Sean Gorecki v. Petco Animal Supplies, Inc., et al

Filing 12

CONSENT DECREE AND ORDER FOR INJUNCTIVE, MONETARY AND OTHER RELIEF by Judge Andre Birotte Jr.: Upon the parties' Request 11 , Defendant Petco Animal Supplies, Inc. will, within twelve months of the Effective Date, use good faith efforts to caus e the Website to substantially conform with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA to the extent readily achievable. Defendant will provide as additional consideration in resolution of all claims that were or could have been made in this or any related action, a monetary sum, as set forth in a Confidential Addendum executed between the Parties separately from this Consent Decree. See document for further details. ( MD JS-6. Case Terminated ) (gk)

JS-6
Joseph R. Manning, Jr. (SBN 223381)
Caitlin J. Scott (SBN 310619)
Tristan P. Jankowski (SBN 290301)
[e-mail]
MANNING LAW, APC
4667 MacArthur Blvd., Suite 150
Newport Beach, CA 92660
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff
Sean Gorecki
SEYFARTH SHAW LLP
Kristina M. Launey (SBN 221335)
[e-mail]
400 Capitol Mall, Suite 2350
Sacramento, California 95814-4428
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
Petco Animal Supplies, Inc.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

SEAN GORECKI,

Case No. 2:17-CV-01248-AB (GJSx)
[PROPOSED]

Plaintiff,
v.
PETCO ANIMAL SUPPLIES, INC.,

CONSENT DECREE AND ORDER
FOR INJUNCTIVE, MONETARY
AND OTHER RELIEF

Defendant.
CONSENT DECREE AND ORDER
1.

Plaintiff Sean Gorecki ("Gorecki" or "Plaintiff') filed a Complaint

("Complaint") on February 16, 2017, against Defendant, Petco Animal Supplies, Inc.
("Petco" or "Defendant"), alleging that Petco failed to design, construct, and maintain its
website, www.Petco.com (the "Website"), in a manner that is fully accessible to and
CONSENT DECREE AND ORDER, CASE NO. 2:17-CV-01248-AB (GJSX)
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independently usable by Plaintiff and other blind or visually-impaired people. Plaintiff
alleges this resulted in a denial of full and equal access to the Website, and the products
and services offered on the Website, in violation of Title III of the Americans with
Disabilities Act ("ADA")(42 U.S.C. § 12101 et seq.) and California's Unruh Civil Rights
Act ("Unruh")(Cal. Civil Code sec. 54), and deterred Plaintiff from visiting the Website
and Petco's brick and mortar locations.
2.

Defendant denies the allegations in the Complaint, and by entering into this

Consent Decree and Order does not admit liability to any of the allegations in Plaintiff's
Complaint filed in this action. The Parties enter into this Consent Decree and Order for
the purpose of resolving this lawsuit without the need for protracted litigation, and
without the admission of any liability.
3.

To avoid the costs, expense, and uncertainty of protracted litigation, the

Parties to this Consent Decree agree to entry of this Order to resolve all claims regarding
injunctive relief and damages raised in the Complaint filed with this Court. Accordingly,
they agree to the entry of this Order without trial or further adjudication of any issues of
fact or law concerning Plaintiff's claims for injunctive relief or damages.
4.

This Order shall be a full, complete, and final disposition and settlement of

Plaintiff's claims against Defendant for injunctive relief and damages that have arisen out
of the subject Complaint. The Parties agree that there has been no admission or finding of
liability or violation of the ADA and/or California civil rights laws, and this Consent
Decree and Order should not be construed as such.
I. JURISDICTION
5.

The Parties to this Consent Decree agree that the Court has jurisdiction of

this matter pursuant to 28 USC §1331 for alleged violations of the Americans with
Disabilities Act of 1990, 42 USC § 12101 et seq., and pursuant to supplemental
jurisdiction under 28 U.S.C. § 1367 for alleged violations of California Civil Code §§
51 et seq.

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II. INJUNCTIVE RELIEF
6.

Petco will, within twelve months of the Effective Date, use good faith efforts

to cause the Website to substantially conform with the Web Content Accessibility
Guidelines (WCAG) 2.0 Level AA to the extent readily achievable. Should the
Department of Justice issue final regulations adopting a legal standard for website
accessibility that is different from the WCAG 2.0 Level AA, Petco shall have the option
of complying with that legal standard, which option it may exercise in its sole discretion.
Notwithstanding the foregoing, Third Party Content on the Website will not be required to
meet the WCAG 2.0 Level AA standard. The term "Third Party Content" refers to web
content that is not developed or owned by Petco or any Releasee.
7.

Petco has retained a consultant to assist it with assessment and

recommendations for any necessary remediation to ensure compliance with Paragraph 6
of this Consent Decree. Petco will convey any feedback Gorecki provides it regarding the
accessibility of the Website to its consultant for its consultant's consideration. Any such
feedback will be provided by counsel for Gorecki to counsel for Petco within thirty (30)
days after the Effective Date.
III. MONETARY RELIEF
8.

Defendant will provide as additional consideration in resolution of all claims

that were or could have been made in this or any related action, a monetary sum, as set
forth in a Confidential Addendum executed between the Parties separately from this
Consent Decree. Plaintiff agrees that neither he nor his attorneys are entitled to any other
monetary compensation as a result of the Complaint, this Consent Decree, or any other
claim Plaintiff might have against Petco.
IV. ENTIRE CONSENT DECREE AND ORDER
9.

