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Andrews v. Blick Art Materials, LLC

United States District Court, E.D. New York

November 22, 2017

VICTOR ANDREWS, on behalf of himself and all others similarly situated, Plaintiff,
v.
BLICK ART MATERIALS, LLC, Defendant.

          C.K. LEE ANNE SEELIG LEE LITIGATION GROUP, PLLC

          DAVID SETH KORZENIK TERENCE PATRICK KEEGAN MILLER KORZENIK SOMMERS LLP

          STEVE BARON STEVEN MANDELL MANDELL MENKES LLC

          MEMORANDUM AND ORDER

          JACK B. WEINSTEIN, SENIOR UNITED STATES DISTRICT JUDGE

         Contents

         I. Introduction .................................................................................................................. 3

         II. Settlement ................................................................................................................. 5

         III. Law ........................................................................................................................... 7

         A. American's with Disabilities Act .......................................................................... 7

         B. Quasi-Class Action ................................................................................................ 8

         C. Settlement Standard of Review ........................................................................... 11

         D. Sealing Attorneys' Fees ...................................................................................... 12

         IV. Hearing and Submissions ........................................................................................ 13

         A. Visually Impaired Users' Access to the Internet ................................................. 14

         1. Screen Reading Software ................................................................................. 14

         2. Visually Impaired Users' Access to Properly Functioning Websites .............. 15

         3. Blick's Website ................................................................................................ 18

         4. Access to Training and Resources ................................................................... 23

         B. WCAG 2.0 Level AA Guidelines ....................................................................... 25

         C. Implementation and Timeline of Guidelines to Blick's Website ........................ 28

         D. Class and Quasi-Class Action Issues .................................................................. 30

         V. Application of Law to Facts .................................................................................... 31

         A. Elimination of Class Allegations ......................................................................... 31

         B. Reasonableness of Settlement Terms .................................................................. 32

         C. Sealing of Attorneys' Fees and Fee Approval .................................................... 34

         VI. Conclusion .............................................................................................................. 35

         App. A: Declaration of Victor Andrews.………………………………………………...37

         App. B: Declaration of Mark Riccobono….…………………………………………..…39

         App. C: Declaration of Aaron Cannon………………………………………………..…62

         I. Introduction

         Equal opportunity for the disadvantaged-so far as practicable-has been a major goal of the United States since World War II. This case deals with one aspect of that struggle- providing the visually impaired with an effective opportunity to use the internet for procuring consumer products. See Andrews v. Blick Art Materials, LLC, No. 17-CV-767, 2017 WL 3278898, __ F.Supp.3d __ (E.D.N.Y. Aug. 1, 2017) (“Andrews I”).

         There has been a cascade of litigation over the past several years, with at least 750 lawsuits, concerning access to the internet by visually impaired individuals. Vivian Wang, College Websites Must Accommodate Disabled Students, Lawsuits Say, N.Y. Times, Oct. 11, 2017 at ¶ 20. Sitting at the intersection of technology and disability, these cases, including the present litigation, cry out for speedy, just resolutions. The blind, like the deaf, can, demonstrations during the present litigation have shown, achieve high internet communication skills if they are trained and have appropriate cooperation from merchants in providing the proper technology and software. See, e.g., Oliver Sacks, Seeing Voices xiii (First Vintage Books Ed. 2000) (“[T]he almost unlimited plasticity and resources of the nervous system, the human organism, when it is faced with the new and must adapt . . . the infinite resources for survival and transcendence which Nature and Culture, together, have given us.”). This memorandum and order, approving the parties' settlement, provides an example of a reasonable resolution of the issues, providing significant expansion of internet access to the visually impaired.

         This putative class action was brought by a blind person, Victor Andrews, against Blick Art Materials (“Blick”), a major national vendor of art materials in stores and over the internet. Andrews, who holds a college degree in Radio and Broadcasting Technology, claims that Blick could adjust its website's code so that visually impaired individuals could more readily purchase art materials on its primary website, dickblick.com.

         In a prior opinion, the court ruled that the Americans with Disabilities Act (“ADA”), New York State Human Rights Law, New York State Civil Rights Law, and New York City Human Rights Law apply to Blick's electronic merchandising. See Andrews I. Scientific demonstrations in court, testimony, and argument demonstrated that there are well-established, developing guidelines for making websites accessible to visually impaired people. Dickblick.com does not follow these guidelines, so defendant's website is largely inaccessible to those who are visually impaired. The plaintiff was denied, a jury could find, equal access to Blick's stores, as well as to the numerous goods, services, and benefits offered to the public through dickblick.com.

