14.  Defendant designs fitness apparel and gear for men, women and children.   Defendant sells its products on its Website and at third-party retailers across the Country,  including but not limited to Flywheel Sports, with locations throughout New York City,  and REI, located at 303 Lafayette Street, New York, New York.      15.  Defendant’s Website is a commercial marketplace.  Through the Website,  customers can learn about Defendant’s products, including recent collections; learn about  sizing, materials used, and technological features; read product reviews; learn about  customizable products and request a quote; learn about the return policy; and locate third- party retailers.     16.  The Website is integrated with its third-party retailers, serving as their  gateway. Through the Website, Defendant’s customers are, inter alia, able to: learn  information about the stores’ locations and contact information and get directions to the  third-party retailers.      17.  It is, upon information and belief, Defendant’s policy and practice to deny  Plaintiff Fischler and other blind or visually-impaired users access to its Website, thereby  denying the facilities and services that are offered and integrated with its third-party  retailers. Due to its failure and refusal to remove access barriers to its Website, Plaintiff  Fischler and visually-impaired persons have been and are still being denied equal access  -7-  to Defendant’s third-party retailers and the numerous facilities, goods, services, and  benefits offered to the public through its Website.   18.  Plaintiff Fischler cannot use a computer without the assistance of screen- reading software. He is, however, a proficient screen-reader user and uses it to access the  Internet. He has visited the Website on separate occasions using screen-reading software.   19.  During his visits to the Website, the last occurring on or about January 13  21, 2020, Plaintiff Fischler encountered multiple access barriers that denied him the full  enjoyment of the facilities, goods, and services of the Website, as well as to the facilities,  goods, and services of Defendant’s third-party retailers. Because of these barriers he was  unable to, substantially equal to sighted individuals:    a.  Know what is on the Website. This is in part due to the non-text  images lacking proper alternative text.  On the home page, there are images labeled only  “image.”  He had difficulty learning about Defendant’s products because not all sub-links  are accessible.  For example, if a sighted user hovers over the link for Men, several sub- links appear.  Hovering is a feature that, unless coded properly, is consistently  inaccessible to screen reader users.  In this case, some of the sub-links are detected by the  screen reader but others are missed.  For example, under “Men” he was able to locate  links to the sidewalk sale and collections but the links for apparel, fear and accessories  were not detected.  With assistance for a sighted user, Plaintiff Fischler was able to find a  link for navigation which gave him access to those links, however the navigation link was  not labeled as clickable and when he subsequently tried to navigate those links with his  arrow keys, the links disappear.  Plaintiff Fischler was unable to learn about Defendant’s  third-party retailers because when he tried to enter his zip code it told him there was an  -8-  error.  He needed assistance from a sighted user to know he need to select a location from  an auto-populated list in order to access results. Lastly, Plaintiff Fischler was unable to  learn about warranties.  When he selected the link, there was no alert that anything had  loaded and focus was not redirected.  Ultimately, he was unable to find any information.           b.  Navigate the Website. This Website was difficult to navigate using  a screen reader. As mentioned above, not all links are accessible using a screen reader.  In  addition to the difficulties listed above, Plaintiff Fischler was unable to locate the menu at  the top of the page that a sighted user can click on to access links such as “blog”,  “product info”, etc.  Rather a screen reader user must navigate to the footer to find these  links.  There are unlabeled elements throughout the Website.  For example, on the store  finder page, there are several unlabeled buttons.  Plaintiff Fischler was unable to  complete a purchase using a screen reader.  He was unable to detect color options, and  although he was able to locate size options, he was unable to select a size.  When he tried  to add an item to his cart, there was no alert that he had been successful and he was  unable to locate a link to his cart to confirm it had been added.         20.  Plaintiff Fischler was denied full and equal access to the facilities and  services Defendant offers to the public on its Website because he encountered multiple  accessibility barriers that visually-impaired people often encounter with non-compliant  websites:  a.  Lack of alt-text for images.  b.  Fieldset elements are not labeled with legend elements.  c.  Document titles are blank.  d.  Tables are not properly labeled.  -9-  e.  Frames do not have a title.  f.  Some pages have the same title so the title cannot be used to  distinguish pages.  g.  Form controls have no label and no programmatically determined  name.  h.  Forms have fields without label elements or title attributes.  i.  Webpages have duplicate IDs which cause problems in screen  readers.  j.  Radio button groups are not contained in a fieldset element.  k.  Webpages have no headings, headings are not nested correctly, and  at least twenty (20) headings are empty.  l.  Links use general text like “click here” which doesn’t explain the  link purpose.  m.  Several links on a page share the same link text, but go to different  destinations.  n.  Webpages have markup errors.  Defendant Must Remove Barriers to Its Website    21.  