BY FEDERAL EXPRESS

Mr. XXXXX XXXXXXXX
Chief Executive Officer
XXXXXXXX XXX
XXXX X. XXXXXXX XX.
XXXXXXX, XXXXXXX XXXXX

Re: Accessibility Issues for Blind Individuals on XXXXXXXX XXXX Website

For Settlement Purposes Only

Dear Mr. XXXXXXXX:

We represent blind individuals throughout the United States who use XXXXXXXX XXXX website at http://www.XXXXXXXXXXX.com/. We have interviewed a number of individuals about their experiences, spoken with website accessibility experts and the Department of Justice, and researched the accessibility barriers brought to our attention. This investigation has established that our clients, and those similarly situated to them, are not receiving equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations offered by XXXXXXXXXXXX. This letter sets forth the reasons why we have reached that conclusion and proposes a plan to work constructively with you, on behalf of our clients, and others similarly situated, to achieve equal access for all blind individuals who visit XXXXXXXX XXXX website using a collaborative approach that has been successfully utilized by public accommodations and the disabled community.

This letter is divided into four sections: Section I describes the access issues that we have discovered on XXXXXXXX XXXX website and our claimants’ experiences; Section II describes our extensive experience representing claimants and defendants in matters involving civil rights of persons with disabilities; Section III describes the legal basis of the potential claims arising from the inaccessibility of XXXXXXXXXXX website and services; and Section IV sets forth our proposal for Structured Negotiations in lieu of litigation to resolve these issues.

I. XXXXXXXX XXXX Access Issues and Our Claimants’ Experiences

Our investigation has revealed:
• Key pages on XXXXXXXX XXXX website-including, but not limited to, the XXXXXXXX XXXX Home Page, Place Order Page, and View Menus Page-do not comply with the W3C Web Content Accessibility Guidelines (“WCAG”) 2.0 level AA.1

• Some visually impaired individuals use screen reader software to produce an auditory version of what a sighted individual sees in their browser. Accordingly, alternative text content must be provided for all non-textual content, including images. Despite this requirement, there are numerous images on the site which do not have a corresponding text description, including the “Desserts!” image on the Place Order Page. This renders it impossible for a visually impaired user relying on screen reader software to understand the image or utilize an image-based link.

• Information displayed on a web page must be understandable. Specifically, web pages must provide a mechanism for identifying an abbreviation’s expanded form or meaning because the visually impaired are unable to rely on image context to assist in their understanding of the abbreviation. Despite this requirement, our investigation identified 792 occurrences on XXXXXXXX XXXX website where the expanded form or definition of an abbreviation was unavailable.

• Sighted users know what data to enter into form fields based on the association of the text label with the form field. For users who rely on assistive technology such as screen readers, the text label needs to be programmatically associated with the form field so that the users can effectively interact with the forms. However, on the Place Order Page, the nickname field has no label, and the label wrapping the name field has no explicit connection to it. Accordingly, screen reader users will not know the purpose of the nickname field or how to use it.

II. Counsel

Counsel in this matter are experienced litigators and disability rights lawyers. Leon Cosgrove, LLC is a full-service civil law firm, whose practice areas include disability rights and ADA public accommodations work. The firm’s attorneys have extensive experience serving as counsel in significant national class action lawsuits and in alternative dispute resolution with and against entities in the technology, retail, healthcare, financial services, and hospitality industries involving claims arising under Titles II and III of the ADA, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), and comparable state accessibility laws. We represent corporate clients, classes of individuals, and advocacy associations in matters relating to access law compliance.

Access Now is a nationwide non-profit advocacy organization for people with disabilities. Access Now protects the rights of persons with disabilities throughout the United States in numerous contexts, including enforcing federal and state anti- discrimination statutes. Access Now brings systematic litigation when that approach is required to achieve change.

III. Legal Basis of the Claims

The U.S. Department of Justice (the “DOJ”) has emphasized the need for accessible electronic and information technology -including websites-for blind individuals. The DOJ issued an Advance Notice of Proposed Rulemaking regarding revising the regulations implementing Title III of the ADA in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet accessible to individuals with disabilities.3 Recently, on June 5, 2014, the DOJ announced that it had reached a settlement under the ADA with Florida State University (“FSU”). Under the settlement, FSU agreed to make its website and mobile applications conform to, at a minimum, the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria and other Conformance Requirements (“WCAG 2.0 AA”).

