15.  Defendant is an online retailer of towels and dryer balls.  On the Website,  one can purchase items including bath towels, hand towels, dryer balls and similar items.  Without any brick and mortar stores, the Website is the exclusive point of sale for  customers to purchase products directly from Defendant.         16.  Defendant’s Website is heavily integrated with its online retail operations.    Through the Website, customers can learn about Defendant’s products, including  materials used and care instructions; read reviews; get answers to frequently asked  questions and get contact information.       -7-  17.  The Website is a commercial marketplace.  As mentioned above, the  website is Defendant’s main point of sale.  Through the Website, customers can complete  a purchase for delivery, learn about the shipping and return policy and contact the  company.     18.  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 online retail  operations. 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  to Defendant’s online retail operations and the numerous facilities, goods, services, and  benefits offered to the public through its Website.   19.  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.   20.  During his visits to the Website, the last occurring on or about November  15, 2020, Plaintiff Fischler encountered multiple access barriers that denied him the   enjoyment of the facilities, goods, and services of the Website, as well as to the goods  and services of Defendant’s online retail operations services. Because of these barriers he  was unable to, substantially equal to sighted individuals:   a.  Know what is on the Website. This is due in part to the non-text  images, which are not accompanied by the requisite alternative text. If detected, images  are labeled only with the product names.  However, many others are not picked up by the  screen reader.  For example, on the page for towels, no images are detected.  Also on this  -8- page, color options and prices are not detected, therefore Plaintiff Fischler is unable to  learn about critical product information equal to sighted users.  On the product pages,  images are again poorly labeled, with only a product name.  A sighted user is given three  images.  The color options are not detected.  Also, the size chart is not properly labeled  with row and column headers, therefore it is difficult for screen reader users to learn  about sizing.     b.  Navigate the Website.  Plaintiff Fischler found this Website very  difficult to navigate using his screen reader.  The subcategories at the top of the page are  automatically expanded and there is no way to skip ahead, making navigation  cumbersome.  Heading navigation is poor throughout the Website.  Form controls are not  properly labeled, therefore color options are not detected and are not selectable.  As a  result, Plaintiff Fischler was unable to complete a purchase.  There are issues with screen  reader focus and navigation is not consistent. The screen reader is getting different  behavior when moving right to left compared to moving left to right   21.  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  Website:  a.  Images are not properly labeled.    b.  Links are not properly labeled.  c.  Form controls have no labels.  d.  Webpages use duplicate IDs which cause problems with screen  readers.  -9- e.  Forms field labels are not unique on a page or enclosed in a  fieldset with a legend that makes the label unique.  f.  Some headings are empty.  g.  Webpages have markup errors.  Defendant Must Remove Barriers to Its Website    22.  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  accessing the Website. These access barriers have likewise deterred him from visiting  Defendant’s Website and taking advantage of its online retail operations and enjoying it  equal to sighted individuals.    23.  If the Website was equally accessible to all, Plaintiff Fischler could  independently navigate it, learn about Defendant’s products, including color and sizing  and complete a purchase, as sighted users can.   24.  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.    25.  Because simple compliance with the WCAG 2.1 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:  -10- 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.   26.  Defendant therefore uses standards, criteria or methods of administration  that have the effect of discriminating or perpetuating the discrimination of others, as  alleged herein.   27.  Title III of the ADA expressly contemplates the injunctive relief that  Plaintiff Fischler seeks under 42 U.S.C. § 12188(a)(2).   28.  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 2.1 guidelines for its  Website:  a.  Remediating the Website to be WCAG 2.1 compliant;  b.  Training Defendant’s employees and agents who develop the  Website on accessibility compliance under the WCAG 2.1 guidelines;  -11- c.  Regularly checking the accessibility of the Website under the  WCAG 2.1 guidelines;  d.  Regularly testing user accessibility by blind or vision-impaired  persons to ensure that Defendant’s Website complies with the WCAG 2.1 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.   29.  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.   30.  Without injunctive relief, Plaintiff Fischler and other visually impaired  consumers will continue to be unable to independently use the Website, violating its  rights.   31.  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.   32.  Defendant has failed to take any prompt and equitable steps to remedy its  discriminatory conduct. These violations are ongoing.  -12- 33.  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 equal access to  Defendant’s Website and its online retail operations during the relevant statutory period  (“Class Members”).   34.  