Murphy V Eyebobs, 21-cv-00017 USDC W. Pa.

Case 1:21-cv-00017-RAL Document 1 Filed 01/07/21 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF PENNSYLVANIA
ANTHONY HAMMOND MURPHY,
Plaintiff, Civil Action No. 1:21-cv-17
v. COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF
EYEBOBS, LLC.,
Defendant.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff Anthony Hammond Murphy1 (“Murphy” or “Plaintiff”), for his Complaint against
Eyebobs, LLC (“Eyebobs” or “Defendant”), by and through his counsel, alleges upon personal
knowledge as to himself and upon information and belief as to all other matters, based upon the
investigation conducted by and through his counsel, which includes, among other things, an
investigation of Defendant’s digital properties, as follows:
NATURE AND SUMMARY OF THE ACTION
1. This action arises from Defendant’s failure to make its digital properties accessible
to blind individuals,2 which violates the effective communication and equal access requirements
of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189. These
provisions were enacted “to provide a clear and comprehensive national mandate for the
1
He/Him/His (see University of Pittsburgh, Gender-Inclusivity Guidelines, available at
http://www.gsws.pitt.edu/node/1432 (last accessed Dec. 7, 2020)).
2
Murphy uses the word “blind” to describe individuals who, as a result of a visual
impairment, have substantially limited eyesight. This includes individuals who have no vision at
all as well as people who have low vision.
1
elimination of discrimination against individuals with disabilities”3 by “assur[ing] equality of
opportunity, full participation, independent living, and economic self-sufficiency.”4
2. Although styled as an individual action, the injunctive relief that Murphy seeks will
inure to the benefit of an estimated 2.3 percent of the United States population who report having
a visual disability,5 and to Defendant, who will extend its market reach to this population.6
3. For this significant portion of Americans, accessing websites, mobile applications,
and other information via their smartphones has become a necessity, not a convenience. In contrast
to the largely stationary internet of the early 2000s, Americans today are increasingly connected
to the world of digital information while “on the go” via smartphones.7
4. Indeed, a growing share of Americans use smartphones as their primary means of
online access at home. Today roughly one-in-five American adults are “smartphone-only” internet
users—meaning they own a smartphone, but do not have traditional home broadband service.8
3
42 U.S.C. § 12101(b)(1).
4
42 U.S.C. § 12101(a)(7).
5
Erickson, W., Lee, C., von Schrader, S., Disability Statistics from the American
Community Survey (ACS). Ithaca, NY: Cornell University Yang-Tan Institute (YTI), available
at www.disabilitystatistics.org (last accessed Dec. 7, 2020).
6
Sharron Rush, W3C Web Accessibility Initiative, The Business Case for Digital
Accessibility (Nov. 9, 2018), available at https://www.w3.org/WAI/business-case/ (last accessed
Dec. 7, 2020) (“The global market of people with disabilities is over 1 billion people with a
spending power of more than $6 trillion. Accessibility often improves the online experience for all
users.”).
7
The wide-scale adoption of this technology is staggering. According to Pew Research
Center, the vast majority of Americans – 96% – now own a cellphone of some kind. And the share
of Americans that own smartphones has climbed from just 35% in 2011 to 81% in 2019—
amounting to more than 265 million people in the United States. U.S. Census Bureau, U.S and
World Population Clock, available at https://www.census.gov/popclock/ (last accessed Dec. 7,
2020) (U.S. population on June 12, 2019 was 328.1 million).
8
Pew Research Center, supra note 7.
2
5. The growth of smartphone usage is rivaled only by the myriad ways in which users
can harness the capabilities of the internet for the betterment of their lives through education,
employment, entertainment, commerce, and countless other pursuits.
6. The U.S. Chamber of Commerce has documented consumers’ increasing reliance
on mobile platforms to shop online:
The average consumer spends more than $1,700 per year on online shopping, a
number that’s continuing to rise. The convenience, affordability and ability to
compare prices with ease has led more and more customers to visit e-commerce
sites before heading to a brick-and-mortar location.9
New research by Leanplum found that 95% of consumers will buy at least half of
their gifts online. Shoppers, especially millennials and Gen Zers, favor the
convenience and the great offers and discounts associated more with shopping
online than visiting a brick-and-mortar location. It’s these groups that are driving
e-commerce retailers to be strategic with their website design. The Leanplum
survey found that 80% of respondents shop on their mobile devices.10
7. But “[a]s technology continues to evolve at a rapid pace, it is important to consider
factors that can facilitate or impede technology adoption and use by people with disabilities.”11
9
Emily Heaslip, U.S. Chamber of Commerce, A Guide to Building an Online Store (Sept.
20, 2019), available at https://www.uschamber.com/co/start/startup/how-to-build-online-stores
(last accessed Dec. 7, 2020).
10
Emily Heaslip, U.S. Chamber of Commerce, 5 Ways to Optimize Your E-Commerce Site
for Mobile Shopping (Jan. 6, 2020), available at
https://www.uschamber.com/co/run/technology/building-mobile-friendly-ecommerce-websites
(last accessed Dec. 7, 2020). According to one report, e-commerce is growing 23% each year[.]
Emily Heaslip, U.S. Chamber of Commerce, The Complete Guide to Selling Online (Jan. 28,
2020), available at https://www.uschamber.com/co/run/technology/small-business-ecommerce-
guide (last accessed Dec. 7, 2020).
11
National Council on Disability, National Disability Policy: A Progress Report (Oct. 7,
2016), available at https://ncd.gov/sites/default/files/NCD_ProgressReport_ES_508.pdf (last
accessed Dec. 7, 2020).
3
8. This is especially true with respect to accessing the internet by smartphone, where
people with disabilities stand to benefit immensely if online services were fully and equally
accessible to them. The National Federation of the Blind explains:
In many ways, individuals with disabilities rely on Web content more so than their
nondisabled peers because of inherent transportation, communication, and other
barriers. A blind person does not have the same autonomy to drive to a covered
entity’s office as a sighted person. A deaf or hard of hearing person does not have
the same opportunity to call a covered entity’s office. A person with an intellectual
disability does not have the same ability to interact independently with the staff at
a covered entity’s office. The 24-hour-a-day availability of information and
transactions on covered entity websites and mobile apps provides a level of
independence and convenience that cannot be replicated through any other means.
That is why the number of Americans who rely on the Internet has increased year
after year and why entities offer information and transactions through that unique
medium.12
9. When digital content is properly formatted, it is universally accessible to everyone.
When it’s not, the content provider fails to communicate to individuals with a visual disability
effectively. In turn, these individuals must expend additional time and effort to overcome
communication barriers not applicable to sighted users, which may require the assistance of third
parties or, in some instances, may deny outright access to the online service.13
12
