these guidelines, Defendant owns and/or operates the Website, which
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`contains myriad access barriers that make it difficult, if not impossible, for Plaintiff and the Class
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`users to even complete a transaction on the website. Preventing the ability of disabled persons to
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`utilize the internet—a common marketplace and important tool for daily life—increases their
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`feelings of isolation, stigma and discrimination of the type that Title III of the ADA sought to
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`redress. Additionally, this sort of discrimination was, and remains, particularly acute due to the
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`recent COVID-19 pandemic.
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`6.
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`Plaintiff has visited the Website numerous times, most recently on May 17, 2023.
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`On each occasion, Plaintiff had the intent of purchasing the Cinnamon Walnuts. Unfortunately,
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`Plaintiff and the Class are blocked from experiencing all of the Website’s features, including the
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`2
`U.S. Dep’t of Justice, Guidance on Web Accessibility and the ADA (Mar. 18, 2022),
`https://www.ada.gov/resources/web-guidance.
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`Case 1:23-cv-04276-JPO Document 1 Filed 05/23/23 Page 4 of 18
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`ability to complete a transaction thereon. Unless Defendant remediates their Website, Plaintiff
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`and the Class will be unable to independently navigate, browse, and ultimately complete
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`transactions thereon.
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`7.
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`As a result of the continuing accessibility issues, Defendant, through its ownership
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`and/or operation of the Website, violates Title III of the ADA, 42 U.S.C. § 12101 et seq., and the
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`New York City Human Rights Law (“NYCHRL”), N.Y.C. Administrative Code §§ 8-101 et seq.
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`8.
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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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`JURISDICTION AND VENUE
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`9.
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`This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331.
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`10.
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`This Court has supplemental jurisdiction over the NYCHRL claim pursuant to 28
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`U.S.C. § 1367.
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`11.
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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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`12.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b)(2) and
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`(c) because: (i) Defendant’s unlawful course of conduct occurred and continues to occur in this
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`District; (ii) Defendant is subject to personal jurisdiction in this District; and (iii) Plaintiff
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`attempted to use the Website in this District.
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`13.
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`Defendant is subject to personal jurisdiction in this District. Defendant owns
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`and/or operates the Website, which distributes its products throughout the United States,
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`including to New York customers residing in this judicial district. It was within this judicial
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`district that Plaintiff was being, and continues to be, denied the full use and enjoyment of the
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`walnuts offered on the Website. As such, it is here that Defendant is committing a substantial
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`part of the acts or omissions that caused injury to Plaintiff and the Class in violation of the ADA
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`and the NYCHRL.
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`Plaintiff
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`PARTIES
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`14.
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`Plaintiff is a resident of New York, New York. Plaintiff is a blind, visually
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`impaired, handicapped person and a member of a protected class of individuals pursuant to the
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`ADA and NYCHRL.
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`Defendant
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`15.
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`Defendant is a company registered in California. Defendant conducts business in
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`New York through the 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 are accessing the internet increasingly every year
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`16.
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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
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`for 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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`17.
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`For sighted and disabled persons alike, the internet has become a crucial resource.
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`Stating the obvious, the internet houses websites that contain information on practically any topic
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`imaginable. It is an invaluable tool for shopping, conducting business, entertainment, research,
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`learning, and countless other activities.
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`18.
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`Prior to the COVID-19 pandemic (“Pandemic”), MIT published a study projecting
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`that the average American uses the internet for 23.6 hours a week. Due to the Pandemic,
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`companies across the nation were forced to shut down their physical locations and transact
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`business remotely. According to PEW research, as of 2021, 3 out of 10 U.S. residents spent the
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`majority of their day using the internet. According to UBS, e-commerce will account for 25% of
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`all sales and up to 50,000 physical retail stores will shut down by the year 2026.
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`The visually impaired use screen-readers to access the internet
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`19.
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`Under this backdrop, it is clear that blind and/or visually impaired individuals (like
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`Plaintiff) must not encounter website barriers so that they too can enjoy the same access,
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`convenience, safety, and time and money savings that websites provide to sighted individuals.
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`20.
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`Plaintiff and the Class access websites by using specially designed screen-reading
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`software that requires the use of a keyboard to navigate and vocalize visual information on a
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`computer screen. Screen-reading software offers the only method for blind and/or visually
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`impaired individuals to be able to independently access the internet.
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`21.
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`Plaintiff in particular uses screen-reading software called NonVisual Desktop
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`Access (“NVDA”), which is currently one of the most popular screen-readers available for PCs.
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`A company’s website must accommodate the use of screen-readers
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`22.
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`Unless websites are designed to be read by screen-reading software, blind and/or
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`visually impaired users are unable to fully access the internet and the information, products, goods
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`and services contained thereon.
