Datasets:

darrow-ai

/

USClassActions

like 0

23. In the First Cause of Action, pursuant to 29 U.S.C. § 207, Plaintiff seeks to prosecute her FLSA claims as a collective action on behalf of all persons who are or were formerly employed by Defendants as SMs, as well as other similarly situated current and former employees working in comparable positions but different titles, at any time from three years prior to the filing of this Collective and Class Action Complaint to the entry of judgment in this case (the “Putative SM Collective”). 24. Defendants are liable under the FLSA for, inter alia, failing to properly pay overtime wages to Plaintiff and the members of the Putative SM Collective. 25. There are numerous similarly situated current and former SMs who have not been paid proper overtime wages in violation of the FLSA and who would benefit from the issuance of court-supervised notice of this lawsuit and the opportunity to join it. Thus, notice should be sent to the Putative SM Collective pursuant to 29 U.S.C. § 216(b). 26. Similarly situated employees are known to Defendants, readily identifiable, and can be located though Defendants’ records. 27. Plaintiff and the members of the Putative SM Collective, all of whom regularly worked more than forty (40) hours in a workweek, were employed as SMs by Defendants. 28. Defendants failed to pay Plaintiff and the members of the Putative SM Collective overtime compensation for the hours they worked over forty (40) in a workweek. 29. Defendants failed to keep accurate records of all hours worked by Plaintiff and the members of the Putative SM Collective. 31. Defendants assigned the work that Plaintiff and the members of the Putative SM Collective have performed, or Defendants were aware of the work they performed. 32. The work performed by Plaintiff and the members of the Putative SM Collective constitutes compensable work time under the FLSA and was not preliminary, postliminary or de minimus. 34. Defendants are aware, or should have been aware, that the FLSA requires them to pay Plaintiff and the members of the Putative SM Collective an overtime premium for hours worked in excess of forty (40) hours per workweek. 35. Plaintiff brings the Second and Third Causes of Action under Rule 23 of the Federal Rules of Civil Procedure, on behalf of a class of persons consisting of all persons who have worked for Defendants as SMs, or in comparable positions with different titles, in the State of New York (the “New York Class”) at any time between the date six years prior to the filing of this Complaint and the date of final judgment in this matter (the “New York Class Period”). 36. Excluded from the New York Class are Defendants’ legal representatives, officers, directors, assigns, and successors, or any individual who has, or who at any time during the class period has had, a controlling interest in Defendants; the Judge(s) to whom this case is assigned and any member of the Judge’s immediate family; and all persons who will submit timely and otherwise proper requests for exclusion from the New York Class. 37. The persons in the New York Class identified above are so numerous that joinder of all members is impracticable. The precise number of such persons is not known to Plaintiff, and the facts on which the calculation of that number can be based are presently within the sole control of Defendants. 38. Upon information and belief, the size of the New York Class is at least 50 workers. 41. Plaintiff’s claims are typical of the claims of the New York Class sought to be represented. Plaintiff and the other New York Class members work or have worked for Defendants and have been subjected to their policy and pattern or practice of failing to pay overtime wages for hours worked in excess of 40 hours per workweek. Defendants acted and refused to act on grounds generally applicable to the New York Class, thereby making injunctive and/or declaratory relief with respect to the New York Class appropriate. 42. Plaintiff will fairly and adequately represent and protect the interests of the New York Class. Plaintiff understands that, as a class representative, one assumes a fiduciary responsibility to the New York Class to represent its interests fairly and adequately. Plaintiff recognizes that as a class representative, one must represent and consider the interests of the New York Class just as one would represent and consider one’s own interests. Plaintiff understands that in decisions regarding the conduct of the litigation and its possible settlement, one must not favor one’s own interests over those of the New York Class. Plaintiff recognizes that any resolution of a class action lawsuit, including any settlement or dismissal thereof, must be in the best interests of the New York Class. Plaintiff understands that in order to provide adequate representation, one must remain informed of developments in the litigation, cooperate with class counsel by providing them with information and any relevant documentary material in one’s possession, and testify, if required, in a deposition and in trial. 43. Plaintiff has retained counsel competent and experienced in complex class action employment litigation. 45. Defendants failed to provide legally required wage statements and wage notices pursuant to the NYLL. 46. This action is properly maintainable as a class action under Federal Rule of Civil Procedure 23(b)(3). 47. Consistent with Defendants’ policy, pattern or practice, Plaintiff and the members of the Putative SM Collective and New York Class regularly worked in excess of forty (40) hours per workweek without being paid overtime wages. 48. All members of the Putative SM Collective and New York Class primarily performed the same or substantially similar job duties. 50. Plaintiff’s and the other SMs’ primary job duties did not include: a. hiring b. firing; c. setting rates of pay; d. scheduling; or e. disciplining other employees. 51. Plaintiff’s and the other SMs’ primary duties did not differ substantially from the duties of non-exempt hourly-paid employees. 52. Plaintiff’s and the other SMs did not exercise a meaningful degree of independent discretion with respect to the exercise of their duties. 53. Plaintiff’s and the other SMs’ primary duties were customer service related. Customer service occupied the majority of the Plaintiff’s and the other SMs’ working hours. 54. Pursuant to a centralized, company-wide policy, pattern, and practice, Defendants classified all SMs as exempt from coverage of the overtime provisions of the FLSA, NYLL, and applicable state laws. 56. Upon information and belief, Defendants’ unlawful conduct described in this Collective and Class Action Complaint is pursuant to a corporate policy or practice which minimizes labor costs by violating the FLSA and NYLL. 57. Defendants’ failure to pay overtime wages for work performed by the Putative FLSA Collective and New York Class in excess of forty (40) hours per workweek was willful. 58. Defendants’ unlawful conduct has been widespread, repeated and consistent. 59. Plaintiff and the members of the Putative SM Collective, reallege and incorporate by reference paragraphs 1 to 58 as if they were set forth again herein. 60. Defendants engaged in a widespread pattern and practice of violating the FLSA, as detailed in this Collective and Class Action Complaint. 61. Plaintiff has consented in writing to be a party to this action, pursuant to 29 U.S.C. § 216(b). 62. A written consent form for Plaintiff is being filed with this Collective and Class Action Complaint. (Ex. 1). 63. At all relevant times, Plaintiff and the members of the Putative SM Collective were engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). 64. The overtime wage provisions set forth in 29 U.S.C. §§ 201 et seq. apply to Defendants. 66. At all times relevant, Plaintiff and the members of the Putative SM Collective were employees within the meaning of 29 U.S.C. §§ 203 (e) and 207(a). 67. Defendants failed to pay Plaintiff and other similarly situated members of the Putative SM Collective the overtime wages to which they were entitled under the FLSA. 68. Defendants’ violations of the FLSA, as described in this Collective and Class Action Complaint, have been intentional and willful, and as such a three-year statute of limitations applies, pursuant to 29 U.S.C. § 255. 69. Defendants have not made a good faith effort to comply with the FLSA with respect to the compensation of Plaintiff and other similarly situated members of the Putative SM Collective. 70. As a result of the Defendants’ violations of the FLSA, Plaintiff and all other similarly situated members of the Putative SM Collective have suffered damages by being denied overtime wages in accordance with 29 U.S.C. §§ 201, et seq. 71. As a result of the unlawful acts of Defendants, Plaintiff and other similarly situated members of the Putative SM Collective have been deprived of overtime compensation and other wages in amounts to be determined at trial, and are entitled to recover such amounts, liquidated damages, prejudgment interest, attorneys’ fees, costs and other compensation pursuant to 29 U.S.C. § 216(b). 73. At all times relevant, Plaintiff and the members of the New York Class have been employees and Defendants have been an employer within the meaning of the NYLL. Plaintiff and the members of the New York Class are covered by the NYLL. 74. Defendants employed Plaintiff and the members of the New York Class as an employer in New York. 75. Defendants failed to pay Plaintiff and the members of the New York Class wages to which they are entitled under the NYLL. Defendants failed to pay Plaintiff and the members of the New York Class for overtime at a wage rate of one and one-half times their regular rates of pay. 76. Defendants failed to keep, make, preserve, maintain, and furnish accurate records of time worked by Plaintiff and the New York Class members, by recording only forty (40) hours of work per week rather than the actual number of hours worked. 77. Due to Defendants’ intentional and willful violations of the NYLL, Plaintiff and the members of the New York Class are entitled to recover from Defendants their unpaid wages (including overtime wages), reasonable attorneys’ fees and costs of the action, pre-judgment and post-judgment interest, and such other relief as provided by law. 78. Plaintiff realleges and incorporates by reference paragraphs 1 to 58 as if they were set forth again herein. 80. NYLL § 661 requires every employer to maintain, inter alia, true and accurate records of hours worked by each employee covered by an hourly minimum wage rate, and the wages paid to all employees. 81. 12 N.Y.C.R.R. § 142-2.6 requires every employer in miscellaneous industries to establish, maintain and preserve for six years, weekly payroll records showing, inter alia, each employee’s name, wage rate, number of hours worked daily and weekly, amount of gross and net wages, deductions from gross wages, and any allowances claimed as part of the minimum wage. 82. NYLL § 195(3) requires that every employer furnish each employee with a statement with every payment listing gross wages, deductions and net wages, and upon request of an employee, an explanation of the computation of wages. 83. 12 N.Y.C.R.R. § 142-2.7 requires every employer in miscellaneous industries to furnish each employee a statement with every payment of wages listing hours worked, rates paid, gross and net wages, deductions, and allowances, if any, claimed as part of the minimum wage. 84. Defendants failed to comply with the notice and record keeping requirements of NYLL §195(1) and 195(3), resulting in penalties under NYLL § 198(1)(b) and 198(1)(d) for Plaintiff and the New York Class. Fair Labor Standards Act: Unpaid Overtime Wages (On behalf of Plaintiff and the Putative SM Collective) New York Labor Law (On behalf of Plaintiff and the New York Class) New York Labor Law Notice and Recordkeeping Claims (On behalf of Plaintiff and the New York Class)

lose

23. Plaintiff repeats and realleges all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 24. Plaintiff worked as a Server for Defendants at the IHOP restaurant located at 2008 N Mountain Rd., Wausau, WI 54401 from approximately March 2013 through July 2014. 25. Plaintiff received an hourly wage of $2.33 per hour. 26. Plaintiff also received tips from customers. 27. Defendants classified Plaintiff as non-exempt from the FLSA and Wisconsin overtime law. 28. In many weeks, SOLEIMANI required Plaintiff to work over forty (40) hours. 30. In many weeks, SOLEIMANI required Plaintiff to clock out and perform job duties which benefited SOLEIMANI, including but not limited to rolling silverware. 31. In many weeks, SOLEIMANI altered Plaintiff’s clock-in records, resulted in her being paid for less hours than she worked. 32. In many weeks, Plaintiff’s total compensation attributable to her hourly wage, divided by her total number of hours actually worked, was below $2.13. 33. In many weeks, Plaintiff’s total compensation (the sum of her hourly wage plus her tips), divided by her total number of hours actually worked, was below $7.25. 34. In weeks in which Plaintiff’s total compensation divided by her total number of hours actually worked was below $7.25, Defendants failed to make up the difference between Plaintiff’s total compensation and $7.25 per hour. 35. In many weeks, Plaintiff did not receive time-and-a-half her regular rate of pay for all hours worked in excess of forty (40). 36. These practices are exemplified by the two-week pay period of June 9 – June 22, 2015. 37. In this two-week pay period, SOLEIMANI paid Plaintiff for 52.49 hours of work at a rate of $2.33 per hour. 38. In this two-week pay period, Plaintiff’s total compensation attributable to her hourly wage was $122.30. 39. In this two-week pay period, Plaintiff also made $259.05 in tips. 40. On June 10, 2014, Plaintiff worked from 9:00 AM until 3:09 PM. 42. On June 18, 2014, Plaintiff worked from 8:00 AM until 2:25 PM. 43. On June 18, 2014, Plaintiff was only paid for work performed between 12:37 PM and 2:25 PM. 44. On June 19, 2014, Plaintiff worked from 8:00 AM until 2:32 PM. 45. On June 19, 2014, Plaintiff was only paid for work performed between 12:36 PM and 2:32 PM. 46. On June 22, 2014, Plaintiff worked from 9:00 AM until 3:00 PM. 47. On June 22, 2014, Plaintiff was only paid for work performed between 2:15 PM and 3:00 PM. 48. In this two-week pay period, Plaintiff worked at least sixty-nine (69) hours. 49. In this two-week pay period, Plaintiff’s effective hourly rate, exclusive of tips, was at most $1.77. 50. In this two-week pay period, Plaintiff’s effective hourly rate, inclusive of tips, was at most $5.53. 51. Plaintiff repeats and realleges all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 52. Plaintiff and putative class members were non-exempt employees of Defendants within the three years preceding this Complaint. 53. Plaintiff and putative class members all performed similar job duties. 55. Plaintiff and putative class members were all subject to SOLEIMANI’s scheduling policies. 56. Plaintiff and putative class members were all subject to SOLEIMANI’s training policies. 57. SOLEIMANI maintained and enforced a common policy of requiring Plaintiff and putative class members to work over forty (40) hours in many weeks. 58. SOLEIMANI maintained and enforced a common policy of failing to pay Plaintiff and putative class members for all hours worked. 59. SOLEIMANI maintained and enforced a common policy of failing to pay Plaintiff and putative class members time-and-a-half their regular rate of pay for all hours worked in a workweek in excess of forty (40). 60. SOLEIMANI maintained and enforced a common policy of paying Plaintiff and putative class members an effective hourly rate for hours below forty (40) in a workweek that was below the federal minimum wage. 61. Plaintiff repeats and realleges all preceding paragraphs of the Complaint inclusive, as if fully set forth herein. 62. Plaintiff brings this collective action on behalf of herself and all similarly situated, non-exempt employees of SOLEIMANI pursuant to 29 U.S.C. § 216(b). 64. Plaintiff and members of the proposed collective are victims of Defendants’ widespread, repeated, systematic, and consistent illegal policies that have resulted in violations of their rights under the FLSA and that have caused significant damage to Plaintiff and members of the proposed collective. 65. Defendants willfully engaged in a pattern of violating the FLSA as described in this Complaint in ways including, but not limited to, knowingly requiring employees to work off the clock and failing to pay them minimum wages and overtime compensation. 66. Defendants’ conduct constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255. 67. Defendants are liable under the FLSA for failing to properly compensate Plaintiff and other similarly situated employees, and, as such, notice should be sent to members of the proposed collective. There are numerous similarly situated current and former employees of Defendants who have suffered from Defendants’ common policies described herein, and who would benefit from the issuance of a Court-supervised notice of the present lawsuit and the opportunity to join in the present lawsuit. Those similarly situated employees are known to Defendants, and are readily identifiable through Defendants’ records. 68. Plaintiff repeats and realleges all preceding paragraphs of the Complaint inclusive, as if set forth fully herein. 70. The Rule 23 Class is defined as: All individuals who were employed by SOLEIMANI in Wisconsin as hourly-paid, non-exempt employees at any time within two (2) years prior to the filing of this complaint and present. 71. The class is so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, Plaintiff believes that at least forty (40) putative class members have worked for Defendants during the applicable statutory period without receiving appropriate minimum wages and overtime compensation. 72. There are questions of law and fact common to the class that predominate over any questions solely affecting individual members of the class, including, but not limited to: a. Whether Defendants unlawfully failed to pay minimum wages to Plaintiff and members of the proposed class in violation of Wis. Stat. § 104.02 and Wis. Admin. Code § DWD 272.03; b. Whether Defendants unlawfully failed to pay overtime wages to Plaintiff and putative class members in violation of Wis. Stat. § 103.03 and Wis. Admin. Code § 274.03; c. Whether Defendants unlawfully failed to pay wages to Plaintiff and putative class members in violation of Wis. Stat. § 109.03; 73. Plaintiff’s claims are typical of those of putative class members. Plaintiff, like other putative class members, was required to work off the clock and had her clock-in records altered, which resulted in her receiving compensation below the Wisconsin minimum wage and below time and a half her regular rate of pay for hours worked in excess of forty (40) per week. 75. A class action is superior to the other available methods for the fair and efficient adjudication of the controversy, particularly in the context of wage and hour litigation where individual employees lack the financial resources to vigorously prosecute separate lawsuits in federal court against large corporate defendants, particularly those with relatively small claims. 76. Class certification is appropriate under Fed. R. Civ. P. 23(b)(3), because questions of law and fact common to the class predominate over any questions affecting only individual class members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. Defendants’ common and uniform policies and practices denied putative class members wages for work they performed and to which they are entitled. The damages suffered by individual class members are small compared to the expense and burden of individual prosecution of this litigation. 77. This action is properly maintainable as a class action under Fed. R. Civ. P. 23(b)(2) because Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 78. Plaintiff intends to send notice to all potential class members.. 79. Plaintiff repeats and realleges all preceding paragraphs of the Complaint inclusive, as if set forth fully herein. 81. The FLSA requires each covered employer to compensate all non-exempt employees at a rate not less than the federal minimum wage for all hours worked. 82. During the applicable statute of limitations, Plaintiff performed work for which she received less than the federal minimum wage. 83. The FLSA requires each covered employer to compensate all non-exempt employees at a rate not less than one and none and one-half times their regular rate of pay for work performed in excess of forty (40) hours per workweek. 84. During the applicable statute of limitations, Plaintiff performed work in excess of forty (40) hours per workweek without receiving overtime compensation. 85. Defendants’ practices violate the FLSA including, but not limited to, 29 U.S.C. §§ 206 and 207. Because of these violations, Plaintiff has suffered a wage loss. 86. Defendants’ violation of the FLSA was willful. 87. Defendants’ violation of the FLSA was not in good faith. 88. Because Defendants willfully violated the FLSA, as aforesaid, a three (3) year statute of limitations applies to such violation, pursuant to 29 U.S.C. § 255. 89. As a result of the foregoing, Plaintiff was illegally deprived of wages for each hour worked and overtime compensation earned, in such amounts to be determined at trial, and is entitled to recovery of such total unpaid amounts, liquidated damages, pre-judgment interest, costs, reasonable attorney’s fees and other compensation pursuant to 29 U.S.C § 216(b). 90. Plaintiff repeats and realleges all preceding paragraphs of the Complaint inclusive, as if set forth fully herein. 92. At all relevant times, Defendants have been, and continues to be, an “employer” within the meaning of Wis. Stat. §§ 103.001, 104.01 and 109.01(2). 93. At all relevant times, Plaintiff was an employee within the meaning of Wis. Stat. §§ 103.001(5), 104.01(2), and 109.01(1r). 94. Wisconsin law requires an employer to pay overtime compensation to all non- exempt employees. Wis. Stat. § 103.02; Wis. Amin. § DWD 274.03. 95. Wisconsin law requires employers to pay employees at least the minimum wage for all hours. Wis. Stat. § 104.03; Wis. Admin. § DWD 272.03. 96. Wisconsin law requires employers to pay employees all wages earned by a day not more than 31 days prior to the date of payment. Wis. Stat. § 109.03. 97. Plaintiff is not exempt from the minimum wage and overtime pay requirements of Wisconsin law. 98. During the applicable statute of limitations, Defendants failed and refused to pay wages, including minimum and overtime wages, to the Plaintiff. INDIVIDUAL CLAIM FOR VIOLATION OF THE FLSA INDIVIDUAL CLAIM FOR VIOLATION OF WISCONSIN LAW