Comment from disability rights organizations to DOJ Supplemental Advance Notice of
Proposed Rulemaking “Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities,” C RT Docket No 128, RIN
119 -AA65, available at https://nfb.org/ada-title-iiinternet-regulations-joint-sanprm-comments
(last accessed Dec. 7, 2020), Answer 57 (October 7, 2016) (citations omitted).
13
These factors often lead disabled individuals to abandon the process of purchasing items
online after they begin. Kasey Wehrum, Inc., Your Website is Scaring Customers Away. 5 Easy
Ways to Fix It (Jan. 2014), available at https://www.inc.com/magazine/201312/kasey-
wehrum/how-to-get-online-customers-to-complete-purchase.html (last accessed Dec. 7, 2020)
(documenting the most common causes of shopping cart abandonment, including: “Your Checkout
button is hard to find[,]” “Shoppers question the safety of their personal info[,]” and “Getting
through the checkout process takes multiple clicks.”).
4
10. Unfortunately, Defendant fails to communicate effectively with Murphy because
its digital properties are not properly formatted. Because of these communication barriers,
Defendant deprives consumers with visual disabilities, including Murphy, from accessing
information about its products and using its online services, all of which is readily available to
sighted persons.
11. This action seeks to remedy that discrimination and inequality.
JURISDICTION AND VENUE
12. The claims alleged arise under Title III such that this Court’s jurisdiction is invoked
pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 12188.
13. Defendant attempts to, and indeed does, participate in the Commonwealth’s
economic life by offering and providing products and services over the internet to Pennsylvania
residents, including Murphy. Unlike, for example, a winery that may not be able sell and ship wine
to consumers in certain states, Defendant purposefully avails itself of the benefits and advantages
of operating an interactive, online business open 24-hours a day, 7-days a week, 365-days a year
to Pennsylvania residents.14 These online sales contracts between Defendant and Pennsylvania
residents involve, and indeed require, Defendant’s knowing and repeated transmission of computer
files over the internet in Pennsylvania.
14
See Gniewkowski v. Lettuce Entertain You Enterprises, Case No. 2:16-cv-1898-AJS,
Order, ECF 123 (W.D. Pa Apr. 25, 2017) clarified by Order of Court, ECF 169 (W.D. Pa. June
22, 2017) (Judge Schwab) (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.
Pa. 1997) (exercising specific personal jurisdiction over forum plaintiff’s website accessibility
claims against out-of-forum hotel operator); Law School Admission Council, Inc. v. Tatro, 153
F.Supp.3d 714, 720-21 (E.D. Pa. 2015) (exercising personal jurisdiction over out-of-forum website
operator); Access Now Inc. v. Otter Products, LLC, 280 F.Supp.3d 287 (D. Mass. 2017) (exercising
personal jurisdiction over forum plaintiff’s website accessibility claims against out-of-forum
website operator); Access Now, Inc. v. Sportswear, Inc., 298 F.Supp.3d 296 (D. Mass. 2018)
(same).
5
14. Murphy was injured when he attempted to access the Digital Platform from Erie,
Pennsylvania, but encountered communication barriers that denied him full and equal access to
Defendant’s online products, content, and services.
15. Venue in this District is proper under 28 U.S.C. § 1391(b)(2) because this is the
judicial district in which a substantial part of the acts and omissions giving rise to Murphy’s claims
occurred.
PARTIES
16. Murphy is a natural person over the age of 18. He resides in and is a citizen of Erie,
Pennsylvania, located in Erie County.
17. He graduated from Edinboro University with a degree in sociology in 1999 and
today he works for the Commonwealth of Pennsylvania.
18. Murphy is and, at all times relevant hereto, has been legally blind and is therefore
a member of a protected class under the ADA, 42 U.S.C. § 12102(2), and the regulations
implementing the ADA set forth at 28 CFR §§ 36.101 et seq. As a result of his blindness, Murphy
relies on screen access software, including JAWS 2020 from Freedom Scientific and VoiceOver
with iOS, to access digital content, like an email, a website, or an app.
19. Murphy has advocated for blind individuals his entire life.15 To this end, in a class
action complaint asserting claims identical to this individual action, the United States District
Court for the Western District of Pennsylvania found that Murphy would fairly and adequately
15
How did Erie plow crews do?: Your view from Facebook, GoErie.com (Jan. 7, 2018),
https://www.goerie.com/opinion/20180107/how-did-erie-plow-crews-do-your-view-from-
facebook (“Anthony Hammond Murphy: As a visually impaired person, I find it very difficult to
cross streets via curb cuts due to the snow and ice being plowed into these corners. The plow
drivers should be allowed to triangulate and get the corners as well, and not just go north-south
and east-west.”) (last accessed Dec. 7, 2020)
6
represent a class of “[a]ll blind or visually disabled individuals who use screen reader auxiliary
aids to navigate content and who have accessed, attempted to access, or been deterred from
attempting to access, or who will access, attempt to access, or be deterred from accessing the
[defendant’s website] from the United States.” Murphy v. Charles Tyrwhitt, 2020 U.S. Dist. LEXIS
222540, at *9 (W.D. Pa. Nov. 25, 2020).
20. Defendant is a Delaware corporation with a principal place of business in
Minnesota.
21. Defendant sells eyewear to consumers.
22. In order to access and purchase the products and services that Defendant offers,
Murphy may visit Defendant’s website at https://www.eyebobs.com/ (the “Digital Platform”).
23. Defendant owns, operates, and/or controls its Digital Platform and is responsible
for the policies, practices, and procedures concerning the Digital Platform’s development and
maintenance.
STANDING UP FOR TITLE III OF THE ADA
24. “Congress passed the ADA in 1990 to fix a serious problem—namely, the seclusion
of people with disabilities resulting in explicit and implicit discrimination.”16 “It was called the
‘20th Century Emancipation Proclamation for all persons with disabilities.’”17 “Title III of the ADA
16
Kelly Johnson, Testers Standing up for the Title III of the ADA, 59 Cas. W. Res. L. Rev.
683, 684 (2009), available at http://scholarlycommons.law.case.edu/caselrev/vol59/iss3/6 (last
accessed Dec. 7, 2020) (citing H.R. REP. No. 101-485, pt. 2, at 28-29 (1990)).
17
Kelly Johnson supra note 16 (quoting Russell Hymas & Brett R. Parkinson, Comment,
Architectural Barriers Under the ADA: An Answer to the Judiciary’s Struggle with Technical Non-
Compliance, 39 CAL. W. L. REV. 349, 350 (2003), available at
https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1166&context=cwlr (last
accessed Dec. 7, 2020)); see also 136 CONG. REC. 17,369 (1990) (statement of Sen. Tom Harkin)
(discussing how facilities have failed to comply with the ADA by not removing barriers that
impede access).
7
contained broad language covering numerous public accommodations; both new construction and
existing facilities were required by the statute to remove barriers to access. The disabled population
hoped that, as a result of the ADA, their lives would no longer be shaped by limited access and the
inability to choose.”18 “However, reality—a lack of compliance with the ADA and severe
underenforcement of the statute—soon destroyed this hope.”19
25. Thirty years “after the passage of the ADA, numerous facilities are still not
compliant leaving the disabled population in a second-class citizenship limbo. Title III of the ADA