Due to the inaccessibility of its Website, blind and visually-impaired  customers such as Plaintiff Fischler, who need screen-readers, cannot fully and equally  use or enjoy the facilities, goods, and services Defendant offers to the public on its  Website. The Website’s access barriers that Plaintiff Fischler encountered have caused a  denial of his full and equal access in the past, and now deter him on a regular basis from  -10-  accessing the Website. These access barriers have likewise deterred him from visiting  third-party retailers selling Defendant’s products and enjoying them equal to sighted  individuals.    22.  If the Website was equally accessible to all, Plaintiff Fischler could  independently navigate it, view goods and service items, learn about Defendant’s third- party retailers; learn about Defendant’s products; and complete a purchase, as sighted  individuals can.   23.  Through his attempts to use the Website, Plaintiff Fischler has actual  knowledge of the access barriers that make these services inaccessible and independently  unusable by blind and visually-impaired people.    24.  Because simple compliance with the WCAG 2.0 Guidelines would  provide Plaintiff Fischler and other visually-impaired consumers with equal access to the  Website, Plaintiff Fischler alleges that Defendant has engaged in acts of intentional  discrimination, including, but not limited to, the following policies or practices:  a.  Constructing and maintaining a website that is inaccessible to  visually-impaired individuals, including Plaintiff Fischler;  b.  Failing to construct and maintain a website that is sufficiently  intuitive to be equally accessible to visually-impaired individuals, including Plaintiff  Fischler; and,  c.  Failing to take actions to correct these access barriers in the face of  substantial harm and discrimination to blind and visually impaired consumers, such as  Plaintiff Fischler, as a member of a protected class.  -11-   25.  Defendant therefore uses standards, criteria or methods of administration  that have the effect of discriminating or perpetuating the discrimination of others, as  alleged herein.   26.  Title III of the ADA expressly contemplates the injunctive relief that  Plaintiff Fischler seeks under 42 U.S.C. § 12188(a)(2).   27.  Because its Website has never been equally accessible, and because  Defendant lacks a corporate policy that is reasonably calculated to cause its Website to  become and remain accessible, Plaintiff Fischler seeks a permanent injunction under 42  U.S.C. § 12188(a)(2) requiring Defendant to retain a qualified consultant acceptable to  Plaintiff Fischler to assist Defendant to comply with WCAG 2.0 guidelines for its  Website:  a.  Remediating the Website to be WCAG 2.0 AA compliant;  b.  Training Defendant’s employees and agents who develop the  Website on accessibility compliance under the WCAG 2.0 guidelines;  c.  Regularly checking the accessibility of the Website under the  WCAG 2.0 guidelines;  d.  Regularly testing user accessibility by blind or vision-impaired  persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines;  and,   e.  Developing an accessibility policy that is clearly disclosed on  Defendant’s Website, with contact information for users to report accessibility-related  problems.  -12-   28.  Although Defendant may currently have centralized policies on  maintaining and operating its Website, Defendant lacks a plan and policy reasonably  calculated to make them fully and equally accessible to, and independently usable by,  blind and other visually impaired consumers.   29.  Without injunctive relief, Plaintiff Fischler and other visually impaired  consumers will continue to be unable to independently use the Website, violating its  rights.   30.  Defendant has, upon information and belief, invested substantial sums in  developing and maintaining its Website and has generated significant revenue from the  Website. These amounts are far greater than the associated cost of making its Website  equally accessible to visually impaired customers.   31.  Defendant has failed to take any prompt and equitable steps to remedy its  discriminatory conduct. These violations are ongoing.  32.  Plaintiff Fischler seeks to certify a nationwide class under Fed. R. Civ. P.  23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted  to access Defendant’s Website and as a result have been denied access to the equal  enjoyment of goods and services offered in Defendant’s third-party retailers during the  relevant statutory period (“Class Members”).   33.  Plaintiff Fischler seeks to certify a State of New York subclass under Fed.  R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who  have attempted to access the Website and as a result have been denied access to the equal  -13-  enjoyment of goods and services offered in Defendant’s third-party retailers during the  relevant statutory period (“New York Subclass Members”).   34.  Plaintiff Fischler seeks to certify a New York City subclass under Fed. R.  Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have  attempted to access the Website and as a result have been denied access to the equal  enjoyment of goods and services offered in the stores selling Defendant’s products during  the relevant statutory period (“New York City Subclass Members”).   35.  Common questions of law and fact exist amongst the Class Members,  New York Subclass Members and New York City Subclass Members:  a.  Whether Defendant’s third-party retailers are places of “public  accommodation”;  b.  Whether Defendant’s Website is a “public accommodation” or a  service or good “of a place of public accommodation” under Title III of the ADA;   c.  Whether Defendant’s Website is a “place or provider of public  accommodation” or an “accommodation, advantage, facility or privilege” under the  NYSHRL or NYCHRL;  d.  Whether Defendant’s Website denies the full and equal enjoyment  of its goods, services, facilities, privileges, advantages, or accommodations to people  with visual disabilities, violating Title III of the ADA; and  e.  