National Association of the Deaf et al v. Massachusetts Institute of Technology
Filing
209
Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Plaintiff's Assented-to MOTION to Certify the Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement. As set forth, the court holds as follows: 1.  The following class is certified for settlement purposes: All persons (other than students of the Massachusetts Institute of Technology) who, at any time between February 11, 2012 and the date of preliminar y approval of this settlement, have claimed or could have claimed to assert a right under Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set f orth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by MIT. 2.  The court appoints named plaintiffs C. Wayne Dore , Christy Smith, and Lee Nettles as class representatives. 3.  The court appoints the following lawyers as class counsel: Joseph Sellers and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy and Tatum A. Pri tchard of the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and Enforcement Center; Arlene Mayerson and Carly A. Myers of the Disability Rights Education and Defense Fund, Inc.; and Howard Rosenblum of the National Ass ociation of the Deaf. 4.  The proposed Consent Decree is preliminarily approved. 5.  The proposed notice and the jointly proposed plan for dissemination of the proposed notice is approved. 6.  The court sets the following deadlines, noting that these deadlines are subject to adjustment by agreement of counsel in view of the COVID-19 pandemic and its impact on the parties and their staffs:   a.  Plainti ffs will issue the notice to the class by April 7, 2020;   b.  The deadline to submit objections to the settlement in accordance with the instructions in the notice i s May 19, 2020;   c.  Responses to objections will be submitted by May 26, 2020; and   d.  A fairness hearing will be held on July 14, 2020 at 11:00 a.m. It is so ordered. See attached Memo & Order for complete details. (Rivera, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NATIONAL ASSOCIATION OF
THE DEAF, et al.,
Plaintiffs,
v.
MASSACHUSETTS INSTITUTE OF
TECHNOLOGY,
Defendant.
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Case No. 3:15-cv-30024-KAR
MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ ASSENTED-TO MOTION TO
CERTIFY THE CLASS FOR SETTLEMENT PURPOSES AND FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
(Dkt. No. 194)
ROBERTSON, U.S.M.J.
I.
INTRODUCTION
Plaintiffs National Association of the Deaf (“NAD”), C. Wayne Dore, Christy Smith, and
Lee Nettles (collectively, “Plaintiffs”) commenced this putative class action in February 2015.
On behalf of a proposed class of deaf and hard of hearing individuals, Plaintiffs asserted that the
defendant, the Massachusetts Institute of Technology (“MIT”), was in violation of Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12181, because of an alleged lack of close captioning or
unintelligible captioning of videos and audio tracks made publicly available by MIT. Following
lengthy negotiations, the parties have reached a settlement and executed a proposed consent
decree. Before the court is the Plaintiffs’ Assented-to Motion to Certify the Class for Settlement
Purposes and for Preliminary Approval of Class Action Settlement (“Plaintiffs’ Motion”) (Dkt.
No. 194). For the reasons set forth below, the court GRANTS Plaintiffs’ Motion.
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II.
CLASS CERTIFICATION AND PRELIMINARY APPROVAL OF CONSENT DECREE
Before certifying a class for purposes of settlement and preliminarily approving a class
settlement agreement, the court must be satisfied that: (A) the proposed class should be certified
for the purpose of settlement; (B) the settlement is fair, reasonable, and adequate; and (C) the
proposed notice and notice plan satisfy due process requirements. See Fed. R. Civ. P. 23(e).
A. The Proposed Class Should be Certified
i. The Requirements of Rule 23(a)
Plaintiffs propose to certify the following class:
[A]ll persons (other than students of MIT) who, at any time between February 11,
2012 and the date of preliminary approval of this settlement, have claimed or
could have claimed to assert a right under Title III of the ADA, the Rehabilitation
Act, and/or other federal, state or local statutes or regulations that set forth
standards or obligations coterminous with or equivalent to Title III of the
Americans with Disabilities Act or any of the rules or regulations promulgated
thereunder, alleging that they are deaf or hard of hearing and that MIT has failed
to make accessible to persons who are deaf or hard of hearing online content
posted and available for the general public that is produced, created, hosted,
linked to, or embedded by MIT
(Dkt. No. 194 at 3).
