New v. Apple Inc.

Filing 1

COMPLAINT Class Action against Apple Inc.. Filing fees $ 400.00 receipt number 113C-6529479, filed by David New. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s))(Anderson, Tiffany)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
David New, individually and on behalf
of all others similarly situated,
Plaintiff,
v.
APPLE INC.,
Defendant.
_____________________________________/
CLASS ACTION COMPLAINT
Comes now David New (“Plaintiff”) on behalf of himself and all others similarly
situated and alleges as follows:
INTRODUCTION
1.

Plaintiff brings this action individually and on behalf of all others similarly

situated against Apple Inc. (“Defendant”), alleging violations of Title III of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq., (the “ADA”) and its implementing regulations.
2.

Plaintiff is a blind individual. He brings this class action against Defendant for

failing to design, construct, and/or own or operate Point Of Sale Devices (“POS Devices”)1 that
are fully accessible to, and independently usable by, blind people.
3.

Specifically, the POS Devices in Defendant’s stores throughout the United States

are not fully accessible to, and independently usable by, blind people. Instead, the POS Devices

1

By “POS Device,” Plaintiff refers to the electronic device used by a customer at the point of
purchase that allows the customer to pay for items with a debit, credit, or other electronic funds
card.
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have touch screen surfaces with features that are not discernible to individuals who are blind or
visually impaired.
4.

To make a debit card purchase using Defendant’s POS Devices, a customer must

enter their Personal Identification Number (“PIN”).

However, because a blind or visually

impaired individual cannot discern the numerical references displayed on the keypad of the POS
Device, said individual does not have the ability to independently make a debit purchase.
Instead, the blind or visually impaired consumer must divulge their PIN number in order to
complete a debit transaction.
5.

Defendant’s use of flat touch screen POS Devices discriminates against blind and

visually impaired consumers in violation of the ADA by denying them full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations at Defendant’s
stores. 42 U.S.C. § 12182(a).
6.

POS Devices with tactilely discernible keypad surfaces—which are independently

usable by a blind or visually impaired individual—are readily available and in fact used by a
substantial percentage of retail merchants.
7.

Plaintiff intends to continue to be a customer of Defendant’s stores, and desires to

make future payments by debit card. However, unless Defendant is required to install ADA
compliant POS Devices, Plaintiff will continue to be unable to independently make payments for
any purchases by debit card.
8.

Therefore, on behalf of a class of similarly situated individuals, Plaintiff seeks a

declaration that Defendant’s POS Devices violate federal law as described, and an injunction
requiring Defendant to update or replace all POS Devices that are in violation of the mandatory
requirements of the ADA so that they are fully accessible to, and independently usable by, blind or

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visually impaired individuals. Plaintiff further requests that, given Defendant’s failure to comply
with the ADA’s mandate, this Court retain jurisdiction of this matter for a period to be determined
to ensure that Defendant comes into compliance with the relevant requirements of the ADA and
to ensure that Defendant has adopted and is following an institutional policy that will, in fact,
cause Defendant to remain in compliance with the law.
THE ADA AND ITS IMPLEMENTING REGULATIONS
9.

On July 26, 1990, Congress enacted the ADA, a comprehensive civil rights law

prohibiting discrimination on the basis of disability. Commercial enterprises were provided one
and a half years from enactment of the statute to implement its requirements. The effective date
of Title III of the ADA was January 26, 1992, or January 26, 1993 if Defendant has ten (10) or
fewer employees and gross receipts of $500,000 or less. See C.F.R. § 36.508(a)-(b).
10.

The ADA broadly protects the rights of individuals with disabilities in

employment, access to State and local government services, places of public accommodation,
transportation, and other important areas of American life.
11.

Title III of the ADA prohibits discrimination in places of public accommodation

and requires places of public accommodation to comply with ADA standards and to be readily
accessible to, and independently usable by, individuals with disabilities. 42 U.S.C. §§ 12181-89.
12.

Defendant owns, operates, controls and/or leases a place of public accommodation.

13.

Defendant’s POS Devices located in its retail stores are not fully accessible to, and

independently usable by, blind or visually impaired individuals.
14.

Defendant’s centralized management policies regarding its POS Devices are

inadequate, and Defendant’s POS Devices continue to be inaccessible to, and not independently
usable by, blind or visually impaired individuals.

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JURISDICTION AND VENUE
15.

This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 42

U.S.C. § 12188.
16.

Plaintiff’s claims asserted herein arose in this judicial district and Defendant does

substantial business in this judicial district.
17.

Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(2) in that a

substantial part of the events and omissions giving rise to the claims occurred in this judicial
district.
PARTIES
18.

Plaintiff is and, at all times relevant hereto, was a resident of the state of Florida.

Plaintiff is and, at all times relevant hereto, has been legally blind and is therefore a member of a
protected class under the ADA, 42 U.S.C. § 12102(1)-(2), and the regulations implementing the
ADA set forth at 28 CFR §§ 36.101 et seq.
19.

Defendant is a corporation incorporated in California and headquartered at

Cupertino, California. Defendant owns, leases, or operates a place of public accommodation
pursuant to 42 U.S.C. § 12181(7)(E).
VIOLATIONS AT ISSUE
20.

In February 2014, Plaintiff visited Defendant’s store located at 738 Lincoln Road,

Miami Beach, Florida.
21.

Plaintiff attempted to make a purchase with a debit card but was unable to make

the purchase independently because, at the time of the visit, Defendant’s POS Device was not
fully accessible to, and independently usable by, blind people, as above described.

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22.

Based upon an investigation performed on Plaintiff’s behalf, Plaintiff alleges that

a significant number of the other POS Devices in Defendant’s stores are similarly not
independently usable by the blind or visually impaired.
23.