lose

12. Plaintiff incorporates by reference Paragraphs 1-11 as though fully set forth herein. 13. Plaintiff sustained injuries when she was rear-ended by another car while driving in Key West in May of 2015. 14. She subsequently received treatment for her injuries at the Hospital and incurred 30. Plaintiff incorporates by reference Paragraphs 1-11, 16, and 17 as though fully set forth herein. 31. Each Class member is a PIP insured who was treated at the Hospital in question for injuries as a result of a motor vehicle accident. 32. Each Class member’s PIP insurer reimbursed the Hospital for some, but not all, of the statutorily allowed amount for medical services administered to the Class member. 33. After each Class member’s PIP insurer paid a portion of the statutorily allowed amount, instead of billing the Class member for the remaining percentage of the statutorily allowed amount, Defendant billed the Class member for that percentage of the entire gross medical bill. 34. Defendant knew it could legally bill and attempt to collect from each Class member only the percentage of the statutorily allowed amount that the PIP insurer did not pay. 35. Defendant nonetheless billed, and has attempted and continues to attempt to collect, that percentage of the entire gross medical bill. 36. Defendant has demanded that each Class member pay it far in excess of what it can legally recoup. 37. Knowing the proclaimed debt to be illegitimate, Defendant has threatened to and attempted to enforce the illegitimate debt against all Class members. 38. Knowing the legal right to collect the proclaimed debt does not exist, Defendant has nonetheless asserted to each Class member the existence of that putative legal right. 45. Plaintiff incorporates by reference Paragraphs 1-11, 16, 17, and 31-44 as though fully set forth herein. 46. The money, if any, that each Class member owes Defendant constitutes a “debt” or “consumer debt” for purposes of Fla. Stat. § 559.55(6). 47. Defendant and persons acting under the direction of Defendant have, in violation 53. Plaintiff incorporates by reference Paragraphs 1-11, 16, 17, 31-44, 46, and 47 as though fully set forth herein. 54. The Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 et seq., is designed to “protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” Fla. Stat. § 501.202(2). 55. At all material times: a. Each Class member was a consumer. See Fla. Stat. § 501.203(7); b. The Hospital was a merchant engaged in the provision of services; and c. The Hospital engaged in commerce by providing services to each Class member in exchange for the promise of payment. See Fla. Stat. § 501.203(8). 559.55 ET SEQ., FLORIDA STATUTES 56. A provider of services violates and is deemed liable under the FDUTPA by, inter alia, violating “any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.” Fla. Stat. § 501.203(3)(c). 57. Defendant’s violation of Section 559.72 et seq., the Florida Consumer Collection Practices Act —a law that proscribes unfair, deceptive, or unconscionable acts or practices—thus constitutes a per se violation of the FDUTPA. Money Damages 58. As a direct and proximate result of the Defendant’s deceptive and unfair trade 68. Plaintiff incorporates by reference Paragraphs 1 through 44 as though fully set forth herein. 69. The Florida Legislature explicitly provided for violations of Fla. Stat. § 559.72 to be remedied via class action. See Fla. Stat. § 559.77(2). 70. Plaintiff seeks to represent the following Class: All United States citizens who have been billed by the Hospital for medical services that are required personal injury protection benefits under Section 627.736(1), Florida Statutes (2012), and against whom the Hospital has attempted to enforce a debt for such services exceeding the maximum amount allowed to be charged by the Hospital in accordance with Section 627.736(5), Florida Statutes (2012). 71. Included within this Class is a Sub-Class: All members of the Class who have paid the asserted debt in an amount exceeding the amount the Hospital is allowed to bill the Class member SECTION 501.201 ET SEQ., FLORIDA STATUTES

lose

12. Employers seeking the admission of H-2A workers must first file an application for temporary employment certification with the DOL. 20 C.F.R. § 655.130. 13. The temporary employment certification application must include a job offer, commonly referred to as a “clearance order” or “job order,” that complies with applicable regulations and is used in the recruitment of both U.S. and H-2A workers. 20 C.F.R. § 655.121(a)-(c). The DOL’s regulations establish the minimum benefits, wages, and working conditions that must be offered in order to avoid adversely affecting U.S. workers. 20 C.F.R. §§ 655.0(a)(2), 655.122 and 655.135. The temporary employment certification application and the clearance order serve as the employment contract between the employer and the H-2A workers. 20 C.F.R. § 655.122(q). 14. During 2019 and 2020, Defendant, Signet filed various applications to employ temporary foreign workers through the H-2A program to perform labor in a number of different U.S. states. 15. Three of Signet’s employment certification applications sought admission of 20 workers to provide labor at N5344 Crossman Road in Lake Mills, Wisconsin and County Road South C, County Road A also in Lake Mills, Wisconsin from 1) March 15, 2019 to May 31, 2019; 2) May 1, 2019 to January 15, 2020; and 3) May 31, 2019 to January 15, 2020. Plaintiff was hired and employed pursuant to at least one of these temporary employment certifications. 17. Each of the clearance orders included with the temporary employment certification applications described in Paragraphs 15 and 16 each contained a certification signed by Defendant that the orders described the actual terms and conditions of employment and contained all material terms and conditions of the job. These certifications are required by 20 C.F.R. § 653.501(c)(3)(viii). 19. Plaintiff and the Prospective Class Members were assigned job duties as described in Signet’s temporary employment certifications and accompanying job orders. Consistent with those job descriptions, Plaintiff and Prospective Class Members never had any contact with the livestock being raised on the various farms where their construction work was performed. 20. During each workweek they worked for Defendant in 2019 or 2020, Plaintiff and Prospective Class Members were employed exclusively in non-agricultural work within the meaning of the FLSA, 29 U.S.C. §203(f). The work performed by Plaintiff and Prospective Class Members, as described in Defendant’s clearance orders, was neither performed in the employment of a farmer nor was it performed incidentally to--or in conjunction--with the farming operations of any farmer. b. Defendant Failed to Pay Overtime Wages 21. While employed by Defendant in 2019 or 2020, Plaintiff and Prospective Class Members routinely worked more than 40 hours per week. 22. Although Plaintiff and Prospective Class Members performed exclusively non-agricultural work, Defendant failed to pay Plaintiff and Prospective Class Members for their work hours in excess of 40 per week at a rate not less than one and one-half times their regular rate, in violation of the FLSA, 29 U.S.C. § 207 and 29 C.F.R. § 780. 11. Collective Action Allegations 24. Plaintiff and Prospective Class members all performed the same or substantially similar construction job duties. These job duties were those set out in Signet’s numerous temporary labor certifications, as described in Paragraphs 15 through 19. 25. During 2019, Defendant employed hundreds of H-2A workers, including Plaintiff, and assigned them exclusively non-agricultural construction work at job sites in at least ten different U.S. states. In 2020, Defendant also employed hundreds of H-2A workers to perform non-agricultural construction labor. Defendant failed to pay Plaintiff and other Prospective Class Members for their work hours in excess of 40 per week at a rate not less than one and one-half times their regular rate, in violation of the FLSA, 29 U.S.C. § 207 and Defendant’s Participation in the H-2A Visa Program

