Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 1 of 13 Page ID #:167

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CRYSTAL REDICK, Case No. 2:21-CV-06578-PA-KK 12 Plaintiff, CONSENT DECREE 13 v. 14 ORLANDO BATHING SUIT, LLC, 15 et al., 16 Defendants. 17 18 This Consent Decree is entered into as of the Effective Date (defined below) 19 by and between Plaintiff Crystal Redick (“Plaintiff”) and Defendant Orlando Bathing 20 Suit, LLC d/b/a Everything But Water (“Defendant”). Plaintiff and Defendant shall 21 22 hereinafter be referred to collectively as the “Parties” or individually as a “Party” 23 RECITALS 24 1. Title III of the Americans with Disabilities Act (as amended, the 25 26 “ADA”),

, and its implementing regulations, 28 C.F.R. pt. 27 36, prohibit discrimination on the basis of disability in the full and equal enjoyment 28 -1 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 2 of 13 Page ID #:168 EXHIBIT A

1 of the goods, services, facilities, privileges, advantages, or accommodations by any

2 private entity that owns, leases, or operates any place of public accommodation. See

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(a);

(a).

5 2. The Unruh Civil Rights Act, Califo rnia Civil Code § 51 et seq. (the 6 “Unruh Act”) provides, among other things, that all persons within the jurisdiction 7 of California are free and equal, and no matter what their disability status are entitled 8 9 to the full and equal accommodations, advantages, facilities, privileges, or services 10 in all business establishments. A violation of the right of any individual under the 11 12 ADA is also a violation of § 51 of the Unruh Act. Id. § 51(f). 13 3. Plaintiff filed a Complaint for Injunctive Relief on August 13, 2021, 14 against Defendant in the United States District Court for the Central District of 15 16 California as captioned above (the “Action”). Plaintiff alleges that Defendant’s 17 website, https://www.everythingbutwater.com (the “Website”), is not fully 18 accessible to and usable by individuals with visual disabilities. Plaintiff alleges that 19 20 Defendant, therefore, has denied full and equal access to the products and services 21 offered on its website and in conjunction with its physical locations in violation of 22 the ADA and the Unruh Act. Plaintiff alleges the Website is a service, privilege, or 23 24 advantage of Defendant’s services, products, and locations, and that Defendant’s 25 stores are public accommodations subject to Title III of the ADA and business 26 establishments within the meaning of the Unruh Act. 27 28 4. Defendant denies that its Website is a public accommodation or a place - 2 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 3 of 13 Page ID #:169 EXHIBIT A

1 of public accommodation or is otherwise subject to Title III of the ADA or the Unruh

2 Act. Defendant denies that accessibility barriers existed or currently exist on the

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4 Website, and that remediation of the Website is required under the ADA or the Unruh

5 Act. Defendant specifically denies the allegation s in the Action. By entering into 6 this Consent Decree, Defendant does not admit liability or wrongdoing whatsoever. 7 5. Plaintiff and Defendant agree that it is in their best interests to resolve 8 9 the Action on mutually agreeable terms without further litigation and without 10 admission of any liability. Accordingly, the Parties agree to the entry of this Consent 11 12 Decree without trial or further adjudication of any issues of fact or law raised in the 13 Action. This Consent Decree and the Parties’ separate, contemporaneously executed 14 Settlement Agreement and Release are entered into as a compromise between the 15 16 Parties to completely and fully resolve and settle all issues between the Parties in the 17 Action. In resolution of the Action, the Parties hereby agree as follows: 18 JURISDICTION 19 20 6. The Court has jurisdiction of this matter pursuant to

, 21 and 1367(a). The Parties agree that, for purposes of the Action and this Consent 22 Decree, venue is appropriate for this Court. 23 24 DEFINITIONS 25 7. “Effective Date” means the date on which this Consent Decree is 26 entered on the Court’s docket following approval by the Court. 27 28 8. “Reasonable Efforts” means, with respect to an obligation under this - 3 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 4 of 13 Page ID #:170 EXHIBIT A

1 Consent Decree, readily achievable by a reasonable person or entity in Defendant’s

2 position. Reasonable Efforts shall be interpreted so as not to require Defendant to

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4 undertake efforts (a) whose cost, difficulty or impact on Defendant’s Website could