Whether Defendant’s Website denies the full and equal enjoyment  of its goods, services, facilities, privileges, advantages, or accommodations to people  with visual disabilities, violating the NYSHRL or NYCHRL.  -14-   36.  Plaintiff Fischler’s claims are typical of the Class Members, New York  Subclass Members and New York City Subclass Members: they are all severely visually  impaired or otherwise blind, and claim that Defendant has violated Title III of the ADA,  NYSHRL or NYCHRL by failing to update or remove access barriers on its Website so it  can be independently accessible to the visually impaired individuals.   37.  Plaintiff Fischler will fairly and adequately represent and protect the Class  and Subclasses’ interests because he has retained and is represented by counsel  competent and experienced in complex class action litigation, and because he has no  interests antagonistic to the Class or Subclasses. Class certification of the claims is  appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act  on grounds generally applicable to the Class and Subclasses, making appropriate both  declaratory and injunctive relief with respect to Plaintiff, the Class and Subclasses.   38.  Alternatively, class certification is appropriate under Fed. R. Civ. P.  23(b)(3) because fact and legal questions common to Class and Subclass Members  predominate over questions affecting only individuals, and because a class action is  superior to other available methods for the fair and efficient adjudication of this litigation.   39.  Judicial economy will be served by maintaining 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.    -15-  40.  Plaintiff Fischler, individually and on behalf of the Class Members,  repeats and realleges every allegation of the preceding paragraphs as if fully set forth  herein.   41.  Title III of the ADA prohibits “discriminat[ion] 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.” 42 U.S.C. § 12182(a).   42.  The third-party retailers selling Defendant’s products are public  accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Its  Website is a service, privilege, or advantage of Defendant’s third-party retailers. The  Website is a service that is integrated with these locations.   43.  Under Title III of the ADA, it is unlawful discrimination to deny  individuals with disabilities the opportunity to participate in or benefit from the goods,  services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. §  12182(b)(1)(A)(i).   44.  Under Title III of the ADA, it is unlawful discrimination to deny  individuals with disabilities an opportunity to participate in or benefit from the goods,  services, facilities, privileges, advantages, or accommodation, which is equal to the  opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii).   45.  Under Title III of the ADA, unlawful discrimination also includes, among  other things:  -16-  [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; and a  failure 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, 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.  42 U.S.C. § 12182(b)(2)(A)(ii)-(iii).   46.  These acts violate Title III of the ADA, and the regulations promulgated  thereunder. Plaintiff Fischler, who is a member of a protected class of persons under Title  III of the ADA, has a physical disability that substantially limits the major life activity of  sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, he has been  denied full and equal access to the Website, has not been provided services that are  provided to other patrons who are not disabled, and has been provided services that are  inferior to the services provided to non-disabled persons.    47.  Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set  forth and incorporated therein, Plaintiff Fischler requests the relief as set forth below.  -17-  48.  Plaintiff Fischler, individually and on behalf of the New York Subclass  Members, repeats and realleges every allegation of the preceding paragraphs as if fully  set forth herein.   49.  N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory  practice for any person, being the owner, lessee, proprietor, manager, superintendent,  agent or employee of any place of public accommodation . . . because of the . . . disability  of any person, directly or indirectly, to refuse, withhold from or deny to such person any  of the accommodations, advantages, facilities or privileges thereof.”   50.  The third-party retailers selling Defendant’s products in the State of New  York constitute sales establishments and public accommodations under N.Y. Exec. Law §  292(9). Defendant’s Website is a service, privilege or advantage of these stores.  Defendant’s Website is a service that is by and integrated with these stores.   51.  Defendant is subject to NYSHRL because it owns and operates its  Website, which is accessible to residents of the State of New York. Defendant is a  “person” under N.Y. Exec. Law § 292(1).   52.  Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or  remove access barriers to its Website, causing its Website and the services integrated  with its third-party retailers 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.   53.  Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice  includes, among other things, “a refusal to make reasonable modifications in policies,  -18-  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 being offered or  would result in an undue burden.”   54.  Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice  also includes, “a refusal to take such steps as may be necessary to ensure that no  individual with a disability is excluded or denied services because of the absence of  auxiliary aids and services, unless such person can demonstrate that taking such steps  would fundamentally alter the nature of the facility, privilege, advantage or  accommodation being offered or would result in an undue burden.”    55.  