         The plaintiff moves to withdraw the class action allegations. Both parties seek approval of a settlement agreed to by them. Embedded within the scope of review raised by the parties' settlement are two questions: first, was it appropriate for the plaintiff to have abandoned the class action aspect of the case for individual relief that will necessarily inure to the benefit of the putative class members; and second, are the terms of the settlement substantively reasonable, equitable, and fair.

         The court reviews the settlement in this case using its inherent power. Cf. Stephen Bergstein, Second Circuit to Decide Whether District Courts Must Approve ‘Cheeks' Settlements Under Rule 68, N.Y L.J., Dec. 13, 2017 at 4 (discussing cases where district courts must approval settlements because of the wide-ranging effects on individuals). Although there has been no motion for class certification, this case can be properly characterized as a quasi-class action. In other quasi-class actions, courts have used their inherent power to review the reasonableness of settlements. See Infra Part III(B)-(C).

         Withdrawal of the class action allegations is allowed. As modified at the request of the court, the settlement is approved.

         II. Settlement

         The Parties submitted their settlement to the court in the form of a proposed judgment. The submission is included in full below. The court's suggested changes are in italics.

         Judgement

         HAVING CONSIDERED Plaintiff's Unopposed Motion for Entry of Judgment, approving settlement of this litigation, the court finds that:

A. Defendant Blick Art Materials, LLC (“Defendant”) operates certain websites at the address www.dickblick.com, www.utrechtart.com, and www.dickblick.com/ara (the “Websites”) at which it offers for sale and sells art supplies;
B. Plaintiff is a blind individual who claims that Defendant's Website is not fully accessible to, and independently usable by, visually impaired people in violation of Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. (“ADA”), New York State Human Rights Law, N.Y. Exec. Law, Article 15 (Executive Law§ 290 et seq.), and the New York City Human Rights Law, N.Y.C. Administrative Code§ 8-101 et seq.
C. Defendant denies that the Website fails to comply with Title III the Americans with Disabilities Act of 1990 (“ADA”) or any other applicable laws;
D. Defendant [deletion by court] has: a) been working to improve the overall functionality and accessibility of the Website and the Other Websites; b) been awaiting guidance from the Department of Justice (“DOJ”) which has yet to promulgate guidelines on website accessibility; and c) retained a website accessibility technical coordinator to assist it in auditing the Websites and improving accessibility to customers and potential customers who suffer from disabilities.

         IT IS HEREBY ORDERED that the Motion to approve settlement of the case and elimination of class allegations is granted and that:

1. Defendant and its parents, subsidiaries, and related entities bring the Websites into substantial conformance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA, which are hereby determined by the court to be an appropriate standard to judge whether Defendant is in compliance with any accessibility requirements of the ADA, New York State law, or New York City local law on or before December 31, 2019, implementing changes to the website in a piecemeal fashion, as practicable.
2. The court shall reasonably modify the accessibility standards applicable to Defendant's Websites if
a. the United States Department of Justice (“DOJ”) promulgates a final ADA Title III regulation setting out a website accessibility technical standard applicable to Defendant's Website and Other Websites; or
b. there are changes to international standards or technology related to sighted impaired individuals' access to the internet.
c. Defendant will take reasonable and necessary efforts to ensure legal compliance with the Court's modifications to the settlement.
3. The court shall retain foot of the decree jurisdiction to enforce the implementation of Defendant's compliance with WCAG 2.0 AA, including assessing and awarding any damages, costs, or legal fees reasonably and necessarily incurred by Plaintiff's counsel in post-judgment enforcement proceedings.
4. The Clerk is directed to close the case.

         III. Law

         A. American's with Disabilities Act

         The purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1); see PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001) (“Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.”). Unlike other antidiscrimination statutes that only prohibit action, the ADA requires individuals and companies, in some instances, to take affirmative steps to eliminate barriers that inhibit the disabled; in a sense it prohibits inaction. See 42 U.S.C. § 12182(b)(2)(A)(ii) (“[D]iscrimination [under the ADA] includes- . . . 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.”).