First, the court finds, as Plaintiffs contend, that the class is sufficiently large that joinder
is impracticable. See New Eng. Carpenters Health Benefits Fund v. First Databank, Inc., Civil
Action No. 05-cv-11148-PBS, Civil Action No. 07-10988-PBS, 2009 WL 10703302, at *2 (D.
Mass. Mar. 30, 2009). The threshold for numerosity is not high. See Connor B. ex rel. Vigurs v.
Patrick, 272 F.R.D. 288, 292 (D. Mass. 2011). The online content at issue in this case is publicly
available and of interest to a wide range of individuals. There is a substantial population of
individuals in this country who are deaf or hard of hearing, any one of whom may have sought
access during the relevant period to audio or audiovideo content that MIT makes available to the
general public on one of MIT’s websites or on an official channel hosted by a third party
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platform such as YouTube. Moreover, Plaintiffs represent that discovery established that dozens
of NAD members sought access to MIT’s online web materials before and during the course of
this litigation. This information is a sufficient basis for finding that the numerosity requirement
is satisfied, and the court so finds.
The court also finds that the commonality and typicality requirements are satisfied. See
Connor B., 272 F.R.D. at 292-93 (stating that the commonality and typicality requirements tend
to merge) (citing Gen’l Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Commonality
is, again, not a high bar. See id. at 293. Here, all members of the proposed class are in the same
position legally vis-à-vis the accessibility of MIT’s online content. As the proposed class is
defined, all of its members are deaf or hard of hearing and have been unable to access MIT’s
online content because it was not captioned or it was captioned unintelligibly. “The third
requirement of Rule 23(a) requires that the named Plaintiffs’ claims be typical of the absent class
members. The claims of the entire class need not be identical, but the class representatives must
generally ‘possess the same interests and suffer the same injury’ as the unnamed class members.”
Id. at 296 (quoting Falcon, 457 U.S. at 156). Plaintiffs allege that each named class
representative and each member of the proposed class has been denied access to the same
uncaptioned material pursuant to the same general practices of MIT, thus satisfying the
requirements of a common interest and a common injury.
Fourth, the requirement for fair and adequate representation of the proposed class is
satisfied. “[A] named plaintiff is adequate if his ‘interests … will not conflict with the interests
of any of the class members,’” Brito v. Barr, 395 F. Supp. 3d 135, 147 (D. Mass. 2019) (quoting
Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985)) (alteration in original), if
common legal questions apply to the claims of the named plaintiffs and members of the proposed
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class, id. at 148, and if the attorneys representing the class are qualified and competent. Connor
B., 272 F.R.D. at 297 (citing Andrews, 780 F.2d at 130). As noted above, the interests of the
named plaintiffs and those of members of the proposed class are the same, as are the legal
questions raised by their claims. Counsel for all parties in this case have provided representation
of the very highest caliber, vigorously and thoughtfully advocating for their clients. For their
part, Plaintiffs have ensured that they are represented by experienced advocates who specialize in
litigating disability rights class actions. Plaintiffs are represented by Joseph Sellers and Shaylyn
Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy and Tatum A. Pritchard of
the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and
Enforcement Center; Arlene Mayerson and Carly A. Myers of the Disability Rights Education
and Defense Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf.
Plaintiffs’ counsel report that they have invested substantial time and resources in litigating this
case, have conducted an extensive investigation into questions related to the captioning of MIT’s
online content, and that the legal team includes lawyers who have a deep familiarity with the
needs of individuals who are deaf or hard of hearing and with the state-of-the-art technology that
can serve their needs (Dkt. No. 195 at 13 & n.3). The requirements of Rule 23(a) are satisfied.
ii.
