Mejia v. The Urgent Company, Inc.

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: This Court has personal jurisdiction over Plaintiff and Defendant for the purposes of this lawsuit pursuant to 28 U.S.C. 1331; The provisions of this Consent Decree shall be binding upon the Parties; Entry of this Consent Decree is in the public interest; 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 lawsuit, nor does it constitute any finding of liability against Defendant; The Plaintiff is acting as a private attorney general in bringing this lawsuit and enforcing the ADA; and 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 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 Edgardo Ramos on 7/29/2022) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
JOSE MEJIA, Individually, and On Behalf of All
Others Similarly Situated,
Plaintiff,
-against-

Case No.: 1:22-cv-02827-ER

THE URGENT COMPANY, INC.,
Defendant.
X
CONSENT DECREE
1.

This Consent Decree is entered into as of the Effective Date, as defined

below in Paragraph 10, by and between the following parties: Plaintiff JOSE MEJIA
(“Plaintiff”), and Defendant, THE URGENT COMPANY, INC. (“Defendant”). Plaintiff and
Defendant shall hereinafter be collectively referred to as, the “Parties” for the purposes and on the
terms specified herein.
RECITALS
2.

Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42

U.S.C. §§ 12181-12189 (“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).
3.

On or about April 5, 2022, Plaintiff filed a lawsuit in the U.S. District

Court for the Southern District of New York entitled JOSE MEJIA, Individually, and On Behalf of
All Others Similar Situated v. THE URGENT COMPANY, INC., (Case No. 1:22-cv-02827-ER)

(the “Action”). The Plaintiff alleged that the operative website: braverobot.co (the “Website”),
is not fully accessible to individuals with disabilities in violation of Title III of the Americans with
Disabilities Act of 1990 ”) and the New York City Human Rights Law (“NYCHRL”).
4.

Defendant expressly denies that the Website violates any federal, state,

city or local law, including the ADA and NYCHRL, and any other wrongdoing or liability
whatsoever. By entry into this Consent Decree, Defendant does not admit any wrongdoing.
5.

This Consent Decree resolves, settles, and compromises all issues

between the Parties in the Action.
6.

This Consent Decree is entered into by the Plaintiff, individually.
JURISDICTION

7.

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 Defendant’s
Website is a service, privilege, or advantage of the Defendant’s physical locations, thus
rendering it a 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 a place of public
accommodation or are otherwise subject to Title III of the ADA.
8.

This Court has jurisdiction over this 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
9.

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
10.

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

on the Court’s Docket Sheet following approval by the Court.
11.

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 16 through 22 of this Consent Decree. Reasonable Efforts
shall be interpreted so as to not require Defendant to undertake efforts whose cost, difficulty,
or impact on Defendant’s Website could constitute an undue burden, as defined in Title III of
the ADA but as applied solely to Defendant’s Website - as though they are collectively a
standalone business entity, or which could result in a fundamental alteration in the manner in
which Defendant manages the Website - or the primary functions related thereto, or which
could result in a loss of revenue or traffic on the Website related operations.
TERM
12.

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

and remain in effect for the earlier of: (a) eighteen (18) months from the Effective Date; or (b)
the date, if any, that the regulations are adopted in the Department of Justice’s anticipated
proposed regulations for websites under Title III of the ADA.

GENERAL NONDISCRIMINATION REQUIREMENTS
13.

Pursuant to the terms of this Consent Decree, Defendant:
a. Shall use reasonable efforts to ensure persons with a disability are
not denied (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 U.S.C. §12182(b)(1)(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 the 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 U.S.C. § 12182(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 the 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 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303.
COMPLIANCE WITH TITLE III OF THE ADA
14.

Web Accessibility Conformance Timeline: Unless the Department of

Justice, Congress, United States Supreme Court, or a governing court with applicable jurisdiction
release regulations for websites under Title III of the ADA to the contrary while this Consent

Decree is in effect, Defendant shall use reasonable efforts to ensure full and equal enjoyment
of the goods, services, privileges, advantages, and accommodations provided by and through
the Website according to the following timeline and requirements, provided that the following
dates will be extended in the instance that the Department of Justice, Congress, United States
Supreme Court, or a governing court with applicable jurisdiction release 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 eighteen (18) months of the Effective Date, the Defendant
shall ensure that the Website substantially conforms to the Web
Content Accessibility Guidelines 2.1 (“WCAG 2.1”) in such a
manner so that the Website will be accessible to persons with
disabilities (as defined under the ADA), including the Plaintiff.
b. Defendant shall not be responsible for ensuring that third-party
content or plug-ins that are not owned by Defendant, but are
otherwise located on the Website or linked to from the Website, are
accessible or otherwise conform to WCAG 2.1.
15.

If the Department of Justice, Congress, United States Supreme

Court, or a governing court with applicable jurisdiction, at any point, issues a ruling or final
regulations adopting a legal standard for website accessibility that is different from the
WCAG 2.1, Defendant shall have the option of substantially complying with such legal
standard in its sole and absolute discretion.
SPECIFIC RELIEF TO PLAINTIFF

16.

