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Gathers v. New York & Company, Inc.

United States District Court, W.D. Pennsylvania

January 27, 2017

LISA GATHERS, et al., Plaintiffs,
v.
NEW YORK & COMPANY, Inc., Defendant. RACHEL GNIEWKOWSKI, et al., Plaintiffs,
v.
PARTY CITY HOLDCO INC., Defendant

          MEMORANDUM OPINION

          Arthur J. Schwab United States District Judge.

         I. Introduction

         Rachel Gniewskowski, R. David New, and Access Now, Inc. (“Plaintiffs”), initiated this action on September 6, 2016, against Party City Holdco Inc. (“Defendant”), alleging that its Website is inaccessible to visually impaired consumers in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Currently pending before this Court is Defendant's Motion for Summary Judgment, along with a brief and concise statement of material facts (“CSMF”) in support. Doc. Nos. 100-02. Plaintiff filed a Response thereto, along with a responsive CSMF and counterstatement of material facts.[1] Doc. Nos. 112-14. Defendant filed a Reply. Doc. No. 118. This matter is now ripe for review.

         II. Factual Background

         Gniewkowksi and New are legally blind individuals who use screen reader software (“SRS”) to access the Internet and read website content. Compl. ¶ 18. Access Now is an advocacy organization, of which New is president, that engages in educational efforts and litigation to enforce compliance with the ADA. Id. ¶ 11.

         A. Plaintiffs' Allegations

         Defendant offers products for sale on its Website, which also allows users to read product descriptions, reviews, and the like. Id. ¶ 17. Plaintiffs accessed Defendant's Website in the past and allegedly encountered a number of “digital access barriers” that prevented them from being able to fully use and enjoy the Website. Id. ¶¶ 19-20. As relief, Plaintiff seek, inter alia, a permanent injunction that would require:

a) that Defendant retain a qualified consultant acceptable to Plaintiffs (“MutuallyAgreed Upon Consultant”) and who shall assist it in improving the accessibility of its Website so that it complies with version 2.0 of the Web Content Accessibility Guidelines (“WCAG 2.0 AA”);
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 calculated to achieve ongoing compliance with WCAG 2.0 AA;
c) that Defendant work with the Mutually Agreed Upon Consultant to perform an automated accessibility audit on a periodic basis to evaluate whether Defendant's Website continues to comply with WCAG 2.0 AA 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 Defendant's Website continues to comply with WCAG 2.0 AA on an ongoing basis; and,
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 toll free phone number to report accessibility-related problems.

         Id. ¶ 6.

         B. The ...


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