         “Congress concluded that there was a ‘compelling need' for a ‘clear and comprehensive national mandate' to eliminate discrimination against disabled individuals, and to integrate them ‘into the economic and social mainstream of American life.'” PGA Tour, 532 U.S. at 676 (citing the ADA). It provided a “broad mandate” in the ADA prohibiting discrimination against disabled individuals “in major areas of public life.” Id. at 675. “The ‘broad mandate' of the ADA and its ‘comprehensive character' are resilient enough to keep pace with the fact that the virtual reality of the Internet is almost as important now as physical reality alone was when the statute was signed into law.” Andrews v. Blick Art Materials, LLC, No. 17-CV-767, 2017 WL 3278898, at *10 __ F.Supp.3d __ (E.D.N.Y. Aug. 1, 2017).

         B. Quasi-Class Action

         Although Federal Rule of Civil Procedure 23(e) generally does not require approval of an individual settlement in a putative class action when the settlement does not bind the class, “[u]se of the court's supervisory authority to police the conduct of proposed class actions under Rule 23(d) may be appropriate.” David Herr, Annotated Manual for Complex Litigation § 21.61 (4th ed. 2013). cf. Fed. R. Civ. P. 23(e) (2003) (changing rule to only require court approval of settlements of claims of a certified class). Federal Rule of Civil Procedure 41 usually allows dismissal of a case without court approval, but when the statutory scheme indicates the serious importance of an issue, potential for abuse and ability to effect non-parties, review may be appropriate. Cf. Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015), cert. denied, 136 S.Ct. 824 (2016).

         This case was filed as a putative class action and the settlement, as a practical matter, may affect many persons, as well as provide standards for website accessibility for the visually impaired in cases involving other providers. A private agreement between individuals that has “many of the characteristics of a class action [] may be characterized properly as a quasi-class action subject to the general equitable power of the court.” In re Zyprexa, 433 F.Supp.2d 268, 271 (E.D.N.Y. 2006) (citing Fed.R.Civ.P. 23(g)(1)(C)(iii); Fed.R.Civ.P. 23(h); Fed.R.Civ.P. 1 (“just ... determination of every action”); see also Fed. R. Civ. P. 23(e)(1)-(2) (dealing with approval of terms of settlement)); In re Air Crash Disaster at Florida Everglades on Dec. 29, 1972, 549 F.2d 1006, 1012 (5th Cir. 1977) (noting that the circumstances of the case “created a penumbra of class-type interest on the part of all the litigants and of public interest on the part of the court and the world at large”).

         The “quasi-class action” label is most often used in the context of Multi District Litigation (“MDL”) cases. See Charles Silver & Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and A Proposal, 63 Vand. L. Rev. 107, 113 (2010); but cf. Linda S. Mullenix, Dubious Doctrines: The Quasi-Class Action, 80 U. Cin. L. Rev. 389, 390 (2011). This label may be appropriate in other contexts where relief will accrue to the class through a private individual's settlement of claims.

         The relief fashioned in the settlement requires Blick to revise its website in order to make it more accessible to visually impaired individuals. All such individuals wishing to use the defendant's website will benefit from these reforms. Certifying a settlement class in this case would cause substantial additional expense with little or no added benefit to class members. But, if the court did not use its inherent power to police the settlement, putative class members would be unprotected from the potential for inadequate relief or abuse of the class action vehicle. See David Herr, Annotated Manual for Complex Litigation § 21.61 (4th ed. 2013) (“[T]he settlement of individual claims [in a putative class action] can represent an abuse of the class action process. For example, a party might plead class allegations to promote forum-shopping or to extract an unreasonably high settlement for the sole benefit of potential class representatives and their attorneys.”).

         Pursuing a class settlement in the instant case would create a riddle: a putative class member must be given the opportunity to opt out from the class, but the equitable relief here will necessarily inure to the benefit of all putative class members without exception; how could the court protect a putative class member's right to opt-out while still ensuring adequate relief for the class? Unlike monetary relief, which must be affirmatively distributed in aggregate litigations in a fair and equitable way, injunctive relief-public in nature, as is the injunction here- automatically benefits-or burdens-those affected by the settlement. Goals laudable in certain aggregate cases-notice, and other formal mechanism-would be an unnecessary burden here. The critical issue for the court is whether the equitable relief obtained through the settlement is fair and reasonable.