Readily available, well-established guidelines exist on the Internet for  making websites accessible to the blind and visually impaired. These guidelines have  been followed by other large business entities and government agencies in making their  websites accessible, including but not limited to: adding alt-text to graphics and ensuring  that all functions can be performed using a keyboard. Incorporating the basic components  to make its Website accessible would neither fundamentally alter the nature of its  business nor result in an undue burden to them.   56.  Defendant’s actions constitute willful intentional discrimination against  the class because of a disability, violating the NYSHRL, N.Y. Exec. Law § 296(2), in  that Defendant has:  a.  Constructed and maintained a website that is inaccessible to Class  Members with knowledge of the discrimination; and/or  -19-  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.   57.  Defendant discriminates, and will continue in the future to discriminate  against Plaintiff Fischler and New York Subclass Members on the basis of disability in  the full and equal enjoyment of the goods, services, facilities, privileges, advantages,  accommodations and/or opportunities of Defendant’s Website and the third-party  retailers selling its products under § 296(2) et seq. and/or its implementing regulations.  Unless the Court enjoins Defendant from continuing to engage in these unlawful  practices, Plaintiff and the New York Subclass Members will continue to suffer  irreparable harm.   58.  As Defendant’s actions violate the NYSHRL, Plaintiff Fischler seeks  injunctive relief to remedy the discrimination.   59.  Plaintiff Fischler is also entitled to compensatory damages, as well as civil  penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for every offense.   60.  Plaintiff Fischler is also entitled to reasonable attorneys’ fees and costs.   61.  Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set  forth and incorporated therein Plaintiff prays for judgment as set forth below.  62.  Plaintiff Fischler, individually and on behalf the New York City Subclass  Members, repeats and realleges every allegation of the preceding paragraphs as if fully  set forth herein.  -20-   63.  The NYCHRL provides that “It shall be an unlawful discriminatory  practice for any person, being the owner, lessee, proprietor, manager, superintendent,  agent or employee of any place or provider of public accommodation, because of . . .  disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any  of the accommodations, advantages, facilities or privileges thereof.” N.Y.C. Admin.  Code § 8-107(4)(a).   64.  The third-party retailers selling Defendant’s products in New York City  are sales establishments and public accommodations within the meaning of the  NYCHRL, N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated  with these stores.     65.  Defendant is subject to NYCHRL because it owns and operates its  Website, which is accessible to residents of the City of New York, making it a person  under N.Y.C. Admin. Code § 8-102(1).   66.  Defendant is violating the NYCHRL in refusing to update or remove  access barriers to Website, causing its Website 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.   67.  Defendant is required to “make reasonable accommodation to the needs of  persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.]  from discriminating on the basis of disability shall make reasonable accommodation to  enable a person with a disability to . . . enjoy the right or rights in question provided that  the disability is known or should have been known by the covered entity.” N.Y.C.  Admin. Code § 8-107(15)(a).  -21-   68.  Defendant’s actions constitute willful intentional discrimination against  the Subclass because of a disability, violating the NYCHRL, N.Y.C. Admin. Code § 8- 107(4)(a) and § 8-107(15)(a,) in that it 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.   69.  As such, Defendant discriminates, and will continue in the future to  discriminate against Plaintiff Fischler and the New York City Subclass Members because  of disability in the full and equal enjoyment of the goods, services, facilities, privileges,  advantages, accommodations and/or opportunities of its Website and its establishments  under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins  Defendant from continuing to engage in these unlawful practices, Plaintiff and the New  York City Subclass will continue to suffer irreparable harm.   70.  As Defendant’s actions violate the NYCHRL, Plaintiff Fischler seeks  injunctive relief to remedy the discrimination.   71.  Plaintiff Fischler is also entitled to compensatory damages, as well as civil  penalties and fines for each offense. N.Y.C. Admin. Code §§ 8-120(8), 8-126(a).   72.  Plaintiff Fischler is also entitled to reasonable attorneys’ fees and costs.  -22-   73.  Under N.Y.C. Admin. Code § 8-120 and § 8-126 and the remedies,  procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as  set forth below.  74.  Plaintiff Fischler, individually and on behalf the Class Members, repeats  and realleges every allegation of the preceding paragraphs as if fully set forth herein.   75.  An actual controversy has arisen and now exists between the parties in that  Plaintiff Fischler contends, and is informed and believes that Defendant denies, that its  Website contains access barriers denying blind customers the full and equal access to the  goods, services and facilities of its Website and by extension its products, which are sold  in stores through the country, and it fails to comply with applicable laws including, but  not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et  seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting  discrimination against the blind.   76.  A judicial declaration is necessary and appropriate now in order that each  of the parties may know its respective rights and duties and act accordingly.  DECLARATORY RELIEF   Defendant, Its Website And Its Website’s Barriers   VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.   VIOLATIONS OF THE NYSHRL   VIOLATIONS OF THE NYCHRL  