5 constitute an undue burden, as defined in Title III of the ADA, but as applied solely 6 to Defendant’s Website as though it were a standalone business entity, or (b) that 7 could result in a fundamental alteration in the manner in which Defendant operates 8 9 its Website, or the primary functions related thereto, or which could result in a loss 10 of revenue or traffic on its Website. Any disagreement as to whether Defendant has 11 12 used Reasonable Efforts as provided for under this Consent Decree shall be subject 13 to the dispute resolution procedures set forth below in Paragraphs 17 through 23 of 14 this Consent Decree. 15 16 TERM 17 9. This Consent Decree shall commence as of the Effective Date and 18 remain in effect for forty-eight (48) months from the Effective Date (the “Term”). 19 20 During the Term, the Court shall have continuing jurisdiction to interpret and enforce 21 this Consent Decree. 22 WEBSITE ACCESSIBILITY EFFORTS 23 24 10. No later than twenty-four (24) months after the Effective Date, 25 Defendant shall use Reasonable Efforts to provide persons with visual disabilities, as 26 defined by the ADA, an equal opportunity to participate in or benefit from the goods, 27 28 services, privileges, or advantages of the Website by updating the Website, if in - 4 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 5 of 13 Page ID #:171 EXHIBIT A

1 existence, to substantially conform to the Web Content Accessibility Guidelines 2.1

2 Level AA (“WCAG 2.1 AA”) regarding website accessibility by persons with visual

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4 disabilities (the “Implementation Date”). For the remainder of the Term following

5 the Implementation Date, Defendant shall main tain the Website to substantially 6 conform to WCAG 2.1 AA regarding website accessibility by persons with visual 7 disabilities. 8 9 11. There shall be no claim, challenge, dispute, or enforcement action raised 10 or pursued as to Defendant’s obligations under this Consent Decree before the 11 12 Implementation Date. Following the Implementation Date and for the remainder of 13 the Term, any claim, challenge, dispute, or enforcement action raised or pursued as 14 to Defendant’s obligations under this Consent Decree shall be subject to the dispute 15 16 resolution procedures set forth below in Paragraphs 17 through 23 of this Consent 17 Decree. 18 12. The obligations set forth in Paragraph 10, above, shall not apply if any 19 20 of the following events occurs: 21 a. The Supreme Court of the United States issues a decision holding 22 that the ADA does not apply to websites, as services of a place of public 23 24 accomodation. Robles v. Domino’s Pizza, LLC,

(9th Cir. 2019), 25 cert. denied,

,

(2019). 26 b. The Supreme Court of the United States holds, or the United 27 28 States Department of Justice determines, that (i) conformance with WCAG 2.1 AA - 5 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 6 of 13 Page ID #:172 EXHIBIT A

1 is not required by the ADA, (ii) requiring conformance with that standard is

2 unconstitutional or unlawful, or (iii) that a lesser or different standard governs

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4 website accessibility under the ADA. If the Supreme Court of the United States

5 holds, or the United States Department of Justice d etermines, that a lesser or different 6 standard applies, such standard shall govern this Consent Decree, and Defendant 7 shall use Reasonable Efforts to ensure that the Website substantially conforms to that 8 9 standard within a reasonable period of time, not to exceed six (6) months, the 10 Implementation Date, or the deadlines established by regulations promulgated by the 11 12 Department of Justice, whichever is later. 13 SPECIFIC RELIEF TO PARTIES 14 13. Plaintiff and Defendant have agreed to settle all matters relating to 15 16 litigation costs, damages, attorney fees, expert fees, claims that could have been made 17 in this Action, and other matters of either Party relating to the Action through a 18 separate, contemporaneously executed Settlement Agreement and Release, which 19 20 shall not be part of this Consent Decree. The Settlement Agreement and Release 21 shall be provided to the Court for in camera review, if the Court so requires. 22 PERSONS BOUND AND THIRD-PARTY BENEFICIARIES 23 24 14. The signatories to this Consent Decree represent that they have the 25 authority to bind the respective Parties, Plaintiff and Defendant, to this Consent 26 Decree. Further, this Consent Decree shall be binding on Plaintiff, Defendant, and 27 28 any successors in interest. The Parties have a duty to so notify all such successors in - 6 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 7 of 13 Page ID #:173 EXHIBIT A

1 interest of the existence and terms of this Consent Decree during the Term.

