Blachowicz v. Allstar Products Group, LLC

Summary

On August 21, 2020, Karen Blachowicz filed a Complaint in New York Federal court against ALLSTAR PRODUCTS GROUP, LLC. Plaintiff Karen Blachowicz alleges that www.mission.com is not accessible.

About the defendant

Allstar Products, under the Mission brand name, manufactures and sells a wide array of instant cooling gear which includes hats, neck gaiters, towels and accessories.

What the complaint says

The problems the plaintiff describes with the website.

• Defendant’s Website is so constructed that the pop-up that offers free shipping is not announced to the screen reader user. A pop-up is shown immediately when a user visits the homepage. Not only is it not announced when it is displayed, but focus does not immediately move to the pop-up as required. Instead, the user was able to hear other elementsbehind the pop-up as the user navigated down the homepage, but was unable to access the pop-up in order to hear the content.
• Defendant’s Website has an advertisement for the sale of gaiters in which if the user buys three, they would get another one for free. This advertisement is not announced tothe screen reader, as it has an insufficient description. A descriptive label is not present for the homepage advertisement promoting the offer. The image is announced as “cooling dash neck dash gaiter dash masks” which does not inform users that there is a gaiter sale. The embedded text is also not announced. This includes the mention of free shipping, the “buy three, get one free” offer, and instructions for accessing this offer.
• The shopping cart icon and the search icon do not have accessible labels. The icons do not have descriptive labels that accurately inform a user of their purpose. Users donot hear “cart” when they arrive on the cart icon, instead, they only hear “zero link.” The search icon is incorrectly labeled with only the Website URL. Instead of hearing that they are on the Search button, users hear “clickable landmark w w w dot mission dot com.”

Legal claims

The laws the plaintiff says the defendant broke, called causes of action.

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

What the plaintiff asks for

What the plaintiff wants the court to order.

• 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 that its Website is fully accessible to, and independently usable by, individuals with visual disabilities
• A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2), 28 CFR § 36.504(a), N.Y. Exec. Law § 296, et seq., and the laws of New York, which directs Defendant to take all steps necessary to bring its Website into full compliance with the requirements set forth in the ADA, and its implementing regulations, so that its Website is fully accessible to, and independently usable by, blind individuals, 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 in paragraph 11 above.
• Payment of actual, statutory, and punitive damages, as the Court deems proper
• Payment of costs of suit
• Compensatory damages in an amount to be determined by proof, including all applicable statutory damages and fines, to Plaintiff for violations of her civil rights under New York State Human Rights Law
• 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 (see Access Now, Inc. v. Lax World, LLC, No. 1:17-cv-10976-DJC (D. Mass. Apr. 17, 2018) (ECF 11) (“Plaintiffs, as the prevailing party, may file a fee petition before the Court surrenders jurisdiction. Pursuant to Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 559 (1986), supplemented, 483 U.S. 711 (1987), and Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir. 1984), the fee petition may include costs to monitor Defendant’s compliance with the permanent injunction.”); see also Gniewkowski v. Lettuce Entertain You Enterprises, Inc., Case No. 2:16-cv-01898-AJS (W.D. Pa. Jan. 11, 2018) (ECF 191) (same)
• Whatever other relief the Court deems just, equitable and appropriate
• An Order retaining jurisdiction over this case until Defendant has complied with the Court’s Orders.