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`23.
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`The 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 the blind and/or visually
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`impaired. These guidelines are universally followed by most large business entities and
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`government agencies to ensure their websites are accessible. Many courts, as well as the DOJ,
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`have further established WCAG 2.1 as the standard for accessibility.
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`24.
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`The federal government promulgated website accessibility standards under § 508
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`of the Rehabilitation Act. These guidelines can be found online and are recommended to
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`companies that employ website design vendors. Additionally, website design vendors constantly
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`remind companies to maintain compliance with these guidelines.
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`25.
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`Unfortunately, non-compliant websites, such as unboundsnacks.com, contain
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`numerous common access barriers that prevent screen-reading programs, such as NVDA, from
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`relaying information to blind and/or visually impaired consumers. These consumers regularly
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`encounter the following access barriers:
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`a.
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`b.
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`c.
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`images lack Alt-text (as defined below);
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`title frames with text are not provided, limiting website navigation;
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`when pressing the tab key to navigate, information is not read by the
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`screen-reader – in technical terms, equivalent text is not provided when using scripts;
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`d.
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`e.
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`drop down menus are not read properly, limiting website navigation;
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`forms are not read properly by the screen-reader, limiting: (i) website
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`navigation; (ii) the ability to receive discounts; (iii) the ability to create an account; and (iv) the
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`ability to transact business;
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`f.
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`promotional materials embedded in images are not read by the screen-
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`reader; and
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`g.
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`languages aside from English are not read properly by the screen-reader.
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`The Website contains access barriers and is discriminatory
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`26.
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`It is Defendant’s policy and practice to deny Plaintiff and the Class access to the
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`Website, which includes its shipping policy, terms of service, contact information, blog,
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`promotional offers, and more. Importantly, Plaintiff could not purchase the walnuts offered on
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`the Website to the general public. Due to Defendant’s failure and refusal to remove access
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`barriers on the Website, Plaintiff and the Class have been—and currently are being—denied equal
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`access to the Website and the walnuts offered thereon.
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`27.
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`The Website is a commercial website that offers products for online sale so that,
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`inter alia, New York consumers can transact business on it. Among other things, the Website:
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`a.
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`b.
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`allows users to browse the wide range of products sold by Defendant;
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`provides detailed descriptions about the products offered, including
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`product and pricing details, customer reviews, and payment options;
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`c.
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`provides information about the company’s history, privacy policy, terms
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`of use and other background information, and its shipping and return policies;
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`d.
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`provides links to the company’s social media presence on apps such as
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`Facebook, Twitter, Instagram, and others; and
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`e.
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`provides contact information.
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`28. When attempting to purchase the Cinnamon Walnuts, Plaintiff encountered the
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`following access barriers (collectively, the “Access Barriers”):
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`a.
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`The Website’s images and other non-text elements lack alternative-text
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`(“Alt-text”). Alt-text is invisible text code embedded in images and non-text elements. Alt-text
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`must be coded properly so that each picture and non-text element can be audibly described by a
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`screen-reader. Alt-text does not change the visual presentation of an image – it merely appears
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`as a text pop-up when the mouse scrolls over it. There are images and non-text elements on the
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`Website that lack Alt-text. As a result, Plaintiff and the Class are unable to see pictures, logos,
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`or icons including image products and rating details with icons. This significantly inhibits,
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`deters, and delays Plaintiff and the Class’s ability to purchase products, such as the Cinnamon
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`Walnuts on the Website.
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`b.
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`The Website includes empty links without text. For the screen-reader to
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`adequately describe the purpose of a link, there must be proper text and label descriptions. The
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`Website contains empty links that do not have adequate text descriptions, impeding Plaintiff’s
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`and the Class’s ability to independently navigate the Website, make informed decisions, and
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`successfully complete a purchase.
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`c.
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`The Website’s embedded link for the shopping cart does not specify its
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`purpose, resulting in the screen-reader’s inability to direct Plaintiff to the shopping cart,
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`announce when items have been added, or verbalize the cart details. Sighted individuals can see
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`a window appear and can adjust the quantity, remove the item, or proceed to checkout. Without
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`verbal notification, Plaintiff is not aware of whether the add to cart button was adequately
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`selected or if an item was added to the cart. As such, Plaintiff and the Class cannot adjust items
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`within the cart like sighted individuals. As a result, Plaintiff and the class are deterred and denied
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`from completing a purchase independently.
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`d.
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`The Website’s embedded and drop-down links are not compatible with
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`the screen-reader, resulting in Plaintiff and the Class’s inability to simply navigate the webpage
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`through drop down menus. This makes navigating the Website even more time consuming and
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`confusing for Plaintiff and the Class thus delaying and deterring them from the webpage.