The Requirements of Rule 23(b)(2)
“In addition to satisfying the four elements of Rule 23(a), Plaintiffs must
demonstrate that they also meet one of the requirements set forth in Rule 23(b).
Here, Plaintiffs assert that they have satisfied the requirements of Rule 23(b)(2),
which applies when ‘the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.’”
Connor B., 272 F.R.D. at 297 (quoting Fed. R. Civ. P. 23(b)(2)). This is a quintessential Rule
23(b)(2) case. See Reid v. Donelan, 297 F.R.D. 185, 193 (D. Mass. 2014) (stating that “civil
rights actions like this one, where a party charges that another has engaged in unlawful behavior
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toward a defined group, are ‘prime examples’ of Rule 23(b)(2) classes”) (quoting Amchen
Prods., Inc. v. Windsor, 521 U.S. 591, 614)). In alleging a lack of access to MIT’s publicly
available online content, Plaintiffs, on their own behalf and on behalf of the potential class, have
advanced a common contention in this litigation “generally applicable to all members of the
class.” Id. Plaintiffs seek injunctive relief that sets standards for access to MIT’s online content
for individuals who are deaf or hard of hearing and do not “request any damages that have the
potential to muddy the analysis.” Id. MIT has assented to Plaintiffs’ Motion and does not
dispute that Plaintiffs have shown that the class meets the requirements of Rule 23(b)(2) and that
class treatment is appropriate.
For the foregoing reasons, the court will certify the proposed class as defined above for
settlement purposes, appoint plaintiffs C. Wayne Dore, Christy Smith, and Lee Nettles as class
representatives, and appoint Plaintiffs’ proposed counsel as counsel for the class.
B. Preliminary Approval of the Proposed Consent Decree
A court may approve a class settlement only if the settlement is “fair, reasonable, and
adequate.” Fed. R. Civ. P. 23(e)(2). The factors by which a proposed settlement is judged are
whether: (i) the class representatives and class counsel adequately represented the class; (ii) the
proposed settlement was negotiated at arm’s length; (iii) the relief obtained for the class is
adequate; and (iv) the proposed settlement treats class members equitably relative to each other.
Id. Judged by these factors, the court finds that the proposed Consent Decree is fair, reasonable,
and adequate.
i. Plaintiff’s Class has been Admirably Represented
“The duty of adequate representation requires counsel to represent the class competently
and vigorously and without conflicts of interest with the class.” In re Pharm. Indus. Average
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Wholesale Price Litig., 588 F.3d 24, 36 n.12 (1st Cir. 2009). The court must be satisfied that the
interests of the class representatives do not conflict with the interests of any of the class
members, Andrews, 780 F.2d at 130, and that Plaintiffs’ counsel are qualified and experienced
and provided vigorous representation during the course of the case. Id.
As is set forth above, the interests of C. Wayne Dore, Christy Smith, and Lee Nettles, the
named plaintiffs, are consistent with the interests of the members of the proposed class. All
share a common interest in access to MIT’s online content as defined in the proposed Consent
Decree (Dkt. No. 195 at 10, 12-13). Because the class representatives seek “the same remedy . .
. based on an identical theory” as the rest of the class, there is no conflict between the class
representatives and other members of the proposed class. See Reid, 297 F.R.D. at 191. The class
representatives have actively participated in this litigation, regularly attending substantive
hearings held by the court and consulting with counsel about the management and direction of
the litigation. NAD, one of the plaintiffs, is the leading national civil rights organization
advocating for deaf and hard of hearing individuals and is uniquely positioned to represent the
interests of the class. Plaintiffs have retained qualified and highly skilled attorneys with a
demonstrated record of success in cases similar to this one (Dkt. No. 195 at 13-14). This case
was filed when pre-suit discussions between Plaintiffs’ counsel and Harvard did not result in an
agreement about access to Harvard’s online content for members of the general public who are
deaf and hard of hearing. Settlement was reached after four years spent alternately litigating and
negotiating. Plaintiffs’ counsel investigated the factual and legal bases for the class claims,
opposed two dispositive motions, engaged in extensive discovery and analysis of the information
received from MIT, and negotiated long and hard seeking the best outcome for their clients. The
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court has no doubt that Plaintiffs’ counsel have vigorously and competently represented their
clients in reaching the proposed settlement. See Connor B., 272 F.R.D. at 297.
ii.