allows both the U.S. Attorney General20 and private individuals21 to sue, but the rate at which [ ]
the Attorney General [is] bringing suit seeking compliance is extremely low. The Department of
Justice’s Disability Section, tasked with ADA enforcement, is understaffed[.]”22
26. Thus, “private suits by necessity represent the main tool for ensuring compliance
with Congress’ intent in passing the ADA,”23 most of which suits “are brought by a small number
of private plaintiffs who view themselves as champions of the disabled.”24
18
Kelly Johnson supra note 16 (citing Elizabeth Keadle Markey, Note, The ADA’s Last
Stand?: Standing and the Americans with Disabilities Act, 71 FORDHAM L. REV. 185 (2002),
available at https://ir.lawnet.fordham.edu/flr/vol71/iss1/4 (last accessed Dec. 7, 2020) (arguing for
a more lenient standard for standing under the ADA)).
19
Kelly Johnson supra note 16 (citing Samuel R. Bagenstos, The Perversity of Limited Civil
Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. REV. 1, 3 (2006), available
at https://www.uclalawreview.org/the-perversity-of-limited-civil-rights-remedies-the-case-of-
abusive-ada-litigation/ (last accessed Dec. 7, 2020) (discussing the need for private enforcement
in Title III of the ADA and the fact that the limitations courts are placing on ADA plaintiffs are
causing abusive litigation)).
20
42 U.S.C. § 12188(b).
21
42 U.S.C. § 12188(a).
22
42 U.S.C. § 12188(a).
23
Betancourt v. Ingram Park Mall, 735 F. Supp. 2d 587, 596 (W.D. Tex. 2010).
24
Id. (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007);
D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008) (same).
8
27. DOJ supports this dynamic, recognizing that because it “cannot investigate every
place of public accommodation” for ADA compliance, “[p]rivate plaintiffs play an important role
in enforcing the ADA[.]”25
28. So do courts.
[Defendant] also points to the number of cases filed by the same plaintiff in this
jurisdiction. Counsel have filed nine cases in this jurisdiction on behalf of [the
plaintiff]. I am not impressed by this argument. If the ADA were enforced directly
by the government, as are, for example, the fair housing laws, it is likely that
government lawyers would have reached out to disabled individuals — “testers” as
they are called — to find out which businesses were complying and which were
not. [The named plaintiff] has functioned here as a “tester,” which is entirely
appropriate.26
29. Consistent with the policies summarized above, Murphy now assumes the role of
private attorney general to ensure Defendant communicates effectively with him and other
consumers who demand full and equal screen reader access to Defendant’s digital services.
SUBSTANTIVE ALLEGATIONS
30. The internet is a significant source of information, services, and transactions with
instant and 24/7 availability and without the need to travel to attain them.
31. Individuals who are blind access the internet and mobile applications from
smartphones and/or personal computers by using keyboard controls and screen access software,
25
Statement of Interest of the United States of America, ERC v. Abercrombie & Fitch Co.,
Case No. 1:09-cv-03157 (D. Md.), ECF No. 38, at 1 (July 6, 2010); See also Hensley v. Eckerhart,
461 U.S. 424, 445 (1983) (“All of these civil rights laws depend heavily upon private enforcement,
and fee awards have proved an essential remedy if private citizens are to have a meaningful
opportunity to vindicate the important Congressional policies which these laws contain.”).
26
Norkunas v. HPT Cambridge, LLC, 969 F. Supp. 2d 184, 194 (D. Mass. 2013) (Young, J.)
(quoting Iverson v. Braintree Prop. Assocs., L.P., No. 04cv12079-NG, 2008 WL 552652, at *3 n.5
(D. Mass. Feb. 26, 2008) (Gertner, J.); see also Murphy v. Bob Cochran Motors, Inc., No. 1:19-
cv-00239, 2020 U.S. Dist. LEXIS 139887, at *15-16 (W.D. Pa. Aug. 4, 2020), adopted by Murphy
v. Bob Cochran Motors, Inc., 2020 U.S. Dist. LEXIS 177593 (W.D. Pa., Sept. 28, 2020)
(upholding tester standing in a substantially identical ADA website accessibility case).
9
which vocalizes information presented visually on a computer screen or displays that information
on a user-provided refreshable braille display. Such software provides the only method by which
blind individuals can independently access digital information and content. When websites and
applications are not designed to allow for use with screen access software, blind individuals are
unable to access the information, products, and services offered through the internet.
32. Screen access technology has existed for decades27 and widely-accepted standards
exist to guide entities in making their websites and apps accessible to screen access software,
including legal standards under Section 508 of the Rehabilitation Act. The U.S. Department of
Health & Human Services maintains Best Practices for Accessible Content to ensure that
accessibility is “considered throughout the [website] development process.”28 The Commonwealth
of Pennsylvania has maintained an Information Technology Accessibility Policy since March 16,
200629 and a separate Accessibility Policy that recognizes “[a]ccessible websites ensure that as
many people as possible can use internet-based information and services, regardless of disability
or functional limitation.”30
27
Annemarie Cooke, American Foundation for the Blind, A History of Accessibility at IBM
(Mar. 2004), available at https://www.afb.org/aw/5/2/14760 (last accessed Dec. 7, 2020) (Jim
Thatcher created the first screen reader at IBM in 1986.).
28
See U.S. Department of Health & Human Services, usability.gov, Accessibility Basics,
available at https://www.usability.gov/what-and-why/accessibility.html (last accessed Dec. 7,
2020).
29
Pennsylvania Office of Administration, Information Technology Policy: Information
Technology Accessibility Policy, Mar. 16, 2006, available at
https://www.oa.pa.gov/Policies/Documents/itp_acc001.pdf (last accessed Oct. 13, 2020).
30
Commonwealth of Pennsylvania, Accessibility Policy, available at
https://www.pa.gov/accessibility-policy/ (last accessed Oct. 13, 2020).
10
Defendant’s Inaccessible Digital Platform
33. Defendant owns, operates, developed, procured, maintains and/or uses the Digital
Platform for the purpose of communicating information about its products and services to
consumers through computers, smartphones, and other mobile devices.
34. Defendant is required to ensure that its Digital Platform communicates information
about its products and services effectively to people with disabilities. Despite this obligation,
Defendant fails to communicate this information effectively to individuals who are blind because
the Digital Platform is not compatible with screen reader auxiliary aids.
35. Specifically, Murphy attempted to access Defendant’s Digital Platform from
Pittsburgh, Pennsylvania using JAWS 2020 from Freedom Scientific or VoiceOver with iOS (i.e.
on his Apple iPhone).
36. “VoiceOver is a gesture-based screen reader that lets you
enjoy using iPhone even if you don’t see the screen. With VoiceOver
enabled, just triple-click the Home button (or the side button on iPhone X
or later) to access it wherever you are in iOS. Hear a description of
everything happening on your screen, from battery level to who’s calling
to which app your finger is on. You can also adjust the speaking rate and
pitch to suit you. …You can control VoiceOver using a simple set of
gestures. Touch or drag your finger around the screen and VoiceOver tells
you what’s there. Tap a button to hear a description, then double-tap to select. Or flick left and
right to move from one element to the next. When you interact with an element, a black rectangle
