ERIE – Class action litigation against a Nevada-based retailer of bags and other merchandise which claimed its website does not support Screen Reader software for the visually-impaired and thus violates the Americans with Disabilities Act of 1990 is close to wrapping up, with the settlement awaiting final approval and plaintiff counsel seeking an agreed-upon $45,000 in attorneys’ fees.
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.”
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.
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’s finalization, with Murphy also receiving a $1,000 incentive award.
Furthermore, the defendant had agreed to pay the plaintiff’s attorneys’ fees and costs incurred in connection with this action, in the amount of $45,000.
A hearing took place on Jan. 19 regarding the unopposed motion.
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.
A hearing concerning the final approval of the class action settlement in this matter had been scheduled for earlier this week, according to Lanzillo.
UPDATE
On May 15, plaintiff counsel motioned (without opposition) for final certification of the class for settlement purposes and for final approval of the class action settlement.
Simultaneously, plaintiff counsel filed an unopposed motion to be granted its $45,000 in attorneys’ fees and for Murphy to receive his $1,000 incentive award, in addition to a declaration from attorney Kevin Tucker.
“Class counsel have pursued this case on behalf of plaintiff since the beginning of 2022, when plaintiff engaged class counsel to bring discrimination claims against defendant for its inaccessible online store. Since the start of his involvement, plaintiff has been an exemplary class representative. He has provided class counsel with information concerning the access and communication barriers he encountered upon browsing defendant’s online store, reviewed pleadings, reviewed the proposed settlements terms, and approved the agreement submitted to the Court. He is aware of his duties as a class representative and has performed them adequately and in a timely manner,” the declaration stated.
“Class counsel have not been compensated for the work performed on this case, which has required class counsel to spend substantial time on this litigation that could have been spent on other matters.”
After plaintiff counsel outlined the scope of its work on the instant action, it provided its lodestar information.
| Professional | 2022 Rate | Hours | 2023 Rate | Hours | Lodestar |
| Kevin Tucker, Esq. | $600 | 50.3 | $600 | 15.6 | $39,540 |
| Kevin Abramowicz, Esq. | $600 | 4.7 | $600 | 0 | $2,820 |
| Lawrence Fisher, Esq. | $600 | 30.2 | $600 | 4.8 | $21,000 |
| Chandler Steiger, Esq. | $400 | 21.2 | $425 | 13.6 | $14,260 |
| Stephanie Moore, Esq. | $400 | 6.2 | $425 | 38.7 | $18,927.50 |
| Total Hours | Total Lodestar | ||||
| 185.3 | $96,547.50 | ||||
“Class counsel have spent a total of 185.3 hours prosecuting plaintiff’s claim through today’s date. When applied to class counsel’s hourly rates, plaintiff’s lodestar is $96,547.50. Plaintiff seeks $45,000 as a prevailing party attorneys’ fee, which amounts to 46.61% of class counsel’s lodestar to date. Time sheets reflecting work billed on behalf of plaintiff and the class accompany this declaration. Class counsel do not seek reimbursement for the costs incurred in connection with this action,” the motion continued.
The plaintiff is represented by Chandler Steiger, Kevin Abramowicz, Kevin W. Tucker and Stephanie Moore of East End Trial Group, plus 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