Crumwell v. The Cookware Company (USA), LLC

Filing 15

CONSENT DECREE: 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 a ny 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 36 months; and 5) This C onsent 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 so specifically adopts it and makes it an Order of the Court. SO ORDERED. (Signed by Judge Vernon S. Broderick on 11/19/2021) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
DENISE CRUMWELL, on behalf of herself and
all other persons similarly situated,
Plaintiff,

11/19/2021
Case No. 21-cv-07561-VSB
CONSENT DECREE

-againstTHE COOKWARE COMPANY (USA), LLC,
Defendant.
---------------------------------------------------------------X

This Consent Decree is entered into as of the Effective Date, as defined below in Paragraph
9, by and between Plaintiff Denise Crumwell (“Plaintiff”) and Defendant The Cookware Company
(USA), LLC (“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 September 9, 2021, Plaintiff filed the above-captioned action in the

United States District Court for the Southern District of New York (the “Action”). Plaintiff alleges
that Defendant’s websites and mobile applications, including www.greenpan.us (together, the
“Websites”), are not fully accessible to individuals with disabilities in violation of Title III of the
Americans with Disabilities Act of 1990 (“ADA”), the New York State Human Rights Law (the
“NYSHRL”), and the New York City Human Rights Law (the “NYCHRL”).
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3.

Defendant expressly denies that the Websites violate any federal, state or local law,

including the ADA, the NYSHRL, 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.
JURISDICTION
6.

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

Websites which are available through the internet to personal computers, laptops, mobile devices,
tablets, and other similar technology. Plaintiff contends that the Websites are 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 Websites are a public accommodation or that it is
a place of public accommodation or otherwise subject to Title III of the ADA, the NYSHRL, the
NYSCRL and/or 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

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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.

Reasonable Efforts means, with respect to a given goal or obligation, the efforts

that a reasonable person or entity in Defendant’s position would use to achieve that goal or
obligation. Any disagreement by the Parties as to whether Defendant has used 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. Reasonable Efforts shall be interpreted
so as to not require Defendant to undertake efforts the cost, difficulty or impact on the Websites
of which could constitute an undue burden, as defined in Title III of the ADA but as applied solely
to the Websites - as though the Websites were a standalone business entity, or which efforts could
result in a fundamental alteration in the manner in which Defendant operates the Websites - or the
primary functions related thereto, or which could result in a loss of revenue or traffic on their
Websites-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: (1) 36 months from the Effective Date; or (b) the date, if any,
that the United States Department of Justice adopts regulations for websites under Title III of the
ADA.
GENERAL NONDISCRIMINATION REQUIREMENTS
12.

Pursuant to the terms of this Consent Decree, Defendant:

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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 Websites as set forth herein. 42 U.S.C.
§12182(b)(1)(A)(i); 28 C.F.R. § 36.202(a);
b.

shall seek to use Reasonable Efforts to provide persons with a disability (as

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

shall seek to use 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
Websites as set forth herein. 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 take appropriate steps

as determined to be necessary with the goal of ensuring full and equal enjoyment of the goods,
services, privileges, advantages, and accommodations provided by and through the Websites
(including all pages therein), including websites (including all pages therein and linked to
therefrom) that can be navigated to from the Websites or which when entered reroute to the
Websites (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:

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a.

Within 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 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 (“Modification Period”).
b.

Following the expiration of the Modification Period, Plaintiff shall have 30

days to inspect the Website and advise Defendant of any claimed remaining issues. Such
reinspection shall be at Plaintiff’s sole expense and Plaintiff shall not be entitled to any additional
compensation or reimbursement from Defendant in connection with such re-inspection. If, after
30 days following the expiration of the Modification Period, Plaintiff has not sought reinspection,
the Website shall be deemed compliant with the Agreement. If Plaintiff chooses to inspect the
Website within the 30 day period, Plaintiff’s counsel, expert(s), and/or representatives shall
provide reasonable advance written notice to Defendant and its counsel, Lewis Brisbois Bisgaard
and Smith LLP (at the address in Paragraph 17 of this Agreement or at such other address that
Defendant or Defendant’s counsel provide to Plaintiff’s counsel), that the inspection is being
conducted to verify completion of the remedial measures required hereby. Nothing herein shall be
construed to restrict or to limit Plaintiff and/or Plaintiff’s representatives from otherwise visiting
or accessing the Website as a customer.
c.

