MURPHY v. BOS BRANDS, INC.

• The Digital Platform prevents screen reader users from accessing primary content. For example, Defendant allows shoppers to filter the many products that it sells, displaying these filter options in a pop-up window on the Digital Platform. Shoppers who perceive content visually can click various buttons in the pop-up to expedite and improve their online shopping experience, narrowing their search by, for example, Flavours and Products. Unfortunately, Defendant does not alert screen readers to this pop-up window. Instead, screen readers remain stuck on the unrelated elements in the Digital Platform’s underlying page. As a result, Plaintiff is unlikely (or unable) to access this important navigational tool independently. Click the picture contained in this paragraph or following link to view a short video describing this access barrier: https://youtu.be/qt32ezia5gQ.
• Defendant prevents screen reader users who navigate sequentially through content from accessing primary content directly. For example, shoppers who perceive content
  visually are able to adjust the number of items in their shopping cart, revise their method of payment, and apply coupon codes. Unfortunately, screen reader users cannot tab to this section of the shopping cart. Instead, screen readers skip over each these interactive features, making it impossible for screen reader users, like Plaintiff, to revise their purchase quantity and payment method, or apply coupons to reduce the total cost of a purchase. Click the picture contained in this paragraph or following link to view a short video describing this access barrier: https://youtu.be/5lP31SLo6M4.
• Defendant does not provide a text equivalent for non-text elements. Providing
  text alternatives allows the information to be rendered in a variety of ways by a variety of shoppers. A person who cannot see a picture, logo, or icon can have a text alternative read aloud using synthesized speech. For example, shoppers who perceive content visually will notice various logos on the Digital Platform’s checkout platform identifying the payment methods that Defendant accepts, including Visa, American Express, Mastercard, Discover, and JCB. Unfortunately, Defendant’s accessibility policies fail to ensure all of these logos include sufficiently descriptive alternative text. As a result, Plaintiff is unable to determine whether the Digital Platform accepts his preferred method of payment. Click the picture contained in this paragraph or following link to view a short video describing this access barrier: https://youtu.be/ohCQcnVObrU.
• The Digital Platform uses visual cues to convey content and other information. Unfortunately, screen readers cannot interpret these cues and communicate the
  information they represent to individuals with visual disabilities. For example, shoppers who perceive content visually will notice that many products available for purchase on the Digital Platform include two prices. One price—a higher price—appears in strikethrough font. The other—a lower price—does not. Shoppers who perceive content visually will understand that the price appearing in strikethrough font is the “old” or “original” price, while the price appearing in regular font is the “new” or “sale” price. Unfortunately, screen readers cannot identify the meanings of these two fonts so that users can make an informed decision. Instead, Defendant announces two prices for the same product, making it difficult for shoppers to determine with certainty what they signify, like different quantities, conditions, sizes, or in this case, sales. This unnecessary confusion frustrates Plaintiff’s ability to make informed purchasing decisions, and increases the odds he will abandon the purchase process without making a selection at all. Click the picture contained in this paragraph or following link to view a short video describing this access barrier: https://youtu.be/-Oychz5hbm0.
• The Digital Platform does not include sufficiently descriptive labels or instructions when content requires a shopper to submit information or activate particular features.
  Without these instructions, screen reader users cannot fully navigate the webpages. For example, shoppers who perceive content visually will recognize the “decrease quantity” and “increase quantity” buttons on the Digital Platform and understand that by clicking them, Defendant will decrease and increase the size of their order accordingly. Unfortunately, these buttons are not labeled with sufficiently descriptive alternative text. When screen readers hover over these buttons, Defendant announces “hyphen outdoor” and “plus,” respectively. This audio alternative is difficult to understand without visually perceiving the context in which it appears. As a result, screen reader users, including Plaintiff, are unlikely (or unable) to use this feature independently. Click the picture contained in this paragraph or following link to view a short video describing this access barrier: https://youtu.be/U9JTf3Q-3uA.

Title III of the ADA, 42 U.S.C. § 12181 et seq.