lose

12. Plaintiffs bring claims for relief as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. § 216(b), on behalf of all non-exempt persons, including, but not limited to waiters, servers, runners, delivery persons, cooks, dishwashers, and food preparers employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (“FLSA Collective Plaintiffs”). 14. Defendants unlawfully failed to pay Plaintiffs and FLSA Collective Plaintiffs the federal minimum wage for all hours worked. 15. The claims for relief are properly brought under and maintained as an opt-in collective action pursuant to § 16(b) of the FLSA, 29 U.S.C. § 216(b). The FLSA Collective Plaintiffs are readily ascertainable. For purposes of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided to the FLSA Collective Plaintiffs via first-class mail to the last address known to Defendants. 17. The Class Members are readily ascertainable. The number and identity of the Class Members are determinable from the records of Defendants. The hours assigned and worked, the position held, and rates of pay for each Class Member are also determinable from Defendants’ records. For purposes of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided by means permissible under F.R.C.P. 23. 18. The proposed Class is so numerous that a joinder of all members is impracticable, and the disposition of their claims as a class will benefit the parties and the Court. Although the precise number of such persons is unknown, the facts from which the calculation of that number can be obtained are presently within the sole possession and custody of Defendants, there is no doubt that there are over one hundred (100) members of the Class. The Class further includes a subclass of tipped employees comprising bartenders, servers, runners, delivery workers, and bussers (“Tipped Subclass”) who number more than forty (40). 20. Plaintiffs are able to fairly and adequately protect the interests of the Class and has no interests antagonistic to the Class. Plaintiffs are represented by attorneys who are experienced and competent in both class action litigation and employment litigation and have previously represented plaintiffs in wage and hour cases. 22. Defendants and other employers throughout the State violate the New York Labor Law. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing claims because doing so can harm their employment, future employment, and future efforts to secure employment. Class actions provide class members who are not named in the Complaint a degree of anonymity, which allows for the vindication of their rights while eliminating or reducing these risks. 24. In 2006, Plaintiff CHIW YIN CHAN (“Plaintiff Chan”) was hired by Defendants and/or their predecessors, as applicable, to work as a waiter for Defendants’ restaurant, Chef Yu, located at 520 Eighth Avenue, New York, New York 10018. 25. Plaintiff Chan is still currently employed by Defendants. 27. During the employment of Plaintiff Chan by Defendants, she worked over forty (40) hours per week, and her workdays lasted over ten (10) hours on four days each week. 28. Plaintiff Chan was paid by Defendants in cash from the beginning of her employment until November 2013. From December 2013 through the present, Defendants paid Plaintiff Chan by weekly paychecks. 29. At all relevant times, Plaintiff Chan was paid a fixed salary. 30. Plaintiff Chan’s pay stubs show that from December 2013 to February 2014, Defendants paid her a fixed salary of $245 each week, equivalent to a regular rate of $6.13. From December 2018 to March 2019, Defendants paid Plaintiff Chan a fixed salary of $385 per week, equivalent to a regular rate of $9.63 per hour and overtime rate of $12.15 per hour. 31. Despite regularly having workdays which exceeded ten hours, Plaintiff Chan never received “spread of hours” pay. 32. Plaintiff Chan never received a wage notice from Defendants, nor did she receive a tip credit notice at any time during her employment by Defendants. 33. From the beginning of her employment until around December 2017, Plaintiff Chan was required to sign off on her hours. Starting in or around January 2018, Defendants required Plaintiff Chan to clock in and out of work. 34. Plaintiff JIESHENG LIN (“Plaintiff Lin”) was hired by Defendants in or around July 2015 to work as a waiter for Chef Yu. Plaintiff Lin worked for Defendants until June 2018. 35. Plaintiff Lin worked 23 hours each week on average during his employment by Defendants. 37. Plaintiff Lin never received a wage notice from Defendants, nor did he receive a tip credit notice at any time during his employment by Defendants. 38. During his employment by Defendants, Plaintiff Lin was required to clock in and out of work. 39. Plaintiffs’ tips were pooled and split among all of the waiters at Chef Yu. With respect to some of the waiters who participated in and received a share of the tip pool, the majority of their job duties were non-tipped. 40. Plaintiffs received inaccurate wage statements from Defendants that failed to accurately reflect the amounts of tips and gratuities they earned and failed to pay them at the proper minimum wage and overtime rate for their hours worked. 41. Defendants failed to maintain accurate daily records of tips earned by Plaintiffs and Class members. 42. Based on Plaintiffs’ direct observations and conversations with their coworkers, all non-exempt employees of Defendants similarly were not paid the proper compensation, including the minimum wage, overtime compensation, and “spread of hours” pay. 43. Defendants knowingly and willfully failed to pay Plaintiffs and Class members the statutory minimum wage and overtime rate, in violation of the New York Labor Law. Defendants were not entitled to take a tip credit because (i) they failed to provide Plaintiffs and Class members with any verbal or written notice they were taking a tip credit against their wages, and (ii) Defendants instituted an invalid tip pool whereby employees whose job duties were mostly non-tipped received a share of the tips. 45. Defendants knowingly and willfully failed to provide Plaintiffs and Class members with a wage notice, in violation of the New York Labor Law. 46. Defendants knowingly and willfully failed to provide Plaintiffs and Class members with an accurate wage statement with each payment of wages, in violation of the New York Labor Law. 47. Plaintiffs retained Lee Litigation Group, PLLC to represent them and other employees similarly situated in this litigation and have agreed to pay the firm a reasonable fee for its services. 48. Plaintiffs reallege and incorporate Paragraphs 1 through 47 of this Complaint as if fully set forth herein. 49. At all relevant times, upon information and belief, Defendants were and continue to be employers engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). Further, Plaintiffs are covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). 50. At all relevant times, Defendants employed Plaintiffs and FLSA Collective Plaintiffs within the meaning of the FLSA. 52. At all relevant times, Defendants had a policy and practice of refusing to pay the statutory minimum wage to Plaintiffs and FLSA Collective Plaintiffs for their hours worked per workweek. 53. Defendants failed to pay Plaintiffs and FLSA Collective Plaintiffs the statutory minimum wage for their hours worked per workweek. 54. At all relevant times, Defendants had a policy and practice of refusing to pay overtime compensation at the statutory rate of time and one-half to Plaintiffs and FLSA Collective Plaintiffs for their hours worked in excess of forty hours per workweek pursuant to the FLSA. 55. Defendants failed to pay Plaintiffs and FLSA Collective Plaintiffs overtime compensation at the statutory overtime rate for hours worked in excess of forty hours per workweek pursuant to the FLSA. 56. Records, if any, concerning the number of hours worked by Plaintiffs and FLSA Collective Plaintiffs and the actual compensation paid to Plaintiffs and FLSA Collective Plaintiffs, are in the possession and custody of Defendants. Plaintiffs intend to obtain these records by appropriate discovery proceedings to be taken promptly in this case and, if necessary, will then seek leave of Court to amend this Complaint to set forth the precise amount due. 57. Defendants knew of and/or showed a willful disregard for the provisions of the FLSA as evidenced by their failure to compensate Plaintiffs and FLSA Collective Plaintiffs at the statutory minimum wage for all hours worked when Defendants knew or should have known such was due. 59. Defendants failed to properly disclose or apprise Plaintiffs and FLSA Collective Plaintiffs of their rights under the FLSA. 60. As a direct and proximate result of Defendants’ willful disregard of the FLSA, Plaintiffs and FLSA Collective Plaintiffs are entitled to recover liquidated damages pursuant to the FLSA. 61. Due to the intentional, willful, and unlawful acts of Defendants, Plaintiffs and FLSA Collective Plaintiffs suffered damages in an amount not presently ascertainable of unpaid minimum wages, unpaid overtime wages, and unreimbursed expenses of tools of trade, plus an equal amount as liquidated damages. 62. Plaintiffs and FLSA Collective Plaintiffs are entitled to an award of their reasonable attorneys’ fees and costs pursuant to 29 U.S.C. § 216(b). 63. Plaintiffs reallege and reaver Paragraphs 1 through 62 of this Complaint as if fully set forth herein. 64. At all relevant times, Plaintiffs were employed by Defendants within the meaning of New York Labor Law §§ 2 and 651. 65. Defendants willfully violated Plaintiffs’ and Class members’ rights by failing to pay them overtime compensation at the rate of at least one and one-half times the statutory minimum wage for their hours worked in excess of forty hours each workweek. 67. Defendants willfully violated Plaintiffs’ and Class members’ rights by failing to pay them “spread of hours” pay for each workday that exceeded ten (10) hours. 68. Defendants failed to provide an accurate wage statement to Plaintiffs and Class members with each wage payment, in violation of the New York Labor Law. 69. Defendants failed to provide a proper wage notice to Plaintiffs and Class members, in violation of the New York Labor Law. 70. Due to Defendants’ New York Labor Law violations, Plaintiffs are entitled to recover from Defendants their unpaid overtime, unpaid minimum wages, unpaid “spread of hours” pay, damages for unreasonably delayed payments, liquidated damages, statutory penalties, reasonable attorneys’ fees, and costs and disbursements of the action, pursuant to the New York Labor Law. VIOLATION OF THE FAIR LABOR STANDARDS ACT VIOLATION OF THE NEW YORK LABOR LAW

win

26. Beginning on or around June 18, 2020, Defendant caused numerous telephone calls, prerecorded voicemails, and text messages to be transmitted to Plaintiff’s cellular telephone number, starting with “904” and ending in “4111” (the “4111 Number”). 28. Subsequent to June 18, 2020, Defendant caused numerous other prerecorded calls, with the same or substantially similar message, to be left of Plaintiff’s cellular telephone, which similarly prompted her to contact The Credit Pros. 29. For example, Plaintiff received additional prerecorded calls from Defendant on June 20, 2020 and June 22, 2020. Defendant also transmitted numerous automated text messages to Plaintiff on June 18, 2020, June 20, 2020, June 22, 2020, and June 23, 2020. 30. Upon information and belief, Defendant caused countless other prerecorded and automated calls to be transmitted to individuals residing within this judicial district. 31. When Plaintiff listened to the prerecorded messages described herein, she could easily determine that they were prerecorded messages. Rahn v. Bank of Am., No. 1:15-CV- 4485-ODE-JSA, 2016 U.S. Dist. LEXIS 186171, at *10-11 (N.D. Ga. June 23, 2016) (“When one receives a call, it is a clear-cut fact, easily discernible to any lay person, whether or not the recipient is speaking to a live human being, or is instead being subjected to a prerecorded message.”). 32. The prerecorded calls transmitted to Plaintiff originated from telephone number (747) 217-3523, which is owned and/or operated by, or on behalf of, Defendant. 34. Defendant’s unsolicited communications, as described above, constitute telemarketing because they encourage the future purchase or investment in property, goods, or services. i.e., requesting that Plaintiff contact Defendant regarding purchasing various credit repairs services and obtaining a $5,000 line of credit. 35. Plaintiff received the subject communications within this judicial district, and therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other prerecorded and automated calls to be sent to individuals residing within this judicial district. 36. Plaintiff is the subscriber and sole user of the 4111 Number and is financially responsible for phone service to the 4111 Number. 37. Plaintiff has been registered on the National Do Not Call Registry since April 6, 2019. 38. Plaintiff has never provided Defendant with her telephone number for any reason. 39. Plaintiff has never knowingly released her telephone number to Defendant. 40. Plaintiff has never had any type of business relationship with Defendant. 41. Plaintiff did not contact Defendant for any reason prior to receiving Defendant’s unsolicited calls. 43. Defendant’s unsolicited prerecorded calls violated Plaintiff’s substantive rights under the TCPA. See Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1270 (11th Cir. 2019) (citing Susinno v. Work Out World Inc., 862 F.3d 346, 351- 52 (3d Cir. 2017) (holding that the receipt of a single unsolicited call to a cell phone and a voicemail recording constituted an injury in fact). 44. Defendant’s unsolicited calls also caused Plaintiff actual harm, including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s calls also inconvenienced Plaintiff and caused disruption to her workday and/or graduate-degree studies. 45. These unsolicited communications further harmed Plaintiff in that she estimates that she wasted approximately 15 minutes reviewing all of Defendant’s unwanted messages. Additionally, each and every time Plaintiff received a prerecorded call from Defendant, she had to stop what she was doing, retrieve her phone, pull up the telephone number of the individual who had left the message, and listen to the message. 46. Moreover, Defendant’s voicemail messages occupied and depleted the available memory on Plaintiff’s cellular phone. The cumulative effect of receiving voice messages, like Defendant’s, poses a legitimate risk of ultimately rendering the phone unusable for voice messaging purposes, as well as other basic functions, as a result of the phone’s working memory being depleted. 47. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of herself and all others similarly situated. 49. Defendant and its employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class but believes the Class members number in the several thousands, if not more. 52. There are numerous questions of law and fact common to the Class which predominate over any questions affecting only individual members of the Class. Among the questions of law and fact common to the Class are: (1) Whether Defendant made non-emergency prerecorded telemarketing calls to Plaintiff’s and Class members’ cellular telephones; (2) Whether Defendant can meet its burden of showing that it obtained prior express written consent to make such calls; (3) Whether Defendant’s conduct was knowing and willful; (4) Whether Defendant is liable for damages, and the amount of such damages; and (5) Whether Defendant should be enjoined from such conduct in the future. 53. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendant routinely transmits prerecorded telemarketing calls to telephone numbers assigned to cellular telephone services is accurate, then Plaintiff and the Class members will have identical claims, capable of being efficiently adjudicated and administered in this case. 60. It is a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 61. Defendant – or third parties directed by Defendant – transmitted calls using an artificial or prerecorded voice to the cellular telephone numbers of Plaintiff and members of the putative class. 62. These calls were made without regard to whether Defendant had first obtained express permission from the called party to make such calls. In fact, Defendant did not have prior express consent to call the cell phones of Plaintiff and the other members of the putative Class when the calls were made. 63. Defendant has therefore violated § 227(b)(1)(A)(iii) of the TCPA by using an artificial or prerecorded voice to make non-emergency telephone calls to the cell phones of Plaintiff and the other members of the putative Class without their prior express consent. 64. Defendant knew that it did not have prior express consent to make these calls and knew, or should have known, that it was using an artificial or prerecorded voice. The violations were therefore willful or knowing. 66. Because Defendant knew or should have known that Plaintiff and the other members of the putative Class had not given prior express consent to receive its prerecorded calls to their cellular telephones, the Court should treble the amount of statutory damages available to Plaintiff and members of the putative Class, pursuant to § 227(b)(3) of the TCPA. 67. Plaintiff re-alleges and incorporates paragraphs 1 – 58, above, as if fully set forth herein. 68. At all times relevant to this action, Defendant knew or should have known that its conduct, as alleged herein, violated the TCPA. 69. Defendant knew that it did not have prior express consent to transmit artificial or prerecorded voice calls, and it also knew or should have known that its conduct violated the 72. Plaintiff re-alleges and incorporates paragraphs 1 – 58, above, as if fully set forth herein. 73. The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government.” 74. 47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.” 2 75. 47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity.” 76. Any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may” may bring a private action based on a violation of said regulations, which were promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. 47 U.S.C. § 227(c). 78. Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry Class received more than one telephone call in a 12-month period that was made by or on behalf of Defendant in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47 U.S.C. § 227(c), are entitled to receive, among other things, up to $500.00 in damages for each such violation of 47 C.F.R. § 64.1200. 79. To the extent Defendant’s misconduct is determined to be willful and knowing, the Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by Plaintiff and the members of the Do Not Call Registry Class. WHEREFORE, Plaintiff Victoria Warren, on behalf of herself and all others similarly situated, prays for the following relief: a. A declaration that Defendant’s practices, as described herein, violate the Telephone Consumer Protection Act, 47 U.S.C. § 227; b. An injunction prohibiting Defendant from using an artificial or prerecorded voice to contact telephone numbers assigned to cellular telephones without the prior express permission of the called party; c. An award of actual and statutory damages; and d. Any other relief the Court deems reasonable and just. Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class) PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)

win

20. Plaintiff brings this class action on behalf of itself and all others similarly situated under rules 23(a) and 23(b)(1)-(3) of the Federal Rules of Civil Procedure. 21. Plaintiff seeks to represent three classes (the “Classes”) of individuals, each defined as follows: Class A: All persons to whom, from four years prior to the date of the filing of the Complaint through the present, Defendant sent or caused to be sent at least one solicited or unsolicited facsimile advertisement advertising the commercial availability or quality of any property, goods, or services that contained a notice identical or substantially similar to the Opt-Out Notice in the Fax Advertisements Defendant sent or caused to be sent to Plaintiff. Class B: All persons to whom, from four years prior to the date of the filing of the Complaint through the present, Defendant sent or caused to be sent at least one unsolicited facsimile advertisement advertising the commercial availability or quality of any property, goods, or services that contained a notice identical or substantially similar to the Opt-Out Notice on the Fax Advertisements Defendant sent or caused to be sent to Plaintiff. Class C: All persons in the State of New York to whom, from three years prior to the date of the filing of the Complaint through the present, Defendant sent or caused to be sent at least one facsimile advertisement without having obtained express invitation or permission to do so and/or that contained a notice identical or substantially similar to the Opt-Out Notice on the Fax Advertisement Defendant sent or caused to be sent to Plaintiff. 23. Members of the Classes may be notified of the pendency of this action by techniques and forms commonly used in class actions, such as by published notice, e-mail notice, website notice, fax notice, first class mail, or combinations thereof, or by other methods suitable to the Classes and deemed necessary and/or appropriate by the Court. 24. Typicality: Plaintiff’s claims are typical of the claims of the members of Class A because the claims of Plaintiff and members of Class A are based on the same legal theories and arise from the same unlawful conduct. Among other things, Plaintiff and members of Class A were sent or caused to be sent by Defendant at least one fax advertisement advertising the commercial availability or quality of any property, goods, or services that contained a notice identical or substantially similar to the Opt-Out Notice in the Fax Advertisements that Defendant sent or caused to be sent to Plaintiff. 26. Plaintiff’s claims are typical of the claims of the members of Class C because the claims of Plaintiff and members of Class C are based on the same legal theories and arise from the same unlawful conduct. Among other things, Plaintiff and members of Class C were sent or caused to be sent by Defendant, without Plaintiff’s or the Class C members’ express permission or invitation, at least one fax advertisement advertising the commercial availability or quality of any property, goods, or services that contained a notice identical or substantially similar to the Opt-Out Notice in the Fax Advertisements that Defendant sent or caused to be sent to Plaintiff. 27. Common Questions of Fact and Law: There is a well-defined community of common questions of fact and law affecting the Plaintiff and members of the Classes. 29. The questions of fact and law common to Plaintiff and Class B predominate over questions that may affect individual members, and include: (a) Whether Defendant’s sending and/or causing to be sent to Plaintiff and the members of Class B, without Plaintiff’s or the Class B members’ express invitation or permission, by facsimile, computer or other device, fax advertisements advertising the commercial availability or quality of any property, goods, or services that contained a notice identical or substantially similar to the Opt-Out Notice in the Fax Advertisements, violated 47 U.S.C. § 227(b) and the regulations thereunder; (b) Whether Defendant’s sending and/or causing to be sent to Plaintiff and the members of Class B such unsolicited fax advertisements was knowing or willful; (c) Whether Plaintiff and the members of Class B are entitled to statutory damages, triple damages and costs for Defendant’s conduct; and (d) Whether Plaintiff and members of Class B are entitled to a permanent injunction enjoining Defendant from continuing to engage in its unlawful conduct. 31. Adequacy of Representation: Plaintiff is an adequate representative of the Classes because its interests do not conflict with the interests of the members of the Classes. Plaintiff will fairly, adequately and vigorously represent and protect the interests of the members of the Classes and has no interests antagonistic to the members of the Classes. Plaintiff has retained counsel who are competent and experienced in litigation in the federal courts, class action litigation, and TCPA cases. 32. Superiority: A class action is superior to other available means for the fair and efficient adjudication of the Classes’ claims. While the aggregate damages that may be awarded to the members of the Classes are likely to be substantial, the damages suffered by individual members of the Classes are relatively small. The expense and burden of individual litigation makes it economically infeasible and procedurally impracticable for each member of the Classes to individually seek redress for the wrongs done to them. The likelihood of the individual Class members’ prosecuting separate claims is remote. Plaintiff is unaware of any other litigation concerning this controversy already commenced against Defendant by any member of the Classes. 34. Injunctive Relief: Defendant has acted on grounds generally applicable to the members of Classes A and B, thereby making appropriate final injunctive relief with respect to Classes A and B. 35. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1-34. 36. By the conduct described above, Defendant committed more than five thousand (5,000) violations of 47 U.S.C. § 227(b) against Plaintiff and the members of Class A, to wit: the fax advertisements Defendant sent and/or caused to be sent to Plaintiff and the members of Class A were either (a) unsolicited and did not contain a notice satisfying the requirements of the TCPA and regulations thereunder, or (b) solicited and did not contain a notice satisfying the requirements of the TCPA and regulations thereunder. 37. Plaintiff and the members of Class A are entitled to statutory damages under 47 U.S.C. § 227(b) in an amount greater than two million, five hundred thousand dollars ($2,500,000). 39. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1-34. 40. By the conduct described above, Defendant committed more than five thousand (5,000) violations of 47 U.S.C. § 227(b) against Plaintiff and the members of Class B, to wit: the fax advertisements Defendant sent and/or caused to be sent to Plaintiff and the members of Class B were unsolicited and did not contain notices satisfying the requirements of the TCPA and regulations thereunder. 41. Plaintiff and the members of Class B are entitled to statutory damages under 47 U.S.C. § 227(b) in an amount greater than two million, five hundred thousand dollars ($2,500,000). 42. If it is found that Defendant willfully and/or knowingly sent and/or caused to be sent unsolicited fax advertisements that did not contain a notice satisfying the requirements of the TCPA and regulations thereunder to Plaintiff and the members of Class B, Plaintiff requests that the Court increase the damage award against Defendant to three times the amount available under 47 U.S.C. § 227(b)(3)(B), as authorized by 47 U.S.C. § 227(b)(3). 43. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1-34. 44. Defendant committed thousands of violations of 47 U.S.C. § 227(b). 46. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1-33. 47. By the conduct described above, Defendant committed numerous violations of GBL § 396-aa against Plaintiff and the members of Class C, to wit: the fax advertisements Defendant sent and/or caused to be sent to Plaintiff and the members of Class C were unsolicited and/or did not contain notices satisfying the requirements of GBL § 396-aa. 48. Pursuant to GBL § 396-aa, Plaintiff and the members of Class C are entitled to statutory damages in an amount to be determined at trial.