Specific Relief: The Plaintiff and the Defendant have agreed to settle all

matters relating to costs, damages, attorneys’ fees, experts’ fees, other financial matters,
relating to any alleged inaccessibility of the Website through a separate agreement (the
“Settlement Agreement”).
PROCEDURES IN THE EVENT OF DISPUTES
17.

The procedures set forth in Paragraphs 17 through 19 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 alleges that there is a criterion of WCAG 2.1 with
which it cannot substantially comply as set forth herein. There will be no breach of this Consent
Decree by Defendant in connection with such allegations until the following procedures have
been exhausted.
18.

If a party believes that the other party hereto 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 not complied with in all material 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 hereunder. All notifications must include reasonable detail and shall be
made in the manner set forth in Paragraph 23.

19.

Within thirty (30) days of either Party receiving notice as described in

Paragraph 18, the other Party will respond in writing to the notice. Within fifteen (15) days of
receipt of the response, the Parties will meet by telephone, or in person, in an attempt to
informally resolve the issue.
20.

If the issue remains unresolved within thirty (30) days of the meeting

referenced in Paragraph 19, the Parties will each have an additional thirty (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 is deaf or hard of hearing, can adequately utilize the
Website.
21.

There will be no breach of this Consent Decree unless (a) the

independent accessibility consultant, after obtaining consent from Defendant to perform
accessibility testing, determines that a particular item(s) cannot be accomplished by a person
with a vision related disability 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 Reasonable Efforts within a reasonable
period of time of not less than ninety (90) days of receiving the accessibility consultant’s
opinion. If the accessibility consultant believes that a reasonable time using Reasonable Efforts
to remedy the items found not to be usable is longer than ninety (90) days, then the Parties
may agree on a longer time period 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

Reasonable Efforts, Defendant shall not be obligated to remedy that item and there shall be no
breach.
22.

Any of the time periods set forth in Paragraphs 17 through 20 may be

extended by mutual agreement of the Parties.
23.

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:

Jarret S. Charo
Mizrahi Kroub LLP
200 Vesey Street, 24th Floor
Mailroom
New York, New York 10281
Email: [e-mail]
Phone: [phone]

For DEFENDANT:

Adam G. Guttell, Esq.
JACKSON LEWIS P.C.
58 South Service Road, Suite 250
Melville, New York 11747
Tel: [phone]
[e-mail]
MODIFICATION

24.

No modification of this Consent Decree shall be effective unless in

writing and signed by authorized representatives of all Parties.
ENFORCEMENT AND OTHER PROVISIONS
25.

The interpretation and enforcement of this Consent Decree shall be

governed by the laws of the State of New York.
26.

This Consent Decree contains the entire agreement of the Plaintiff and

the Defendant concerning the subject matter described in Paragraph 3, other than the terms of
the Settlement Agreement, and no other statement, promise, or agreement, either written or

oral, made by any party or agent of any party, that is not contained in this Consent Decree, and
concerns the subject matter described in Paragraph 3, shall be enforceable, other than the
Settlement Agreement.
27.

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
28.

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

Consent Decree shall inure to the benefit of all persons with a disability as defined by the
ADA, indicating those with vision related disabilities, which disabled persons shall constitute
third-party beneficiaries to this Consent Decree.
29.

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
30.

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.
Intending to be legally bound, the PARTIES have executed this Agreement.
PLAINTIFF:
15 2022
Dated: July __,

By:
Jose Mejia

DEFENDANT
Dated: July __, 2022

p y Inc.
The Urgent Company,
By:
Title:

________________________

APPROVED AS TO FORM AND CONTENT:
Mizrahi Kroub LLP
7/15/22
Dated: ___________________

By: ______________________
Jarret S. Charo
Mizrahi Kroub LLP
Mailroom
200 Vesey Street, 24th Floor
New York, New York 10281
Email: [e-mail]
Phone: [phone]
Attorneys for Plaintiff

JACKSON LEWIS, P.C.
July 29, 2022
Dated: ___________________

By: ______________________
Adam G. Guttell
Adam G. Guttell, Esq.
58 South Service Road, Suite 250
Melville, New York 11747
Email: [e-mail]
Phone: [phone]
Attorneys for Defendant

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 personal jurisdiction over Plaintiff and Defendant for the

purposes of this lawsuit pursuant to 28 U.S.C. §§ 1331;
2)

The provisions of this Consent Decree shall be binding upon the Parties;

3)

Entry of this Consent Decree is in the public interest;

4)

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 lawsuit, nor does it constitute any finding of liability against Defendant;
5)

The Plaintiff is acting as a private attorney general in bringing this lawsuit and

enforcing the ADA; and
6)

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 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.

________________________________
UNITED STATES DISTRICT JUDGE
Cc: Counsel of record via CM/ECF

July 29, 2022