Murphy v. Hundreds Is Huge, Inc.

Lawrence H. Fisher, Lawrence Fisher, Pittsburgh, PA, Chandler Steiger, Stephanie Moore, Kevin Abramowicz, Kevin W. Tucker, East End Trial Group, LLC, Pittsburgh, PA, for Plaintiff.

Brian H. Simmons, Erin Lucas Hamilton, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION ON PLAINTIFF'S MOTION TO CERTIFY CLASS FOR SETTLEMENT PURPOSES AND TO APPROVE PROPOSED CLASS ACTION SETTLEMENT

IN RE: ECF NO. 20

RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE

I. Introduction

Plaintiff, Anthony Hammond Murphy ("Murphy" or "Plaintiff") has filed an Amended Complaint raising a putative class action lawsuit against Defendant, The Hundreds Is Huge, LLC, an apparel company ("The Hundreds"). See ECF No. 18. Murphy is visually impaired and brings this action individually and on behalf of others similarly situated. Id., ¶ 17. Murphy alleges that The Hundreds failed to make its digital properties reasonably accessible to visually impaired persons in violation of the effective communications and equal access requirements of Title III of the American with Disabilities Act (ADA), 42 U.S.C. § 12181-12189. Id., ¶ 1. The Parties have consented to the jurisdiction of a United States Magistrate Judge in these proceedings pursuant with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1). See ECF No. 13. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. See also Sullivan-Blake et al., on behalf of themselves & others similarly situated v. FedEx Ground Package System, Inc., 2021 WL 3563389, at *1 (W.D. Pa. Aug. 12, 2021).

Presently before the Court is Murphy's unopposed Motion to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement. ECF No. 20. As explained below, the motions will be GRANTED.

II. Factual and Procedural Background

Murphy, acting individually, commenced this action on July 28, 2021. ECF No. 1. He alleged that The Hundreds did not have adequate policies and practices reasonably calculated to cause the website for its online store (http://www.theThe Hundreds.com) (Website) to be fully accessible to blind or visually disabled individuals in violation of the ADA. Id. ¶ 23. On March 3, 2022, the Court granted Murphy leave to file an Amended Complaint asserting claims on his own behalf and on behalf of a putative class of similarly situated, visually impaired individuals who have accessed, attempted to access, or been deterred from attempting to access The Hundreds' website from the United States. ECF Nos. 16, 17. The Court docketed Murphy's Amended Complaint the same day. See

ECF No. 18. On May 5, 2022, Murphy filed this unopposed Motion to Certify Class and for Preliminary Approval of Class Action Settlement. ECF No. 20. The Hundreds consents to the relief requested in the motion. Id., p. 1. The undersigned conducted a hearing on the motion on June 7, 2022. See ECF No. 23 (Minute Entry). Although filed as one document, for purposes of this Memorandum Opinion, each request will be discussed separately.

III. Motion to Certify Class for Settlement Purposes

Murphy seeks certification of a nationwide class of all blind and visually impaired individuals who use screen reader and other auxiliary aids to navigate The Hundreds' webpage and other digital content but have been prevented or deterred from doing so due to the absence of features to facilitate access. Motions to certify a class are governed by Rules 23(a) and (b) of the Federal Rules of Civil Procedure. Rule 23(a) sets forth four threshold requirements for class certification, each of which must be met: (1) the class is so numerous that joinder of class members is impracticable (numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the claims or defenses of the class representatives are typical of those of the class (typicality); and (4) the class representatives will fairly and adequately protect the interests of the class (adequacy). See, e.g., Rittle v. Premium Receivables, LLC, 2018 WL 6599114, at *2 (M.D. Pa. Oct. 15, 2018), report and recommendation adopted, 2018 WL 6178175 (M.D. Pa. Nov. 27, 2018).

To certify a class, a court must also find that one of the following requirements, set forth in Rule 23(b), are met: (1) that prosecution of separate actions risks either inconsistent adjudications, which would establish incompatible standards of conduct for the defendant, or would as a practical matter be dispositive of the interests of others; (2) that defendants have acted or refused to act on grounds generally applicable to the class; or (3) that there are common questions of law or fact that predominate over any individual class member's questions and that a class action is superior to other methods of adjudication.