lose

27. On August 23, 2018, Defendant caused the following automated text message to be transmitted to Plaintiff’s cellular telephone number ending in 9070 (“9070 Number”): 29. Specifically, Defendant asks the recipient of the text message to purchase a membership for its gym. 30. Upon information and belief, the hyperlink included in the text message led to a website operated and owned by Defendant which was deleted after Defendant was notified of their TCPA violations. 31. Upon information and belief, the phone number included in the text message is owned and operated by Defendant. 32. Plaintiff received the subject text message within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. 33. Upon information and belief, Defendant caused similar text messages to be sent to individuals residing within this judicial district. 34. At no point in time did Plaintiff provide Defendants with his express consent to be contacted by text messages using an ATDS. 35. Plaintiff is the subscriber and sole user of the 9070 Number. 36. The number used by Defendant (52236) is known as a “short code,” a standard 5-digit code that enables Defendant to send SMS text messages en masse. 37. Upon information and belief, the platform utilized by Defendant has the current capacity to store numbers using a random or sequential number generator, and dial such numbers, as well as dial numbers automatically without human intervention. 39. Specifically, the text messages do not identify the intended recipient by name nor provide any identifiable characteristic of the intended recipient. Instead the text message is drafted so that it can be sent out en masse without variation. 40. Defendant’s unsolicited text message caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text message also inconvenienced Plaintiff and caused disruption to his daily life. 41. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of himself and all others similarly situated. 43. Defendant and its employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class but believes the Class members number in the several thousands, if not more. 47. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendants routinely transmits text messages to telephone numbers assigned to cellular telephone services is accurate, Plaintiff and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 52. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 53. It is a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 54. The TCPA defines an “automatic telephone dialing system” (hereinafter “ATDS”) as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Id. at § 227(a)(1). 55. Defendant – or third parties directed by Defendant – used equipment having the capacity to store telephone numbers, using a random or sequential generator, and to dial such numbers and/or to dial numbers from a list automatically, without human intervention, to make non-emergency telephone calls to the cellular telephones of Plaintiff and the other members of the Class. 57. Defendant violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic telephone dialing system to make non-emergency telephone calls to the cell phones of Plaintiff and the other members of the putative Class without their prior express consent. 58. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff and the other members of the putative Class were harmed and are each entitled to a minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an injunction against future calls. WHEREFORE, Plaintiff Daniel Gerstenhaber, on behalf of himself and the other members of the Class, prays for the following relief: a. A declaration that Defendant’s practices described herein violate the Telephone Consumer Protection Act, 47 U.S.C. § 227; b. A declaration that Defendant’s violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, were willful and knowing; c. An injunction prohibiting Defendant from using an automatic telephone dialing system to call and text message telephone numbers assigned to cellular telephones without the prior express consent of the called party; d. An award of actual, statutory damages, and/or trebled statutory damages; and e. Such further and other relief the Court deems reasonable and just. PROPOSED CLASS Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Class)

win

22. Plaintiff brings this action on behalf of himself and on behalf of and Class Members of the proposed Class pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) and/or (b)(2). 23. Plaintiff’s propose to represent the following Class consisting of and defined as follows: All persons within the United States who received any telephone call(s) from Defendant or its agent(s) and/or employee(s), not for an emergency purpose, on said person’s cellular telephone, made through the use of any automatic telephone dialing system or artificial or prerecorded voice from four years prior to the date of the filing of this Complaint. 24. AMEX and its employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class, but believes the Class members number in the several thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 34. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 35. AMEX’s call to Plaintiff’s cellular telephone without any prior express consent constitutes a negligent violation of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. § 227 et seq. 36. As a result of AMEX’s, and AMEX’s agents’, negligent violations of 47 U.S.C. § 227 et seq., Plaintiff and the Class are entitled to an award of $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 37. Plaintiff and the Class are also entitled to and seek injunctive relief prohibiting such conduct in the future. 38. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 8. At all times relevant, AMEX conducted business in the State of California and in the County of San Diego, within this judicial district. KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. THE TCPA, 47 U.S.C. § 227 ET SEQ. • As a result of AMEX’s and AMEX’s agents’ negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for himself and each Class member $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). • Pursuant to 47 U.S.C. § 227(b)(3)(A), Plaintiff seeks injunctive relief prohibiting such conduct in the future. • Any other relief the Court may deem just and proper.

lose

11. Plaintiff re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 12. RingCentral sells a cloud-based unified telecommunications system and collaboration solutions. This system, used in healthcare, financial services, real estate, retail stores, and enterprises, is a comprehensive cloud phone system. In addition to telecommunications, the system includes video and audio conferencing, team messaging and collaboration, and business app integration features. RingCentral, who serves thousands of clients around the United States and throughout the world, regularly receives compensation from its clients for these services that are delivered across state lines. 13. Plaintiff Stemple worked for RingCentral as a Business Development Representative out of Defendant’s office in Denver, Colorado where he cold-called potential buyers of Defendant’s products. Defendant provided Plaintiff Stemple with leads, who he called in an attempt to sell Defendant’s products. RingCentral employs numerous other Inside Sales Representatives who also sell RingCentral’s products to its clients from inside RingCentral’s offices. 26. Plaintiff re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 27. Plaintiff brings this action individually and on behalf of all others similarly situated pursuant to 29 U.S.C. § 216(b). Plaintiff and the similarly situated individuals work(ed) as Inside Sales Representatives for Defendant. The proposed collective is defined as follows: All persons who worked for Defendant as Business Development Representatives, Sales Development Representatives, Account Executives, or other positions with similar job titles and/or duties who were classified as exempt at any time within three years prior to the commencement of this action (the “FLSA Collective”). 28. Plaintiff has consented in writing to be a part of this action pursuant to 29 U.S.C. § 216(b) and his consent form is attached as Exhibit A. As this case proceeds, it is likely that additional individuals will file consent forms and join as “opt-in” plaintiffs. 42. Plaintiff, individually and on behalf of the proposed Rule 23 Class, re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 43. Plaintiff brings Count Two individually and as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. The proposed Rule 23 Class is defined as: All persons who worked for Defendant in Colorado as Business Development Representatives, Sales Development Representatives, Account Executives, or other positions with similar job titles and/or duties who were classified as exempt at any time within three years prior to the commencement of this action (the “Rule 23 Class”). 51. Plaintiff, individually and on behalf of the FLSA Collective, re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 52. The FLSA requires covered employers to pay non-exempt employees no less than one-and-one-half times their regular rate of pay for all hours worked in excess of forty (40) in a workweek. 29 U.S.C. § 207. 53. Defendant RingCentral, Inc. is an “enterprise” as defined by the FLSA, 29 U.S.C. § 203(r)(1), and is engaged in commerce within the meaning of the FLSA, § 203(b), (s)(1). 54. Plaintiff and the FLSA Collective are non-exempt covered employees. 29 U.S.C. § 203(e)(1). 55. Plaintiff and the FLSA Collective have worked more than forty hours (40) per week for Defendant during the applicable time period. 56. Defendant has not properly compensated Plaintiff or the FLSA Collective for their overtime hours as required by the FLSA. 57. Defendant failed to make a good-faith effort to comply with the FLSA as it relates to the compensation of Plaintiff and the FLSA Collective. 58. Defendant knew Plaintiff and the FLSA Collective worked overtime without proper compensation, and it willfully failed and refused to pay Plaintiff and the FLSA Collective wages at the required overtime rates. See 29 U.S.C. § 255. 59. Defendant’s willful failure and refusal to pay Plaintiff and the FLSA Collective overtime wages for time worked violates FLSA. 29 U.S.C. § 207. 63. Plaintiff individually and on behalf of the proposed Rule 23 Class re-alleges and incorporates by reference the above paragraphs as if fully set forth herein. 64. At all relevant times, Plaintiff Stemple and members of the proposed Rule 23 Class were employees within the meaning of C.R.S. § 84-101(5); 7 C.C.R. § 1103-1:2. 65. At all relevant times, Defendant was an employer within the meaning of C.R.S. § 8- FAIR LABOR STANDARDS ACT – FAILURE TO PAY OVERTIME (On Behalf of Plaintiff and the FLSA Collective) FAILURE TO PAY OVERTIME – COLORADO LAW C.R.S. § 8-4-101 et seq.; 7 C.C.R. § 1103-1 (On Behalf of Plaintiff and the Proposed Rule 23 Class)

win

28. Defendants have been attempting to collect from plaintiff an alleged credit card debt incurred, if at all, for personal, family or household purposes and not for business purposes. 29. On or about January 7, 2015, FNCB, acting on behalf of LVNV, and at the direction of Resurgent, sent plaintiff the letter attached as Exhibit A. 30. Exhibit A is the first letter plaintiff received from defendants regarding the debt described therein. 31. On information and belief, based on its contents, Exhibit A was the first letter defendants sent to plaintiff regarding the debt described therein. 32. On January 7, 2015, more than four years had elapsed since the last payment or activity on the account which is the subject of Exhibit A. 33. FNCB and LVNV regularly seek to collect credit card bills. 34. The statute of limitations on a credit card debt in Texas is four years. 36. FNCB regularly sends letters in the form of Exhibit A on debts on which the statute of limitations has expired. 37. Exhibit A offers to settle the debt. 38. Plaintiff incorporates paragraphs 1-37. 39. Exhibit A implies that the alleged debt is legally enforceable by offering a settlement. 40. Nothing in Exhibit A disclosed that the debt was barred by the statute of limitations or not legally enforceable. 41. It is the policy and practice of FNCB and LVNV to send and cause the sending of letters seeking to collect time-barred debts that do not disclose that the debt is time-barred. 42. The Federal Trade Commission has determined that “Most consumers do not know their legal rights with respect to collection of old debts past the statute of limitations . . . . When a collector tells a consumer that she owes money and demands payment, it may create the misleading impression that the collector can sue the consumer in court to collect that debt.” (http://www.ftc.gov/opa/2012/01/asset.shtm) 43. In early 2012, the FTC entered into a consent decree with Asset Acceptance, one of the largest debt buyers in the United States, requiring that it disclose to consumers when it is attempting to collect debts that are barred by the statute of limitations. United States of America (For the Federal Trade Commission) v. Asset Acceptance, LLC, Case No. 8:12-cv-182-T-27EAJ (M.D.Fla.). 45. The October 1, 2012 orders further require disclosure of “all material conditions, benefits and restrictions concerning any offer of settlement. . . .” (2012-CFPB-0002, p. 7 of 35, 2012-CFPB-0003, p. 6 of 28). Thus, they recognize that “settlement offers” that fail to disclose material information may be misleading. 46. On January 30, 2013, the FTC issued its report, The Structure and Practices of the Debt Buying Industry, available at http://www.ftc.gov/os/2013/01/ debtbuyingreport.pdf. The report reaffirms its position in the United States of America v. Asset Acceptance, LLC, No. 8:12-cv-182-T-27EAJ (M.D. Fla. 2012), American Express Centurion Bank (FDIC-12-315b, FDIC-12-316k, 2012-CFPB-0002), American Express Bank, FSB (2012-CFPB-0003) and American Express Travel Company, Inc. (2012-CFPB-0004) cases, that a defendant may violate the FDCPA by sending a collection letter demanding payment of a time barred debt without disclosing that the debt was time barred. 47. The report cites to a study (Timothy E. Goldsmith & Natalie Martin, Testing Materiality Under the Unfair Practices Acts: What Information Matters When Collecting Time- Barred Debts?, 64 Consumer Fin. L.Q. Rep. 372 (2010)) that establishes the disclosure that a debt is time barred in a debt collection letter is material to the consumer. 48. Courts have also held that the offer of a settlement on a time-barred debt is misleading. Buchanan v. Northland Group, Inc., 776 F.3d 393 (6th Cir. 2015) (pet. for rehearing en banc denied on March 13, 2015); McMahon v. LVNV, LLC, 744 F.3d 1010 (7th Cir. 2014). 50. Section 1692e provides: § 1692e. False or misleading representations [Section 807 of 52. Plaintiff brings this claim on behalf of two classes, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3). 53. Class A consists of (a) all individuals with Texas addresses (b) to whom First National Collection Bureau, Inc. (c) sent a letter offering a settlement of a debt (d) which debt was a credit card debt on which the last payment or activity had occurred more than four years prior to the letter, (e) which letter was sent on or after a date one year prior to the filing of this action and on or before a date 21 days after the filing of this action. 55. On information and belief, each class is so numerous that joinder of all members is not practicable. 56. There are questions of law and fact common to the class members, which common questions predominate over any questions relating to individual class members. The predominant common question is whether a letter offering a settlement violates the FDCPA when sent to collect a time-barred debt. 57. Plaintiff’s claim is typical of the claims of the class members. All are based on the same factual and legal theories. 58. Plaintiff will fairly and adequately represent the class members. Plaintiff has retained counsel experienced in class actions and FDCPA litigation. § BUREAU, INC., a Nevada Corporation; § LVNV FUNDING, LLC, a Delaware § Limited Liability Company; §