2 15. The Parties to this Consent Decree expressly intend and agree that this

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4 Consent Decree shall inure to the benefit of all persons who establish they have a

5 visual disability as defined by the ADA and Unru h Act, enabling those who utilize 6 screen-reader software to access the Website, which persons shall constitute “Third- 7 Party Beneficiaries” (individually, “Third-Party Beneficiary”) to this Consent 8 9 Decree. Such Third-Party Beneficiaries shall follow the dispute resolution provisions 10 herein should they seek to enforce any provision of this Consent Decree. 11 12 DISPUTE RESOLUTION 13 16. As a condition precedent of seeking the Court’s enforcement of any 14 claimed breach of this Consent Decree, the procedures set forth in Paragraphs 17 15 16 through 23, below, must be exhausted. There will be no breach of this Consent 17 Decree by Defendant or right to bring a cause of action against Defendant by Plaintiff 18 or any Third-Party-Beneficiary in any court of competent jurisdiction in connection 19 20 with such allegations, until the following procedures have been followed. 21 17. If Plaintiff or a Third-Party Beneficiary believes that Defendant has not 22 complied in all material respects with any provision of this Consent Decree, Plaintiff 23 24 or the Third-Party Beneficiary alleging non-compliance shall provide Defendant with 25 written notice of non-compliance (“Notice of Non-Compliance”) containing the 26 following information: (a) the specific alleged act of non-compliance, (b) if related 27 28 to the Website’s accessibility, a reference to the specific provisions of the WCAG - 7 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 8 of 13 Page ID #:174 EXHIBIT A

1 2.1 AA applicable, (c) a statement of the remedial action sought by the complaining

2 party, and (d) a reasonably detailed statement of the specific facts, circumstances,

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4 and legal authority supporting the position of the complaining party. Any Notice of

5 Non-Compliance shall be made in the manner set forth in Paragraph 23, below. 6 18. Defendant shall respond to the Notice of Non-Compliance in reasonable 7 detail within thirty (30) days of receipt of the Notice of Non-Compliance, including, 8 9 if applicable, any claim of inability to substantially comply with this Consent Decree 10 despite Reasonable Efforts in furtherance thereof. Within fifteen (15) days of receipt 11 12 of Defendant’s response to the Notice of Non-Compliance, the complaining party 13 and Defendant will meet by telephone or in person in an attempt to informally resolve 14 the issue raised. 15 16 19. If the issue or issues remain unresolved within thirty (30) days of the 17 meeting referenced in Paragraph 18, above, the complaining party that sent the Notice 18 of Non-Compliance and Defendant will each have an additional thirty (30) days to 19 20 select an expert of their choosing, and the two experts selected will mutually select 21 an independent accessibility expert (with substantial experience applicable to the 22 alleged barrier). The independent accessibility expert will evaluate the specific issue 23 24 or issues described in the Notice of Non-Compliance, including consideration of 25 Defendant’s response to the Notice of Non-Compliance, and any other information 26 supplied by the parties or their experts, and provide the parties a written 27 28 determination concerning Defendant’s compliance or non-compliance. Each Party - 8 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 9 of 13 Page ID #:175 EXHIBIT A

1 or person involved in the process described in this Paragraph 19 shall be responsible

2 for (a) its own expert and attorney costs and fees and (b) half of the reasonable costs

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4 and fees of the independent accessibility expert. Any failure to pay the independent

5 accessibility expert in connection with his or he r such work within a reasonable 6 period of time constitutes a waiver of such claim. 7 20. Defendant shall not be in breach of this Consent Decree unless: (a) the 8 9 independent accessibility expert determines, as a result of the issue described in the 10 Notice of Non-Compliance, that Defendant is able to comply but is nevertheless not 11 12 in compliance with the Consent Decree; and (b) Defendant fails to remedy the issue 13 using Reasonable Efforts within a reasonable period of time of not less than sixty 14 (60) days after receiving the independent accessibility expert’s determination of non- 15 16 compliance. If the independent accessibility expert determines that an issue cannot 17 be remedied using Reasonable Efforts, Defendant shall not be obligated to remedy 18 that issue. 19 20 21. Plaintiff or an intended Third-Party Beneficiary may seek relief from 21 the Court concerning alleged non-compliance with this Consent Decree only if 22 Defendant fails to timely remedy an issue that the independent accessibility expert 23 24 determines Defendant should remedy. Further, there shall be no finding of breach of 25 this Consent Decree unless the Court determines that the Website is not accessible 26 by a person with a visual disability who has screen-reader competency using a 27 28 commercially available screen-reader in combination with any commercially - 9 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 10 of 13 Page ID #:176 EXHIBIT A

1 available web browser.

2 22. Any of the time periods set forth in Paragraphs 17 through 23 may be

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4 extended by mutual agreement for a period of up to thirty (30) days.

