(Declaratory Relief)  115. Plaintiff repeats, realleges and incorporates by reference the allegations  contained in paragraphs 1 through 114 of this Complaint as though set forth at length herein.  116. An actual controversy has arisen and now exists between the parties in that  Plaintiff contends, and is informed and believes that Defendant denies, that Elfcosmetics.com  contains access barriers denying blind customers the full and equal access to the goods, services  and facilities of Elfcosmetics.com and by extension ELF Stores, which ELF owns, operates  and/or controls, fails to comply with applicable laws including, but not limited to, Title III of the  American with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and  N.Y.C. Administrative Code § 8-107, et seq. prohibiting discrimination against the blind.  117. A judicial declaration is necessary and appropriate at this time in order that  each of the parties may know their respective rights and duties and act accordingly.  (Violation of New York State Civil Rights Law, NY CLS Civ R,  Article 4 (CLS Civ R § 40 et seq.))   (Violation of New York State Human Rights Law, N.Y. Exec. Law  Article 15 (Executive Law § 292 et seq.))   27. Defendant, E.L.F. Cosmetics, Inc., operates ELF Stores in New York State and  provides cosmetics and accessories.   28. Elfcosmetics.com is a service and benefit offered by ELF in New York State  and throughout the United States.  Elfcosmetics.com is owned, controlled and/or operated by ELF.   29. Elfcosmetics.com is a commercial website that offers products and services for  online sale that are available in the ELF Stores.  The online store allows the user to browse  cosmetics and accessory, make purchases, and perform a variety of other functions.   31. This case arises out of ELF’s policy and practice of denying the blind access to  Elfcosmetics.com, including the goods and services offered by ELF Stores through  elfcosmetics.com.  Due to ELF’s failure and refusal to remove access barriers to elfcosmetics.com,  blind individuals have been and are being denied equal access to ELF Stores, as well as to the  numerous goods, services and benefits offered to the public through elfcosmetics.com.   32. ELF denies the blind access to goods, services and information made available  through Elfcosmetics.com by preventing them from freely navigating Elfcosmetics.com.   33. Elfcosmetics.com contains access barriers that prevent free and full use by  Plaintiff and blind persons using keyboards and screen-reading software.  These barriers are  pervasive and include, but are not limited to: lack of alt-text on graphics, inaccessible drop-down  menus, the lack of navigation links, the lack of adequate prompting and labeling, the denial of  keyboard access, empty links that contain no text, redundant links where adjacent links go to the  same URL address, and the requirement that transactions be performed solely with a mouse.   35. Elfcosmetics.com also lacks prompting information and accommodations  necessary to allow blind shoppers who use screen-readers to locate and accurately fill-out online  forms.  On a shopping site such as Elfcosmetics.com, these forms include search fields to locate  eyeshadow, fields that specify the number of items desired, and fields used to fill-out personal  information, including address and credit card information.  Due to lack of adequate labeling,  Plaintiff and blind customers cannot make purchases or inquiries as to Defendant’s merchandise  and locations, nor can they enter their personal identification and financial information with  confidence and security.   36. Similarly, Elfcosmetics.com lacks accessible drop-down menus.  Drop-down  menus allow customers to locate and choose products as well as specify the quantity of certain  items.  On Elfcosmetics.com, blind customers are not aware if the desired products, such as  eyeshadow, have been added to the shopping bag because the screen-reader does not indicate the  type of product or quantity.  Therefore, blind customers are essentially prevented from  purchasing any items on Elfcosmetics.com.   38. Elfcosmetics.com also lacks accessible forms.  Quantity boxes allow  customers to specify the quantity of certain items.  On Elfcosmetics.com, blind customers are  unable to select specific quantity because the screen-reader does not indicate the function of the  box.  As a result, blind customers are denied access to the quantity box.  Furthermore, Plaintiff is  unable to locate the shopping bag because the shopping basket form does not specify the purpose  of the shopping bag.  As a result, blind customers are denied access to the shopping bag.   Consequently, blind customers are unsuccessful in adding products into their shopping bags and  are essentially prevented from purchasing items on Elfcosmetics.com.   39. Moreover, the lack of navigation links on Defendant’s website makes  attempting to navigate through Elfcosmetics.com even more time consuming and confusing for  Plaintiff and blind consumers.   40. Elfcosmetics.com requires the use of a mouse to complete a transaction.  Yet,  it is a fundamental tenet of web accessibility that for a web page to be accessible to Plaintiff and  blind people, it must be possible for the user to interact with the page using only the keyboard.   