win

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Website, with contact information for users to report accessibility-related problems. 20. Defendant owns and operates TRIBECA PEDIATRICS medical Offices (its “Offices”) as well as the TRIBECA PEDIATRICS website. 21. Defendant is a medical office that offers the commercial website, www.tribecapediatrics.com, to the public. The website offers features which should allow all consumers to access the facilities and services which Defendant offers in connection with their physical locations. 22. Through the Website, its prospective patients are, inter alia, able to: obtain Office locations and hours, obtain information on doctors and medical staff at each location, find information on health resources, the ability to view medical records online, and other services. 23. Defendant operates TRIBECA PEDIATRICS Offices across New York, including its Office located in New York City at 15 Warren St, New York, NY 10007. 25. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the facilities and services that are offered and integrated with Defendant’s Offices. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Offices and the numerous facilities, services, and benefits offered to the public through its Website. 26. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 27. During Plaintiff’s visits to the Website, the last occurring in August 2018, Plaintiff encountered multiple access barriers that denied Plaintiff full and equal access to the facilities and services offered to the public and made available to the public; and that denied Plaintiff the full enjoyment of the facilities and services of the Website, as well as to the facilities and services of Defendant’s physical locations in New York. Because of these barriers he was unable to: Office locations and hours, obtain information on doctors and medical staff at each location, find information on health resources, the ability to view medical records online, and other services. 30. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired prospective patients such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website, despite his intention to do so. 31. These access barriers on Defendant’s Website have also deterred Plaintiff from visiting Defendant’s physical Office locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical Offices on its Website and other important information about Office locations and hours, obtain information on doctors and medical staff at each location, find information on health resources, the ability to view medical records online, and other services. 32. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and learn about Defendant’s operations as sighted individuals do. 34. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 35. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 38. If the Website was accessible, Plaintiff and similarly situated blind and visually- impaired people could independently view service items, locate Defendant’s Office locations and hours, obtain information on doctors and medical staff at each location, find information on health resources, the ability to view medical records online, and other services. 40. Defendant has, upon information and belief, invested substantial sums in developing and maintaining its Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired prospective patients. 41. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 42. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of facilities and services offered in Defendant’s physical locations, during the relevant statutory period. 43. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of facilities and services offered in Defendant’s physical locations, during the relevant statutory period. 45. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 46. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 48. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 49. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 50. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 51. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 52. Defendant’s Offices are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s Offices. The Website is a service that is integrated with these locations. 54. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 55. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 57. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 58. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 59. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 60. Defendant’s physical locations are located in State of New York and throughout the United States and constitute establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with these physical locations. 61. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 63. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 64. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 66. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 67. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 68. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 69. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 71. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 72. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 73. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 74. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 75. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 76. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 78. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 79. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, facilities and services that Defendant makes available to the non-disabled public. 80. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 82. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 83. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 84. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 85. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 86. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 88. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 89. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 90. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 92. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 93. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 94. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 95. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 96. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 97. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 99. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind prospective patients the full and equal access to the goods, services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 100. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE NYCHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYSHRL

win

14. Title IV of the Higher Education Act of 1965 (as amended) (“HEA”), 20 U.S.C. § 1070 et seq., governs the administration of the federal student loan program. 16. The Department reported that, in fiscal year 2018 alone, it garnished over $840 million from borrowers with federal Direct Loans. See Office of Fed. Student Aid, “Default Rates,” https://studentaid.gov/data-center/student/default (select “FY18 Q1-Q4” under “Default Recoveries by Private Collection Agency” and hit “GO”) (last visited Apr. 27, 2020). 17. When a borrower’s delinquency qualifies for garnishment, the Department will issue a garnishment order directly to the borrower’s employer. 34 C.F.R. § 34.18. The Secretary has the right to take legal action against an employer in order to enforce that order. 20 U.S.C. § 1095a(a)(6); 34 C.F.R. § 34.29. 18. The Department’s regulations provide that the amount that can be garnished is the lesser of fifteen percent of a borrower’s disposable income or the amount exceeding thirty times the prevailing minimum wage. 34 C.F.R. § 34.19(b). 19. Once issued, a garnishment order remains in effect until the Secretary rescinds the order or the debt is paid in full, including interest, penalties, and collection costs. Id. § 34.26. 21. Where the Department’s wage garnishment is “barred by law at the time of the collection action,” the Department must “promptly refund any amount collected by means of this garnishment.” Id. § 34.28(a). Unless required by federal law, the Department will not pay interest on a refund. Id. § 34.28(b). The CARES Act requires immediate suspension of wage garnishment and notice of the suspension to borrowers. 22. On March 13, 2020, President Trump declared a national emergency due to the COVID-19 pandemic. 23. On March 25, 2020, the Department announced that, due to the national emergency, it would “halt collection actions and wage garnishments to provide additional assistance to borrowers. This flexibility will last for a period of at least 60 days from March 13, 2020.” See Press Release, U.S. Dep’t of Educ., “Secretary DeVos Directs FSA to Stop Wage Garnishment, Collections Actions for Student Loan Borrowers, Will Refund More Than $1.8 Billion to Students, Families” (Mar. 25, 2020), available at: https://www.ed.gov/news/press- releases/secretary-devos-directs-fsa-stop-wage-garnishment-collections-actions- student-loan-borrowers-will-refund-more-18-billion-students-families. 25. Prior to and after its passage, legislators from both parties came together to emphasize that the relief provided under the Act must be provided immediately. For example, Senator McConnell explained that the CARES Act “puts urgently-needed cash in the hands of American workers and families. . . . That is what we have to do: Inject a significant amount of money as quickly as possible into households, small businesses, key sectors, and our nation’s hospitals and health centers. This bill would do just that—and do it fast.” Press Release, Sen. Mitch McConnell, “This is Not a Political Opportunity. It is a National Emergency” (Mar. 22, 2020), available at: https://www.mcconnell.senate.gov/public/index.cfm/pressreleases?ContentRecord_id =16D7E2DB-8860-4B80-A9F3-6E6858BF625D. See also 166 Cong. Rec. S1977 (Mar. 24, 2020) (statement of Sen. John Thune) (“[The CARES Act is filled with resources to help struggling families, provide relief to workers, and enable businesses to retain their employees during this crisis. Americans need this bill today, not tomorrow, [and] not next week[.]”); Press Release, Sen. Chuck Grassley (Mar. 25, 2020), available at: https://www.grassley.senate.gov/news/news-releases/grassley- releases-phase-3-coronavirus-response-legislation (“The economic and public health crisis we are experiencing as a country is an emergency and Congress must respond in kind. Congress must pass this legislation immediately.”). 27. With this provision, Congress immediately suspended wage garnishments for a six-month period (more than the sixty days previously announced by the Department) so that struggling student loan borrowers would have more income to put food on the table and pay their rent and medical bills during the crisis. 28. The CARES Act also requires the Department to provide notice to borrowers of the actions taken suspending wage garnishment on or before April 10, 2020. Section 3513(g)(1)(B) provides that the Secretary shall “not later than 15 days after the date of enactment of this Act, notify borrowers—. . . . (B) of the actions taken in accordance with subsection (e) for whom collections have been suspended.” 30. On or around April 1, 2020, the Department placed the following guidance to borrowers on its website: UPDATED: On March 25, 2020, ED announced that my wages would not be garnished, but money is still being taken from my paycheck. What should I do? Your human resources department will receive a letter from ED instructing them to stop your wage garnishment. If ED receives funds from a garnishment between March 13, 2020, and Sept. 30, 2020, we will refund your garnished wages. See U.S. Dep’t of Educ., “Coronavirus and Forbearance Info for Students, Borrowers, and Parents,” https://studentaid.gov/announcements-events/coronavirus (last visited Apr. 27, 2020). 31. Because the Department’s guidance states that borrowers’ wages may continue to be taken and that they should expect to receive refunds at some uncertain date in the future, it contradicts the CARES Act’s directive to immediately suspend involuntary collections. 33. In a section titled “WHAT YOU NEED TO DO,” the notice states: “Keep this notification for your records. We’ll communicate with you in August to help prepare you for Sept. 30 2020, when the . . . stopped collections period ends. There’s no action you need to take at this time.” The Department’s failure to implement the CARES Act 34. Despite these statements—including the notice to borrowers that their wage garnishment was suspended and there was no further action they needed to take—the Department continues to illegally garnish wages of borrowers in violation of the CARES Act, including the wages of Named Plaintiff Elizabeth Barber. 35. Ms. Barber’s most recent paycheck, dated April 24, 2020, was garnished in violation of the CARES Act, as were several others, and the garnishment order remains in effect. 36. On information and belief, the Department still has not ensured that all affected employers have received instructions to stop garnishing the pay of their employees with defaulted federal student loans. 38. In fact, the Department reportedly attempted to send emails to employers regarding suspension of wage garnishment but is aware that most of those emails were never opened. Id. 39. The CARES Act did not provide the Department with a grace period in which to provide this temporary six-month relief. To the contrary—as indicated by the requirement in Section 3513(g)(1)(B) that the Secretary provide notice to borrowers by April 10, 2020 that wage garnishments were suspended—timely action is essential to delivering the relief Congress mandated. 40. Irrespective of steps that the Department may have taken to cease garnishing wages of some student loan borrowers, it nevertheless has not stopped the practice altogether and is therefore out of compliance with the CARES Act. Harm to Named Plaintiff and the Putative Class 41. The Department’s illegal wage garnishments are causing material and immediate harm to Named Plaintiff and the proposed class, as well as thwarting the purpose of the CARES Act to provide fast, direct relief to student loan borrowers during the current national emergency. 43. In 2010, Plaintiff Elizabeth Barber attended Nazareth College, where she studied psychology. Ms. Barber took out federally held student loans to attend the program. She currently owes approximately $10,000 on those loans. 44. In 2019, Ms. Barber defaulted on her federal loans, and she received a Final Notice of Wage Garnishment on December 19, 2019. From January 2020 to the present, the Department has garnished approximately twelve percent of Ms. Barber’s wages from her paychecks, for a total of over $900.00. 45. Ms. Barber is currently employed as a home health aide at Companion Care of Rochester, Inc., a home care services agency for older adults and individuals with disabilities. Ms. Barber has continued to provide home health care throughout the COVID-19 crisis. 46. Ms. Barber earns $12.89 per hour. In 2019, she earned approximately $20,000 in total. The money that Ms. Barber earns as a home health aide is her sole source of income. 48. Ms. Barber fears bringing the virus into her clients’ homes, especially those whose medical conditions place them at heightened risk of severe symptoms if they catch the virus. 49. Due to the decrease in demand for her services during the COVID-19 pandemic, Ms. Barber’s hours have been reduced by approximately ten to fifteen hours per week, increasing her financial strain. 50. As Ms. Barber continues to assist clients in need, the Department—in violation of the CARES Act—continues to garnish approximately twelve percent of her paychecks. Most recently, the Department illegally garnished $70.20 from her April 24, 2020 paycheck. 51. Ms. Barber is struggling to make ends meet, so every dollar counts as she tries to meet her immediate needs. 52. Ms. Barber often has to leave bills unpaid in order to cover her basic needs. She has no money in her checking or savings accounts, is in arrears on various local taxes, and is subject to a lien on her home. She is also past due on both her water and electric bills, which she cannot afford to pay in full each month. 54. The funds that the Department has illegally garnished are essential to Ms. Barber’s ability to satisfy her essential financial obligations during the pandemic. 55. Named Plaintiff files this class action on behalf of herself and all other individuals who are similarly situated. She seeks to represent a class consisting of: All federal student loan borrowers from whom the Department is garnishing wages in violation of the CARES Act. 56. The proposed class satisfies the requirements of Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 57. The class is so numerous that joinder of all members is impracticable. The Department estimates that approximately 285,000 people had their wages garnished between March 13 and March 26, 2020. See Danielle Douglas-Gabriel, supra ¶ 37. On information and belief, many of these borrowers continue to have their wages garnished in violation of the CARES Act. The exact number of class members can be readily determined using the Department’s records. 58. The nature of relief sought, as well as questions of fact and law, are common to all members of the class. 60. The common questions of law and fact also predominate over any questions affecting individual members. The common questions of law and fact include, but are not limited to, whether the Department’s failure to suspend wage garnishment as required by the CARES Act violates the Administrative Procedure Act (“APA”). 61. Named Plaintiff’s claims are typical of the claims of other class members, as they arise out of the same course of conduct and legal theories and challenge the Department’s conduct with respect to the class as a whole. 62. Named Plaintiff is capable of and committed to fairly and adequately protecting the interests of the class and has no conflicts with other class members. 63. Named Plaintiff is represented by counsel experienced in higher education law, administrative law, and class action litigation. 65. Plaintiff repeats and incorporates by reference each of the foregoing allegations as if fully set forth herein. 66. The garnishment of wages after March 27, 2020 constitutes “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. 67. Under the APA, a “reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). 68. Section 3513(e) of the CARES Act requires the Secretary to suspend, until September 30, 2020, all involuntary collection—including wage garnishment— of defaulted Direct and FFEL loans currently held by the Department. 69. By continuing to garnish the wages of Named Plaintiff and the class following the March 27 enactment of the CARES Act, the Department has unlawfully withheld its legal obligation to suspend administrative wage garnishments between March 27, 2020, and September 30, 2020, as required by Section 3513(e) of the CARES Act. 71. The garnishment of wages after March 27, 2020, constitutes “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. 72. Under the APA, a “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). 73. Section 3513(e) of the CARES Act requires the Secretary to suspend, until September 30, 2020, all involuntary collection—including wage garnishment— of defaulted Direct and FFEL loans currently held by the Department. 74. By continuing to garnish the wages of Named Plaintiff and the class following the March 27 enactment of the CARES Act, the Department is in violation of Section 3513(e) of the CARES Act. Its actions are therefore not in accordance with law. 75. By failing to stop employers from garnishing the wages of Named Plaintiff and the class following the enactment of the CARES Act, the Department is in violation of Section 3513(e) of the CARES Act. Its actions are therefore not in accordance with law. 76. Plaintiff repeats and incorporates by reference each of the foregoing allegations as if fully set forth herein. 78. Under the APA, a “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(C). 79. Section 3513(e) of the CARES Act requires the Secretary to suspend, until September 30, 2020, all involuntary collection—including wage garnishment— of defaulted Direct and FFEL loans currently held by the Department. 80. By continuing to garnish the wages of Named Plaintiff and the class following the March 27 enactment of the CARES Act, the Department is in violation of Section 3513(e) of the CARES Act. Its actions are therefore in excess of statutory jurisdiction or authority. 81. By failing to stop employers from garnishing the wages of Named Plaintiff and the class following the enactment of the CARES Act, the Department is in violation of Section 3513(e) of the CARES Act. Its actions are therefore in excess of statutory jurisdiction or authority. COUNT ONE Violation of the APA, 5 U.S.C. § 706(1) for Garnishing Wages in Violation of the CARES Act The Department of Education’s authority to garnish wages Violation of the APA, 5 U.S.C. § 706(2)(A) for Garnishing Wages in Violation of the CARES Act Violation of the APA, 5 U.S.C. § 706(2)(C) for Garnishing Wages & Failing to Provide Notice in Violation of the CARES Act