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`29.
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`Since the Website had these Access Barriers, Plaintiff was unable to purchase the
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`Cinnamon Walnuts and/or other products.
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`30.
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`Plaintiff has made numerous attempts to browse and complete a purchase on the
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`Website, most recently on May 17, 2023, but was – and remains – unable to do so independently
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`because of the Access Barriers. Plaintiff still wants to purchase the Cinnamon Walnuts. Plaintiff
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`intends to return to the Website to complete the purchase of the Cinnamon Walnuts as soon as the
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`Access Barriers are cured.
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`31.
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`Since the Website can be accessed around the clock from any internet-connected
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`device, once the Access Barriers are removed, Plaintiff will easily return to the Website and
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`access it’s shipping policy, terms of service, contact information, blog, promotional offers, and
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`more.
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`32.
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`Unlike a brick-and-mortar facility, a website is instantly accessible at any moment,
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`and, thus, an inability to make a purchase can only be attributed to access barriers (whereas for
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`brick-and-mortal locations it can be attributed to proximity, travel time, etc.).
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`33.
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`As previously mentioned, Plaintiff has made numerous attempts, without success,
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`to enjoy the Website’s features, including, but not limited to, the shipping policy, terms of service,
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`contact information, blog, promotional offers, and more on the Website without success. Plaintiff
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`anxiously awaits the removal of the Access Barriers, so that she can equally access the available
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`products.
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`Defendant must remove its Website’s Access Barriers
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`34.
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`The Access Barriers Plaintiff encountered have caused a denial of Plaintiff’s full
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`and equal access on numerous occasions, most recently on May 17, 2023. This denial deterred
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`and prevented Plaintiff in the past, and continues to deter and prevent Plaintiff presently, from
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`independently completing an informed purchase on the Website. If the Website were equally
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`accessible to all, as required under the ADA, Plaintiff and the Class would have been able to
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`independently navigate the website and complete a desired transaction as sighted individuals do.
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`35.
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`Plaintiff has actual knowledge of the Access Barriers that make the Website
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`inaccessible and not independently usable by blind and/or visually impaired people. The presence
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`of the Access Barriers on the Website demonstrates that Defendant is engaging in acts of
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`intentional discrimination, especially since simple compliance with the WCAG 2.1 Guidelines
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`would provide Plaintiff and the Class equal access. Currently, Plaintiff alleges, without
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`limitation, that Defendant is engaging in the following acts of intentional discrimination:
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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
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`as to be equally accessible to visually impaired individuals, including Plaintiff and the Class;
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`and
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`c.
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`failing to take actions to correct the Access Barriers in the face of
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`substantial harm and discrimination to blind and/or visually impaired consumers (a protected
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`class), including Plaintiff and the Class.
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`36.
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`Defendant uses standards, criteria or methods of administration that have the effect
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`of discriminating or perpetuating the discrimination of others, as alleged herein. To remove the
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`Website’s Access Barriers, Defendant must retain a qualified consultant acceptable to Plaintiff to
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`assist Defendant in complying with WCAG 2.1 guidelines. This is necessary as Defendant lacks
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`a corporate policy or a current qualified individual to aid in this realm, as shown through the
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`current inaccessibility of its Website. Defendant must cooperate with the agreed upon consultant
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`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 and/or visually 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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`37.
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`Although Defendant may currently claim to have centralized policies regarding
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`maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated
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`to make them fully and equally accessible to, and independently usable by, Plaintiff and the Class.
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`38.
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`If unboundsnacks.com were accessible, Plaintiff and the Class would be able to
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`independently purchase walnuts that Defendant sells thereon. Defendant has, upon information
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`and belief, invested substantial sums in developing and maintaining its Website and has generated
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`significant revenue thereon. The revenues procured by Defendant far exceed the associated cost
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`of making the website equally accessible to visually impaired consumers.
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`CLASS ACTION ALLEGATIONS
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`39.
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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. Plaintiff also seeks certification of a sub-class of all visually impaired and/or legally
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`blind individuals in the City of New York who have attempted to access Defendant’s website and
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`have been denied access to the equal enjoyment of the goods offered on the website during the
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`Class Period (the “NYC Sub-Class”).3
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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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`40. 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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`41.
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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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`42. 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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`43.
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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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`44.
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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
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`to vigorously prosecute this action. Plaintiff has similar legal bases for statutory and punitive
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`damages that are sought on behalf of members of the Class in this action. Class certification of
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`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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`45.
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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
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`individually. There will be no difficulty in the management of this action as a class action.
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`46.
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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
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`after 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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`47.
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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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`48.
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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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`49.
