In this article, Ken Nakata from Converge Accessibility, Josef Pevsner from National Organization on Disability, and I come together to discuss and analyze the consent decree [PDF] issued in the MURPHY v. EYEBOBS, LLC., digital accessibility lawsuit.
What on Earth Is the Eyebobs Case?
In Murphy v. Eyebobs, LLC., 2021 U.S. Dist. LEXIS 192676, 2021 WL 4594679 (W.D. Pa. 2021), the plaintiff, a blind man, sued Eyebobs, an online eyeglasses retailer, alleging that Eyebobs’ website was inaccessible while using his screen reader software.
The October consent decree from the United States District Court for the Western District of Pennsylvania effectively settled the case and presented Eyebobs with a detailed court-mandated plan of action to address the alleged accessibility issues on its website.
What’s the Big Deal? Don’t These Settlements Happen All the Time?
There are a number of points of interest to note about the case, not least of which include the fact that at the time the lawsuit was initiated, Eyebobs was utilizing an “accessibility overlay” solution that was deemed ineffectual and maybe even made things worse for a screen reader user. Many advocates have already focused on the overlay element of the lawsuit and consent decree, so we are going to largely skip that for now.
For our purposes, three of the things that stuck out about the Eyebobs’ case are:
- The lawsuit was filed as a class action, with the plaintiff representing an entire class of people who may have been similarly limited by Eyebobs’ website inaccessibility.
- The settlement provides a comprehensive action plan with several specific responsibilities for Eyebobs, a relatively small company, including hiring an accessibility coordination team.
- The settlement also provides an incentive award for the plaintiff of a whopping $1,000. While it is not rare for settlements like this one to include awards for the plaintiff, they are not entitled to any such damages under the law.
Let’s Take a Look at Eyebobs’ Website
In the following video, Thomas Logan reviews the Eyebobs website using screen reading technology and points out some of the important accessibility issues in the case.
What Does This Case Mean for Digital Accessibility and the Law?
In the following audio clip, I discuss the Eyebobs’ case with Ken Nakata, and Ken points out some of the most interesting legal aspects of the case.
What did you think about the Eyebob’s case?
Honestly, I wasn’t really that excited about it because it was just the court approving a consent decree. I haven’t seen too many cases where the court doesn’t approve them.
The court spent a lot of time in the opinion talking about class certification. What was that all about?
Well, when Anthony Murphy sued Eyebobs, they did it as a class-action lawsuit. In other words, Murphy wasn’t just suing on behalf of himself but on behalf of every other blind individual who couldn’t access the Eyebobs website. So, when the parties are settling this case, it also binds that class.
So, that means that that class needs to be well-defined, include people with common interests, and so forth. This is really important because, if you are a member of this class, you can’t later sue Eyebobs because Murphy already represented your interests in his class-action lawsuit.
What was meant in the settlement agreement when it talked about an “incentive award” for the plaintiff?
Hah, you noticed that too! Murphy bought his case under Title III of the ADA, which doesn’t explicitly allow a court to grant him money damages. But, in settling cases, parties can agree to anything they want to. Heck, Eyebobs could agree to mow Murphy’s lawn for a year if that would have convinced him to settle.
But, because they decided to settle it as a consent decree (and hence needed approval from the judge), they got a little creative with the wording by calling it an “incentive award” and kept the value low at only $1,000. I think that, if they asked for much more or called them “damages,” the court may have rejected the consent decree.
What did you think about the details and structure of the settlement?
Oh goodness, the terms of this settlement agreement look like something that would be used by a large, multinational corporation. It requires the formation of an “Accessibility Coordination Team”, plus regular audits, a policy statement, training, and the retention of an accessibility consultant.
The problem is that Eyebobs isn’t a multinational corporation. According to LinkedIn, Eyebobs only has about thirty-five employees. Plus, it also isn’t clear how many of these employees — if any — actually work on their website. For instance, if all their website design is outsourced, what is the point of training?
What were the lawyers thinking by not agreeing to a specific level of WCAG conformance?
The consent decree notes that the parties agreed to WCAG 2.1 but didn’t specify whether that means Level A, AA, or AAA. Obviously, there’s a huge difference between committing to meet Level A versus AAA. Lawyers seem to do this all the time — they make commitments in settlement agreements without really understanding the technical implications of their decisions.
If I were defense counsel, I would never agree to fully meet WCAG A/AA. Let’s face it — I can’t think of any companies that fully meet WCAG AA. Instead, I’d agree to saying that we would make “best efforts” towards complying with WCAG A/AA.
Ultimately, the Eyebobs case is just another drop in the vast ocean that is digital accessibility litigation. As more and more of these lawsuits get filed and settle or go to court, we will continue to learn about how the judicial system may treat digital accessibility moving forward.
Until the Department of Justice finally decides to act on proposed regulations defining business’ responsibility to make websites accessible for users with disabilities, we will keep having these same conversations.
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