Nisbett v. Credible Labs Inc.

Filing 16

CONSENT DECREE: Plaintiff and Defendant agree that it is in the Parties best interest to resolve the Action on mutually agreeable terms without further litigation. Accordingly, the Parties agree to the entry of this Consent Decree without trial or further adjudication of any issues of fact or law raised in Plaintiff's Complaint. In resolution of this Action, the Parties hereby AGREE to the following: The interpretation and enforcement of this Consent Decree shall be governed by the laws o f the State of New York. 22. If any provision of this Consent Decree is determined to be invalid, unenforceable, or otherwise contrary to applicable law, such provision shall be deemed restated to reflect as nearly as possible and to the fullest exte nt permitted by applicable law its original intent and shall not, in any event, affect any other provisions, all of which shall remain valid and enforceable to the fullest extent permitted by applicable law. The Parties to this Consent Decree express ly intend and agree that this Consent Decree shall inure to the benefit of all persons with vision disabilities as defined by the ADA, including those who utilize a screen reader to access the Website, which disabled persons shall constitute third-pa rty beneficiaries to this Consent Decree, but it does not bind members of the putative class identified in Plaintiff's Complaint as no class has been certified. 24. The signatories represent that they have the authority to bind the respective pa rties, Plaintiff and Defendant to this Consent Decree. THE COURT, HAVING CONSIDERED the pleadings, law, underlying facts and having reviewed this proposed Consent Decree, FINDS AS FOLLOWS: 1) This Court has jurisdiction over the Action under 28 U.S.C . § 1331 and 42 U.S.C. § 12188; 2) The provisions of this Consent Decree shall be binding upon the Parties; 3) This Consent Decree is for settlement purposes only and does not constitute an admission by Defendant of any of the allegations c ontained in the Complaint or any other pleading in this Action, nor does it constitute any finding of liability against Defendant; 4) The Courts jurisdiction over this matter shall continue for sixty (60) months; and 5) This Consent Decree shall be d eemed as adjudicating, once and for all, the merits of each and every claim, matter, and issue that was alleged, or could have been alleged by Plaintiff in the Action based on, or arising out of, or in connection with, the allegations in the Complaint. NOW THEREFORE, the Court approves the Consent Decree and in doing so specifically adopts it and makes it an Order of the Court. SO ORDERED. (Signed by Judge Ronnie Abrams on 6/3/2021) (kv)

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 1 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------X
KAREEM NISBETT, on behalf of himself and
all other persons similarly situated,
CONSENT DECREE
Plaintiff,

No. 1:20-cv-10073 (RA)

-againstCREDIBLE LABS INC.,
Defendant.
-------------------------------------------------------X
This Consent Decree is entered into as of the Effective Date, as defined below
in Paragraph 9, by and between the following parties: Plaintiff Kareem Nesbitt
( Plaintiff ) and Credible Labs Inc. ( Defendant ). Plaintiff and Defendant are
collectively referred to as the Parties for the purposes and on the terms specified
herein.
RECITALS
1.

Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§

12181-12189 (the ADA ), and its implementing regulation, 28 C.F.R. pt. 36,
prohibit discrimination on the basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and accommodations by any
private entity that owns, leases (or leases to), or operates any place of public
accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
2.

On or about December 1, 2020, Plaintiff filed the above-captioned

action in the United States District Court for the Southern District of New York

Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 2 of 14

(the Action ). Plaintiff alleges that Defendant s website and mobile applications
(together, the Website ) are not fully accessible to individuals with disabilities in
violation of the Americans with Disabilities Act of 1990 (the ADA ), the New York
State Human Rights Law (the NYSHRL ); and the New York City Human Rights
Law (the NYCHRL ).
3.

Defendant expressly denies that the Website violates any federal, state

or local law, including the ADA, the NYCHRL, and the NYCHRL, that this Court is
a proper venue, and any other wrongdoing or liability whatsoever. By entry into
this Consent Decree, Defendant does not admit any wrongdoing.
4.

This Consent Decree resolves, settles, and compromises all issues

between the Parties in the Action.
5.

This Consent Decree is entered into by Plaintiff, individually, but is

intended by the parties to inure to the benefit of vision impaired individuals who
are members of the putative class alleged in the Complaint.
JURISDICTION
6.