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 equal access to   Defendant’s Website and its online retail operations during the relevant statutory period  (“New York Subclass Members”).   35.  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 equal access to  Defendant’s Website and its online retail operations during the relevant statutory period  (“New York City Subclass Members”).   36.  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  website  is  a  place  of  “public  accommodation”;  b.  Whether Defendant’s Website is a commercial marketplace;  c.  Whether the Website is a “public accommodation” or a service or  good “of a place of public accommodation” under Title III of the ADA;   -13- d.  Whether the Website is a “place or provider of public  accommodation” or an “accommodation, advantage, facility or privilege” under the  NYSHRL or NYCHRL;   e.  Whether the Website denies the full and equal enjoyment of their  goods, services, facilities, privileges, advantages, or accommodations to people with  visual disabilities, violating Title III of the ADA; and  f.  Whether the Website denies the full and equal enjoyment of their  goods, services, facilities, privileges, advantages, or accommodations to people with  visual disabilities, violating the NYSHRL or NYCHRL.   37.  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.   38.  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.   39.  Alternatively, class certification is appropriate under Fed. R. Civ. P.  23(b)(3) because fact and legal questions common to Class and Subclass Members  -14- 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.   40.  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.   41.   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.   42.  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).   43.  Defendant’s Website is a commercial marketplace and a public  accommodation under Title III of the ADA, 42 U.S.C. § 12181(7). Its Website is a  service, privilege, or advantage of Defendant’s online retail operations. The Website is a  service that is integrated with its online retail operations.   44.  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).  -15-  45.  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).   46.  Under 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 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).   47.  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.    48.  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.  -16- 49.  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.   50.  Defendant’s Website is a commercial marketplace and constitutes a sales  establishment and public accommodation under N.Y. Exec. Law § 292(9). Defendant’s  Website is a service, privilege or advantage of Defendant’s online retail operations.  Defendant’s Website is a service that is by and integrated with these online retail  operations.   51.  Defendant is subject to NYSHRL because it owns and operates its New  York online retail operations and the Website. Defendant is a “person” under N.Y. Exec.  Law § 292(1).   52.  Defendant is violating the NYSHRL in refusing to update or remove  access barriers to its Website, causing its Website and the services integrated with its  online retail operations 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. N.Y. Exec. Law §§ 296(2)(a),  296(2)(c)(i), 296(2)(c)(ii).   53.  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  -17- to make its website accessible would neither fundamentally alter the nature of its business  nor result in an undue burden to them.   54.  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  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.   55.  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 its online retail  operations 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.   56.  As Defendant’s actions violate the NYSHRL, Plaintiff Fischler seeks  injunctive relief to remedy the discrimination, compensatory damages, civil penalties and  fines under N.Y. Exec. Law § 297(4)(c) et seq. for every offense, and reasonable  attorneys’ fees and costs.  -18- 57.  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.   58.  Defendant’s Website is a commercial marketplace and constitutes a sales  establishment and public accommodation under the NYCHRL, N.Y.C. Admin. Code § 8- 102(9), and its Website is a service that is integrated with those establishments.   59.  Defendant is subject to NYCHRL because it owns and operates its   Website and its online retail operations, making it a person under N.Y.C. Admin. Code §  8-102(1).   60.  Defendant is violating the NYCHRL in refusing to update or remove  access barriers to its Website, causing its Website and the services integrated with its  online retail operations 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. N.Y.C. Admin. Code §§ 8- 107(4)(a), 8-107(15)(a).   61.  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  -19- c.  Failed to take actions to correct these access barriers in the face of  substantial harm and discrimination to blind class members.   62.  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.   63.  As Defendant’s actions violate the NYCHRL, Plaintiff Fischler seeks  injunctive relief to remedy the discrimination, compensatory damages, civil penalties and  fines for each offense, and reasonable attorneys’ fees and costs. N.Y.C. Admin. Code §§  8-120(8), 8-126(a).  64.  Plaintiff Fischler, individually and on behalf the Class Members, repeats  and realleges every allegation of the preceding paragraphs as if fully set forth herein.   65.  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 online retail operations,  which Defendant owns, operates 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.  -20- §§ 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.   66.  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 NYCHRL   VIOLATIONS OF THE NYSHRL   VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.  