The United States Supreme Court has made it clear that plaintiffs must not merely plead the existence of the Rule 23 requirements but prove them. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). As a result, district courts must perform a "rigorous" analysis to determine whether the Rule 23(a) prerequisites are satisfied. Id. at 351, 131 S. Ct. 2541, 2551 (citing Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

The Plaintiff seek the certification of the class of

All blind or visually disabled individuals who use screen reader auxiliary aids to navigate content and who have accessed, attempted to access, or been deterred from attempting to access, or who will access, attempt to access, or be deterred from accessing The Hundreds Is Huge, Inc.'s Digital Properties including its website at https://www.theThe Hundreds.com and or/ Mobile App from the United States.

ECF No. 20, ¶ 8. With that proposed class in mind, the Court will first address each of the Rule 23(a) requirements.

A. Numerosity

Numerosity requires that "the class . . . be 'so numerous that joinder of all members is impracticable.' " Id. (quoting Fed. R. Civ. P. 23(a)(1)). Courts will presume that numerosity is met if "the potential number of plaintiffs exceeds 40."

Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). Here, the record establishes that the proposed class significantly exceeds more than 40 individuals. The Plaintiff points out that more than 8.1 million people aged 15 or older in the United States (3.3 percent) have difficulty seeing, including 2.0 million people who are blind or unable to see. ECF No. 21, p. 16 (citations omitted). Research also reveals that more than ninety percent of adults in the United States use the internet. Id. (citation omitted). Based upon these statistics, Murphy extrapolates that approximately 7.3 million adults who have difficulty seeing and 1.8 million adults who are blind can be expected to use the internet. He further assert that any number of these individuals may seek to access and shop for apparel and other items through The Hundreds' digital properties. Id., p. 16-17. The Hundreds has been in business since 2003. Although The Hundreds also maintains a single "brick and mortar" location, most of its sales are made through its "Digital Properties," as defined in the Parties' proposed Settlement Agreement. Although specific information concerning the volume of traffic to The Hundreds' Digital Properties has not been disclosed, the other evidence produced by the Parties satisfies the Plaintiff's burden to establish the numerosity requirement for class certification.

B. Commonality

"A putative class satisfies Rule 23(a)'s commonality requirement if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class." Rodriguez v. Nat'l City Bank, 726 F.3d 372, 382 (3d Cir. 2013) (internal quotation marks omitted). The Court of Appeals for the Third Circuit has found this requirement is "easily met" because a single issue of fact or law will suffice. Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). In fact, "class members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice." Id. (citing Hassine, 846 F.2d at 177-78). "Moreover, because they do not also involve an individualized inquiry for the determination of damage awards, injunctive actions 'by their very nature often present common questions satisfying Rule 23(a)(2).' " Id. at 57 (quoting 7A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure Civil § 1763, at 201 (2d ed. 1986)). See also Thakker v. Doll, 2020 WL 5737507, at *4, 336 F.R.D. 408 (M.D. Pa. Sept. 24, 2020).

Murphy identifies two principle common questions: first, "whether [class members] have been, are being and/or will be denied full and equal access to, and the use and enjoyment of, the Defendant's Digital Properties due to Defendant's alleged failure to make them fully and equally accessible and useable by people who [use] screen reader auxiliary aids to access digital content," and second, "what actions are required under the law to ensure Defendant's Digital Properties are accessible to the Plaintiff" and the purported class members. ECF No. 21, pp. 17-18. Because each question "is central" and can be resolved across the class "in one stroke," Murphy has satisfied the commonality requirement. Norman v. Trans Union, LLC, 479 F.Supp.3d 98, 139-40 (E.D. Pa. 2020) (quoting Dukes, 564 U.S. at 350, 131 S. Ct. 2541).

C. Typicality

Rule 23(a) also requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "[E]ven relatively pronounced...