Plaintiff alleges that Defendant is a private entity that owns and/or

operates the Website which is available through the internet to personal
computers, laptops, mobile devices, tablets, and other similar technology. Plaintiff
contends that the Website is a service, privilege, or advantage of a place of public
accommodation subject to Title III of the ADA. 42 U.S.C. §§12181(7), 12182(a).
Defendant denies that the Website is a public accommodation or that it is a place
of public accommodation or otherwise subject to Title III of the ADA and/or

-2Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 3 of 14

NYCHRL.
7.

This Court has jurisdiction over the Action under 28 U.S.C. § 1331 and

42 U.S.C. § 12188. The Parties agree that for purposes of the Action and this
Consent Decree, venue is appropriate.
AGREED RESOLUTION
8.

Plaintiff and Defendant agree that it is in the Parties best interest to

resolve the Action on mutually agreeable terms without further litigation.
Accordingly, the Parties agree to the entry of this Consent Decree without trial or
further adjudication of any issues of fact or law raised in Plaintiff's Complaint. In
resolution of this Action, the Parties hereby AGREE to the following:
DEFINITIONS
9.

Effective Date means the date on which this Consent Decree is

entered on the Court s Docket Sheet following approval by the Court.
10.

Commercially Reasonable Efforts means, with respect to a given

goal or obligation, the efforts that a reasonable entity in Defendant s position
would use to achieve that goal or obligation. Any disagreement by the Parties as to
whether Defendant has used Commercially Reasonable Efforts as provided for
under this Consent Decree shall be subject to the dispute resolution procedures set
forth in paragraphs 14 through 17 of this Consent Decree. Commercially
Reasonable Efforts shall be interpreted so as to not require Defendant to undertake
efforts the cost, difficulty or impact on the Website of which could constitute an
undue burden, as defined in Title III of the ADA but as applied solely to the Website

-3Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 4 of 14

as though the Website were a standalone business entity, or which efforts could
result in a fundamental alteration in the manner in which Defendant operates the
Website

or the primary functions related thereto, or which could result in a loss

of revenue or traffic on their Website-related operations.
TERM
11.

The term of this Consent Decree shall commence as of the Effective

Date and remain in effect for the earlier of: (a) sixty (60) months from the Effective
Date; (b) the date, if any, that the United States Department of Justice adopts
regulations for websites under Title III of the ADA; or (c) any of (i) the Supreme
Court of the United States, (ii) the United States Court of Appeals for the Second
Circuit, or (iii) the United States District Court for the Southern and Eastern
Districts of New York holds that a website is not covered as a

public

accommodation under Title III of the ADA.
GENERAL NONDISCRIMINATION REQUIREMENTS
12.

Pursuant to the terms of this Consent Decree, Defendant:
a.

shall not deny persons with a disability (as defined under the

ADA), including the Plaintiff, the opportunity to participate in and benefit from
the goods, services, privileges, advantages, and accommodations through the
Website as set forth herein (see 42 U.S.C. §12182(b)(1)(A)(i), 28 C.F.R. §
36.202(a)); and
b.

shall use Commercially Reasonable Efforts to provide persons

with a disability (as defined under the ADA), including Plaintiff, an equal

-4Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 5 of 14

opportunity to participate in or benefit from the goods, services, privileges,
advantages, and accommodations provided through the Website as set forth herein
(see 42 U.S.C. § 12182(b)(2)(A)(ii), 28 C.F.R. § 36.202(b)); and
c.

shall use Commercially Reasonable Efforts to ensure that

persons with a disability (as defined under the ADA), including Plaintiff, are not
excluded, denied services, segregated, or otherwise treated differently because of
the absence of auxiliary aids and services, through the Website as set forth herein
(see 42 U.S.C. § 12182(b)(2)(A)(iii), 28 C.F.R. § 36.303).
COMPLIANCE WITH TITLE III OF THE ADA
13.

Web Accessibility Conformance Timeline: Defendant shall ensure full

and equal enjoyment of the goods, services, privileges, advantages, and
accommodations provided by and through the Website (including all pages
therein), including websites (including all pages therein and linked to therefrom)
that can be navigated to from the Website or which when entered reroute to the
Website (collectively the Websites ), according to the following timeline and
requirements provided that the following dates will be extended in the instance
that the Department of Justice issues regulations for websites under Title III of the
ADA while this Consent Decree is in effect and which contain compliance dates
and/or deadlines further in the future than the dates set forth herein:
a.