appears around it so sighted users can follow along. When you prefer privacy, you can activate a
screen curtain to turn off the display completely, but still hear all that VoiceOver has to say. And
11
now with iOS 13, you can choose from a wide range of gestures and assign those you’re most
comfortable with to the commands you use most.”31
37. Here is an example of another online store’s successful use of alternative text to
describe its products to screen reader users.32 The image on the left illustrates what shoppers
perceive visually when browsing the online store with an iPhone. To the right, is an image from
the online store with the alternative text highlighted for that image in green. Although invisible to
the eye, screen access software reads this
highlighted text aloud in order to describe
the image to shoppers who cannot
perceive content visually. In this example,
when shoppers tab to the image file with a
screen reader, the online store announces,
“One burlap and cotton tote bag with a custom printed architectural company logo.” Blind
shoppers require descriptive alternative text like this to access digital content fully, equally, and
independently.
38. Unfortunately, because of Defendant’s failure to build its Digital Platform in a
manner that is compatible with screen access software, including VoiceOver, Murphy is unable to
understand, and thus is denied the benefit of, much of the content and services he wishes to access
from his smartphone.
39. As a result of visiting the Digital Platform, and from investigations performed on
his behalf, Murphy found that Defendant fails to communicate information about its products and
31
See Apple, Accessibility, https://www.apple.com/accessibility/iphone/vision/ (last
accessed Dec. 7, 2020).
32
See Custom Ink, Homepage, https://www.customink.com/ (last accessed Mar. 28, 2019).
12
services effectively because screen reader auxiliary aids cannot access important content on the
Digital Platform. Click the images or links at the end of each subparagraph below to watch a short
video illustrating some of the communication barriers on Defendant’s Digital Platform.
(a) Defendant installed a low-cost overlay on the Digital Platform developed
by a company called accessiBe. accessiBe claims this overlay can automatically bring a website
into compliance with the ADA by resolving the website’s underlying accessibility issues.
Unfortunately, the overlay fails to provide screen reader users, including Murphy, full and equal
access to the Digital Platform. Attached as Exhibit A is a report from Karl Groves entitled, Sole
reliance on accessiBe will not be sufficient in ensuring full and equal access to a website. Mr.
Groves has nearly two decades of experience consulting corporations and government agencies in
Information Technology Accessibility. See Karl Groves Resume, available at
https://karlgroves.com/resume (last visited Dec. 10, 2020). The report “describes the ways in
which the accessiBe product does not and/or cannot ensure full and equal access to a website. In
addition, it provides evidence that the accessiBe widget itself adds net-new accessibility problems
to the customers’ site.” Ex. A at 3. The report summarizes Mr. Groves research of 50 websites
using the accessiBe overlay and concludes there is no “significant divergence from what has been
found across the broader set of websites I have tested. In other words, the accessiBe customer sites
are neither better nor worse than the broader Web as a whole.” Ex. A at 8. In light of the report’s
findings, it is no surprise that accessiBe’s Terms of Service warns “that the installation of the
accessiBe Systems cannot guarantee that claims will not arise, and that embedding the accessiBe
Systems in the Licensee Website does not, on its own, fulfill all of the requirements of applicable
law in respect of website accessibility (accessiBe does not remediate PDF files or create subtitles
for videos, for example). The Company does not undertake that the Licensee Website will be 100%
13
accessible at any given moment, owing to factors such as Licensee changes made to the Licensee
Website, issues originating in the Licensee Website and /or limitations stemming from
technological reasons.” See accessiBe, Terms of Service, available at https://accessibe.com/terms-
of-service (last accessed Dec. 10, 2020). Nor is it surprising the Terms provide that each accessiBe
customer “irrevocably waives any claims against the Company from any liability, legal or
otherwise, and that it shall assert no claims against the Company in this regard (including in
relation to any Claims Support Services, if provided).” Id.
(b) What’s more, the accessiBe
overlay makes it impossible for some screen reader
users to access the Digital Platform after they visit
Defendant’s Accessibility Statement. As this video
demonstrates, screen reader users may tab to
Defendant’s Accessibility Statement shortly after
entering the Digital Platform. However, their screen readers become stuck after closing the
accessibility interface. Screen readers can neither tab “back” nor “forward” in order to navigate
the Digital Platform in a predictable manner. Because screen reader users, including Murphy, are
likely to become stuck so soon after arriving to Defendant’s online store, this accessibility barrier
has a particularly deterring effect on their future use of the Digital Platform. As a result, Murphy
is more likely to look elsewhere for the products that Defendant sells. Click the picture contained
in this paragraph or following link to view a short video describing this access barrier:
https://youtu.be/aHnaJKHgQjU.
14
(c) The Digital Platform
prevents screen reader users from accessing some
primary content. For example, when consumers
visit the Digital Platform from a new IP address,
Defendant displays a pop-up window inviting them
to “[e]njoy 10% off your next purchase. Offer ends
soon.” Consumers who perceive content visually can type their email into the text field that
Defendant provides in the pop-up window, then click “enjoy 10% off” to claim the promotion.
Unfortunately, Defendant does not alert screen readers of this pop-up window. Instead, screen
readers remain focused on the content of the Digital Platform’s underlying page, making the pop-
up invisible to screen reader users. As a result, it is impossible for Murphy to perceive this
promotion independently, the effect of which would require him to pay more on his order than
consumers who do not use screen reader technology to shop online. Click the picture contained in
this paragraph or following link to view a short video describing this access barrier:
https://youtu.be/UvtjU3FXUFU.
(d) Similarly, Defendant also
offers consumers the chance to “get a free bobcare
kit with next purchase.” This information is also
contained within a pop-up window that prompts
consumers to submit contact information. Again,
consumers who perceive content visually can
provided their telephone number in the text box Defendant provides in the pop-up window, then
click “Sign Up” to claim the free cleaning kit. Unfortunately, again, Defendant does not alert
15
screen readers of this pop-up window. Instead, screen readers remain focused on the content of the
Digital Platform’s underlying page, making the pop-up invisible to screen reader users. As a result,
it is impossible for Murphy to perceive this promotion independently, the effect of which denies
him the opportunity to get the free Bobcare kit. Click the picture contained in this paragraph or
following link to view a short video describing this access barrier: https://youtu.be/-ya9TyAfsU4.
(e) The Digital Platform does
