23.  Defendant is a women’s fashion boutique and clothing retailer. Defendant is an  online retailer of women's clothing, footwear, jewelry, and other accessories,  carrying popular brands such as Adidas, Champion, and I.AM.GIA, as well as  Defendant’s own private labels.. Defendant owns, operates, manages, and controls  the website www.shopakira.com (its “Website”), which allows Defendant to  function as a global fashion retailer. With few to no brick and mortar stores  currently operating today, Defendant’s Website is the exclusive point of sale for  Defendant’s products.    24.  Defendants Website is a commercial marketplace. The Website offers features of a  physical marketplace in that it allows all consumers to browse goods and services,  notifies consumers of special sale or clearance items, provides details about the  products, and completes purchases of Defendant’s products, which Defendant will  thereafter ensure the delivery of throughout the United States, including in New  York State.   25.  Defendant’s Website is integrated with its retail business operations, serving as its  gateway. The Website offers products and services for online sale and general  delivery to the public. The Website offers features which ought to allow users to  learn about Defendant’s products and services, browse for items, information,  access navigation bar descriptions, prices, savings and/or coupons and sale discount  items, and avail consumers of the ability to peruse the numerous items offered for  -9-  sale. The features offered by www.shopakira.com include learning about the  products and/or items, about the company, read reviews, and make purchases.   26.  It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff  and other blind or visually-impaired users access to its Website, thereby denying  the facilities and services that are offered and integrated with its retail operations.  Due to its failure and refusal to remove access barriers to its Website, Plaintiff and  visually-impaired persons have been and are still being denied equal access to  Defendant’s retail operations and the numerous facilities, goods, services, and  benefits offered to the public through its Website.   27.  Defendant’s Website is a commercial marketplace without any physical location.  Thus, Defendant’s Website is the main point of sale for its business operation.   28.  Plaintiff is a visually-impaired and legally blind person, who cannot use a computer  without the assistance of screen-reading software. Plaintiff has visited the Website  on separate occasions using a screen-reader.   29.  During Plaintiff’s visits to the Website, www.shopakira.com, the last occurring in  July of 2020, Plaintiff encountered multiple access barriers which effectively  denied her the full enjoyment of the goods and services of the Website. Plaintiff  visited Defendant’s Website with an intent to browse and attempt to purchase a pair  of sheer leggings. Despite her efforts, however, Plaintiff was denied a  shopping experience similar to that of a sighted individual due to the website’s lack  of a range of features and accommodations, which effectively barred Plaintiff  from being able to make her desired purchase.   -10-   30.  Many features on the Website lacks alt. text, which is the invisible code embedded  beneath a graphical image. As a result, Plaintiff was unable to differentiate what  products were on the screen due to the failure of the Website to adequately describe  its content.    31.  Many features on the Website also fail to add a label element or title attribute for  each field. This is a problem for the visually impaired because the screen reader  fails to communicate the purpose of the page element. It also leads to the user not  being able to understand what he or she is expected to insert into the subject field.  This was an issue on Defendant’s Website particularly in the size selection section.  As a result, Plaintiff and similarly situated visually impaired users of Defendant’s  Website are unable to enjoy the privileges and benefits of the Website equally to  sighted users.   32.  Plaintiff  has  made  multiple  attempts  to  complete  a  purchase  on  www.shopakira.com, most recently in July of 2020, but was unable to do so  independently because of the many access barriers on Defendant’s website. These  access barriers have caused www.shopakira.com to be inaccessible to, and not  independently usable by, blind and visually-impaired persons.    33.  The Website also contained a host of broken links, which is a hyperlink to a non- existent or empty webpage. For the visually impaired this is especially paralyzing  due to the inability to navigate or otherwise determine where one is on the website  once a broken link is encountered. For example, upon coming across a link of  interest, Plaintiff was redirected to an error page. However, the screen-reader failed  -11-  to communicate that the link was broken. As a result, Plaintiff could not get back  to her original search.   34.  These access barriers effectively denied Plaintiff the ability to use and enjoy  Defendant’s website the same way sighted individuals do. The access barriers  Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the  past, and now deter Plaintiff on a regular basis from accessing the Website.   35.  