Weekes v. MerchNow, LLC

Filing 19

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 an y 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 Cons ent 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 alle gations 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. The Clerk of Court is directed to close this case. SO ORDERED. (Signed by Judge Paul G. Gardephe on 5/6/2022) (ks)

Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERt'\J DISTRICT OF NEW YORK

---------------------------------------------------------------X

ROBERT WEEKES, Individually, and on behalf of
all others similarly situated,
Plaintiff:
-against-

Case No. 21-cv-l 0802-PGG-KHP
CONSENT DECREE

MERCHNOW, LLC,
Defendant.

---------------------------------------------------------------X
This Consent Decree is entered into as of the Effective Date, as defined below in Paragraph
9, by and between Plaintiff Robert Weekes ("Plaintiff'') and Defendant MerchNow, LLC
("'Defendant"). Plaintiff and Defendant are collectively referred to as the "Parties" for the purposes
and on the tern1s specified herein.
RECITALS

1.

Title III of the Americans with Disabilities Act of 1990, 42 U .S.C. §§ 1218 l - 12189

(the "ADA"), and its implementing regulation, 28 C.F.R. pt. 36, prohibit discrimination on the
basis of disability in the foll 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 16, 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 websites and mobile applications owned ancl/or operated by Defendant, including
\VWw.merchnow.com (together, the "Website"), are not fully accessible to individuals with
disabilities in violation of Title Ill of the Americans with Disabilities Act of 1990 ("ADA") and
the New York City Human Rights Law (the "NYCHRL").
l

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Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 2 of 9

3.

Defendant expressly denies that the Website violates any federal, stale or local law,

including the ADA 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

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 the NYCHRL.
7.

This Court has jurisdiction over the Action under 28 U,S.C. § 1331 and 42 U.S.C.

§ 12188. The Parties agree thatfcii'ptirj:ioses-6fth6 Action and this Consent Decree venue is-­
appropriate.

AGREED RESOLUTION
8.

Plaintiff and Defendant agree that it is in the Pmties' 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

Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 3 of 9

raised in Plaintiffs Complaint. In resolution of this Action, the Parties hereby AGREE to the
following:
l)EFINITIONS

9.

Effective Date means the date on which this Consent Decree is entered on the

Comt's Docket Sheet following approval by the Court.
l 0.

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 J 7 of this Consent Decree. Reasonable Effo1is 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 - 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 connnence as of the Effective Date and

remain in effect for the earlier of: (I) 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:

3

COMPLIANCE WITH TITLE III OF THE ADA

Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 4 of 9

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. 42 lJ.S.C.
§ 12182(b)(l)(A)(i); 28 C.F.R. § 36.202(a);

b.

shall 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 Website as set
forth herein. 42 lJ.S.C. § 12l82(b)(2)(A)(ii); 28 C.F.R. § 36.202(b); and
c.

shall 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
Website as set forth herein. 42 lJ.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303,

13.

Web Accessibility Conformance Timelinc: 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 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 "Website"), according to the following timcline 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:

4

Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 5 of 9

a.

Within 18 months of the Effective Date, to the extent not already done,

Defendant shall modify the Website 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 Website will be accessible to persons with vision
disabilities ("Modification Period").
b.

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 Website (including, but not limited to, any
content/websites hosted by third parties and implemented on the Website); 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

t1poi1, in whole or in piui, the User AgefltAccessibility Guideli11.es ("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

5

Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 6 of 9

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 Website.

PROCEDURES IN THE EVENT OF DISPUTES
14.

The procedures set forth in Paragraphs 15 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.

15.

If any of the Parties claim this Consent Decree or any portion ofit bas 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-tiinc period in which thealle/fed 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

6

Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 7 of 9

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.

17.

Any notice or communication required or permilted 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:

William Downes, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, 24th Floor/Mailroom
New York, New York 10281
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 ofNew 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 ±i.tllest extent permitted by applicable law its original intent and shall not, in

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Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 8 of 9

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
20.

The signatories represent that they have the authority to bind the respective parties,

Plaintiff and Defendant to this Consent Decree.
CONSENT l lECREE HAS BEEN READ
21.

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
Dated:

Dated:

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Case 1:21-cv-10802-PGG-KHP Document 19 Filed 05/06/22 Page 9 of 9

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 C01111' 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 Couti approves the Consent Decree and in doing so specifically
adopts it and makes il an Order of the Court

- . ... so ORDERi�

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