         It is noted that counsel in related cases were present to observe the science day hearing that is relied on by the court. See Oct. 19, 2017 Hr'g Tr. And at least one case appears to have been settled on the terms now approved. See Nov. 28, 2017 Hr'g Tr., Wu v. Dos Toros LLC, 17-cv-05121 (E.D.N.Y. filed Aug. 30, 2017); id. Letter of Justin Zeller, ECF No. 26, Dec. 14, 2017.

         C. Settlement Standard of Review

         In a class action settlement, a district court reviews the settlement to determine if it is “fair, adequate, and reasonable, and not a product of collusion.” Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000).

         The fairness of the substantive terms of a proposed class action settlement is governed by Grinnell factors:

(1) the complexity, expense and likely duration of the litigation;
(2) the reaction of the class to the settlement;
(3) the stage of the proceedings and the amount of discovery completed;
(4) the risks of establishing liability;
(5) the risks of establishing damages;
(6) the risks of maintaining the class action through the trial;
(7) the ability of the defendants to withstand a greater judgment;
(8) the range of reasonableness of the settlement fund in light of the best possible recovery; and
(9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.

City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000).

         “It is proper to consider as a tenth factor the social utility of the proposed settlement.” Berkson v. Gogo LLC, 147 F.Supp.3d 123, 131 (E.D.N.Y. 2015). This factor “may entail going beyond the four-corners of the complaint, considering issues related to the specific claims alleged, and evaluating how the proposed settlement will impact those issues and persons not in the class.” Id. Although this is not a class action, these ten factors are useful guideposts in reviewing the settlement.

         In other quasi-class actions, courts have used their inherent power to review the reasonableness of fee arrangements and settlement matrixes. See In re Zyprexa Prod. Liab. Litig., 424 F.Supp.2d 488, 491 (E.D.N.Y. 2006) (“The large number of plaintiffs subject to the same settlement matrix approved by the court; the utilization of special masters appointed by the court to control discovery and to assist in reaching and administering a settlement; the court's order for a huge escrow fund; and other interventions by the court, reflect a degree of court control supporting its imposition of fiduciary standards to ensure fair treatment to all parties and counsel regarding fees and expenses.”); In re Vioxx Prod. Liab. Litig., 650 F.Supp.2d 549, 559 (E.D. La. 2009) (“[I]t is appropriate for the Court to exercise its equitable authority to examine fee agreements for reasonableness.”); In re Guidant Corp. Implantable Defibrillators Prod. Liab. Litig., No. MDL 05-1708 DWF/AJB, 2008 WL 682174, at *12 (D. Minn. Mar. 7, 2008), amended in part, No. MDL 05-1708 DWF/AJB, 2008 WL 3896006 (D. Minn. Aug. 21, 2008) (reviewing a fee award in a quasi-class action).

         Given the nature of the injective relief provided for in the settlement, many of the Grinnell factors are inapplicable. The court reviews the proposed settlement primarily to ensure that the parties have not abused the class action vehicle by placing individual relief over the rights of the putative class members, See David Herr, Annotated Manual for Complex Litigation § 21.61 (4th ed. 2013), and to ensure that the injunctive relief is reasonable in light of prevailing technological and community norms.

         D. Sealing Attorneys' Fees

         The court allowed the parties to file information about attorneys' fees and supporting documentation under seal. Oct. 24, 2017 Order, ECF No. 39. The parties then jointly moved to seal portions of the declaration of plaintiff's counsel because it contained fee information. Mot. to Seal, ECF No. 40, Nov. 22, 2017.

         There is a general presumption in favor of allowing access to court documents. See U.S. v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). A three-step process has been constructed by the Court of Appeals for the Second Circuit for determining whether a document may be sealed. Id.

         First the court determines whether a document is a “judicial document.” Id. at 1048-49. Whether a document is judicial is determined by seeing if it “bear[s] on the exercise of Article III judicial power.” Id. Only judicial documents are entitled to a strong presumption of access by the public. Id. If the court finds that a document is judicial and entitled to the presumption of public access, the court then looks to the importance of the document and the weight of the presumption to be afforded on the basis of the document's significance. Id. The court's “judgment” about whether a document should be sealed is “informed in part by tradition.” Id. at 1050.