Due to the inaccessibility of Defendant’s Website, blind and visually-impaired  customers such as Plaintiff, who need screen-readers, cannot fully and equally use  or enjoy the facilities, products, and services Defendant offers to the public on its  Website. The access barriers Plaintiff encountered have caused a denial of  Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular  basis from visiting the Website, presently and in the future.     36.  If the Website was equally accessible to all, Plaintiff could independently navigate  the Website and complete a desired transaction as sighted individuals do.   37.  Because simple compliance with the WCAG 2.1 Guidelines would provide Plaintiff  and other visually-impaired consumers with equal access to the Website, Plaintiff  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;  b.  Failure to construct and maintain a website that is sufficiently intuitive   so as to be equally accessible to visually-impaired individuals, including  Plaintiff; and,  -12-  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, as a member of a protected class.   38.  Defendant therefore uses standards, criteria or methods of administration that have the  effect of discriminating or perpetuating the discrimination of others, as alleged herein.   39.  The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this  action. In relevant part, the ADA requires:  In the case of violations of . . . this title, injunctive relief shall include an order to  alter facilities to make such facilities readily accessible to and usable by individuals  with disabilities . . . Where appropriate, injunctive relief shall also include requiring  the . . . modification of a policy . . .  42 U.S.C. § 12188(a)(2).   40.  Because Defendant’s 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 invokes 42 U.S.C. §  12188(a)(2)  and seeks a permanent injunction requiring:  a. that Defendant retain a qualified consultant acceptable to Plaintiff  (“Mutually Agreed Upon Consultant”) who shall assist it in improving the  accessibility of its Website so the goods and services on them may be  equally accessed and enjoyed by individuals with vision related disabilities;   b. that Defendant work with the Mutually Agreed Upon Consultant to ensure  that all employees involved in website development and content  development be given web accessibility training on a periodic basis,  including onsite training to create accessible content at the design and  development stages;   -13-  c. that Defendant work with the Mutually Agreed Upon Consultant to  perform an automated accessibility audit on a periodic basis to evaluate  whether its Website may be equally accessed and enjoyed by individuals  with vision related disabilities on an ongoing basis;   d. that Defendant work with the Mutually Agreed Upon Consultant to  perform end-user accessibility/usability testing on a periodic basis with  said testing to be performed by individuals with various disabilities to  evaluate whether its Website may be equally accessed and enjoyed by  individuals with vision related disabilities on an ongoing basis;   e. that Defendant work with the Mutually Agreed Upon Consultant to create  an accessibility policy that will be posted on its Website, along with an e- mail address and tollfree phone number to report accessibility-related  problems; and   f. that Plaintiff, their counsel and its experts monitor Defendant’s Website for  up to two years after the Mutually Agreed Upon Consultant validates it is  free of accessibility errors/violations to ensure it has adopted and  implemented adequate accessibility policies.    41.  Although Defendant may currently have centralized policies regarding 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.    42.  Defendant has, upon information and belief, invested substantial amounts of money  in developing and maintaining its Website and, through the site, has generated  -14-  significant revenue. The invested amounts are far greater than the associated cost  of making their Website equally accessible to visually-impaired consumers.   43.  Without injunctive relief, Plaintiff and other visually-impaired consumers will  continue to be unable to independently use the Website, violating their rights.  44.  Plaintiff, on behalf of herself and all others similarly situated, 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,  during the relevant statutory period.   45.  Plaintiff, on behalf of herself and all others similarly situated, seeks 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 Defendant’s  Website and as a result have been denied access to the equal enjoyment of goods and  services offered, during the relevant statutory period.    46.  Common questions of law and fact exist amongst Class, including:  a.  Whether Defendant’s Website is a “public accommodation” under   the ADA;   b.  Whether Defendant’s Website is a “place or provider of public   accommodation” under the NYCHRL;  c.  Whether Defendant’s Website denies the full and equal enjoyment   of  its  products,  services,  facilities,  privileges,  advantages,  or  accommodations to people with visual disabilities, violating the ADA; and  d.  Whether Defendant’s Website denies the full and equal enjoyment   -15-  of  its  products,  services,  facilities,  privileges,  advantages,  or  accommodations to people with visual disabilities, violating the NYCHRL.   47.  