This Consent Decree and Order, together with the Confidential Addendum

referenced in Paragraph 8, constitutes the entire agreement between the Parties on the
matters of injunctive relief and damages, attorney fees, litigation expenses and costs, and
no other statement, promise, or agreement, either written or oral, made by any of the
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Parties or agents of any of the Parties, that is not contained in this written Consent Decree
and Order, shall be enforceable regarding the matters described herein.
V.
10.

RELEASE OF CLAIMS

For and in consideration of the promises, commitments and undertakings set

forth in this Consent Decree, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, Plaintiff, on behalf of himself and any of his agents,
employees, representatives, assigns, heirs, executors, trustees, partners and attorneys, and
each of them ("Releasors"), shall be deemed to have jointly and severally forever
released and discharged Defendant, its affiliates and related entities, together with its and
their respective past, present, and future officers, directors, employees, agents,
stockholders, attorneys, servants, representatives, parent entities, subsidiary entities, other
related entities, partners, insurers, contractors, independent consultants, and the
predecessors, successors, heirs, executors, administrators and assigns of each of the
foregoing ("Releasees"), from any and all claims, causes of action, suits, demands, rights,
liabilities, damages, lawsuits, legal proceedings, losses, fees, costs and expenses of any
kind whatsoever, whether known or unknown, including, but not limited to, any
monetary, injunctive or declaratory relief relating thereto, and for reimbursement of
attorney's fees, costs and expenses, relating to the Website, Defendant's other digital
assets, and the Complaint ("Released Claims"). Plaintiff, on his own behalf and on behalf
of the other Releasees, acknowledges that Released Claims may include claims that are
presently unknown, and that the release contained in this Consent Decree is intended to
and does fully, finally and forever discharge all Released Claims, whether now asserted
or unasserted, known or unknown, which arise out of or in connection with the Released
Claims.

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11.

Plaintiff hereby expressly and knowingly waives and relinquishes any and

all rights that he has or might have relating to the Released Claims under California Civil
Code § 1542 (and under any and all other statutes or common law principles of similar
effect) which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR
HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.
12.

Plaintiff acknowledges that he may hereafter discover facts different from, or

in addition to, those which he now believes to be true with respect to the Released Claims.
On his own behalf and on behalf of all of the Releasees, Plaintiff agrees that the foregoing
release and waiver shall be and remain effective in all respects notwithstanding such
different or additional facts or discovery thereof, and that this Consent Decree
contemplates the extinguishment of all such Released Claims. By executing this Consent
Decree, Plaintiff acknowledges the following: (a) he is represented by counsel of his own
choosing; (b) he has read and fully understands the provisions of California Civil Code §
1542; and (c) he has been specifically advised by her/his counsel of the consequences of
the above waiver and this Consent Decree generally.
13.

Plaintiff expressly covenants that, as against any Releasee, he has not and

will not file, initiate, commence, institute, maintain, or prosecute any action at law, suit
in equity or other proceeding, or seek damages or other relief incurred or allegedly
incurred by him, related to, arising out of, or in any way connected with the Complaint
or any Released Claim.
VI.

ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST
14.

This Consent Decree and Order shall be binding on Plaintiff, Defendant and

any successors in interest. The parties have a duty to so notify all such successors in
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interest of the existence and terms of this Consent Decree and Order during the period of the
Court's jurisdiction of this Consent Decree and Order.
15.

Signatories on the behalf of the Parties represent that they are authorized to bind

the Parties to this Consent Decree and Order. This Consent Decree and Order may be signed
in counterparts and a facsimile or email signature shall have the same force and effect as an
original signature.
VII. TERM OF THE CONSENT DECREE AND ORDER
16.

This Consent Decree and Order shall become Effective on the date the Order is

signed by the Court ("Effective Date").
17.

This Consent Decree and Order shall be in full force and effect and expire by

its own teams at the end of 13 months from the Effective Date without further action by
the Parties ("Expiration Date").
VIII. SEVERABILITY
18.

If any term of this Consent Decree and Order is determined by any court to

be unenforceable, the other terms of this Consent Decree and Order shall nonetheless
remain in full force and effect.
IX. RETENTION OF JURISDICTION AND ENFORCEMENT OF DECREE
19.

This Court shall have continuing jurisdiction to interpret and enforce this

Consent Decree until the Expiration Date.
20.

If either Party believes that the other Party has failed to comply with any

provision of the Decree, the complaining Party shall notify the alleged non-complying
Party in writing of such non-compliance and afford the alleged non-complying Party thirty
(30) days to remedy the non-compliance or satisfy the complaining Party that the alleged
non-complying Party will comply within a certain period of time. If the alleged noncomplying Party has not remedied the alleged non-compliance or satisfied the complaining
Party that it has complied within that time, the Parties shall meet and confer regarding the
non-compliance. If the Parties are unable to resolve the issue(s), the

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complaining Party may apply to the Court for appropriate relief. The Court may order
appropriate relief should it determine that either Party has not complied with this Decree.

AGREED:
SEAN GORECKI

PETCO ANIMAL SUPPLIES, INC.

By:

Date:

Date:

)

/

SO ORDERED this 11th day of April, 2017.

BY THE COURT:

___________________________________
ANDRÉ BIROTTE JR.
USDC CENTRAL DISTRICT COURT JUDGE

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