lose

21. Citizens is a mortgage “servicer” as that term is defined by 12 CFR § 1024.2(b) and 12 U.S.C. § 2605(i)(2). Citizens is the current servicer of Plaintiff’s and Class (defined below) members’ notes, and mortgages on real property that secure those notes (collectively referred to hereinafter as the “loans”). 22. Plaintiff’s and Class members’ loans are each a “federally related mortgage loan” as said term is defined by RESPA and Regulation X. 12 U.S.C. § 2602(1); 12 CFR § 1024.2(b). 23. As such, Citizens is subject to the requirements of RESPA and Regulation X, and does not qualify for the exception for “small servicers”—as defined by 12 CFR § 1026.41(e)(4)—nor for the exemption for a “qualified lender”—as defined by 12 CFR § 617.700. 24. Plaintiff and Class members submitted one or more QWRs—as defined by 12 U.S.C. § 2605(e)(1)(B)—to Citizens. Plaintiff’s and Class members’ QWRs were either RFIs— as defined by 12 CFR § 1024.36(a)—or NOEs—as defined by 12 CFR § 1024.35(a). 6 25. In response to Plaintiff’s and Class members’ QWRs, Citizens replied with form letters directing the borrower to contact Citizens’s foreclosure attorneys in order to obtain the requested information and documents. Citizens did not otherwise make a substantive response to the borrowers’ QWRs. 26. 12 CFR § 1024.36(f)(1) and 12 CFR § 1024.35(g)(1) set forth certain exceptions to Citizens’s requirement to respond to Plaintiff’s and Class members’ RFIs and NOEs. However, directing Plaintiff and Class members to contact Citizens’s foreclosure attorneys in order to obtain the requested information and documents is not a permissible exception to Citizens’s obligation to respond to QWRs, RFIs, and NOEs under RESPA and Regulation X. 27. As such, Citizens failed to provide adequate responses to Plaintiff’s and Class members’ RFIs and NOEs. 28. Specifically, relative to Plaintiff and members of the Class who submitted QWRs in the form of RFIs, Citizens did not provide any of the requested information or documentation pertaining to the specific information sought in those RFIs, as required by 12 CFR § 1024.36 and 12 U.S.C. § 2605(e)(2)(C)(i). 29. Similarly, relative to Plaintiff and members of the Class who submitted QWRs in the form of NOEs, Citizens did not correct any errors or conduct any investigation into the errors asserted in those NOEs, as required by 12 CFR § 1024.35 and 12 U.S.C. § 2605(e)(2)(A) and 37. On or about March 13, 2018, Plaintiff, by and through counsel, sent two (2) RFIs to Citizens via Certified Mail (See, RFIs sent from Plaintiff to Citizens, attached hereto as Exhibits A and B, respectively). 38. On April 18, 2018, Citizens responded (“Response”) to Plaintiff’s RFIs stating, “We are responding to your letter which we received on March 19, 2018. For more information and documentation regarding the loan, please contact our foreclosure attorneys…. They will be able to further assist you with questions in regards to the account.” (See, Citizens’s Response to Plaintiff’s RFIs, attached hereto as Exhibit C). 39. Because Citizens “failed to do that which it was obligated to do [under RESPA]” the time and expense associated with Plaintiff’s submission of his RFIs to Citizens “metamorphosed into damages.” E.g., Marais, 24 F.Supp.3d at 728. As such, Plaintiff was harmed by Citizens’s failure to adequately respond to his RFIs, which constitutes a recoverable damage. 40. Since Plaintiff did not receive the information requested in his RFIs, Plaintiff, by and through counsel, sent two separate NOEs to Citizens on May 8, 2018, one NOE for each of the two RFIs to which Citizens failed to properly respond. (See, NOEs sent from Plaintiff to Citizens, attached hereto as Exhibits D and E, respectively). 41. To date, neither Citizens, nor counsel for Citizens, has provided any other follow- up to Plaintiff’s RFIs or NOEs. 9 42. Had Citizens adequately responded to Plaintiff’s RFIs, Plaintiff would not have needed to send subsequent NOEs to Citizens. Citizens’s failure to adequately respond to Plaintiff’s RFIs caused him to incur additional costs—such as postage and attorneys’ fees— relative to sending his NOEs. These additional costs related to Plaintiff’s NOEs are also a recoverable damage. 43. Class Definition: Plaintiff brings this action on behalf of a class of similarly situated individuals and entities (the “Class”), defined as follows: All loan borrowers (1) who submitted to Citizens a “qualified written request,” as defined by 12 U.S.C. § 2605(e)(1)(B), in the form of a Request for Information and/or Notice of Error, and (2) to whom Citizens refused to provide information, and instead directed them to contact Citizens’s foreclosure attorneys in order to obtain the requested information and documents. Excluded from the Class are: (1) Defendant, Defendant’s agents, subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest, and those entities’ current and former employees, officers, and directors; (2) the Judge to whom this case is assigned and the Judge’s immediate family; (3) any person who executes and files a timely request for exclusion from the Class; (4) any persons who have had their claims in this matter finally adjudicated and/or otherwise released; and (5) the legal representatives, successors and assigns of any such excluded person. 44. Plaintiff also brings this on behalf of a subclass of similarly situated individuals (the “Subclass”) defined as follows: All loan borrowers (1) who submitted to Citizens a “qualified written request,” as defined by 12 U.S.C. § 2605(e)(1)(B), in the form of a Request for Information and/or Notice of Error, (2) to whom Citizens refused to provide information, and instead directed them to contact Citizens’s foreclosure attorneys in order to obtain the requested information and documents, and (3) who submitted to Citizens a second 10 “qualified written request,” as defined by 12 U.S.C. § 2605(e)(1)(B), in the form of a Notice of Error related to Citizens’s response. Excluded from the Subclass are: (1) Defendant, Defendant’s agents, subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest, and those entities’ current and former employees, officers, and directors; (2) the Judge to whom this case is assigned and the Judge’s immediate family; (3) any person who executes and files a timely request for exclusion from the Subclass; (4) any persons who have had their claims in this matter finally adjudicated and/or otherwise released; and (5) the legal representatives, successors and assigns of any such excluded person. 45. Numerosity: Upon information and belief, the Class is comprised of more than 40 members. This conclusion is reasonable because Citizens is a substantial mortgage provider in the country. 46. The Class is so numerous that joinder of all members is impractical. The exact number of members in the Class is presently unknown, can only be ascertained through discovery, and can easily be identified through Defendant’s records or by other means. 47. Commonality and Predominance: All members of the Class have been subject to and affected by a uniform course of conduct: specifically, Citizens refusing to provide information in response to QWRs and instead directing them to contact Citizens’s foreclosure attorneys in order to obtain the requested information and documents. There are questions of law and fact common to the proposed classes that predominate over any individual questions, including but not limited to: a. Whether Citizens is a mortgage “servicer” as defined by 12 CFR 1024.2(b) and/or 12 U.S.C. 2605(i)(2); b. Whether the Plaintiff and Class members sent QWRs to Citizens, as defined by 12 U.S.C. 2605(e)(1)(B); 11 c. Whether Citizens’s directing Plaintiff and Class members to contact Citizens’s foreclosure attorneys in order to obtain the requested information and documents, as set forth in Citizens’s uniform response to Plaintiff’s and Class members’ QWRs, is provided for under 12 CFR 1024.35(g)(1) or 12 CFR 1024.36(f)(1); d. Whether Citizens’s uniform response to Plaintiff’s and Class members’ RFI’s was compliant with 12 CFR 1024.36(d); e. Whether Citizens’s uniform response to Plaintiff’s and Class members’ NOE’s was compliant with 12 CFR 1024.35(e)(1). 48. Typicality: Plaintiff’s claims are typical of the claims of the Class. Plaintiff and Class members were denied information to which they were entitled because Defendant unlawfully refused to produce information and documents, and Plaintiff and Class members incurred damages as a result. 49. Adequacy: Plaintiff will adequately represent the interests of the Class and does not have adverse interests to the Class. If individual Class members prosecuted separate actions it may create a risk of inconsistent or varying judgments that would establish incompatible standards of conduct. A class action is the superior method for the quick and efficient adjudication of this controversy. Plaintiff’s counsel has extensive experience litigating consumer class actions. 50. Plaintiff incorporates by reference paragraphs 1 through 49. 51. Plaintiff and Class members submitted QWRs to Citizens, as that term is defined by 12 U.S.C. § 2605(e)(1)(B). (See, Exhibits A and B). 12 52. Plaintiff’s and Class members’ QWRs requested specific information related to their loans, pursuant to 12 CFR § 1024.35 and 12 CFR § 1024.36. 53. Citizens failed to provide adequate responses to Plaintiff’s and Class members’ QWRs. Specifically, Citizens has not provided any of the requested materials concerning specific information related to Plaintiff’s and Class members’ loans or correct any of the asserted errors, as required by 12 CFR § 1024.35(e)(1), 12 CFR § 1024.36(d), and 12 U.S.C. § 2605(e)(2), but instead replied with form letters directing Plaintiff and Class members to contact Citizens’s foreclosure attorneys in order to obtain the requested information and documents. (See, Exhibit C). 54. 12 CFR § 1024.35(g) and 12 CFR § 1024.36(f) did not, and do not, permit Citizens to direct Plaintiff and Class members to contact Citizens’s foreclosure attorneys in order to obtain the information and documents requested in Plaintiff’s and Class members’ QWRs; rather, Citizens has the obligation to provide the requested information and documents itself. 55. Citizens’s actions, in failing to fully respond to Plaintiff’s and Class members’ QWRs or correct any asserted errors in compliance with 12 U.S.C. § 2605(e)(2), 12 CFR § 1024.35(e)(1), and 12 CFR § 1024.36(d) or, alternatively, to state the reason under 12 U.S.C. §§ 2605(e)(2)(B)(i) or (C)(i), 12 CFR §1024.35(g), and 12 CFR §1024.36(f), pursuant to which Citizens determined that the borrower’s account was correct or that Citizens did not need to comply with 12 U.S.C. § 2605(e)(2), 12 CFR § 1024.35(e)(1), or 12 CFR § 1024.36(d), constitute clear violations of the requirements of 12 U.S.C. §§ 2605(e)(2)(B)(i) and (C)(i), as interpreted by 12 CFR § 1024.35 and 12 CFR § 1024.36. 56. As a result of Citizens’s refusal to provide the requested information and documents, in violation of its obligations under RESPA and Regulation X, Plaintiff and Subclass 13 members were required to send additional “qualified written requests,” as that term is defined by 12 U.S.C. § 2605(e)(1)(B), in the form of subsequent NOEs. (See, Exhibits D and E). 57. Had Citizens adequately responded to Plaintiff’s and Class members’ initial QWRs, Plaintiff and Class members would not have needed to send subsequent NOEs regarding Citizens’s erroneous refusal to provide the requested information and documents, in violation of its obligations under RESPA and Regulation X. 58. Plaintiff and Class members were harmed by Citizens’s failure to adequately respond to their initial QWRs because, as set forth above, the time and expense associated with Plaintiff’s and Class members’ submission of those QWRs to Citizens “metamorphosed into damages.” Additionally, Plaintiff and Subclass members were harmed by Citizens’s failure to adequately respond to their initial QWRs because it required them to incur the time and expense associated with sending subsequent NOEs. 59. Citizens is hiding behind a baseless referral to its foreclosure attorneys in order to ignore its legal obligations to respond to Plaintiff’s and Class members’ QWRs. 60. Citizens’s actions are believed to be the continuation of a pattern and practice of behavior in conscious disregard of the Plaintiff’s and Class members’ rights. 61. As a result of Citizens’s actions, Citizens is liable to Plaintiff and Class members for actual damages, statutory damages, costs, and attorney fees. 12 U.S.C. §§ 2605(f)(2) and (3). VIOLATIONS OF 12 U.S.C. § 2605 AND 12 CFR § 1024.36 (On behalf Plaintiff and the Class)

