Pret A Manger Lawsuit: ADA and Human Rights Law Violations, Study Guides, Projects, Research of Law

Download Pret A Manger Lawsuit: ADA and Human Rights Law Violations and more Study Guides, Projects, Research Law in PDF only on Docsity! -1- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LAWRENCE YOUNG, Individually and on behalf of all other persons similarly situated, Plaintiff, v. PRET A MANGER (USA) LIMITED, Defendant. ECF CASE No.: ____________________ CLASS ACTION COMPLAINT JURY TRIAL DEMANDED INTRODUCTION 1. Plaintiff Lawrence Young, individually on behalf of others similarly situated, asserts claims under the Americans With Disabilities Act (“ADA”), New York State Human Rights Law (“NYSHRL”), and New York City Human Rights Law (“NYCHRL”) against Defendant Pret A Manger (USA) Limited (“Pret A Manger” or “Company”). 2. Plaintiff Young, who is legally blind, brings this civil rights action against Pret A Manger for its failure to design, construct, maintain, and operate its website, www.pret.com (the “Website” or “Pret A Manger’s Website”), to be fully accessible to and independently usable by Plaintiff Young and other blind or visually-impaired people. Pret A Manger denies full and equal access to its Website, thereby denying its products and services offered on its Website and in conjunction with its physical locations, violating Plaintiff Young’s rights under the ADA. Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 1 of 23 -2- 3. Plaintiff Young seeks a permanent injunction to cause Pret A Manger to change its corporate policies, practices, and procedures so that its Website will become and remain accessible to blind and visually-impaired consumers. JURISDICTION AND VENUE 4. This Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331 and 42 U.S.C. § 12181, as Plaintiff Young’s claims arise under Title III of the ADA, 42 U.S.C. § 12181, et seq., and 28 U.S.C. § 1332. 5. This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s NYSHRL, N.Y. Exec. Law Article 15, and NYCHRL, N.Y.C. Admin. Code § 8-101 et seq., claims. 6. Venue is proper in this district under 28 U.S.C. §1391(b)(1) and (2) because Plaintiff resides in this District, and Pret A Manger conducts and continues to conduct a substantial and significant amount of business in this District. 7. Pret A Manger is subject to personal jurisdiction in this District. Pret A Manger has been and is committing the acts or omissions alleged herein in the Southern District of New York that caused injury, and violated rights Title III of the ADA prescribes to Plaintiff Young and to other blind and other visually impaired-consumers. A substantial part of the acts and omissions giving rise to Plaintiff Young’s claims occurred in the in this District: on separate occasions, he has been denied the full use and enjoyment of the facilities, goods, and services of the Website while in Bronx County. These access barriers that Plaintiff Young encountered have caused a denial of his full and equal access multiple times in the past, and now deter him on a regular basis from visiting Pret A Manger’s brick-and mortar sandwich shops. Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 2 of 23 -5- guidelines are universally followed by most large business entities and government agencies to ensure its websites are accessible. 17. Non-compliant websites pose common access barriers to blind and visually-impaired persons: a. A text equivalent for every non-text element is not provided; b. Title frames with text are not provided for identification and navigation; c. Equivalent text is not provided when using scripts; d. Forms with the same information and functionality as for sighted persons are not provided; e. Information about the meaning and structure of content is not conveyed by more than the visual presentation of content; f. Text cannot be resized without assistive technology up to 200% without losing content or functionality; g. If the content enforces a time limit, the user is not able to extend, adjust or disable it; h. Web pages do not have titles that describe the topic or purpose; i. The purpose of each link cannot be determined from the link text alone or from the link text and its programmatically determined link context; j. One or more keyboard operable user interface lacks a mode of operation where the keyboard focus indicator is discernible; k. The default human language of each web page cannot be programmatically determined; Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 5 of 23 -6- l. When a component receives focus, it may initiate a change in context; m. Changing the setting of a user interface component may automatically cause a change of context where the user has not been advised before using the component; n. Labels or instructions are not provided when content requires user input, which include captcha prompts that require the user to verify that he or she is not a robot; o. In content which is implemented by using markup languages, elements do not have complete start and end tags, elements are not nested according to its specifications, elements may contain duplicate attributes and/or any IDs are not unique; p. Inaccessible Portable Document Format (PDFs); and, q. The name and role of all User Interface elements cannot be programmatically determined; items that can be set by the user cannot be programmatically set; and/or notification of changes to these items is not available to user agents, including assistive technology. STATEMENT OF FACTS Pret A Manger, Its Website And Its Website’s Barriers 18. Pret A Manger owns and operates sandwich shops across New York, including locations at 389 5th Avenue, New York, New York and 11 W. 42nd Street, New York, New York, at which customers can purchase sandwiches, salads, organic coffee, soda, pastries, soups and similar items. Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 6 of 23 -7- 19. Pret A Manger offers its Website to the public and it offers features that should allow all consumers to access the facilities and services that it offers about its sandwich shops. 20. Pret A Manger is heavily integrated with its physical sandwich shops, serving as a gateway to those brick and mortar sandwich shops. Through the Website, its customers are, inter alia, able to: find information about the sandwich shops’ locations and hours of operation; learn about the menu items (e.g., ingredients and whether suitable for particular diets); order items for catering; learn about weekly soups; and purchase gift cards (i.e., “Pret Card”). 21. It is, upon information and belief, Pret A Manger’s policy and practice to deny Plaintiff Young and other blind or visually-impaired users access to its Website, thereby denying the facilities and services that are offered and integrated with its sandwich shops. Due to its failure and refusal to remove access barriers to its Website, Plaintiff Young and visually-impaired persons have been and are still being denied equal access to Pret A Manger’s sandwich shops and the numerous facilities, goods, services, and benefits offered to the public through its Website. 22. Plaintiff Young cannot use a computer without the assistance of screen- reading software. He is, however, a proficient JAWS screen-reader user and uses it to access the Internet. He has visited the Website on separate occasions using the JAWS screen-reader. 23. During his visits to the Website, the last occurring in September 2017, Plaintiff Young encountered multiple access barriers that denied him full and equal access to the facilities, goods and services offered to the public and made available to the Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 7 of 23 -10- 28. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff Young and other visually-impaired consumers with equal access to the Website, Plaintiff Young alleges that Pret A Manger has engaged in acts of intentional discrimination, including, but not limited to, the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff Young; b. Failing to construct and maintain a website that is sufficiently intuitive to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually impaired consumers, such as Plaintiff Young, as a member of a protected class. 29. Pret A Manger therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 30. Title III of the ADA expressly contemplates the injunctive relief that Plaintiff Young seeks: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 31. Because its Website has never been equally accessible, and because Pret A Manger lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff Young seeks a permanent injunction under 42 Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 10 of 23 -11- U.S.C. § 12188(a)(2) requiring Pret A Manger to retain a qualified consultant acceptable to Plaintiff to assist Pret A Manger to comply with WCAG 2.0 guidelines for its Website: a. Remediate the Website to be WCAG 2.0 compliant; b. Training Pret A Manger employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; c. Regularly checking the accessibility of the Website under the WCAG 2.0 guidelines; d. Regularly testing user accessibility by blind or vision-impaired persons to ensure that Pret A Manger’s Website complies under the WCAG 2.0 guidelines; and, e. Developing an accessibility policy that is clearly disclosed on Pret A Manger’s Website, with contact information for users to report accessibility-related problems. 32. Although Pret A Manger may currently have centralized policies on maintaining and operating its Website, Pret A Manger lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually impaired consumers. 33. Without injunctive relief, Plaintiff Young and other visually impaired consumers will continue to be unable to independently use the Website, violating its rights. 34. Pret A Manger has, upon information and belief, invested substantial sums in developing and maintaining its Website and has generated significant revenue from the Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 11 of 23 -12- Website. These amounts are far greater than the associated cost of making its Website equally accessible to visually impaired customers. 35. Pret A Manger has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. CLASS ACTION ALLEGATIONS 36. Plaintiff Young seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Pret A Manger’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Pret A Manger’s physical locations, during the relevant statutory period (“Class Members”). 37. Plaintiff Young seeks to certify a State of New York subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access the Website and as a result have been denied access to the equal enjoyment of goods and services offered in Pret A Manger’s State of New York physical locations, during the relevant statutory period (“New York Subclass Members”). 38. Plaintiff Young seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access the Website and as a result have been denied access to the equal enjoyment of goods and services offered in Pret A Manger’s New York City physical locations, during the relevant statutory period (“New York City Subclass Members”). 