not provide a text equivalent for non-text elements.
Providing text alternatives allows the information
to be rendered in a variety of ways by a variety of
users. A person who cannot see a picture, logo, or
icon can have a text alternative read aloud using
synthesized speech. For example, the Digital Platform provides a five-star rating for many products
that Defendant sells. Consumers who perceive content visually can see whether a particular
product has one, two, three, four, or five stars, and base their purchasing decisions on this
information. Unfortunately, Defendant’s accessibility policies fail to provide sufficiently
descriptive alternative text for this important rating information. To this end, screen readers do not
provide any audio information for the stars on the Digital Platform because screen readers skip
this content entirely. As a result, Murphy must make his purchasing decisions without the benefit
of knowing whether the products he’s researching are well received by other consumers. Click the
picture contained in this paragraph or following link to view a short video describing this access
barrier: https://youtu.be/aPtvqY1yJBk.
16
Plaintiff’s Injury
40. As a result of the access barriers described above, and others, Defendant fails to
communicate information about its products and services to Murphy effectively, which in turn
denies Murphy full and equal access to Defendant’s online store and deters him from returning to
the store in the future.33
41. Still, Murphy intends to attempt to access the Digital Platform within the next six
months to research the products and services Defendant offers or to test the Digital Platform for
compliance with the ADA.34
42. If the Digital Platform were accessible (i.e. if Defendant removed the access
barriers and implemented the practices described herein), Murphy could independently access
Defendant’s online services.
Defendant’s Digital Platform Must Comply with the ADA
43. The ADA “as a whole is intended ‘to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.’”35
44. Title III advances that goal by providing that “[n]o individual shall be discriminated
against on the basis of disability in the full and equal enjoyment of the products, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation by any person
who owns, leases (or leases to), or operates a place of public accommodation.”36
33
Your Website is Scaring Customers Away. 5 Easy Ways to Fix It, supra note 13.
34
See Norkunas and Iverson supra note 28.
35
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589 (1999) (quoting 42 U.S.C. §
12101(b)(1)).
36
42 U.S.C. § 12182(a).
17
45. DOJ regulations require that a public accommodation “furnish appropriate
auxiliary aids and services where necessary to ensure effective communication with individuals
with disabilities.”37
46. DOJ defines “auxiliary aids and services” to include “accessible electronic and
information technology” or “other effective methods of making visually delivered materials
available to individuals who are blind or have low vision.”38
47. Therefore, the ADA mandates that places of public accommodation provide
auxiliary aids and services to make visual materials available to individuals who are blind.39
48. Defendant is a place of public accommodation under the ADA because it is a “sales
or rental establishment” and/or “other service establishment.”40
49. The Digital Platform is a service, facility, advantage, or accommodation of
Defendant.
50. As a service, facility, advantage, or accommodation of Defendant, Defendant must
ensure blind patrons have full and equal access to the Digital Platform.
51. Indeed, the ADA expressly provides that a place of public accommodation engages
in unlawful discrimination if it fails to “take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services, segregated or otherwise treated differently
than other individuals because of the absence of auxiliary aids and services.”41
37
28 C.F.R. § 36.303(c)(1); see Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (holding that
DOJ’s administrative guidance on ADA compliance is entitled to deference).
38
28 C.F.R. § 36.303(b)(2).
39
28 C.F.R. § 36.303.
40
42 U.S.C. § 12181(7)(E), (F).
41
42 U.S.C. § 12182(b)(2)(A)(iii).
18
Defendant Received Fair Notice of its ADA Obligations
52. Defendant and other covered entities have had more than adequate notice of their
obligation to offer individuals with disabilities an equal opportunity to access and enjoy their
services and communications, including the Digital Platform.
53. Since its enactment in 1990, the ADA has clearly stated that covered entities must
provide “full and equal enjoyment of the[ir] goods, services, facilities, privileges, advantages, or
accommodations” to people with disabilities,42 and must “ensure that no individual with a
disability is excluded, denied services, segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids and services.”43
54. The United States Department of Justice (“DOJ”) first announced its position that
Title III applies to websites of public accommodations in a 1996 letter from Assistant Attorney
General Deval Patrick responding to an inquiry by Senator Tom Harkin regarding the accessibility
of websites to blind individuals.44
55. Since then, DOJ has “repeatedly affirmed the application of [T]itle III to Web sites
of public accommodations.”45
56. In 2000, DOJ argued to the Fifth Circuit that a business providing services solely
over the internet is subject to the ADA’s prohibitions on discrimination on the basis of disability.46
42
42 U.S.C. § 12182(a).
43
42 U.S.C. § 12182(b)(2)(A)(iii).
44
Letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division,
Department of Justice, to Tom Harkin, U.S. Senator (Sept. 9, 1996), available at w
https://www.justice.gov/crt/foia/file/666366/download (last accessed Dec. 7, 2020)
45
75 Fed. Reg. 43460-01, 43464 (July 26, 2010).
46
Brief of the United States as Amicus Curiae in Support of Appellant, Hooks v. Okbridge,
Inc., Case No. 99-50891 (5th Cir. June 30, 2000),
https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/hooks.pdf (last accessed Dec. 7,
2020) (“A COMMERCIAL BUSINESS PROVIDING SERVICES SOLELY OVER THE
19
57. In 2002, DOJ argued to the Eleventh Circuit that there need not be a nexus between
a challenged activity and a private entity´s “brick-and-mortar” facility to obtain coverage under
Title III. DOJ argued that Title III applies to any activity or service offered by a public
accommodation, on or off the premises.47
58. In 2014, DOJ entered into a settlement agreement with America’s then-leading
internet grocer to remedy allegations that its website, www.peapod.com, is inaccessible to some
individuals with disabilities, in violation of the ADA. DOJ’s enforcement action against this
online-only business affirms the ADA covers public accommodations that do not operate brick-
and-mortar facilities open to the public.48
59. In a September 25, 2018 letter to U.S. House of Representative Ted Budd, U.S.
Department of Justice Assistant Attorney General Stephen E. Boyd confirmed that public
accommodations must make the websites they own, operate, or control equally accessible to
individuals with disabilities. Assistant Attorney General Boyd’s letter provides:
The Department [of Justice] first articulated its interpretation that the ADA applies
to public accommodations’ websites over 20 years ago. This interpretation is
consistent with the ADA’s title III requirement that the goods, services, privileges,
or activities provided by places of public accommodation be equally accessible to
people with disabilities.49
INTERNET IS SUBJECT TO THE ADA’S PROHIBITION AGAINST DISCRIMINATION ON