win

15. Sales tax is a consumption tax on the purchase of goods or services assessed by some states and municipalities. 16. A retail transaction is only subject to sales tax in the taxing authority where the goods are delivered. 17. For example, when a buyer and seller reside in the same state, and the buyer takes possession of the purchased goods in that state, the sales tax laws of the buyer and seller’s state govern the transaction. 18. On the other hand, when the buyer and seller reside in different states, and the seller delivers the purchased goods from its state to the buyer’s state, the sales tax laws of the buyer’s state govern the transaction. 19. Defendant is aware of these tax collection and assessment procedures and knows how to assess sales tax on its clothing sales. 21. Audrey is Defendant’s proprietary, online point-of-sale system through which Defendant processes all sales that its consultants make. 22. Defendant’s fashion consultants have no ability to control or adjust the sales tax that Audrey applies to each transaction. 23. Instead, Defendant has configured Audrey to automatically charge customers sales tax based on the location of Defendant’s consultant who made the sale, and not the laws of the taxing authority where Defendant delivered the purchase, i.e. the “ship to address.” 24. As Defendant’s CEO, Mark Stidham, explained in 2016: Your customers will be charged the sales tax from your state, city and/or county, not theirs. If you live in a state where sales tax does not apply, then your customer will not be charged any sales tax. State laws require us to collect this and in order to comply with the reporting they have instructed us to provide them relative to your sales and we have found this method to be the most efficient for now. 25. Defendant’s failure to calculate tax based on the buyer’s ship to address is problematic because many taxing authorities do not charge sales tax, or exempt clothing from sales tax, on purchases made or shipped to their tax jurisdiction. 26. As a result, if a buyer purchases Defendant’s clothing from a consultant in a jurisdiction that charges sales tax, but the purchase is delivered into a jurisdiction that does not charge sales tax, Defendant’s payment system overcharges the buyer in the guise of a sales tax that does not exist in the jurisdiction governing that transaction. 27. Defendant does not remit this overcharge to the taxing authority that governs that transaction. 29. Defendant’s consultants delivered these purchases to Plaintiff at her home in Pennsylvania. 30. Pennsylvania does not charge sales tax on the clothing Defendant sells and Plaintiff purchased. See 72 P.S. § 7204. 31. Yet, throughout 2016, Defendant’s payment system, Audrey, charged Plaintiff a nonexistent sales tax on these 12 clothing purchases. 32. For these purchases, Plaintiff paid a total of $585.16, of which Defendant overcharged her $35.16 in the guise of an ostensible “sales tax.” 33. These funds are not an authorized tax and Plaintiff’s taxing authorities never authorized Defendant to collect or remit sales tax on these purchases. 34. This ostensible sales tax was never paid to or held in trust for the Pennsylvania State Taxing Authority. 35. Instead, Defendant retained the fraudulently obtained $35.16, or remitted it to taxing authorities outside of Pennsylvania, which authorities have no jurisdiction to assess sales tax on purchases shipped to Pennsylvania. 36. Defendant’s sales tax assessment practices, in effect, are improperly and fraudulently adding a surcharge to purchases, and are disguising those surcharges as a “sales tax” that does not exist, and for which Defendant lacks authority to collect or remit. 37. The “sales tax” surcharge is more than the price advertised online for the product and purchasers do not become aware of this overcharge until Audrey sends them an invoice. 39. Defendant’s unlawful and unauthorized tax assessments have harmed and will continue to harm residents whose taxing authorities do not charge sales tax on Defendant’s clothing or that do not charge sales tax generally, but who, like Plaintiff, purchase Defendant’s product from sellers located in jurisdictions that do charge such tax. 40. Plaintiff brings this class action on behalf of herself and all other similarly situated class members under Rules 23(a), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure, and seeks to certify the following multi-state class: All persons who were or will be assessed sales tax on clothing purchases processed through Audrey, and whose purchases were or will be delivered to tax jurisdictions of the United States that do not authorize a collection of sales tax on the clothing Defendant sells. 41. Excluded from the class is Defendant, as well as its past and present officers, employees, agents or affiliates, any judge who presides over this action, and any attorneys who enter their appearance in this action. 42. Plaintiff reserves the right to expand, limit, modify or amend this class definition, including the addition of one or more subclasses, in connection with her motion for class certification, or at any other time, based on, among other things, changing circumstances and new facts obtained during discovery. 43. Numerosity. The class described above is so numerous that joinder of all members is impracticable. The disposition of the individual claims of the respective class members will benefit the parties and the Court and will facilitate judicial economy. 45. Typicality. Plaintiff’s claims are typical of the claims of the members of the class. The claims of each class member arise from the same course of conduct: Defendant’s requirement that class members pay for their purchases via an online point-of-sale payment platform that automatically assesses sales tax without consideration of the laws of the taxing authorities where the class members reside. The claims of Plaintiff and Class Members are based on the same legal theories and arise from the same unlawful conduct. 46. Existence and Predominance of Common Questions of Law and Fact. This action involves common questions of law and fact, which predominate over any questions affecting individual class members. These common questions include, but are not limited to, the following: a. Whether Defendant collected funds from Plaintiff and individual class members under a nonexistent tax; b. Whether the law authorizes these converted funds; c. Whether Defendant lacks authority under the law to collect funds under a nonexistent tax; d. Whether Defendant’s illegal and unauthorized collections caused its unjust enrichment; e. Whether Defendant’s conduct was fraudulent; f. Whether Defendant’s conduct was deceptive and likely to mislead consumers; and g. Whether Defendant converted funds that lawfully belonged to Plaintiff and the class members. 48. Superiority. The nature of this action and the nature of laws available to Plaintiff and the class make the use of the class action format a particularly efficient and appropriate procedure to afford relief for themselves and the class for the wrongs alleged. The damages or other financial detriment suffered by individual class members is relatively modest compared to the burden and expense that individual litigation of their claims against Defendants would entail. It would thus be virtually impossible for Plaintiff and class members, on an individual basis, to obtain effective redress for the wrongs done to them. Absent class action litigation, class members, and the general public would not likely recover, or would not likely have the chance to recover damages, and Defendant will be permitted to retain the converted proceeds of its fraudulent and deceptive misdeeds. 49. General Applicability. Defendant’s conduct in charging and collecting sales tax on purchases to which it is not authorized to assess or collect such charges is generally applicable to the class as a whole, making certification under Federal Rule of Civil Procedure 23(b)(2) appropriate. 50. The allegations contained in the previous paragraphs are incorporated by reference. 51. Plaintiff brings this claim under the laws of Pennsylvania, and all similar state laws. 53. There was no legal basis to charge these amounts to Plaintiff and the class because Pennsylvania does not charge sales tax on Defendant’s clothing sales, and the tax jurisdictions where Defendant’s fashion consultants reside do not have authority to assess sales tax on the class members’ purchases, which were not made in or shipped to the tax jurisdictions of Defendant’s fashion consultants. 54. The amounts Defendant charged and collected from Plaintiff and class members for this ostensible purpose created and continue to create a constructive trust, with Defendant serving as a trustee for purposes of ensuring the funds held in trust were and are paid to the proper payee. 55. Defendant improperly retained the constructive trust funds, in which case it has been unjustly enriched, or alternatively, improperly paid the trust funds to a third party (i.e. the taxing jurisdiction in which a fashion consultant is located) which had no authority or jurisdiction to assess those charges and was not entitled to receive those funds. 56. Whether Defendant obtained the funds subject to the constructive trust from Plaintiff and individual class members intentionally or through mistaken belief or assumption that taxes were payable, the taxes collected were not payable either in fact or law, and the funds paid by Plaintiff and class members are recoverable from Defendant, which breached its duties and obligations as trustee by failing to remit the funds to the proper payees (the class members). 57. The allegations contained in the previous paragraphs are incorporated by reference. 58. Plaintiff brings this claim under the laws of Pennsylvania, and all similar state laws. 60. To the extent Defendant retained or improperly distributed the nonexistent sales taxes it assessed Plaintiff and the class members, or otherwise benefitted from charging them a phony sales tax (i.e., by retaining a percentage of the taxes it collected after remittance to a certain taxing jurisdiction), Defendant is unjustly enriched, to the deprivation of Plaintiff and class members. 61. It would be inequitable if Plaintiff and individual class members were not reimbursed for the amounts Defendant wrongfully took from them. 62. Therefore, Defendant must return the funds it unlawfully collected to Plaintiff and the class. 63. The allegations contained in the previous paragraphs are incorporated by reference. 64. Plaintiff brings this claim under the laws of Pennsylvania, and all similar state laws. 65. Plaintiff and Defendant are “persons” under the Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. Stat. § 201-1, et seq. 66. The products purchased by Plaintiff are “goods…primarily for personal, family or household purposes.” 73 P.S. § 201-9.2. 67. The UTPCPL declares as unlawful “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce as defined by subclauses (i) through (xxi) of clause (4) of section 21 of this act.” 73 P.S. § 201-3. 69. Defendant violated the UTPCPL by engaging in fraudulent and deceptive conduct which created the likelihood of confusion and misunderstanding. 70. Specifically, Defendant unlawfully collected sales tax on its clothing sales and failed to disclose that it was not authorized to collect such taxes. 71. Defendant’s representations that it was collecting and remitting taxes to the taxing authorities in which Plaintiff and the class members reside were fraudulent and deceptive, because Defendant was not collecting tax under that authority. Instead, Defendant either collected those amounts for itself or for taxing authorities that had no jurisdiction to assess sales tax on the class members’ transactions. 72. Defendant intentionally violated the UTPCPL by programming its online point-of- sale payment system to collect sales tax on clothing when such collection was unlawful and not authorized by the taxing authority of the buyer. 73. Accordingly, Plaintiff and individual class members are entitled to recover actual damages, statutory damages, treble damages, costs and reasonable attorneys’ fees, and/or other additional relief as this Court deems necessary or proper. 74. The allegations contained in the previous paragraphs are incorporated by reference. 75. Plaintiff brings this claim under the laws of Pennsylvania, and all similar state laws. 76. By its conduct, Defendant has converted and/or misappropriated funds belonging to Plaintiff and individual class members. 78. As such, Defendant’s collection of sales tax converted and misappropriated the funds of Plaintiff and the members of the class. 79. The conversion and misappropriation of these funds are illegal, unjustified, and intentional, insofar as it is believed and therefore averred that Defendant has actual knowledge of the regulations of the taxing authorities in which Plaintiff and individual class members reside. 80. Alternatively, if the conversion and/or misappropriation was not deliberate, it is the result of Defendant’s recklessness and gross neglect. 81. This conversion and misappropriation of funds benefitted and continues to benefit Defendant, while acting to the severe pecuniary disadvantage of Plaintiff and class members. 82. Defendant should be ordered to remit all illegally taken funds to Plaintiff and the class. Breach of Constructive Trust Conversion and Misappropriation Unfair Trade Practices and Consumer Protection Law Unjust Enrichment

lose

10. The putative collective of similarly situated employees consists of all other Extradition Agents employed by Defendant within the last three years. These similarly situated persons will be referred to as “Members of the Collective” or “the Collective.” 11. At all times material hereto, Plaintiff and Members of the Collective were “engaged in the production of goods” for commerce within the meaning of Sections 6 and 7 of the FLSA, and as such were subject to the individual coverage of the FLSA. 13. At all times material hereto, Defendant BREVARD EXTRADITIONS INC d/b/a U.S. PRISONER TRANSPORT was an “employer” within the meaning of the FLSA, 29 U.S.C. § 203(d). 14. Defendant BREVARD EXTRADITIONS INC d/b/a U.S. PRISONER TRANSPORT continues to be an “employer” within the meaning of the FLSA. 15. At all times material hereto, Defendant BREVARD EXTRADITIONS INC d/b/a U.S. PRISONER TRANSPORT was and continues to be an enterprise covered by the FLSA, as defined under 29 U.S.C. §§ 203(r) and 203(s). 16. At all times relevant to this action, Defendant 21. Named Plaintiff KEVIN LANGELLIER began working for Defendant as an Extradition Agent in July 2018, and he worked in this capacity until February 2019. 22. Plaintiff’s job duties included operation of a prisoner transportation vehicle. 23. At certain times during his employment the vehicles Plaintiff operated in the performance of his job duties had a weight of less than ten thousand and one (10,001) pounds. Further, Plaintiff did not operate vehicles to transport more than eight (8) passengers for compensation or more than fifteen passengers without compensation. 24. At various times material hereto, Plaintiff and the Collective worked hours in excess of forty (40) hours within a work week for Defendant, and they were entitled to be compensated for these overtime hours at a rate equal to one and one-half times their individual regular hourly rates. 25. Defendant failed to pay Plaintiff and Members of the Collective an overtime premium for all of the overtime hours that they worked, in violation of the 28. Plaintiff brings this case as an “opt-in” collective action on behalf of similarly situated employees of Defendant (the “Collective”) pursuant to 29 U.S.C. § 216(b). The Collective is composed of Extradition Agents whom Defendant failed to compensate for all overtime hours worked in accordance with the FLSA. 29. Therefore, Notice is properly sent to: “All Extradition Agents whom Defendant failed to compensate for all of the overtime hours that they worked from June 2016 to the present.” 30. The total number and identities of the Collective members may be determined from the records of Defendant, and the Collective may easily and quickly be notified of the pendency of this action. 31. Plaintiff is similar to the Collective because he and the Collective have been unlawfully denied full payment of their overtime wages as mandated by the FLSA. 32. Plaintiff’s experience with Defendant’s payroll practices is typical of the experiences of the Collective. 33. Defendant’s failure to pay all overtime wages due at the rates required by the personal circumstances of the named Plaintiff or of the Collective is common to the Collective. 35. Specific job titles or job duties of the Collective do not prevent collective treatment. 36. Although the issues of damages can be individual in character, there remains a common nucleus of operative facts concerning Defendant’s liability under the FLSA in this case. 37. Plaintiff realleges and readopts the allegations of Paragraphs 1 through 36 of this Complaint, as fully set forth herein. Plaintiff brings this action on behalf of himself and all other similarly situated employees in accordance with 29 U.S.C. § 216(b). Plaintiff anticipates that as this case proceeds, other individuals will sign consent forms and join this collective action as plaintiffs. 38. During the statutory period, Plaintiff and the Collective worked overtime hours while employed by Defendant, and they were not properly compensated for all of these hours under the FLSA. 39. Defendant failed to compensate Plaintiff and the Collective for all of the overtime hours that Plaintiff and the Collective worked. 40. The Members of the Collective are similarly situated because they were all employed as Extradition Agents by Defendant, were compensated in the same manner, and were all subject to Defendant’s common policy and practice of failing to pay its Extradition Agents for all of the overtime hours that they worked in accordance with the FLSA. 42. All of the foregoing conduct, as alleged, constitutes a willful violation of the FLSA, within the meaning of 29 U.S.C. § 255(a). 6. Plaintiff has satisfied all conditions precedent, or they have been waived. 7. Plaintiff has hired the undersigned attorneys and agreed to pay them a fee. 8. Plaintiff requests a jury trial for all issues so triable. 9. At all times material hereto, Named Plaintiff KEVIN LANGELLIER was employed by Defendant as an Extradition Agent.