Within twenty-four (24) months of the Effective Date, to the

extent not already done, Defendant shall modify the Websites as needed to
substantially conform to the Web Content Accessibility Guidelines 2.0 and/or Web

-5Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 6 of 14

Content Accessibility Guidelines 2.1 Level A Success Criteria to the extent
determined to be applicable, or any other WCAG guidelines deemed to be
applicable, in such a manner so that the Websites will be accessible to persons with
vision disabilities.
b.

The Parties acknowledge that Defendant s obligations under

this Consent Decree do not include: (i) substantial conformance with WCAG
standards for third party content and/or other content or advertisements and/or
websites that Defendant does not own, operate, prepare or control but that are
linked from the Websites (including, but not limited to, any content/websites
hosted by third parties and implemented on the Websites); and (ii) the provision
of narrative description for videos. The Parties also agree that if the U.S.
Department of Justice or a Court with jurisdiction over this matter determines that
the WCAG standards or any successor standard that Defendant may have utilized
are not required by applicable law, Defendant may choose, in its discretion, to
cease the remediation efforts described above.
c.

In achieving such conformance, Defendant may, among other

things, rely upon, in whole or in part, the User Agent Accessibility Guidelines
( UAAG ) 1.0; the Authoring Tool Accessibility Guidelines ( ATAG ) 2.0; the
Guidance on Applying WCAG guidelines to Non-Web Information and
Communications Technologies ( WCAG2.1ICT ), published by the Web
Accessibility Initiative of the World Wide Web Consortium ( W3C ); as well as
other guidance published by the W3C s Mobile Accessibility Task Force; or any

-6Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 7 of 14

combination thereof. If Defendant, in reasonably relying upon any of the
foregoing, fail to achieve substantial conformance with the applicable WCAG
standard, Defendant will have nonetheless met its obligations. Nothing herein
shall prevent Defendant from using measures designed to increase search engine
optimization.
d.

If Defendant is unable to achieve substantial conformance with

the applicable WCAG guidelines despite having used Commercially Reasonable
Efforts to achieve substantial conformance, it shall be deemed to have satisfied its
obligations under this Consent Decree as set forth herein regarding remediation of
the Website.
PROCEDURES IN THE EVENT OF DISPUTES
14.

The procedures in Paragraphs 15 through 17 must be exhausted if (i)

Plaintiff alleges Defendant has failed to meet its obligations under this Consent
Decree or (ii) Defendant alleges that there is a criteria of the chosen WCAG
guidelines with which it cannot substantially comply as set forth herein. No breach
will exist by Defendant in connection with such allegations until the following
procedures have been exhausted.
15.

If a Party believes that the other Party has not complied in all material

respects with any provision of the Consent Decree, that Party shall provide the
other Party with written notice of non-compliance containing the following
information: (i) the alleged act of non-compliance; (ii) a reference to the specific
provision(s) of the Consent Decree that is not being complied with in all material

-7Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 8 of 14

respects; (iii) a statement of the remedial action sought by the initiating party; and
(iv) a reasonably detailed statement of the specific facts, circumstances and legal
argument supporting the position of the initiating party. Plaintiff will notify
Defendant in writing after the dates for compliance set forth herein if Plaintiff
believes that the Website is in any way not compliant with this Consent Decree.
Defendant will notify Plaintiff in writing if it believes there is a criterion of this
Consent Decree with which it cannot substantially comply. All notifications must
include reasonable detail and shall be made in the manner set forth in Paragraph
20.
16.

Within 90 days of either Party receiving notice as described in

Paragraph 15, the other Party will respond in writing to the notice. Within 30 days
of receipt of the response, the Parties will meet by telephone, or in person, in an
attempt to informally resolve the issue.
17.

If the issue remains unresolved within 30 days of the meeting

referenced in Paragraph 16, the Parties will each have an additional 30 days to
select an expert and the two experts will mutually select an independent
accessibility consultant with substantial experience in accessible website design
who will evaluate the particular item(s) raised based on whether a person, who has
a disability and uses screen reader software and has average screen reader
competency ( person with a Visual Impairment who has average screen reader
competency ), can adequately utilize the Website.

-8Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 9 of 14

18.