Indeed, Plaintiff and blind users cannot use a mouse because manipulating the mouse is a visual  activity of moving the mouse pointer from one visual spot on the page to another.  Thus,  Elfcosmetics.com’s inaccessible design, which requires the use of a mouse to complete a  transaction, denies Plaintiff and blind customers the ability to independently navigate and/or  make purchases on Elfcosmetics.com.   42. Elfcosmetics.com thus contains access barriers which deny the full and equal  access to Plaintiff, who would otherwise use Elfcosmetics.com and who would otherwise be able  to fully and equally enjoy the benefits and services of ELF Stores in New York State and  throughout the United States.   43. Plaintiff, Mary Conner, has made numerous attempts to complete a purchase  on Elfcosmetics.com, most recently in May 2018, but was unable to do so independently because  of the many access barriers on Defendant’s website.  These access barriers have caused  Elfcosmetics.com to be inaccessible to, and not independently usable by, blind and visually- impaired persons.  Amongst other access barriers experienced, Plaintiff was unable to find a  store location and to make an online purchase of an eyeshadow.   44. As described above, Plaintiff has actual knowledge of the fact that  Defendant’s website, Elfcosmetics.com, contains access barriers causing the website to be  inaccessible, and not independently usable by, blind and visually-impaired persons.   46. Defendant engaged in acts of intentional discrimination, including but not  limited to the following policies or practices:  (a) constructed and maintained a website that is inaccessible to blind class  members with knowledge of the discrimination; and/or  (b) constructed and maintained a website that is sufficiently intuitive and/or  obvious that is inaccessible to blind class members; and/or   (c) failed to take actions to correct these access barriers in the face of substantial  harm and discrimination to blind class members.   47. Defendant utilizes standards, criteria or methods of administration that have  the effect of discriminating or perpetuating the discrimination of others.   48. Because of Defendant’s denial of full and equal access to, and enjoyment of,  the goods, benefits and services of Elfcosmetics.com and ELF Stores, Plaintiff and the class have  suffered an injury-in-fact which is concrete and particularized and actual and is a direct result of  defendant’s conduct.  49. Plaintiff, on behalf of herself and all others similarly situated, seeks  certification of the following nationwide class pursuant to Rule 23(a) and 23(b)(2) of the Federal  Rules of Civil Procedure: “all legally blind individuals in the United States who have attempted  to access Elfcosmetics.com and as a result have been denied access to the enjoyment of goods  and services offered in the ELF Stores, during the relevant statutory period.”   51. There are hundreds of thousands of visually-impaired persons in New York  State.  There are approximately 8.1 million people in the United States who are visually- impaired. Id.  Thus, the persons in the class are so numerous that joinder of all such persons is  impractical and the disposition of their claims in a class action is a benefit to the parties and to  the Court.   52. This case arises out of Defendant’s policy and practice of maintaining an   inaccessible website denying blind persons access to the goods and services of Elfcosmetics.com  and the ELF Stores.  Due to Defendant’s policy and practice of failing to remove access barriers,  blind persons have been and are being denied full and equal access to independently browse,  select and shop on Elfcosmetics.com and by extension the goods and services offered through  Defendant’s website to ELF Stores.   54. The claims of the named Plaintiff are typical of those of the class.  The class,  similar to the Plaintiff, is severely visually-impaired or otherwise blind, and claims ELF has  violated the ADA, and/or the laws of New York by failing to update or remove access barriers on  their website, Elfcosmetics.com, so it can be independently accessible to the class of people who  are legally blind.   55. Plaintiff will fairly and adequately represent and protect the interests of the  members of the Class because Plaintiff has retained and is represented by counsel competent and  experienced in complex class action litigation, and because Plaintiff has no interests antagonistic  to the members of the class.  Class certification of the claims is appropriate pursuant to Fed. R.  Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to  the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and  the Class as a whole.   56. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3)  because questions of law and fact common to Class members clearly predominate over questions  affecting only individual class members, and because a class action is superior to other available  methods for the fair and efficient adjudication of this litigation.   57. Judicial economy will be served by maintenance of this lawsuit as a class  action in that it is likely to avoid the burden that would be otherwise placed upon the judicial  system by the filing of numerous similar suits by people with visual disabilities throughout the  United States.    