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`The Website is a sales establishment and a place of public accommodation within
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`the definition of 42 U.S.C. § 12181(7). The website is a service that is offered to the general
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`public, and as such, must be equally accessible to all potential consumers.
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`50.
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`Defendant is subject to Title III of the ADA because it owns and/or operates the
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`Website.
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`51.
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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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`52.
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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.
`
`53.
`
`Under 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii), unlawful discrimination also includes,
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`among other things:
`
`“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 . . . .”
`
`54.
`
`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. §§
`
`12102(1)(A)-(2)(A).
`
`55.
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`Furthermore, Plaintiff has been denied full and equal access to the Website, has
`
`not been provided goods that are provided to other patrons who are not disabled, and has been
`
`provided goods that are inferior to the services provided to non-disabled persons.
`
`56.
`
`Defendant has failed to take any prompt and equitable steps to remedy its
`
`discriminatory conduct. These violations are ongoing.
`
`
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`Case 1:23-cv-04276-JPO Document 1 Filed 05/23/23 Page 16 of 18
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`COUNT II
`
`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
`
`57.
`
`Plaintiff incorporates by reference the preceding allegations as though fully set
`
`forth herein.
`
`58.
`
`N.Y.C. Administrative Code § 8-107(4)(a) provides that:
`
`“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.”
`
`59.
`
`The Website is a “sales establishment” and “public accommodation” within the
`
`definition of N.Y.C. Admin. Code § 8-102(9). Defendant owns and/or operates its Website,
`
`making it a “person” within the meaning of N.Y.C. Admin. Code § 8-102(1).
`
`60.
`
`By maintaining a website with accessibility barriers, Defendant violates N.Y.C.
`
`Administrative Code § 8-107(4)(a). This inaccessibility denies blind and/or visually impaired
`
`patrons full and equal access to the facilities, products, and services that Defendant makes
`
`available to the non-disabled public.
`
`61.
`
`Under N.Y.C. Admin. Code § 8-107(15)(a), Defendant is required to:
`
`“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.”
`
`62.
`
`Defendant’s actions constitute willful intentional discrimination against the Sub-
`
`Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a)
`
`
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`15
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`Case 1:23-cv-04276-JPO Document 1 Filed 05/23/23 Page 17 of 18
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`and § 8-107(15)(a) in that Defendant has constructed and maintained a website with accessibility
`
`barriers and failed to take action to fix the access barriers. These violations are ongoing.
`
`63.
`
`As such, under § 8-107(4)(a) and/or its implementing regulations, Defendant
`
`discriminates, and will continue in the future to discriminate, against Plaintiff and the NYC Sub-
`
`Class. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices,
`
`Plaintiff and the NYC Sub-Class will continue to suffer irreparable harm. Plaintiff is also entitled
`
`to compensatory damages, as well as civil penalties and fines under §§ 8-120(8) and 8-126(a) for
`
`each offense, as well as punitive damages pursuant to § 8-502.
`
`COUNT III
`
`Against Defendant for Declaratory Relief, on behalf of Plaintiff and the Class
`
`64.
`
`Plaintiff incorporates by reference the preceding allegations as though fully set
`
`forth herein.
`
`65.
`
`The Website contains Access Barriers denying blind and/or visually impaired
`
`customers full and equal access to Defendant’s products. The Website violates 42 U.S.C. §§
`
`12182, et seq., and N.Y.C. Admin. Code § 8-107, et seq., which prohibit discrimination against
`
`the blind and/or visually impaired.
`
`66.
`
`A judicial declaration is, therefore, necessary, and appropriate.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff demands a judgment:
`
`a.
`
`awarding Plaintiff statutory money damages, actual damages, and punitive
`
`damages, including pre-judgment and post-judgment interest;
`
`b.
`
`granting a preliminary and permanent injunction requiring Defendant to
`
`take all the steps necessary to make the Website fully comply with the requirements set forth in
`
`the ADA and NYCHRL;
`
`
`
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`Case 1:23-cv-04276-JPO Document 1 Filed 05/23/23 Page 18 of 18
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`c.
`
`providing a declaration that Defendant owns, maintains and/or operates the
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`Website in a manner that discriminates against the blind and/or visually impaired;
`
`d.
`
`certifying the Class and the NYC Sub-Class under Fed. R. Civ. P. 23(a) &
`
`(b)(2) and/or (b)(3), appointing Plaintiff as class representative, and Plaintiff’s attorneys as class
`
`counsel;
`
`e.
`
`f.
`
`awarding attorneys’ fees and costs, and other relief; and
`
`awarding such other relief as this Court deems just and proper.
`
`JURY DEMAND
`
`Plaintiff demands a trial by jury.
`
`DATED: May 23, 2023
`
`MIZRAHI KROUB LLP
`
`
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