No breach will exist unless (a) the independent accessibility

consultant determines that a particular item(s) cannot be accomplished by a
person with a disability who has average screen reader competency using a
prominent commercially available screen reader such as Jaws, Voiceover, or NVDA
in combination with one of the following browsers (in versions of which that are
currently supported by their publishers): Internet Explorer, Firefox, Safari and
Chrome; and (b) Defendant fails to remedy the issue using Commercially
Reasonable Efforts within a reasonable period of time of not less than 90 days of
receiving the accessibility consultant s opinion. If the accessibility consultant
believes that a reasonable time using Commercially Reasonable Efforts to remedy
the items found not to be usable is longer than 90 days, then the Parties may agree
on a longer period without leave of Court so long as the extension is documented
in writing and executed by the Parties to this Agreement or their respective
counsel. If the accessibility consultant finds that a particular item found not to be
usable cannot be remedied using Commercially Reasonable Efforts, Defendant
shall not be obligated to remedy that item.
19.

Any of the time periods in Paragraphs 16 through 18 may be extended

by mutual agreement of the Parties.
20.

Any notice or communication required or permitted to be given to the

Parties hereunder shall be given in writing by e-mail and by overnight express mail
or United States first class mail, addressed as follows:

-9Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 10 of 14

For PLAINTIFF:

Douglas B. Lipsky, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, New York 10017-6705
Tel: [phone]
E-mail: [e-mail]

For DEFENDANT:

Steven G. Mintz, Esq.
MINTZ & GOLD LLP
600 Third Avenue, 25th Floor
New York, NY 100016
Tel: [phone]
E-mail: [e-mail]

ENFORCEMENT AND OTHER PROVISIONS
21.

The interpretation and enforcement of this Consent Decree shall be

governed by the laws of the State of New York.
22.

If any provision of this Consent Decree is determined to be invalid,

unenforceable, or otherwise contrary to applicable law, such provision shall be
deemed restated to reflect as nearly as possible and to the fullest extent permitted
by applicable law its original intent and shall not, in any event, affect any other
provisions, all of which shall remain valid and enforceable to the fullest extent
permitted by applicable law.
PERSONS BOUND AND INTENDED THIRD-PARTY BENEFICIARIES
23.

The Parties to this Consent Decree expressly intend and agree that this

Consent Decree shall inure to the benefit of all persons with vision disabilities as
defined by the ADA, including those who utilize a screen reader to access the
Website, which disabled persons shall constitute third-party beneficiaries to this

-10Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 11 of 14

Consent Decree, but it does not bind members of the putative class identified in
Plaintiff s Complaint as no class has been certified.
24.

The signatories represent that they have the authority to bind the

respective parties, Plaintiff and Defendant to this Consent Decree.
CONSENT DECREE HAS BEEN READ
25.

This Consent Decree has been carefully read by each of the Parties,

and its contents are known and understood by each of the Parties. This Consent
Decree is signed freely by each party executing it. The Parties each had an
opportunity to consult with their counsel prior to executing the Consent Decree.
PLAINTIFF

CREDIBLE LABS INC.

By:

By:

Name:

Name: Stephen Dash

Date:

Title:

CEO

Date:

05 / 27 / 2021

APPROVED AS TO FORM AND CONTENT:

Dated:

PLAINTIFF S COUNSEL

By:
Douglas B. Lipsky, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, New York 10017-6705
-11Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 12 of 14

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 13 of 14

COURT APPROVAL, ADOPTION, AND
ENTRY OF THE CONSENT DECREE
THE COURT, HAVING CONSIDERED the pleadings, law, underlying facts
and having reviewed this proposed Consent Decree,
FINDS AS FOLLOWS:
1)

This Court has jurisdiction over the Action under 28 U.S.C. § 1331 and

42 U.S.C. § 12188;
2)

The provisions of this Consent Decree shall be binding upon the

Parties;
3)

This Consent Decree is for settlement purposes only and does not

constitute an admission by Defendant of any of the allegations contained in the
Complaint or any other pleading in this Action, nor does it constitute any finding
of liability against Defendant;
4)

The Court s jurisdiction over this matter shall continue for sixty (60)

months; and
5)

This Consent Decree shall be deemed as adjudicating, once and for all,

the merits of each and every claim, matter, and issue that was alleged, or could
have been alleged by Plaintiff in the Action based on, or arising out of, or in
connection with, the allegations in the Complaint.
NOW THEREFORE, the Court approves the Consent Decree and in doing

Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4

Case 1:20-cv-10073-RA Document 15 Filed 06/01/21 Page 14 of 14

so specifically adopts it and makes it an Order of the Court.
SO ORDERED:

Ronnie Abrams, U.S.D.J.
June 3, 2021

Doc ID: 91ea326c6362bbe084ce0e6641815ea6fe6723b4