58. References to Plaintiff shall be deemed to include the named Plaintiff and  each member of the class, unless otherwise indicated.  59. Plaintiff repeats, realleges and incorporates by reference the allegations  contained in paragraphs 1 through 58 of this Complaint as though set forth at length herein.   60. Title III of the American with Disabilities Act of 1990, 42 U.S.C. § 12182(a)  provides that “No individual shall be discriminated against on the basis of disability in the full  and equal enjoyment of the goods, 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.”  Title III also prohibits an entity from “[u]tilizing standards or  criteria or methods of administration that have the effect of discriminating on the basis of  disability.”  42 U.S.C. § 12181(b)(2)(D)(I).    61. The ELF Stores located in New York State are a sales establishment and  public accommodation within the definition of 42 U.S.C. §§ 12181(7)(E).  Elfcosmetics.com is a  service, privilege or advantage of ELF Stores.  Elfcosmetics.com is a service that is by and  integrated with the Stores.   62. Defendant is subject to Title III of the ADA because it owns and operates the  ELF Stores.   63. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(I), it is unlawful   discrimination to deny individuals with disabilities or a class of individuals with disabilities the  opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages,  or accommodations of an entity.   65. Specifically, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(II),  unlawful discrimination includes, among other things, “a failure to make reasonable  modifications in policies, practices, or procedures, when such modifications are necessary to  afford such goods, services, facilities, privileges, advantages, or accommodations to individuals  with disabilities, unless the entity can demonstrate that making such modifications would  fundamentally alter the nature of such goods, services, facilities, privileges, advantages or  accommodations.”   66. In addition, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(III),  unlawful discrimination also includes, among other things, “a failure to take such steps as may  be necessary to ensure that no individual with disability is excluded, denied services, segregated  or otherwise treated differently than other individuals because of the absence of auxiliary aids  and services, unless the entity can demonstrate that taking such steps would fundamentally alter  the nature of the good, service, facility, privilege, advantage, or accommodation being offered or  would result in an undue burden.”   67. There are readily available, well-established guidelines on the Internet for  making websites accessible to the blind and visually-impaired.  These guidelines have been  followed by other business entities in making their websites accessible, including but not limited  to ensuring adequate prompting and accessible alt-text.  Incorporating the basic components to  make their website accessible would neither fundamentally alter the nature of Defendant’s  business nor result in an undue burden to Defendant.   69. Defendant has failed to take any prompt and equitable steps to remedy its  discriminatory conduct.  These violations are ongoing.   70. As such, Defendant discriminates, and will continue in the future to  discriminate against Plaintiff and members of the proposed class and subclass on the basis of  disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,  accommodations and/or opportunities of Elfcosmetics.com and ELF Stores in violation of Title  III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. and/or its implementing  regulations.   71. Unless the Court enjoins Defendant from continuing to engage in these  unlawful practices, Plaintiff and members of the proposed class and subclass will continue to  suffer irreparable harm.   72. The actions of Defendant were and are in violation of the ADA, and therefore  Plaintiff invokes his statutory right to injunctive relief to remedy the discrimination.   73. Plaintiff is also entitled to reasonable attorneys’ fees and costs.   74. Pursuant to 42 U.S.C. § 12188 and the remedies, procedures, and rights set  forth and incorporated therein, Plaintiff prays for judgment as set forth below.  75. Plaintiff repeats, realleges and incorporates by reference the allegations  contained in paragraphs 1 through 74 of this Complaint as though set forth at length herein.   77. The ELF Stores located in New York State are a sales establishment and  public accommodation within the definition of N.Y. Exec. Law § 292(9).  Elfcosmetics.com is a  service, privilege or advantage of ELF Stores.  Elfcosmetics.com is a service that is by and  integrated with the Stores.   78. Defendant is subject to the New York Human Rights Law because it owns and  operates the ELF Stores and Elfcosmetics.com.  Defendant is a person within the meaning of  N.Y. Exec. Law. § 292(1).   79. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or  remove access barriers to Elfcosmetics.com, causing Elfcosmetics.com and the services  integrated with ELF Stores to be completely inaccessible to the blind.  This inaccessibility denies  blind patrons the full and equal access to the facilities, goods and services that Defendant makes  available to the non-disabled public.   