Cruz v. JKS Ventures, Inc.

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ALLISON MICHELE CRUZ, on behalf of herself and all others similarly situated, Plaintiff, v. JKS VENTURES, INC., Defendant.

No. 23-cv-8311 (LJL)

United States District Court, S.D. New York

June 21, 2024

MEMORANDUM AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE:

Plaintiff Allison Michele Cruz (“Plaintiff”) and Defendant JKS Ventures, Inc., doing business as Incredible Pets (“Defendant”), jointly move for approval of a proposed consent decree, resolving Plaintiff's complaint for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12182 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-107 et seq. Dkt. No. 17. For the following reasons, the motion is granted.

BACKGROUND AND PROCEDURAL HISTORY

This is a typical ADA website action that the parties purport to resolve in an atypical fashion. Plaintiff, a legally blind person who uses screen-reading software to navigate Internet websites, brings this putative class action on behalf of all blind and visually-impaired individuals protected by the ADA alleging Defendant's website is inaccessible. Dkt. No. 9 ¶¶ 2, 14, 39.^[1] Defendant is a commercial establishment which sells diverse and high-quality pet products, and operates the website, www.incrediblepets.com (the “Website”). Id. ¶¶ 4, 23, 41. Plaintiff alleges that the Website is not equally accessible to blind and visually-impaired consumers. Id. ¶ 6.

On August 17, 2023 and again on September 10, 2023, Plaintiff attempted to access the Website from her home in the Bronx using screen-reader software, in order to purchase dog toys for her son's dog. Id. ¶¶ 13, 20-22 39, 42. She encountered barriers that denied her full and equal access to Defendant's online goods, content, and services, and was unable to complete the purchase due to the inaccessibility of the Website. Id. ¶¶ 20 24. In particular, due to Defendant's failure to build the Website in a manner that is compatible with screen-reader programs, “Plaintiff was unable to understand and properly interact with the Website and was thus denied the benefit of purchasing” the “Kong Airdog SqueakAir Ball Dog Toy” that she wished to buy through the Website. Id. ¶¶ 25, 40, 42. The barriers included but were not limited to: missing alt-text, hidden elements on web pages, incorrectly formatted lists, unannounced pop-ups, unclear labels for interactive elements, and the requirement that some events be performed solely with a mouse. Id. ¶ 43. The Website also contained a host of broken links to non-existent or empty webpages. Id. ¶ 44. Despite the “direct harm and frustration” that Plaintiff has experienced due to the inaccessibility of the Website, she intends to attempt to access the Website in the future to purchase products and services offered by the Website, including the “Kong Airdog SqueakAir Ball Dog Toy.” Id. ¶¶ 29, 46.

On September 20, 2023, Plaintiff filed this putative class action, alleging that Defendant's Website violated Title III of the ADA, as well as the NYCHRL. Dkt. No. 1 ¶¶ 7-8. Plaintiff claims that the Website, and the goods and services offered thereupon, constitute a public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7)(j). Id. ¶ 16. She alleges that because compliance with Web Content Accessibility Guidelines (“WCAG”) would provide her and other visually-impaired consumers with equal access to the Website, Defendant has engaged in acts of intentional discrimination by failing to ensure that the Website is compliant with WCAG. Id. ¶ 51. Plaintiff also alleges that Defendant lacks a corporate policy that is reasonably calculated to cause the Website to become and remain accessible. Id. ¶ 54. Plaintiff alleges that class certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) “because Defendant has acted or refused to act on grounds generally applicable to the class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole.” Id. ¶ 62; see Fed.R.Civ.P. 23(b)(2). She also alleges that class certification is appropriate under Rule 23(b)(3) because facts and legal questions common to class members predominate over questions affecting only individual class members, and because a class action is superior to other available methods for the fair and efficient adjudication of the litigation. Dkt. No. 1 ¶ 63. She seeks injunctive and declaratory relief under federal law, and compensatory and punitive damages under the NYCHRL. Id. at 20-21.