• A Declaratory Judgment that at the commencement of this action Defendant was in violation of the specific requirements of Title III of the ADA described above, and the relevant implementing regulations of the ADA, in that Defendant took no action that was reasonably calculated to ensure Defendant communicated the digital content of its Digital Platform to individuals with disabilities effectively such that Murphy could fully, equally, and independently access Defendant’s products and services;
• A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR § 36.504(a) which directs Defendant to take all steps necessary to communicate the content of its Digital Platform to screen reader users effectively such that Defendant’s online products and services are fully, equally, and independently accessible to individuals with visual disabilities, and which further directs that the Court shall retain jurisdiction for a period to be determined to ensure that Defendant has adopted and is following an institutional policy that will in fact cause it to remain fully in compliance with the law—the specific injunctive relief requested by Plaintiff is described more fully below:55
• Within 90-days of the Court’s Order, Defendant shall complete an accessibility audit of its Digital Platform that will examine the accessibility and usability of the Digital Platform by consumers who are blind.
• Within 180-days of the Court’s Order, Defendant shall develop a corrective action strategy (“Strategy”) based on the audit findings. In addition to the deadlines outlined below, the Strategy shall include dates by which corrective action shall be completed.
• Within 210-days of the Court’s Order, Defendant shall disseminate the Strategy among its executive-level managers, employees, and contractors, if any, involved in digital development and post it on the Digital Platform.
• Within 90-days of the Court’s Order, Defendant shall develop a Digital Accessibility Policy Statement that demonstrates its commitment to digital accessibility to blind and other print disabled consumers, as required by the Americans with Disabilities Act. This Policy Statement shall be posted in the header of each homepage on the Digital Platform within 120-days of the Court’s Order, and shall disclose that an audit is taking or has taken place and that a Strategy will be disseminated and posted on the Digital Platform within 180-days of the Court’s Order.
• Within 240-days of the Court’s Order, Defendant shall develop procedures to implement its Digital Accessibility Policy across the entire Digital Platform. Defendant shall disseminate its Policy and procedures to its executive-level managers, employees, and contractors, if any, involved in digital development.
• Within 12-months of the Court’s Order, Defendant shall conduct training, instruction and support to ensure that all executive-level managers and employees involved in digital development are aware of and understand the Digital Accessibility Policy, including proper procedures, tools, and techniques to implement the Digital Accessibility Policy effectively and consistently.
• Within 12-months of the Court’s Order, Defendant shall hire or designate a staff person with responsibility and commensurate authority, to monitor the Digital Accessibility Policy and procedures.
• Within 12-months of the Court’s Order, Defendant shall develop and institute procedures that require third-party content and plug-ins built into the Digital Platform to provide blind consumers the same programs, benefits and services that they do to individuals without disabilities, except that when it is technically unfeasible to do so. Defendant shall effectuate these obligations by, among other things, implementing as part of its Request for Proposal process language that bidders meet the accessibility standards set forth in WCAG 2.0 Level AA for web-based technology and the Americans with Disabilities Act; requiring or encouraging, at Defendant’s discretion, as part of any contract with its vendors, provisions in which the vendor warrants that any technology provided complies with these standards and any applicable current federal disability law.
• Within 18-months, all pages hosted on the Digital Platform that have been published shall be Accessible to blind users. “Accessible” means fully and equally accessible to and independently usable by blind individuals so that blind consumers are able to acquire the same information, engage in the same interactions, and enjoy the same services as sighted consumers, with substantially equivalent ease of use.
• Defendant shall not release for public viewing or use a substantial addition, update, or change to the Digital Platform until it has determined through automated and user testing that those proposed additions, updates, or changes are Accessible.
• Defendant shall conduct (a) an automated scan monthly and (b) end-ser testing quarterly thereafter to ascertain whether any new posted content is accessible. Defendant shall notify all employees and contractors, if any, involved in digital development if corrections to Digital Platform are needed and of reasonable timelines for corrections to be made. Defendant shall note if corrective action has been taken during the next monthly scan and quarterly end-user test.
• Following the date of the Court’s Order, for each new, renewed, or renegotiated contract with a vendor of Third-Party Content, Defendant shall seek a commitment from the vendor to provide content in a format that is Accessible.
• Defendant shall provide Plaintiff, through his counsel, with a report on the first and second anniversaries of the Court’s Order which summarize the progress Defendant is making in meeting its obligations. Additional communication will occur before and after each anniversary to address any possible delays or other obstacles encountered with the implementation of the Digital Accessibility Policy.
• ayment of actual, statutory, nominal, and other damages, as the Court deems proper;
• Payment of costs of suit;
• Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR
  § 36.505, including costs of monitoring Defendant’s compliance with the judgment;56
• Whatever other relief the Court deems just, equitable and appropriate; and
• An Order retaining jurisdiction over this case until Defendant has complied with the Court’s Orders.