80. Specifically, under N.Y. Exec. Law § unlawful discriminatory practice  includes, among other things, “a refusal to make reasonable modifications in policies, practices,  or procedures, when such modifications are necessary to afford facilities, privileges, advantages  or accommodations to individuals with disabilities, unless such person can demonstrate that  making such modifications would fundamentally alter the nature of such facilities, privileges,  advantages or accommodations.”   82. There are readily available, well-established guidelines on the Internet for  making websites accessible to the blind and visually-impaired.  These guidelines have been  followed by other business entities in making their website accessible, including but not limited  to: adding alt-text to graphics and ensuring that all functions can be performed by using a  keyboard.  Incorporating the basic components to make their website accessible would neither  fundamentally alter the nature of Defendant’s business nor result in an undue burden to  Defendant.   83. Defendant’s actions constitute willful intentional discrimination against the  class on the basis of a disability in violation of the New York State Human Rights Law, N.Y.  Exec. Law § 296(2) in that Defendant has:  (a) constructed and maintained a website that is inaccessible to blind class  members with knowledge of the discrimination; and/or  (b) constructed and maintained a website that is sufficiently intuitive and/or  obvious that is inaccessible to blind class members; and/or   (c) failed to take actions to correct these access barriers in the face of substantial  harm and discrimination to blind class members.   84. Defendant has failed to take any prompt and equitable steps to remedy their  discriminatory conduct.  These violations are ongoing.   86. The actions of Defendant were and are in violation of the New York State  Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the  discrimination.   87. Plaintiff is also entitled to compensatory damages, as well as civil penalties  and fines pursuant to N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense.   88. Plaintiff is also entitled to reasonable attorneys’ fees and costs.   89. Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set  forth and incorporated therein, Plaintiff prays for judgment as set forth below.  90. Plaintiff repeats, realleges and incorporates by reference the allegations  contained in paragraphs 1 through 89 of this Complaint as though set forth at length herein.   91. Plaintiff served notice thereof upon the attorney general as required by N.Y.  Civil Rights Law § 41.   93. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . .  disability, as such term is defined in section two hundred ninety-two of executive law, be  subjected to any discrimination in his or her civil rights, or to any harassment, as defined in  section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm,  corporation or institution, or by the state or any agency or subdivision.”   94. The ELF Stores located in New York State are a sales establishment and  public accommodation within the definition of N.Y. Civil Rights Law § 40-c(2).   Elfcosmetics.com is a service, privilege or advantage of the ELF Stores.  Elfcosmetics.com is a  service that is by and integrated with the Stores.   95. Defendant is subject to New York Civil Rights Law because it owns and  operates ELF Stores and Elfcosmetics.com.  Defendant is a person within the meaning of N.Y.  Civil Law § 40-c(2).   96. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update  or remove access barriers to Elfcosmetics.com, causing Elfcosmetics.com and the services  integrated with the ELF Stores to be completely inaccessible to the blind.  This inaccessibility  denies blind patrons full and equal access to the facilities, goods and services that Defendant  makes available to the non-disabled public.   98. In addition, N.Y. Civil Rights Law § 41 states that “any corporation which  shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each  and every violation thereof be liable to a penalty of not less than one hundred dollars nor more  than five hundred dollars, to be recovered by the person aggrieved thereby . . .”   99. Specifically, under N.Y. Civil Rights Law § 40-d, “any person who shall  violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or  section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions  shall for each and every violation thereof be liable to a penalty of not less than one hundred  dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in  any court of competent jurisdiction in the county in which the defendant shall reside . . .”  100. Defendant has failed to take any prompt and equitable steps to remedy their  discriminatory conduct.  These violations are ongoing.  101. As such, Defendant discriminates, and will continue in the future to  discriminate against Plaintiff and members of the proposed class on the basis of disability are  being directly indirectly refused, withheld from, or denied the accommodations, advantages,  facilities and privileges thereof in § 40 et seq. and/or its implementing regulations.  102. Plaintiff is entitled to compensatory damages of five hundred dollars per  instance, as well as civil penalties and fines pursuant to N.Y. Civil Rights Law § 40 et seq. for  each and every offense. 