Defendant does not provide any auxiliary aids or services calculated to make its

POS Devices fully accessible to, and independently usable by, blind people.
24.

As a result of Defendant’s non-compliance with the ADA, Plaintiff and the Class,

unlike persons without visual impairments, cannot independently make a debit purchase at
Defendant’s stores.
25.

Defendant’s non-compliance threatens blind people with the loss of their private

banking information. Blind people who wish to make a debit purchase at Defendant’s stores
have no choice but to reveal their private PINs to others to complete the debit purchase.
26.

Though Defendant has centralized policies regarding the management and

operation of its POS Devices, Defendant has never had a plan or policy that is reasonably
calculated to make its POS Devices fully accessible to, and independently usable by, blind
people.
27.

Plaintiff has actual knowledge of the fact that Defendant’s POS Devices lack the

elements required to make them fully accessible to, and independently usable by, blind people.
28.

As a blind individual, Plaintiff has a keen interest in whether public

accommodations that offer debit purchases through POS Devices are fully accessible to, and
independently usable by, the blind.
29.

Plaintiff intends to return to certain of Defendant’s stores to shop and to ascertain

whether they remain in violation of the ADA.

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30.

Without injunctive relief, Plaintiff will continue to be unable to independently use

Defendant’s POS Devices in violation of his rights under the ADA.
CLASS ALLEGATIONS
31.

Plaintiff brings this class action on behalf of himself and all others similarly

situated pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf
of all legally blind individuals who have attempted, or will attempt, to make a debit purchase
with Defendant’s POS Devices at its stores throughout the United States.
32.

The class described above is so numerous that joinder of all individual members

in one action would be impracticable. The disposition of the individual claims of the respective
class members through this class action will benefit both the parties and this Court.
33.

Typicality: Plaintiff’s claims are typical of the claims of the members of the class.

The claims of the Plaintiff and members of the class are based on the same legal theories and
arise from the same unlawful conduct.
34.

Common Questions of Fact and Law: There is a well-defined community of

interest and common questions of fact and law affecting members of the class in that they have
all been and/or are being denied full and equal access to, and use and enjoyment of, Defendant’s
facilities and/or services due to Defendant’s failure to make its POS Devices fully accessible and
independently usable as above described.
35.

Adequacy of Representation: Plaintiff is an adequate representative of the class

because his interests do not conflict with the interests of the members of the class. Plaintiff will
fairly, adequately, and vigorously represent and protect the interests of the members of the class
and has no interests antagonistic to the members of the class. Plaintiff has retained counsel who

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are competent and experienced in class action litigation generally, and who possess specific
expertise in the context of class action litigation under the ADA.
36.

Class certification is appropriate pursuant to Fed. R. Civ. P. 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.
SUBSTANTIVE VIOLATION
37.

The allegations contained in the previous paragraphs are incorporated by

reference.
38.

Defendant has discriminated against Plaintiff and the class in that it has failed to

make its POS Devices fully accessible to, and independently usable by, individuals who are blind
in violation of 42 U.S.C. § 12182(a) as described above.
39.

Defendant has discriminated against Plaintiff and the class in that it has failed to

provide auxiliary aids and services calculated to make its POS Devices fully accessible to, and
independently usable by, individuals who are blind in violation of 42 U.S.C. §§ 12101, 12102(2)
and 28 C.F.R. § 36.101 et seq. Providing the auxiliary aids and services mandated by the ADA
would neither fundamentally alter the nature of Defendant’s business nor result in an undue
burden to Defendant.
40.

Defendant’s conduct is ongoing, and, given that Defendant has not complied with

the ADA’s requirements that public accommodations make their POS Devices fully accessible
to, and independently usable by, blind individuals, Plaintiff invokes his statutory right to
declaratory

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and

injunctive

relief,

as

well

7

as

costs

and

attorneys’

fees.

41.

Without the requested injunctive relief, specifically including the request that the

Court retain jurisdiction of this matter for a period to be determined after the Defendant certifies
that it is fully compliant with the mandatory requirements of the ADA that are discussed above,
Defendant’s non-compliance with the ADA’s requirements that its POS Devices be fully
accessible to, and independently usable by, blind people is likely to recur.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of himself and the members of the class, prays for:
a.

A Declaratory Judgment that at the commencement of this action Defendant was in
violation of the specific requirements of Title III of the ADA described above, and
the relevant implementing regulations of the ADA, in that Defendant took no
action that was reasonably calculated to ensure that all of its POS Devices were
fully accessible to, and independently usable by, blind individuals;

b.

A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR §
36.504 which directs Defendant to take all steps necessary to brings its POS
Devices into full compliance with the requirements set forth in the ADA, and its
implementing regulations, so that the POS Devices are fully accessible to, and
independently usable by, blind individuals, and which further directs that the
Court shall retain jurisdiction for a period to be determined after Defendant
certifies that all of its POS Devices are fully compliant with the relevant
requirements of the ADA to ensure that Defendant has adopted and is following
an institutional policy that will in fact cause Defendant to remain fully compliant
with the law;

c.

An Order certifying the class proposed by Plaintiff, and naming Plaintiff as a class
representative and appointing his counsel as class counsel;

d.

Payment of costs of suit;

e.

Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR
§ 36.505; and,

f.

The provision of whatever other relief the Court deems just, equitable, and
appropriate.

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Dated: February 28, 2014

Respectfully Submitted,
By: s/Tiffany L. Anderson
Andrew B. Boese, Esq.
Florida Bar No. 824771
Tiffany L. Anderson, Esq.
Florida Bar No. 83995
LEÓN COSGROVE
255 Alhambra Circle, Suite 424
Coral Gables, FL 33134
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiff

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