Plaintiff’s claims are typical of the Class. The Class, similarly, to the Plaintiff, are  severely visually impaired or otherwise blind, and claim that Defendant has  violated the ADA or NYCHRL by failing to update or remove access barriers on  its Website so either can be independently accessible to the Class.   48.  Plaintiff will fairly and adequately represent and protect the interests of the Class  Members 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 Class Members. 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, making appropriate both  declaratory and injunctive relief with respect to Plaintiff and the Class as a whole.   49.  Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because  fact and legal questions common to Class Members 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.   50.  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.  51.   Plaintiff, on behalf of herself and the Class Members, repeats and realleges every  allegation of the preceding paragraphs as if fully set forth herein.   52.  Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides:  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.  42 U.S.C. § 12182(a).   53.  Defendant’s Website is a public accommodation within the definition of Title III of  the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the  general public, and as such, must be equally accessible to all potential consumers.   54.  Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to  deny individuals with disabilities the opportunity to participate in or benefit from  the products, services, facilities, privileges, advantages, or accommodations of an  entity. 42 U.S.C. § 12182(b)(1)(A)(i).   55.  Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to  deny individuals with disabilities an opportunity to participate in or benefit from  the products, 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).   56.  Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also  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  -17-  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).   57.  The acts alleged herein constitute violations of Title III of the ADA, and the  regulations promulgated thereunder. Plaintiff, who is a member of a protected class  of persons under 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, Plaintiff 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. Defendant has failed to take any prompt and equitable steps to remedy its  discriminatory conduct. These violations are ongoing.   58.  Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and  incorporated therein, Plaintiff, requests relief as set forth below.  59.  Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats  and realleges every allegation of the preceding paragraphs as if fully set forth herein.   60.  N.Y.C. Administrative Code § 8-107(4)(a) 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,  -18-  withhold from or deny to such person, any of the accommodations, advantages,  facilities or privileges thereof.”   61.  Defendant’s Website is a sales establishment and public accommodations within  the definition of N.Y.C. Admin. Code § 8-102(9).   62.  Defendant is subject to NYCHRL because it owns and operates its Website, making  it a person within the meaning of N.Y.C. Admin. Code § 8-102(1).   63.  Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to  update or remove access barriers to Website, causing its Website and the services  integrated with such Website to be completely inaccessible to the blind. The  inaccessibility denies blind patrons full and equal access to the facilities, products,  and services that Defendant makes available to the non-disabled public.   64.  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).   65.  Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code §  8-107(4)(a) and § 8-107(15)(a) 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   -19-  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.   66.  Defendant has failed to take any prompt and equitable steps to remedy their  discriminatory conduct. These violations are ongoing.   67.  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 products, services, facilities,  privileges, advantages, accommodations and/or opportunities of its Website 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  members of the class will continue to suffer irreparable harm.   68.  Defendant’s actions were and are in violation of the NYCHRL and therefore  Plaintiff invokes her right to injunctive relief to remedy the discrimination.   69.  Plaintiff is also entitled to compensatory damages, as well as civil penalties and  fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense  as well as punitive damages pursuant to § 8-502.   70.  Plaintiff is also entitled to reasonable attorneys’ fees and costs.   71.  Under N.Y.C. Administrative 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.  -20-  72.  Plaintiff, on behalf of herself and the Class and New York City Sub-Classes  Members, repeats and realleges every allegation of the preceding paragraphs as if  fully set forth herein.   73.  An actual controversy has arisen and now exists between the parties in that Plaintiff  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  products, services and facilities of its Website, which Defendant owns, operations  and controls, 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.   74.  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.  DECLARATORY RELIEF   VIOLATIONS OF THE NYCHRL   VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.  -16-  