Title III of the ADA imposes a general obligation upon XXXXXXXX XXXX insofar as it provides that “no individual shall be discriminated against on the basis of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. . . .” “[T]he statute’s broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on websites over the Internet.”6 Congress unambiguously declared that it is discrimination both to deny the equal opportunity to participate in a service and to provide services in a way that does not provide an equal benefit?

Coupled with this general obligation, Title III imposes specific obligations upon XXXXXXX to ensure effective communication with its patrons. Specifically, XXXXXXXX XXXX is required to provide “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”8 The regulations implementing the ADA set forth numerous examples of appropriate auxiliary aids and services, including Brailled materials and displays, screen reader software accessible electronic and information technology, and other means of making
9 visually delivered materials available to individuals who are blind or have low vision.

IV. Proposal for Structured Negotiations

A number of actions with substantially similar claims as we raise here have been resolved by costly and lengthy class action litigation (and in certain instances, with DOJ intervention).10 Indeed, the DOJ moved to intervene in National Federation of the Blind, et al . v. HRB Digital LLC, et al., a private lawsuit alleging disability discrimination by HRB Digital LLC and HRB Tax Group Inc., subsidiaries of H&R Block Inc. In the memorandum and proffered complaint filed by the United States in support of its motion to intervene, the United States alleged that the H&R Block companies discriminate against individuals with disabilities and that their website, www.hrblock.com, violates Title III of the ADA, notwithstanding well-established and readily available guidelines for delivering web content in an accessible manner.
Ultimately, the parties entered into a consent decree to resolve the DOJ’s allegations.11 Under the terms of the decree, H&R Block’s website, tax filing utility, and mobile applications must conform to the Level AA Success Criteria of the WCAG 2.0. According to the decree, the H&R Block website will be accessible for the start of the next tax filing term on January 1, 2015, with additional accessibility deadlines over the following years of the decree. Additionally, HRB Digital and HRB Tax Group agreed to appoint a skilled web accessibility coordinator who will report to H&R Block’s enterprise Chief Information Officer; adopt a web accessibility policy; initiate training on accessible design for its web content personnel; evaluate employee and contractor performance based on successful web access programming; conduct regular automated and user group testing; and hire an approved outside consultant to prepare annual independent evaluations of H&R Block’s online accessibility. H&R Block also paid $45,000 to the two individual plaintiffs, and a $55,000 civil penalty.

Structured Negotiations is an alternative dispute resolution method that allows parties and their counsel to work together constructively and collaboratively to resolve legal claims without either party having to spend time and resources in litigation. Structured Negotiations has been used successfully to address the rights of persons with disabilities and to improve access and eliminate barriers at public accommodations such as XXXXXXXX XXX. For instance, it was used:

• Between the United States Attorney’s Office for the Northern District of Ohio (“USAO”) and the Cavaliers Operating Company, LLC (“Cavaliers”) which operates the Quicken Loans Arena.12 Under the settlement agreement, Cavaliers agreed to bring its websites into compliance with the Worldwide Web Consortium’s Web Content Accessibility Guidelines version 2.0, Level AA success criteria. The Cavaliers further agreed to develop a formal policy to evaluate and remedy any accessibility problems encountered on the websites.

• Between CVS and the American Council of the Blind, the American Foundation for the Blind, and the California Council of the Blind where CVS agreed to upgrade its website to comply with the WCAG promulgated by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium and to install tactile POS devices in every CVS store in the United States.13 CVS further agreed to retain an outside consultant approved by the claimants to audit CVS.com for substantial compliance with the WCAG Guidelines, and to provide a written report regarding its findings.

We have recently completed and are presently utilizing Structured Negotiations with other public and private entities to address access barriers and violations on behalf of disabled individuals and organizations throughout the United States.

The Structured Negotiations process avoids the often negative publicity that comes from litigation, as well as much of the cost involved with litigation. In fact, when agreements resulting from Structured Negotiations are presented publicly, they are usually done via joint press releases emphasizing the collaborative approach and the mutually beneficial solutions achieved, resulting in positive publicity for the entities involved.

Thus, it is our belief that the purposes of the ADA and other anti-discrimination laws, and the interests of our clients and XXXXXXXX XXXX will best be served if we can engage in good faith, fruitful negotiations over the issues raised in this letter. In order to do so, we must execute a Structured Negotiations agreement that (1) ensures that our clients’ claims will not be barred by the statute of limitations; (2) provides a structure for negotiations; and (3) ensures that we are not penalized by pursuing a non-litigated resolution of the issues we have raised and are able to obtain compensation for our clients and recover reasonable attorneys’ fees and costs as provided for under applicable law. The end goal of a successful Structured Negotiation is a written, enforceable settlement agreement covering the necessary injunctive relief, compensation to our clients, and reasonable attorney’s fees and costs.