The Proposed Consent Decree Results from True Arm’s Length Negotiations
A settlement is presumed to be reasonable when it is achieved by arm’s length
negotiations conducted by experienced counsel. In re Pharm. Indus., 588 F.2d at 33; Roberts v.
TJX Cos., Inc., Civil Action No. 13-cv-13142-ADB, 2016 WL 8677312, at *5-6 (D. Mass. Sept.
30, 2016). The proposed settlement is the product of extended negotiations that began even
before the litigation was filed. The settlement has been extensively negotiated among counsel
and during multiple sessions in formal mediation, first with Linda Singer, a private mediator, and
then with Magistrate Judge Judith Dein of this court. It is obvious to the court that Plaintiff’s
counsel have invested substantial time and resources to advance the interests of the settlement
class. In the court’s view, settlement is an eminently reasonable choice. The court has twice
ruled that Plaintiffs’ complaint states claims under the Rehabilitation Act and Title III of the
ADA. At the same time, because the case raises complex and unresolved issues under Title III
and the Communications Decency Act of 1996, 47 U.S.C. § 230, it is difficult to predict the
outcome of this case. Further, MIT acknowledges the importance of access to its publicly
available online content and has expressed a commitment to accessibility. Given these factors,
the court has been of the view that a negotiated settlement might be possible and would serve the
interests of all parties. The settlement the parties have negotiated achieves positive results for
class members. See Bacchi v. Mass. Mut. Life Ins. Co., Civil Action No. 12-11280-DJC, 2017
WL 5177610, at *2 (D. Mass. Nov. 8, 2017). The court is informed that “[t]he parties reached
full agreement on the injunctive relief before beginning to negotiate attorneys’ fees and costs,”
The Civil Rights Educ. & Enf’t Ctr. v. RLJ Lodging Tr., Case No. 15-cv-0224-YGR, 2016 WL
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314400, at *2 (N.D. Cal. Jan. 25, 2016), a further indication that counsel placed their clients’
interests firmly in first place.
For the foregoing reasons, the court will grant preliminary approval of the proposed
consent decree and will hear further argument for or against the decree at the fairness hearing,
which will be held on July 14, 2020 at 11:00 a.m. See In re P.R. Cabotage Litig., 269 F.R.D.
125, 142 (D.P.R. 2010).
III.
PROPOSED NOTICE AND NOTICE PLAN
The parties have shown the court that it will likely be able to approve the proposed
consent decree and certify the class for purposes of judgment on the proposal. See Fed. R. Civ.
P. 23(e)(1)(B)(i) and (ii). Accordingly, the court must “direct notice in a reasonable manner to
all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1)(B).
Class members are entitled to receive “the best notice practicable” under the
circumstances. Burns v. Elrod, 757 F.2d 151, 154 (7th Cir. 1985) (citing Fed. R.
Civ. P. 23(c)(2)). Notice is satisfactory “if it generally describes the terms of the
settlement in sufficient detail to alert those with adverse viewpoints to investigate
and to come forward and be heard.” Churchill Vill., LLC v. Gen. Elec., 361 F.3d
566, 575 (9th Cir. 2004) (internal citation and quotation marks omitted). “The
hallmark of the notice inquiry … is reasonableness.” Lucas v. Kmart Corp., 234
F.R.D. 688, 696 (D. Colo. 2006) (citing Sollenbarger v. Mountain States Tel. &
Tel. Co., 121 F.R.D. 417, 436 (D.N.M. 1988)); see also, e.g., Tulsa Prof’l
Collection Servs., Inc. v. Pope, 485 U.S. 478 (1988).