THE BASIS OF DISABILITY.”) (emphasis in original).
47
Brief for the United States as Amicus Curiae in Support of Appellant, Rendon v.
Valleycrest Productions, Inc., Case No. 01-11197, 294 F.3d 1279 (11th Cir. 2002), available
at https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/rendon.pdf (last accessed Dec.
7, 2020).
48
See Settlement Agreement Between the United States of America and Ahold U.S.A., Inc.
and Peapod, LLC, DJ 202-63-169 (Nov. 17, 2014), available at
https://www.justice.gov/file/163956/download (last accessed Dec. 7, 2020).
49
See Letter from Assistant Attorney General Stephen E. Boyd, U.S. Department of Justice,
to Congressman Ted Budd, U.S. House of Representatives (Sept. 25, 2018),
https://www.adatitleiii.com/wp-content/uploads/sites/121/2018/10/DOJ-letter-to-congress.pdf
(last accessed Dec. 7, 2020).
20
60. In 2019, the United States Supreme Court declined to review a Ninth Circuit
decision holding that (1) Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(“Title III”) covers websites and mobile applications and (2) the imposition of liability on
businesses for not having an accessible website and mobile application does not violate the due
process rights of public accommodations.50
61. Thus, since at least since 1996, Defendant has been on notice that its online
offerings must effectively communicate with disabled consumers and facilitate “full and equal
enjoyment” of the products and services it offers.51
SUBSTANTIVE VIOLATION
Title III of the ADA, 42 U.S.C. § 12181 et seq.
62. The assertions contained in the previous paragraphs are incorporated by reference.
63. Title III of the ADA guarantees that individuals with disabilities shall have full and
equal enjoyment of the products, services, facilities, privileges, advantages, or accommodations of
any place of public accommodation.52
64. Defendant is bound by the regulations implementing Title III of the ADA, which
require that places of public accommodation ensure effective communication to individuals with
disabilities.53
65. Murphy is legally blind and therefore an individual with a disability under the
ADA.
50
See Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) cert. denied 589 U.S.
___ (U.S. Oct. 7, 2019) (No. 18-1539).
51
42 U.S.C. § 12182(a).
52
42 U.S.C. § 12182; 28 C.F.R. § 36.201.
53
28 C.F.R.§ 36.303(c).
21
66. Defendant is a place of public accommodation under the ADA because it is a “sales
or rental establishment” and/or “other service establishment.”54
67. Defendant owns, operates, or maintains the Digital Platform.
68. The Digital Platform is a service, facility, privilege, advantage, or accommodation
of Defendant.
69. The Digital Platform contains communication barriers that prevent full and equal
use by blind persons, including Murphy, using screen access software.
70. Because of these communication barriers, Defendant denies Murphy full and equal
enjoyment of the information, products, services, facilities, privileges, advantages, or
accommodations that it makes available to the sighted public through the Digital Platform.
71. These access barriers now deter Murphy from attempting to use the Digital
Platform.
72. Defendant’s discrimination is ongoing.
PRAYER FOR RELIEF
WHEREFORE, Murphy requests judgment as follows:
(A) A Declaratory Judgment that at the commencement of this action Defendant was in
violation of the specific requirements of Title III of the ADA described above, and the relevant
implementing regulations of the ADA, in that Defendant took no action that was reasonably
calculated to ensure Defendant communicated the digital content of its Digital Platform to
individuals with disabilities effectively such that Murphy could fully, equally, and independently
access Defendant’s products and services;
54
42 U.S.C. § 12181(7)(E), (F).
22
(B) A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR §
36.504(a) which directs Defendant to take all steps necessary to communicate the content of its
Digital Platform to screen reader users effectively such that Defendant’s online products and
services are fully, equally, and independently accessible to individuals with visual disabilities, and
which further directs that the Court shall retain jurisdiction for a period to be determined to ensure
that Defendant has adopted and is following an institutional policy that will in fact cause it to
remain fully in compliance with the law—the specific injunctive relief requested by Plaintiff is
described more fully below:55
(1) Within 90-days of the Court’s Order, Defendant shall complete an
accessibility audit of its Digital Platform that will examine the accessibility and usability of the
Digital Platform by consumers who are blind.
(2) Within 180-days of the Court’s Order, Defendant shall develop a corrective
action strategy (“Strategy”) based on the audit findings. In addition to the deadlines outlined
below, the Strategy shall include dates by which corrective action shall be completed.
(3) Within 210-days of the Court’s Order, Defendant shall disseminate the
Strategy among its executive-level managers, employees, and contractors, if any, involved in
digital development and post it on the Digital Platform.
(4) Within 90-days of the Court’s Order, Defendant shall develop a Digital
Accessibility Policy Statement that demonstrates its commitment to digital accessibility to blind
55
The injunctive relief herein is consistent with a 2011 settlement agreement entered into
between National Federation of the Blind and The Pennsylvania State University, available at
https://accessibility.psu.edu/nfbpsusettlement/ (last accessed Dec. 7, 2020); a 2014 settlement
agreement between the U.S. Department of Justice and Ahold U.S.A., Inc. and Peapod, LLC, supra
note 47; and a 2014 Resolution Agreement between the U.S. Department of Education and
Youngstown State University, available at https://www2.ed.gov/documents/press-
releases/youngstown-state-university-agreement.pdf (last accessed Dec. 7, 2020).
23
and other print disabled consumers, as required by the Americans with Disabilities Act. This Policy
Statement shall be posted in the header of each homepage on the Digital Platform within 120-days
of the Court’s Order, and shall disclose that an audit is taking or has taken place and that a Strategy
will be disseminated and posted on the Digital Platform within 180-days of the Court’s Order.
(5) Within 240-days of the Court’s Order, Defendant shall develop procedures
to implement its Digital Accessibility Policy across the entire Digital Platform. Defendant shall
disseminate its Policy and procedures to its executive-level managers, employees, and contractors,
if any, involved in digital development.
(6) Within 12-months of the Court’s Order, Defendant shall conduct training,
instruction and support to ensure that all executive-level managers and employees involved in
digital development are aware of and understand the Digital Accessibility Policy, including proper
procedures, tools, and techniques to implement the Digital Accessibility Policy effectively and
consistently.
(7) Within 12-months of the Court’s Order, Defendant shall hire or designate a
staff person with responsibility and commensurate authority, to monitor the Digital Accessibility
Policy and procedures.
(8) Within 12-months of the Court’s Order, Defendant shall develop and
institute procedures that require third-party content and plug-ins built into the Digital Platform to
provide blind consumers the same programs, benefits and services that they do to individuals
without disabilities, except that when it is technically unfeasible to do so. Defendant shall
effectuate these obligations by, among other things, implementing as part of its Request for
Proposal process language that bidders meet the accessibility standards set forth in WCAG 2.0
Level AA for web-based technology and the Americans with Disabilities Act; requiring or
24
encouraging, at Defendant’s discretion, as part of any contract with its vendors, provisions in
which the vendor warrants that any technology provided complies with these standards and any
applicable current federal disability law.
(9) Within 18-months, all pages hosted on the Digital Platform that have been
published shall be Accessible to blind users. “Accessible” means fully and equally accessible to
and independently usable by blind individuals so that blind consumers are able to acquire the same
information, engage in the same interactions, and enjoy the same services as sighted consumers,
with substantially equivalent ease of use.
(10) Defendant shall not release for public viewing or use a substantial addition,
update, or change to the Digital Platform until it has determined through automated and user testing
that those proposed additions, updates, or changes are Accessible.
(11) Defendant shall conduct (a) an automated scan monthly and (b) end-ser
testing quarterly thereafter to ascertain whether any new posted content is accessible. Defendant
shall notify all employees and contractors, if any, involved in digital development if corrections to
Digital Platform are needed and of reasonable timelines for corrections to be made. Defendant
shall note if corrective action has been taken during the next monthly scan and quarterly end-user
test.
(12) Following the date of the Court’s Order, for each new, renewed, or
renegotiated contract with a vendor of Third-Party Content, Defendant shall seek a commitment
from the vendor to provide content in a format that is Accessible.
(13) Defendant shall provide Plaintiff, through his counsel, with a report on the
first and second anniversaries of the Court’s Order which summarize the progress Defendant is
making in meeting its obligations. Additional communication will occur before and after each
25
anniversary to address any possible delays or other obstacles encountered with the implementation
of the Digital Accessibility Policy.
(C) Payment of actual, statutory, nominal, and other damages, as the Court deems
proper;
(D) Payment of costs of suit;
(E) Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR
§ 36.505, including costs of monitoring Defendant’s compliance with the judgment;56
(F) Whatever other relief the Court deems just, equitable and appropriate; and
(G) An Order retaining jurisdiction over this case until Defendant has complied with
the Court’s Orders.
Dated: January 7, 2021 /s/ Lawrence H. Fisher