The Parties acknowledge that Defendant’s obligations under this Consent

Decree do not include: (i) substantial conformance with WCAG standards for user-generated
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

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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.
d.

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 2.1 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; the British Broadcasting Corporation
Mobile Accessibility Standards and Guidelines 1.0 (“BBCMASG 1.0”) or any combination
thereof. If Defendant, in reasonably relying upon any of the foregoing, and despite having sought
to use Reasonable Efforts, fails to achieve substantial conformance with the applicable WCAG
standard, Defendant will have nonetheless satisfied its obligations under this Consent Decree as
set forth herein regarding remediation of the Websites.
PROCEDURES IN THE EVENT OF DISPUTES
14.

The procedures set forth in Paragraphs 16 through 18 must be exhausted in the

event that (i) Plaintiff alleges that Defendant has failed to meet its obligations pursuant to this
Consent Decree, or (ii) Defendant concludes that it cannot substantially comply with any criteria
of the applicable WCAG standard as set forth hereinabove. Defendant shall not have breached this
Consent Decree in connection with the foregoing until the following procedures have been
exhausted.

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15.

If any of the Parties claim this Consent Decree or any portion of it has been violated

(“breach”), the party alleging the breach shall give written notice (including reasonable particulars)
of such violation to the party alleged to be in breach. The alleged breaching party must respond to
such written notice of breach no later than 30 calendar days thereafter (the “Cure Period”), unless
the parties agree to extend the time for response. If the alleged breach is of a nature that it cannot
be cured during the Cure Period, the parties shall mutually extend the Cure Period to reflect the
reasonable time period in which the alleged breach can be cured. If the parties are unable to reach
a mutually acceptable resolution during the Cure Period, or any extension thereof, the party
alleging a breach of the Consent Decree may seek enforcement of compliance with this Consent
Decree from the Court. The Court shall, in its discretion, award reasonable attorneys’ fees and
costs to the prevailing party in any such enforcement action.
16.

Defendant shall not be in breach of this Consent Decree unless: (a) an 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 by seeking to
use Reasonable Efforts within a reasonable period of time of not less than 240 days from receipt
of the accessibility consultant’s opinion. If the accessibility consultant believes that a reasonable
time seeking to use Reasonable Efforts to remedy the items found not to be usable is longer than
240 days, then the Parties may agree on a longer time period without leave of Court so long as the
extension is documented in writing and executed by the Parties to this Consent Decree or their
respective counsel. If the accessibility consultant finds that a particular item found not to be usable

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cannot be remedied by seeking to use Reasonable Efforts, Defendant shall not be obligated to
remedy that item.
17.

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:
For PLAINTIFF:

Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, New York 10003
Email: [e-mail]
Tel: [phone]

For DEFENDANT:

Peter T. Shapiro, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
77 Water Street, Suite 2100
New York, NY 10005
Email: [e-mail]
Tel: [phone]

ENFORCEMENT AND OTHER PROVISIONS
18.

The interpretation and enforcement of this Consent Decree shall be governed by

the laws of the State of New York and applicable federal law.
19.

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.

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[e-mail]
Tel: [phone]
DEFENDANT’S LAWYERS
11/17/21
Dated: ___________________

By:/s/ Peter T. Shapiro
Peter T. Shapiro, Esq.
LEWIS BRISBOIS BISGAARD &
SMITH LLP
77 Water Street, Suite 2100
New York, NY 10005
[e-mail]
Tel: [phone]

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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 36 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 so specifically
adopts it and makes it an Order of the Court.
SO ORDERED:
___________________________
U.S.D.J. 11/19/2021

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