The Civil Rights Educ. & Enf’t Ctr., 2016 WL 314400, at *11 (alteration in original).
The parties have conferred and agreed upon a proposed notice and a proposed notice
plan. Having reviewed the proposed notice, the court finds that it satisfies the notice standard.
The proposed notice includes a clear and comprehensive summary of the provisions of the
proposed settlement. It defines the relevant terms, explains what content will be captioned, when
the captioning will occur, and “explains to class members their right to object and be heard in
open court.” Id., at *12.
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The jointly crafted notice plan provides that Plaintiffs’ counsel will create a website
where a copy of the notice in English and American Sign Language will be posted. The Civil
Rights Education Center, the Disability Law Center, the Disability Rights Education and Defense
Fund, and NAD will post a link to the notice page on their respective websites; the organizations
will email an accessible copy of the notice to their members; class counsel will email an
accessible copy of the notice to other organizations who may provide services to class members;
and, for six weeks, MIT will post a link to an accessible copy of the notice on four MIT web
pages. The court is satisfied that this electronic publication is “the most reasonable manner to
ensure that class members receive word of the settlement.” Id., at *12; see also Colo. CrossDisability Coal. v. Abercrombie & Fitch Co., Civil Action No. 09-cv-02757-WYD-KMT, 2015
WL 5695890, at *2 (D. Colo. Sept. 29, 2015) (finding that a similar notice plan satisfied Rule
23(e) and Due Process). Online publication of the notice is particularly appropriate here because
the class, by definition, consists of individuals who access online content and have at least some
familiarity with the Internet. Accordingly, the court will approve the form of notice and the
jointly proposed notice plan as the best form of notice in the circumstances of the case.
IV.
CONCLUSION
As set forth above, the court holds as follows:
1. The following class is certified for settlement purposes:
All persons (other than students of the Massachusetts Institute of Technology)
who, at any time between February 11, 2012 and the date of preliminary
approval of this settlement, have claimed or could have claimed to assert a
right under Title III of the Americans with Disabilities Act, Section 504 of the
Rehabilitation Act, and/or other federal, state or local statutes or regulations
that set forth standards or obligations coterminous with or equivalent to Title
III of the Americans with Disabilities Act or any of the rules or regulations
promulgated thereunder, alleging that they are deaf or hard of hearing and that
Harvard has failed to make accessible to persons who are deaf or hard of
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hearing online content posted and available for the general public that is
produced, created, hosted, linked to, or embedded by MIT.
2. The court appoints named plaintiffs C. Wayne Dore, Christy Smith, and Lee
Nettles as class representatives.
3. The court appoints the following lawyers as class counsel: Joseph Sellers and
Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy
and Tatum A. Pritchard of the Disability Law Center, Inc.; Amy Farr
Robertson of the Civil Rights Education and Enforcement Center; Arlene
Mayerson and Carly A. Myers of the Disability Rights Education and Defense
Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf.
4. The proposed Consent Decree is preliminarily approved.
5. The proposed notice and the jointly proposed plan for dissemination of the
proposed notice is approved.
6. The court sets the following deadlines, noting that these deadlines are subject
to adjustment by agreement of counsel in view of the COVID-19 pandemic
and its impact on the parties and their staffs:
a. Plaintiffs will issue the notice to the class by April 7, 2020;
b. The deadline to submit objections to the settlement in accordance with
the instructions in the notice is May 19, 2020;
c. Responses to objections will be submitted by May 26, 2020; and
d. A fairness hearing will be held on July 14, 2020 at 11:00 a.m.
It is so ordered.
Dated: March 27, 2020
/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
United States Magistrate Judge
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