         “Where such documents are usually filed with the court and are generally available, the weight of the presumption is stronger than where filing with the court is unusual or is generally under seal.” Id. The court balances the presumption against countervailing factors and the interests that the parties seek to protect through sealing. Id. 1050-52.

         IV. Hearing and Submissions

         The court held a combined fairness hearing and “science day” on October 19, 2017. Plaintiff's attorneys demonstrated the software commonly used by visually impaired individuals to access the internet, known as “screen readers.” They showed webpages that properly functioned with this software, as well as Blick's present website, dickblick.com, which did not permit the visually impaired to easily navigate the website. The parties also discussed class and quasi-class issues.

         The parties submitted additional declarations requested by the court after the hearing. The declarations explained the basis for the attorney fee, the plaintiff's credentials, the availability of training for visually impaired individuals, and the reasonableness of the settlement terms and timeline. See Infra Appendixes.

         A. Visually Impaired Users' Access to the Internet

         1. Screen Reading Software

         Visually impaired individuals cannot rely on sight to guide them through the internet. Instead, they rely on “screen readers.” Oct. 19, 2017 Hr'g Tr. 7:15-8:5. This software translates the visual internet into an auditory equivalent. At a rapid pace, the software reads the content of a webpage to the user. Id. 16:1-19:21. Many visually impaired individuals use a braille keyboard, in conjunction with the screen reader, to facilitate internet navigation. Id. 32:23-25.

         The internet is an interactive tool. The screen reading software uses auditory cues to allow a visually impaired user to effectively use websites. For example, when using the visual internet, a seeing user learns that a link may be “clicked, ” which will bring her to another webpage, through visual cues, such as a change in the color of the text (often text is turned from black to blue). When the sighted user's cursor hovers over the link, it changes from an arrow symbol to a hand.

         The screen reading software uses auditory-rather than visual-cues to relay this same information. When a sight impaired individual reaches a link that may be “clicked on, ” the software reads the link to the user, and after reading the text of the link says the word “clickable.” Id. 13:22-14:2 (“I want to tell the Court you keep hearing the word ‘clickable.' So what the screen reading software is doing it's reading the header and then it'll say it's clickable so that you know it's a function that you can click on. And if you click on it, you will go to that page. You will hear the word ‘clickable' a lot.). Through a series of auditory cues read aloud by the screen reader, the visually impaired user can navigate a website by listening and responding with her keyboard.

         2. Visually Impaired Individual's Access to Properly Functioning Websites

         Plaintiff Andrew's Attorneys guided the court through the steps a sight impaired individual takes when navigating the internet. They first demonstrated the screen reading software with several websites that currently comply with the international standards for access by the visually impaired. Visually impaired individuals, like many of their sighted counterparts, have the basic typing and computer skills to easily access a web browser. Oct. 19, 2017 Hr'g Tr. 24:5-25:14. From there, they can access a website or a search engine, such as google.com, which can direct them to the content they seek to access. Id.

         Once a visually impaired user has arrived at the appropriate website, she can navigate through the website by listening to prompts from the screen reader. The plaintiff navigated through the British Broadcasting Corporation (“BBC”) website, displayed in figure 1. As the sighted user will immediately become aware by looking at the home page of this website, it contains an amalgamation of text, links, pictures, and advertisements. For the visually impaired user, however, this large amount of information can only be revealed by sound.

         (Image Omitted)

         Australia Citizenship Overhaul Hits Senate Hurdle, British Broadcasting Company, Oct. 19, 2017, http://www.bbc.com/news/world-australia-41674895 (last visited Nov. 17, 2017).

         In order to approximate the experience of a sighted user, a properly functioning website will employ “alternative-tags” and short cuts. The “alternative-tags” for pictures allows the screen reader to read a description of the picture provided by the website. This allows the visually impaired user to get a sense for the entirety of the visual screen that is before her. Id. 16:14-17 (“Did you hear how it just read the Australia flags copyright. That was the description of all of these Australian flags that the image is showing, and it says “Copyright, Getty Images.”).

         The plaintiff also demonstrated the “skip to content feature.” This feature allows the screen reader to bypass the “non-content” text-such as advertisements or links to other webpages-that appears on the screen. Id. 15:22-25 (“And instead of going through the menu, I am going to skip right to the content. It'll read the title, the date, the section, the caption and then it'll proceed directly into the story.”). This feature saves the visually impaired user time and energy, and allows her to attain parity with the sighted user, who may guide his eyes directly to the main content, bypassing other features as he chooses.

