ERIE – A federal judge has certified a class action lawsuit and given approval to a preliminary settlement, for litigation against a Nevada-based retailer of bags and other merchandise which claims its website does not support Screen Reader software for the visually-impaired and thus violates the Americans with Disabilities Act of 1990.
Anthony Hammond Murphy of Erie first filed suit in the U.S. District Court for the Western District of Pennsylvania on Feb. 16 versus LeSportsac, Inc., of Nevada.
(An amended version was filed on Sept. 20.)
“Murphy is a natural person over the age of 18. He resides in and is a citizen of Erie, Pennsylvania, located in Erie County. He graduated from Edinboro University with a degree in sociology in 1999 and today he works for the Commonwealth of Pennsylvania. Murphy is and, at all times relevant hereto, has been legally blind and is therefore a member of a protected class under the ADA and the regulations implementing the ADA. As a result of his blindness, Murphy relies on screen access software to access digital content, like an email, a website, or an app,” the suit said.
“Defendant is a Nevada corporation with a principal place of business in Nevada. Defendant sells bags and more to consumers. In order to access, research, or purchase the products and services that defendant offers, Murphy may visit defendant’s digital properties, located at https://www.leSportsac.com/. 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.”
The suit added that due to “the 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.”
Notice of a proposed settlement agreement between the parties was filed on Nov. 21 and two weeks later, on Dec. 5, counsel for the plaintiff brought forward an unopposed motion to certify the class, for future settlement purposes.
Per the terms of the settlement, the defendant would make the following immediate changes:
• Ensure the U.S. portions of any new websites are accessible upon their release;
• Ensure the U.S. portions of any subsequently acquired websites are accessible within 18 months of their acquisition;
• Request that vendors provide third-party content that is accessible;
• Provide accessibility training to defendant’s newly-hired employees responsible for website content, design, development, or maintenance, if any, within 180 days of their hire date;
• Train defendant’s customer service personnel, if any, to assist screen reader users;
• Request that third-party customer service personnel, if any, are trained to assist screen reader users;
• Perform semi-annual automated accessibility audits to evaluate whether the digital properties are accessible;
• Perform annual end-user accessibility testing to evaluate whether the digital properties are accessible;
• Provide annual refresher accessibility training to defendant’s employees responsible for website content, design, development, or maintenance, if any.
Other terms involve bringing the website into compliance over a period of 3 to 18 months, after the settlement would be finalized.
A hearing took place on Jan. 19 regarding the unopposed motion.
Federal court records indicate that since July 2019, Murphy has filed 128 separate cases against various businesses in the U.S. District Court for the Western District of Pennsylvania, featuring similar allegations.
UPDATE
On Jan. 24, U.S. Magistrate Judge Richard A. Lanzillo found that the prospective class for the settlement should be certified and the proposed settlement was fair, thus granting both motions.
Lanzillo predicated his analysis of the fairness of the proposed settlement upon the Girsh factors (taken from Girsh v. Jepson) from the U.S. Court of Appeals for the Third Circuit, which are as follows:
• The complexity, expense and likely duration of the litigation;
• The reaction of the class to the settlement;
• The stage of the proceedings and the amount of discovery completed;
• The risks of establishing liability;
• The risks of establishing damages;
• The risk of maintaining the class action through the trial;
• The ability of the defendants to withstand a greater judgment;
• The range of reasonableness of the settlement in light of the best possible recovery; and
• The range of reasonableness of the settlement fund to a possible recovery in light of all the possible attendant risks of litigation.
“When the Court finds, after balancing the proposed settlement against the anticipated expense, complexity, and time of possibly achieving a more favorable result through litigation, that the litigation would likely be expensive, complex, and time-consuming, this factor is found to favor settlement. Potential class members will have the opportunity to object to the settlement following notice. Based upon the benefits provided to the class under the settlement agreement, however, significant objections are not anticipated. As noted, the settlement agreement appears to provide relief to class members commensurate with the best outcome they could have hoped to achieve had they litigated the case to a conclusion,” Lanzillo stated.
“The parties have agreed to resolve their dispute at a relatively early stage in the litigation. Even so, proposed class counsel has engaged in informal discovery including firsthand investigation and review of the level of accessibility afforded by Le Sportsac’s digital properties. This informal discovery and investigation, coupled with class counsel's experience in litigating similar, if not identical claims, gives counsel an adequate understanding of the merits of Murphy’s case. Based on counsel’s grasp of the claims, obtained through pre-filing and post-filing investigations, as well as proposed class counsel’s familiarity with such cases, the Court is satisfied that class counsel adequately appreciated the merits of the case before negotiating the settlement. This factor thus supports approval of the settlement. As discussed above, the current state of the law regarding the application of Title III of the ADA presented significant risk to the plaintiff class in this case. The complexity of this issue weighs heavily in favor of settlement. Against this risk and complexity, the plaintiff class could not look forward to a potential recovery of monetary damages if they were to continue the litigation. Individual awards of money damages are not available in an action pursuant to Title III of the ADA. Thus, the complexity of this case and uncertainty on both sides with respect to liability and damages weigh in favor of granting final approval of the settlement.”
Lanzillo continued that “the potential risks discussed in the context of establishing liability apply with equal force to Murphy's risks of establishing damages [and] the uncertainty of the future of this litigation whether in this court or in the court of appeals is apparent.”
“The size of the nationwide classes here did not pose a problem for class certification purposes, as the classes were certified for settlement, not litigation. However, if this Court were to certify the classes for litigation purposes, a significant risk exists that intractable management problems would result due to the size and scope of the classes. Since this is a Rule 23(b)(2) class action for injunctive relief, the Court need not consider the ability of Le Sportsac to withstand a greater judgment,” Lanzillo stated.
“The final two Girsh factors are often analyzed together, as they are viewed as testing "two sides of the same coin: reasonableness in light of the best possible recovery and reasonableness in light of the risks the parties would face if the case went to trial. As with the previous factor, these last two have a neutral application because the parties seek declaratory and injunctive relief. In summary then, the Court concludes that the Girsh factors favor the approval of the proposed settlement as reasonable and fair to the class members.”
A hearing concerning the final approval of the class action settlement in this matter has also been scheduled for May 16, according to Lanzillo.
For counts of violating Title III of the ADA, the plaintiff is seeking a long list of reliefs, including a declaration that the defendant’s conduct violated the ADA, a permanent injunction which directs the defendant to take all steps necessary to communicate the content of its Digital Platform to screen reader users, other forms of compliance to enforce same, actual, statutory, nominal and other damages the Court deems proper, costs of suit, reasonable attorneys’ fees, including costs of monitoring defendant’s compliance with the judgment, whatever other relief the Court deems just, equitable and appropriate; and an order retaining jurisdiction over this case until the defendant has complied with the Court’s orders.
The plaintiff is represented by Chandler Steiger, Kevin Abramowicz, Kevin W. Tucker and Stephanie Moore of East End Trial Group and Lawrence H. Fisher of LawFirst, all in Pittsburgh.
The defendant is represented by J. David Ziegler of Dickie McCamey & Chilcote, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 1:22-cv-00058
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com