The injunctive relief sought will include, but is not limited to, implementing and maintaining an accessible website for the visually impaired within a reasonable time period; adopting a web accessibility policy; initiating training on accessible design for web content personnel; conducting regular automated and user group testing; and related policy and training issues. It is anticipated that the process will include a survey review covering XXXXXXXX XXXX website and policies and procedures affecting persons with disabilities. The parties will then work with shared information toward the goal of satisfying the concerns of all parties.

A form of the Structured Negotiations agreement that we propose be used is attached hereto as Exhibit C. If you are willing to work with us in the manner proposed in this letter and to enter into a Structured Negotiations agreement, we ask that you respond to us no later than 5:00 P.M. on August 22, 2014. You may reach us at: (305) 740-1985,
jbosco@leoncosgrove.com (for John Bosco), (305) 740-1984, aboese@leoncosgrove.com (for Andrew Boese), and (305) 740-1987, tanderson@leoncosgrove.com (for Tiffany Anderson).

If you timely respond that you are willing to enter into a Structured Negotiations agreement to address the issues raised by our clients, we will then discuss and agree upon the terms of the Structured Negotiations agreement and develop a mutually agreeable path going forward.

This letter is a confidential settlement communication and cannot be used in any action before a court. The statements of either party in these settlement negotiations cannot be considered admissions nor are they binding upon the parties if no settlement is reached.

We hope that you will share our view about the value of a collaborative approach so that together, we can expeditiously resolve these accessibility issues.

We look forward to your response.

1 See ADA Title III Website Compliance Assessment of www.XXXXXXXXXXXX.com, attached as Exhibit A.
2 We have actively worked with the DOJ to intervene in litigation seeking compliance with the ADA’s non-discrimination mandate as it relates too electronic and information technology. See, e.g. New v. Lucky Brand Dungarees Stores, Inc., Statement of Interest of the United States, Case No. 14-CV-20574, Southern District of Florida, attached as Exhibit B (“[T]he Depatement has long considered websites to be covered by title III dispite the fact that there are no specific technical requirements for websites currently in the regulation or ADA Standards. See general y Statement of Interest of the United States, Nat’l Assoc. of the Deaf v. Netflix Inc., 869 F. Supp. 2d 196 (D. Mass. 2012), available at www.ada.gov/briefs/netflix_SOI.pdf (discussing the Department’s history of public pronouncements on the topic); see also Concent Decree, Nat’l Fed. of the Blind, et al, United States of America v. HRB Digital LLC and HRB Tax Group, Inc. No. 1:13-cv-10799-GAO (entered March 25, 2014), available at www.ada.gov/hrb-cd-htm (comprehensive decree governing the accessibility of H&R Block’s website).”).
3 Specifically, the DOJ expressed that “[t]he ADA’s promise to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of American civic and economic life will be achieved in today’s technologically advanced society only if it is clear to State and local governments, businesses, educators, and other public accommodations that their websites must be accessible.” See Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, available at http://www.ada.gov/anprm2010/web%20anprm2010.htm (emphasis added).
4 See Justice Department Reaches Settlement with Florida State University, available at http://www.justice.gov/opa/pr12014/June/14-crt-606.html.

9 28 C.F.R. § 36.303(b)(2).
10 In 2000, the DOJ filed an amicus brief in the Fifth Circuit in Hooks v. OKbridge, Inc., which involved a
Web-only business. The Department’s brief explained that a business providing services solely over the
Internet is subject to the ADA’s prohibitions on discrimination on the basis of disability. See Brief of the United States as Amicus Curiae in Support of Appellant, 232 F.3d 208 (5th Cir. 2000) (No. 99-50891), 1999 WL 33806215, available at www.justice.gov/ crt/briefs/ hooks.htm.
11 See Justice Department Enters Consent Decree with National Tax Preparer H&R Block Requiring Accessibility of Websites and Mobile Apps Under Americans with Disabilities Act, available at http:// www.justice.gov/opa/pr/2014/March/14-crt-239.html.
12 See Settlement Agreement between the United States of America and the Cavaliers Operating Company, LLC, available at http:/ / www.ada.gov/ cavaliers.htm.
13 See CVS Settlement Agreement, available at http:/ /lflegal.com/ 2009/07/cvs-agreement/.