         The plaintiff also demonstrated a properly functioning ecommerce page, the ticketing page of the American Museum of Natural History (a relatively simple webpage). This page allows visually impaired users to purchase tickets to the museum online, in a clear, digestible format (Figure 2 displays the website to sighted users). Id. 30:2-5 (“So the American Museum of Natural History is a website that allows you to check out in purchasing like Blick does, but the way it's coded you can understand what you're buying.”).

         (Image Omitted)

         American Museum of Natural History Ticketing Page, https://ticketing.amnh.org/#/tickets (last visited Nov. 17, 2017).

         This page allows screen reading software to read to the user the type of ticket, the benefits of a particular package, and the price. Once the user is able to toggle through the various options, she may then make her selection. Id. 30:14-17 (“I'm an adult, I'm going to pay $28. I'm good with this. I'm going to tab through this link and I hit enter on the ‘Get Started.' My keyboard focus was on it and I click enter on the link.”).

         3. Blick's Website

         The current functionality for visually impaired users of Blick's main website, www.dickblick.com, was demonstrated at the October 19, 2017 hearing by the plaintiff. It is an ecommerce, art-supply website with many thousands of products sold and millions of pictures. Id. 35:11-17. Figure 3 shows a picture of the homepage.

         (Image Omitted)

         Blick Art Materials, https://www.dickblick.com. (last visited Nov. 17, 2017).

         The plaintiff walked the court through the process a visually impaired user would follow accessing and attempting to purchase a product-in this demonstration, crayons-from Blick's website. The plaintiff began the search for crayons by visiting google.com, a search engine, and typing in “crayons.” Oct. 19, 2017 Hr'g Tr. 25:17-27:8. The screen reader then read aloud all of the options listed in the search results, eventually reaching an entry for crayons on Blick's website for Crayola brand crayons (figure 4 displays this page). Id. After clicking on the link to Blick's website, the demonstrator explained

I know that I'm on the Crayola crayons page of the Blick website because the . . . the search [engine] read it out loud. So I understand that I'm on the Crayola crayons page. What I want to do is I want to read the description of the crayons. I want to understand how much they cost, how many crayons I get, what color. And what this website should do is that I should be able to tab directly from the address bar which is where the keyboard focus originally starts. I should be able to tab and hit “skip to content” so I can immediately start going through all of the materials about the crayons.
Unfortunately, what happens with this website is I have to continue tabbing through every single menu option above.

Id. 26:10-23.

         The plaintiff then demonstrated how a visually impaired user would currently navigate Blick's website:

Okay. So, right now, I'm on the “My Account” link. I'm going to have to tab through all of these . . . links in order to get to the description of the crayons. So that's what I'm going to do right now, and for the sake of this demonstration, I'm going to click quickly tab through it . . . .
So what happened is I clicked the description of the crayons, and what should happen is that it should also start reading crayons. Even though my mouse is sitting on this text, it's not reading it aloud. So even with the use of the mouse, which a blind person wouldn't have, there is no way for them to understand the description of crayons. So, unfortunately, what will happen is it actually skips from this “100 Percent Satisfaction Guaranteed” link and it skips all the way down to the bottom, the “See also Crayola construction paper crayon packs.” So, with a mouse, I can click through these . . . .
I can click through the tabs that show about the crayons, but I can't access that using the keyboard. So a blind person trying to buy crayons won't actually be able to know what they're purchasing. And this continues scrolling down the page. So even though I don't know what I'm buying, I decided that I want to buy some crayons. What happens is that when I tab through this table that gives the description of the products that I can buy, it will read the item description, literally, just item and description. So it reads the titles of the chart, it doesn't actually end up reading the crayons, the prices, or any description at all. It'll simply give the quantity.

Id. 27:12-29:3.

         Using this example, the plaintiff identified three interconnected difficulties with Blick's website: (1) product descriptions are not accessible to screen readers; (2) the website can interact only with a point and click mouse system-which visually impaired users do not utilize-but not with a keyboard system-which visually impaired users rely on; (3) the only text that is picked up by the screen reader is the item quantity, which provides little help to a visually impaired user attempting to purchase a product. Id. ...


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