5 23. Any notice or communication require d or permitted under this Consent 6 Decree shall be given in writing by certified United States first class mail, with a 7 copy simultaneously sent by email, addressed as follows: 8 9 Plaintiff: Thiago M. Coelho, Esq. 10 WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor 11 Los Angeles, California 90010 12 Email: [email protected]

13 Defendant: Brian R. Markley 14 SPENCER FANE LLP 1000 Walnut Street, Suite 1400 15 Kansas City, MO 64106 16 Email: [email protected]

17 MODIFICATION 18 24. Except as expressly provided herein, no modification of this Consent 19 20 Decree shall be effective unless in writing, signed by authorized representatives of 21 the Parties, and approved by the Court. 22 ENFORCEMENT AND OTHER PROVISIONS 23 24 25. The interpretation and enforcement of this Consent Decree shall be 25 governed by the laws of the State of California without reference to its conflicts of 26 laws principles. 27 28 26. This Consent Decree contains the entire agreement of Plaintiff and - 10 - CONSENT DECREE KC 17895547.5 Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 11 of 13 Page ID #:177 EXHIBIT A

1 Defendant concerning the subject matter described herein, and no other statement,

2 promise, or agreement, either written or oral, made by any Party, which is not

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4 contained in this Consent Decree shall be enforceable, other than the Settlement

5 Agreement and Release. 6 27. If any provision of this Consent Decree is determined to be invalid, 7 unenforceable, or otherwise contrary to applicable law, such provision shall be 8 9 deemed restated to reflect, as nearly as possible and to the fullest extent permitted by 10 applicable law, its original intent and shall not, in any event, affect any other 11 12 provision of this Consent Decree, all of which shall remain valid and enforceable to 13 the fullest extent permitted by applicable law. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - CONSENT DECREE KC 17895547.5 DocuSign En IDy 83 4F940E AB R54 29 Filed 02/21/22 Page 12o0f13 Page ID #:178 on Ene Ree RNEG6STS-PAKRY Buckinent ilgd 02/2 i g

CONSENT DECREE HAS BEEN READ 28. This Consent Decree has been carefully read by each Party, and its 4 | contents are known and understood by each Party. This Consent Decree is signed > | freely by each Party executing it. The Parties each had an opportunity to consult with their counsel, and did in fact consult with their counsel, prior to executing the Consent g | Decree. 10 | | CRYSTAL REDICK ORLANDO BATHING SUIT LLC d/b/a EVERYTHING BUT WATER I DocuSigned by: \ la : () 5» = YY os 63C237E2019F4BD... “ Signature Signature 14 16/2021 Date Date 16 17 18 | APPROVED AS TO FORM AND CONTENT: 19 20) Ti hiago M. Coelho /s/ Jonathon Watson 21 | Thiago M. Coelho Jonathon Watson 7 WILSHIRE LAW FIRM SPENCER FANE LLP SBN 324715 SBN 23 | 3055 Wilshire Blvd, 12" Floor 1700 Lincoln Street, Suite 2000 54 Los Angeles, CA 90010 Denver, CO 80203 T: (213) 381-9988 T: (303) 839-3734 25 | [email protected] [email protected] - Attorney for Plaintiff Crystal Redick Attorneys for Defendant Orlando 27 Bathing Suit, LLC d/b/a Everything But Water 28 -12- CONSENT DECREE KC 17895547.5

Case 2:21-cv-06578-PA-KK Document 29 Filed 02/21/22 Page 13 of 13 Page ID #:179 EXHIBIT A

1 COURT APPROVAL AND ENTRY OF THE CONSENT DECREE

2 The Court, having considered the pleadings, law, and underlying facts and

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4 having reviewed the proposed Consent Decree, finds as follows:

5 1) This Court has subject matter juri sdiction over this matter for the 6 purposes of this lawsuit pursuant to

and § 1367(a); 7 2) The provisions of this Consent Decree shall be binding upon the Parties 8 9 and Third-Party Beneficiaries; 10 3) Entry of this Consent Decree is in the public interest; 11 12 4) This Consent Decree is for settlement purposes only and does not 13 constitute an admission by Defendant of any of the allegations contained in the 14 Complaint for Injunctive Relief or any other pleading in this lawsuit, nor does it 15 16 constitute any finding of liability against Defendant; and 17 5) This Consent Decree shall be deemed as adjudicating, once and for all, 18 the merits of each and every claim, matter, and issue that was alleged, or could have 19 20 been alleged, by Plaintiff based on, or arising out of, or in connection with, the 21 allegations in the Complaint for Injunctive Relief. Res judicata and collateral 22 estoppel shall apply to each and every such claim, matter, and issue so that the 23 24 Plaintiff is barred from again litigating such claims, matters, and issues. 25 NOW THEREFORE, the Court APPROVES the Consent Decree and, in doing 26 so, specifically adopts it and makes it an Order of the Court. 27 28 /// - 13 - CONSENT DECREE KC 17895547.5