On October 3, 2023, Plaintiff filed an Amended Complaint. Dkt. No. 9. The Amended Complaint seeks identical relief based on identical allegations to the original complaint.^[2]

On February 8, 2024, the parties jointly requested judicial approval of a proposed consent decree (“First Proposed Consent Decree”). Dkt. No. 17. Among other things, the First Proposed Consent Decree required Defendant to “take appropriate steps as determined to be necessary with the goal of ensuring full and equal enjoyment of the goods, services, privileges, advantages, and accommodations provided by and through the Website (including all pages therein), including websites (including all pages therein and linked to therefrom) that can be navigated to [or] from the Website or which when entered reroute to the Website.” Id. ¶ 13. Specifically, Defendant was required, “within 24 months of the Effective Date of the Consent Decree,” to “modify the Website as needed to substantially conform to the [WCAG] 2.0 and/or [WCAG] 2.1 Level A Success Criteria or any other WCAG guidelines deemed to be applicable, in such a manner so that the Website will be accessible to persons with vision disabilities.” Id. ¶ 13(a).^[3]

The parties were explicit regarding one of the principal purposes of the First Proposed Consent Decree. In presenting the parties' joint request for judicial approval of the decree, counsel for Defendant explained that it was “designed to serve as a shield for Defendant against claims by other potential plaintiffs who may come forward to assert similar claims based on the putative access violations that are being addressed and resolved pursuant to this settlement.” Dkt. No. 17 at 2. Counsel elaborated: “Duplicative suits have been a recurring problem in similar matters handled by my law firm and other attorneys defending these matters around the country.” Id. To that end, the First Proposed Consent Decree included a provision that it was intended to benefit all other blind or visually-impaired individuals:

Parties to this Consent Decree expressly intend and agree that this Consent Decree shall inure to the benefit of all persons with vision disabilities as defined by the ADA, including those who utilize a screen reader to access the Website and members of the class identified in the Complaint, which persons with disabilities shall constitute third-party beneficiaries to this Consent Decree.

Id. ¶ 20.

The First Proposed Consent Decree provided that the Defendant would not be in violation of its obligations under the decree “unless: (a) an independent accessibility consultant determines that a particular item(s) cannot be accomplished by a person with a disability who has average screen reader competency using a prominent commercially available screen reader such as Jaws, Voiceover, or NVDA in combination with one or the following browsers . . .: Internet Explorer, Firefox, Safari and Chrome; and (b) Defendant fails to remedy the issue by seeking to use Reasonable Efforts within a reasonable period of time.” Id. ¶ 16. Critically, any dispute with respect to whether Defendant used “Reasonable Efforts” were subject to dispute resolution procedures which require notice and an opportunity to cure. Id. ¶¶ 10, 14-15. The First Proposed Consent Decree contained a reciprocal fee-shifting provision: the Court, in its discretion, would have authority to award reasonable attorneys' fees and costs to the prevailing party in an enforcement action. Id. ¶ 15. The effect of these provisions is to require Plaintiff to obtain and show proof that the Defendant is in non-compliance before an enforcement action is brought and to put on Plaintiff, as well as on Defendant, the risk that if its position in court did not prevail, it would be liable for the attorneys' fees for the other side.

On February 9, 2024, the Court issued an order requesting further information about the First Proposed Consent Decree, noting that the proposed decree contained “an unusual provision” that could be read to bar all persons with disabilities from filing suit against Defendant for website inaccessibility for the three-year duration of the consent decree, without asking the Court to certify the class action. Dkt. No. 18 at 1. The Court instructed the parties to address “specifically whether the consent decree is intended to do more than give . . . third parties rights under the decree without detracting from any rights that they might enjoy under substantive law,” including the ADA. Id. at 2.

Defendant filed a response on February 16, 2024, with the consent of Plaintiff. Dkt. No. 19. Defendant stated that the First Proposed Consent Decree did “not purport to bind non-parties including members of the putative class identified in the Complaint.” Id. at 1. But counsel reiterated that “the purpose of the Consent Decree is to provide protection to

Defendant[] . . . against potential copycat lawsuits by other plaintiffs who may come forward to assert similar claims based on the putative access violations that are being address and resolved pursuant to this settlement.” Id. Counsel again stated that “[d]uplicative suits have been a recurring problem in similar matters handled by my law firm and other attorneys...