Lawrence H. Fisher
Pa. Bar ID #67667
One Oxford Centre
301 Grant Street, Suite 4300
Pittsburgh, PA 15219
Tel. (412) 577-4040
[email protected]
56
See Access Now, Inc. v. Lax World, LLC, No. 1:17-cv-10976-DJC (D. Mass. Apr. 17, 2018)
(ECF 11) (“[Plaintiff], as the prevailing party, may file a fee petition before the Court surrenders
jurisdiction. Pursuant to Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478
U.S. 546, 559 (1986), supplemented, 483 U.S. 711 (1987), and Garrity v. Sununu, 752 F.2d 727,
738-39 (1st Cir. 1984), the fee petition may include costs to monitor [Defendant’s] compliance
with the permanent injunction.”); see also Amended Order Granting In Part Plaintiffs’ Motion For
Attorneys’ Fees And Costs; Denying Administrative Motion To Seal, National Federation of the
Blind of California v. Uber Technologies, Inc., Case No 14-cv-04086-NC (N.D. Cal. Nov. 8,
2019), https://rbgg.com/wp-content/uploads/NFB-v-Uber-Amended-Order-Granting-In-Part-
Pltfs-Motion-for-Attys-Fees-and-Costs-11-08-19.pdf (last accessed Dec. 7, 2020) (finding
plaintiffs “are entitled to reasonable attorneys’ fees incurred in connection with monitoring
[defendant’s] compliance with the Settlement” of a Title III ADA case).
26