39. Common questions of law and fact exist amongst the Class Members, New York Subclass Members and New York City Subclass Members: Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 12 of 23 -15- services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 48. Under Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 49. Under Title III of the ADA, unlawful discrimination also includes, among other things: [A] 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, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 50. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff Young, who is a member of a protected class of persons under Title III of the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)- (2)(A). Furthermore, he has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 15 of 23 -16- 51. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff Young requests the relief as set forth below. SECOND CAUSE OF ACTION VIOLATIONS OF THE NYSHRL 52. Plaintiff Young, individually and on behalf of the New York Subclass Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 53. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 54. Pret A Manger’s physical locations are in the State of New York and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Pret A Manger’s Website is a service, privilege or advantage of Pret A Manger. Pret A Manger’s Website is a service that is by and integrated with these physical locations. 55. Pret A Manger is subject to NYSHRL because it owns and operates its physical locations and the Website. Pret A Manger is a “person” within the meaning of N.Y. Exec. Law § 292(1). 56. Pret A Manger is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 16 of 23 -17- inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Pret A Manger makes available to the non-disabled public. 57. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden.” 58. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 59. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their websites accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of its business nor result in an undue burden to them. Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 17 of 23 -20- et seq.] from discriminating on the basis of disability shall make 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.” N.Y.C. Admin. Code § 8-107(15)(a). 72. Pret A Manger’s actions constitute willful intentional discrimination against the Subclass because of a disability, violating the NYCHRL, N.Y.C. Admin. Code § 8-107(4)(a) and § 8-107(15)(a,) in that it has: a. Constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. Constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. Failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 73. As such, Pret A Manger discriminates, and will continue in the future to discriminate against Plaintiff Young and the New York City Subclass Members because of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Pret A Manger from continuing to engage in these unlawful practices, Plaintiff and the New York City Subclass will continue to suffer irreparable harm. 74. As Pret A Manger’s actions violate the NYCHRL, Plaintiff seeks injunctive relief to remedy the discrimination. Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 20 of 23 -21- 75. Plaintiff Young is also entitled to compensatory damages, as well as civil penalties and fines for each offense. N.Y.C. Admin. Code §§ 8-120(8), 8-126(a). 76. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 77. Under N.Y.C. Admin. Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. FOURTH CAUSE OF ACTION DECLARATORY RELIEF 78. Plaintiff Young, individually and on behalf the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 79. An actual controversy has arisen and now exists between the parties in that Plaintiff Young contends, and is informed and believes that Pret A Manger denies, that its Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of its Website and by extension its physical locations, which Pret A Manger owns, operates and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 80. A judicial declaration is necessary and appropriate now in order that each of the parties may know its respective rights and duties and act accordingly. PRAYER FOR RELIEF WHEREFORE, Plaintiff Young respectfully requests this Court grant the following relief: Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 21 of 23 -22- a. A preliminary and permanent injunction to prohibit Pret A Manger from violating Title III of the ADA, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., N.Y.C. Admin. Code § 8-107, et seq., and the laws of New York; b. A preliminary and permanent injunction requiring Pret A Manger to take all the steps necessary to make its Website into full compliance with the requirements set forth in Title III of the ADA, and its implementing regulations, so that the Website is readily accessible to and usable by blind individuals; c. A declaration that Pret A Manger owns, maintains and/or operates the Website in a manner that discriminates against the blind and which fails to provide access for persons with disabilities as required by ADA, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., N.Y.C. Admin. Code § 8-107, et seq., and the laws of New York d. An order certifying the Class and Subclasses under Fed. R. Civ. P. 23(a) & (b)(2) and/or (b)(3), appointing Plaintiff as Class Representative, and his attorneys as Class Counsel; e. Compensatory damages in an amount to be determined by proof, including all applicable statutory damages, punitive damages and fines; f. Pre- and post-judgment interest; g. An award of costs and expenses of this action together with reasonable attorneys’ and expert fees; and h. Such other and further relief as this Court deems just and proper. Case 1:17-cv-07231 Document 1 Filed 09/22/17 Page 22 of 23