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Case 1:21-cv-00017-RAL Document 1 Filed 01/07/21 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

ANTHONY HAMMOND MURPHY,

Plaintiff, Civil Action No. 1:21-cv-17

v. COMPLAINT FOR DECLARATORY

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

investigation of Defendant’s digital properties, as follows:

NATURE AND SUMMARY OF THE ACTION

elimination of discrimination against individuals with disabilities”3 by “assur[ing] equality of

opportunity, full participation, independent living, and economic self-sufficiency.”4

3. For this significant portion of Americans, accessing websites, mobile applications,

4. Indeed, a growing share of Americans use smartphones as their primary means of

employment, entertainment, commerce, and countless other pursuits.

6. The U.S. Chamber of Commerce has documented consumers’ increasing reliance

on mobile platforms to shop online:

7. But “[a]s technology continues to evolve at a rapid pace, it is important to consider

accessible to them. The National Federation of the Blind explains:

9. When digital content is properly formatted, it is universally accessible to everyone.

10. Unfortunately, Defendant fails to communicate effectively with Murphy because

11. This action seeks to remedy that discrimination and inequality.

JURISDICTION AND VENUE

pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 12188.

files over the internet in Pennsylvania.

Defendant’s online products, content, and services.

Pennsylvania, located in Erie County.

today he works for the Commonwealth of Pennsylvania.

with iOS, to access digital content, like an email, a website, or an app.

222540, at *9 (W.D. Pa. Nov. 25, 2020).

20. Defendant is a Delaware corporation with a principal place of business in

21. Defendant sells eyewear to consumers.

Murphy may visit Defendant’s website at https://www.eyebobs.com/ (the “Digital Platform”).

STANDING UP FOR TITLE III OF THE ADA

underenforcement of the statute—soon destroyed this hope.”19

Justice’s Disability Section, tasked with ADA enforcement, is understaffed[.]”22

of private plaintiffs who view themselves as champions of the disabled.”24

in enforcing the ADA[.]”25

accessibility is “considered throughout the [website] development process.”28 The Commonwealth

Defendant’s Inaccessible Digital Platform

consumers through computers, smartphones, and other mobile devices.

35. Specifically, Murphy attempted to access Defendant’s Digital Platform from

on his Apple iPhone).

36. “VoiceOver is a gesture-based screen reader that lets you

or later) to access it wherever you are in iOS. Hear a description of

everything happening on your screen, from battery level to who’s calling

comfortable with to the commands you use most.”31

the eye, screen access software reads this

highlighted text aloud in order to describe

the image to shoppers who cannot

perceive content visually. In this example,

when shoppers tab to the image file with a

screen reader, the online store announces,

38. Unfortunately, because of Defendant’s failure to build its Digital Platform in a

from his smartphone.

video illustrating some of the communication barriers on Defendant’s Digital Platform.

(a) Defendant installed a low-cost overlay on the Digital Platform developed

Information Technology Accessibility. See Karl Groves Resume, available at

technological reasons.” See accessiBe, Terms of Service, available at https://accessibe.com/terms-

relation to any Claims Support Services, if provided).” Id.