win

1. This is a class action lawsuit on behalf of all people who paid tuition and fees for the Spring 2020 academic semester at Stevens, and who, because of Defendant’s response to the Novel Coronavirus Disease 2019 (“COVID-19”) pandemic, lost the benefit of the education for which they paid, and/or the services for which their fees paid, without having their tuition and fees refunded to them. 14. Plaintiff and Class members are individuals who paid the cost of tuition and other mandatory fees for the Spring 2020 Semester at Stevens. 15. Spring Semester 2020 classes at Stevens began on or about January 21, 2020. Classes and final exams for the semester are scheduled for end on or around May 18, 2020. 16. Plaintiff and Class members paid the cost of tuition for the Spring Semester 2020. They also paid other mandatory fees associated with the Spring Semester 2020, including but not limited to a General Service Fee and a Student Activity Fee. 17. Undergraduate tuition for the Spring 2020 semester at Stevens is approximately $26,067. Mandatory undergraduate fees include a $710 per semester General Service Fee and a $230 per semester Student Activity Fee. 19. The tuition and fees described in the paragraph above is provided by way of example; total damage amounts – which may include other fees that are not listed herein but that were not refunded – will be proven at trial. In Response To COVID-19, Stevens Closed Campuses And Cancelled All In-Person Classes 20. On March 12, 2020, Stevens announced that because of the global COVID-19 classes would be held only in online format until at least April 5, 2020. On March 17, 2020, Stevens announced that all classes would continue in online format through the end of the Spring 2020 semester. 21. Since March 11, 2020, Stevens has not held any in-person classes. The closure of Stevens’s campuses has been extended through the end of Spring Semester 2020. Classes that have continued have only been offered in an online format, with no in-person instruction. Even classes for students with concentrations in areas where in-person instruction is especially crucial (such as music, theatre, nursing, and the sciences) have only had access to minimum online education options. 22. As a result of the closure of Defendant’s facilities, Defendant has not delivered the educational services, facilities, access and/or opportunities that Plaintiff and the putative class contracted and paid for. Plaintiff and the putative class are therefore entitled to a refund of all tuition and fees for services, facilities, access and/or opportunities that Defendant has not provided. Even if Defendant did not have a choice in cancelling in-person classes, it nevertheless has improperly retained funds for services it is not providing. 24. Defendant markets the Stevens on-campus experience as a benefit of enrollment on Stevens’s website: 25. The online learning options being offered to Stevens students are subpar in practically every aspect and a shadow of what they once were, from the lack of facilities, materials, and access to faculty. Students have been deprived of the opportunity for collaborative learning and in-person dialogue, feedback, and critique. 27. Through this lawsuit Plaintiff seeks, for herself and Class members, Defendant’s disgorgement of the pro-rated portion of tuition and fees, proportionate to the amount of time that remained in the Spring Semester 2020 when classes moved online and campus services ceased being provided. Plaintiff seeks return of these amounts on behalf of herself and the Class as defined below. 28. Plaintiff seeks to represent a class defined as all people who paid Stevens Spring Semester 2020 tuition and/or fees for in-person educational services that Stevens failed to provide, and whose tuition and fees have not been refunded (the “Class”). Specifically excluded from the Class are Defendant, Defendant’s officers, directors, agents, trustees, parents, children, corporations, trusts, representatives, employees, principals, servants, partners, joint ventures, or entities controlled by Defendant, and their heirs, successors, assigns, or other persons or entities related to or affiliated with Defendant and/or Defendant’s officers and/or directors, the judge assigned to this action, and any member of the judge’s immediate family. 29. Plaintiff also seeks to represent a subclass consisting of Class members who reside in New Jersey (the “Subclass”). 3. On March 9, 2020, Stevens announced via letter from Marybeth Murphy (Vice President for Enrollment Management and Student Affairs) and Warren Petty (Vice President for Human Resources) that Stevens was working to transition all classes to online format as quickly as possible.1 On March 12, 2020, Stevens announced via letter from Christophe Pierre (Provost) that classes would continue to be taught completely online until at least April 5.2 Finally, on March 17, 2020, Mr. Pierre announced that classes would continue in online format through the end of the Spring 2020 Semester.3 31. Numerosity. The members of the Class and Subclass are geographically dispersed throughout the United States and are so numerous that individual joinder is impracticable. Upon information and belief, Plaintiff reasonably estimates that there are tens of thousands of members in the Class and Subclass. Although the precise number of Class members is unknown to Plaintiff, the true number of Class members is known by Defendant and may be determined through discovery. Class members may be notified of the pendency of this action by mail and/or publication through the distribution records of Defendant and third-party retailers and vendors. 33. Typicality. Plaintiff’s claims are typical of the claims of the other members of the Class in that, among other things, all Class and Subclass members were similarly situated and were comparably injured through Defendant’s wrongful conduct as set forth herein. Further, there are no defenses available to Defendants that are unique to Plaintiff. 34. Adequacy of Representation. Plaintiff will fairly and adequately protect the interests of the Class and Subclass. Plaintiff has retained counsel that is highly experienced in complex consumer class action litigation, and Plaintiff intends to vigorously prosecute this action on behalf of the Class and Subclass. Furthermore, Plaintiff has no interests that are antagonistic to those of the Class or Subclass. 35. Superiority. A class action is superior to all other available means for the fair and efficient adjudication of this controversy. The damages or other financial detriment suffered by individual Class and Subclass members are relatively small compared to the burden and expense of individual litigation of their claims against Defendant. It would, thus, be virtually impossible for the Class or Subclass on an individual basis, to obtain effective redress for the wrongs committed against them. Furthermore, even if Class or Subclass members could afford such individualized litigation, the court system could not. Individualized litigation would create the danger of inconsistent or contradictory judgments arising from the same set of facts. Individualized litigation would also increase the delay and expense to all parties and the court system from the issues raised by this action. By contrast, the class action device provides the benefits of adjudication of these issues in a single proceeding, economies of scale, and comprehensive supervision by a single court, and presents no unusual management difficulties under the circumstances. 37. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 38. Plaintiff brings this claim individually and on behalf of the members of the Class and Subclass against Defendants. 39. Through the admission agreement and payment of tuition and fees, Plaintiff and each member of the Class and Subclass entered into a binding contract with Defendant. 4. Thus, Stevens has not held any in-person classes since March 11, 2020. Classes that have continued have only been offered in an online format, with no in-person instruction. 41. Defendant has failed to provide the contracted for services and has otherwise not performed under the contract as set forth above. Defendant has retained monies paid by Plaintiff and the Class for their Spring Semester 2020 tuition and fees, without providing them the benefit of their bargain. 42. Plaintiff and members of the Class and Subclass have suffered damage as a direct and proximate result of Defendant’s breach, including but not limited to being deprived of the education, experience, and services to which they were promised and for which they have already paid. 43. As a direct and proximate result of Defendant’s breach, Plaintiff, the Class, and Subclass are entitled to damages, to be decided by the trier of fact in this action, to include but no be limited to reimbursement of certain tuition, fees, and other expenses that were collected by Defendant for services that Defendant has failed to deliver. Defendant should return the pro- rated portion of any Spring Semester 2020 tuition and fees for education services not provided since Stevens shut down on March 11, 2020. 45. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 46. Plaintiff brings this claim individually and on behalf of the members of the Class and Subclass against Defendant. 47. Plaintiff and members of the Class and Subclass conferred a benefit on Defendant in the form of monies paid for Spring Semester 2020 tuition and other fees in exchange for certain service and promises. Tuition for Spring Semester 2020 was intended to cover in-person educational services from January through May 2020. In exchange for tuition monies paid, Class members were entitled to in-person educational services through the end of the Spring Semester. 48. Defendant voluntarily accepted and retained this benefit by accepting payment. 49. Defendant has retained this benefit, even though Defendant has failed to provide the education, experience, and services for which the tuition and fees were collected, making Defendant’s retention unjust under the circumstances. Accordingly, Defendant should return the pro-rated portion of any Spring Semester 2020 tuition and fees for education services not provided since Stevens shut down on March 11, 2020. 5. As a result of the closure of Defendant’s facilities, Defendant has not delivered the educational services, facilities, access and/or opportunities that Mr. Mitelberg and the putative class contracted and paid for. The online learning options being offered to Stevens students are subpar in practically every aspect, from the lack of facilities, materials, and access to faculty. Students have been deprived of the opportunity for collaborative learning and in-person dialogue, feedback, and critique. The remote learning options are in no way the equivalent of the in-person education that Plaintiff and the putative class members contracted and paid for. 50. It would be unjust and inequitable for Defendant to retain the benefit, and Defendant should be required to disgorge this unjust enrichment. 52. Plaintiff brings this claim individually and on behalf of the members of the Class and Subclass against Defendant. 53. Plaintiff and members of the Class and Subclass have an ownership right to the in-person educational services they were supposed to be provided in exchange for their Spring Semester 2020 tuition and fee payments to Defendant. 54. Defendant intentionally interfered with the rights of Plaintiff, the Class, and Subclass when it moved all classes to an online format and discontinued in-person educational services for which tuition and fees were intended to pay. 55. Plaintiff and members of the Class and Subclass demand the return of the pro- rated portion of any Spring Semester 2020 tuition and fees for education services not provided since Stevens shut down on March 11, 2020. 56. Defendant’s retention of the fees paid by Plaintiff and members of the Class and Subclass without providing the educational services for which they paid, deprived Plaintiff, Class and Subclass members of the benefits for which the tuition and fees paid. 57. This interference with the services for which Plaintiff and members of the Class and Subclass paid damaged Plaintiff and Class members in that they paid tuition and fees for services that will not be provided. 58. Plaintiff, Class and Subclass members are entitled to the return of pro-rated portion of any Spring Semester 2020 tuition and fees for education services not provided since Stevens shut down on March 11, 2020. 6. Nonetheless, Stevens has not refunded any tuition or fees for the Spring 2020 Semester. 8. Plaintiff seeks, for himself and Class members, Defendant’s disgorgement of the pro-rated portion of tuition and fees, proportionate to the amount of time that remained in the Spring Semester 2020 when classes moved online and campus services ceased being provided. Plaintiff seeks a return of these amounts on behalf of herself and the Class as defined below. Breach Of Contract (On Behalf Of The Class And Subclass) Conversion (On Behalf Of The Class And Subclass) Plaintiff And Class Members Paid Tuition And Fees For Spring Semester 2020 Unjust Enrichment (On Behalf Of The Class And Subclass)

lose

10. Uber is a San Francisco-based car service that provides transportation service in cities throughout the country, including in California, via an on-demand dispatch system. 11. Uber offers customers the ability to hail a car service driver on a mobile phone application. 12. Uber’s website has advertised that “Uber is your on-demand private driver.” 13. Although classified as independent contractors, Uber drivers are employees under California law. 14. Drivers perform a service in the usual course of Uber’s business, since Uber is a car service that provides transportation to its customers, and drivers such as Plaintiff Angela McRay perform that transportation service. Uber holds itself out as a transportation service, and it generates its revenue primarily from customers paying for the very rides that its drivers perform. Without drivers to provide rides for Uber’s customers, Uber would not exist. 15. Uber also requires its drivers to abide by a litany of policies and rules designed to control the drivers’ work performance. Uber retains the right to terminate drivers at any time in its discretion. Uber may terminate a driver if the driver behaves in a way that Uber believes in inappropriate or has violated one of Uber’s rules or standards. Drivers are also subject to termination based on Uber’s system of using customer rating feedback; drivers can be terminated in Uber’s discretion if Uber deems their customer ratings to be inadequate. 33. The class representative, Angela McRay, has brought this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of Uber drivers who have worked for Uber in California. 34. The class representative and other class members have uniformly been misclassified as independent contractors. 35. The members of the class are so numerous that joinder of all class members is impracticable. 36. Common questions of law and fact regarding Uber’s conduct exist as to all members of the class and predominate over any questions affecting solely any individual members of the class. Among the questions of law and fact common to the class are: a. Whether the work performed by class members—providing transportation service to customers—is within Uber’s usual course of business, and whether such service is fully integrated into Uber’s business; b. Whether class members have been required to work under Uber’s direction and control; c. Whether class members are engaged in an independently established business or occupation while they are transporting Uber customers; d. Whether class members have been required to bear the expenses of their employment, such as expenses for their vehicles, gas, and other expenses; e. Whether class members have suffered other violations of the California Labor Code and Wage Orders, as described herein. 42. An actual controversy of sufficient immediacy exists between the Parties as to whether Uber has failed to comply with its obligations under the California Labor Code, as described above. 47. Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. Uber’s conduct, as set forth above, in misclassifying its drivers as independent contractors, and failing to reimburse them for expenses they paid that should have been borne by their employer, including but not limited to gas, insurance, car maintenance, and phone data charges, constitutes a violation of California Labor Code Section 2802 and Wage Order 9-2001. 48. This claim is brought on behalf of a class of similarly situated individuals who have worked as drivers for Uber in the state of California. 49. Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. Defendant’s conduct, as set forth above, in continuing to classify drivers as independent contractors notwithstanding the California Supreme Court’s decision in Dynamex Operations W., Inc. v. Superior Court, 4 Cal. 5th 903, 416 P.3d 1 (2018), reh'g denied (June 20, 2018), and notwithstanding the California Legislature’s passage of Assembly Bill 5, both of which make clear that Uber drivers are employees under California law, violates Cal. Lab. Code §226.8 and constitutes willful misclassification. 51. Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. Uber’s conduct, as set forth above, in failing to ensure its drivers rececive minimum wage for all hours worked as required by California law, violates Cal. Lab. Code §§ 1197, 1194, 1182.12, 1194.2, 1197.1, 1199 and Wage Order 9-2001 (as well as the higher minimum wage rates established by the San Francisco Minimum Wage Ordinance, the Los Angeles Citywide Minimum Wage Ordinance, and the Los Angeles County Minimum Wage Ordinance, for those drivers who worked in those jurisdictions). 52. This claim is brought on behalf of a class of similarly situated individuals who have worked as drivers for Uber in the state of California. 53. Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. Defendant’s conduct, as set forth above, in failing to pay its employees the appropriate overtime premium for overtime hours worked as required by California Law, violates Cal. Lab. Code §§ 1194, 1198, 510 and 554 and Wage Order 9-2001. 55. Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. Uber’s conduct, as set forth above, in failing to provide proper itemized wage statements, as required by California state law, violates Cal. Lab. Code §226(a) and Wage Order 9-2001. 56. This claim is brought on behalf of a class of similarly situated individuals who have worked as drivers for Uber in the state of California. Declaratory Judgment Uniform Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2201 Expense Reimbursement Violation of Cal. Lab. Code § 2802, Wage Order 9-2001 Failure to Provide Accurate Itemized Pay Statements Violation of Cal. Lab. Code § 226(a), 226.3; Wage Order 9-2001 Minimum Wage Violation of Cal. Lab. Code §§ 1197, 1194, 1182.12, 1194.2, 1197.1, 1199; Wage Order 9-2001; San Francisco Minimum Wage Ordinance; Los Angeles Citywide Minimum Wage Ordinance; Los Angeles County Minimum Wage Ordinance Overtime Violation of Cal. Lab. Code §§ 1194, 1198, 510 and 554; Wage Order 9-2001 Unfair Business Practices Violation of Cal. Bus. & Prof. Code §17200, et seq. Willful Misclassification Violation of Cal. Lab. Code § 226.8

lose

22. Plaintiff seeks conditional certification of this case as a collective action under 29 U.S.C. § 216(b). See also, Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995). The “similarly situated” standard at the initial conditional certification stage is lenient, plaintiff’s burden is not heavy, the evidence needed is minimal and the existence of some variations between potential claimants is not determinative of lack of similarity. Prejean v. O’Brien’s Response Mgmt., 2013 U.S. Dist. LEXIS 158948 *15. 24. As such, class certification is appropriate for all gas station / convenience store clerks of the Defendants, in that the Defendants controlled and operated the gas station and convenience store businesses where Members of the Plaintiff Class (including Plaintiff Ali) were employed during the relevant period. 25. Plaintiff seeks notice to issue to all non-exempt employees of the Defendants who together were victims of Defendants’ widespread and identical violations of the FLSA. 26. Plaintiff worked overtime hours for which he received straight-time pay. 27. Defendants’ wide-spread policy and practice violated the FLSA because it allows the Defendants not to pay their employees’ overtime hours at the required premium overtime pay rate at time-and-one-half of the employee’s base hourly rate. See 29 U.S.C. §207(a)(1). 28. By failing to document the overtime pay owed to Plaintiff and to Members of the Plaintiff Class, the Defendants also committed repeated and willful violations of the recordkeeping requirements of the FLSA. See, 29 U.S.C. §211(c); 29 C.F.R. §516. 29; and C.F.R. §516.27. 29. During the class period, the Defendants owned, controlled and operated the aforementioned businesses, and they set this pay policy shared by all such businesses. 30. The common policy of paying straight-time wages for overtime hours worked by employees is prima facie evidence of “some identifiable facts or legal nexus [that] bind the claims so that hearing the cases together promotes judicial efficiency.” McKnight v. D. Hous., Inc., 756 F. Supp. 2d 794, 801 (S.D. Tex. 2010) (Rosenthal, J.). 32. Plaintiff’s experience was typical of the experiences of Members of the Plaintiff Class as it pertains to unpaid overtime; and, the specific job titles or job requirements of the various members of the Plaintiff Class do not prevent collective treatment because of said legal nexus binding them together as a class. 33. Further, although the amount of damages may vary among Members of the Plaintiff Class, there is no detraction from the common nucleus of liability facts that render this matter appropriate as a collective action under 29 U.S.C. § 216(b). 34. All current and former non-exempt employees, regardless of job title, job requirements, or rate of pay, to whom the Defendants denied overtime compensation for hours worked in excess of 40 in one or more workweek, are similarly situated to Plaintiff, and are thus appropriate members of the Plaintiff Class. 35. All current and former non-exempt employees employed by business establishments that the Defendants owned / controlled, who at any time during the three years prior to the date of filing of this action to the date of judgment were denied overtime compensation in any given workweek may properly be included as members of the Plaintiff Class. 36. Thus, the class Plaintiff seeks to represent is comprised of all store clerks (a) who were paid at a straight-time rate for hours worked in excess of forty in any workweek during the relevant period and (b) who worked or currently work at any gasoline station and/or convenience store owned individually or jointly and/or managed now or in the past by Defendants Muhammad Muzaffar Ahmed, Muhammad Laique Ahmed and / or Muhammad F. Ahmed, or by any legal entity in which one or more Defendant has an ownership interest. 38. Defendants employed Mr. Ali as a store clerk at their gasoline station and convenience store from November 1, 2016, until December 9, 2017. 39. During his employment, Mr. Ali worked overtime hours. 40. At the time Plaintiff Ali was hired, Defendants informed him that his pay rate would be $10.00 per hour, and that Plaintiff would not receive any overtime pay. 41. Mr. Ali in fact received no overtime pay for the overtime hours he worked on a weekly basis, and he now sues for these unpaid wages. 42. Mr. Ali performed duties that included operating the cash register, assisting customers with gasoline and other purchases from the convenience store, and upkeep and cleaning of the premises. 43. As determined by the Defendants at the outset of Mr. Ali’s employment, he received no overtime wages despite working well in excess of 40 hours a week. 44. Similarly, all Members of the Plaintiff Class that seek to be a part of this collective action received no overtime wages because Defendants have a wide-spread policy of paying straight-time wages for overtime worked. 45. The Defendants together controlled Plaintiff Ali’s terms and conditions of employment, including decisions relating to payment of some but not all wages due (i.e., non- payment of overtime wages), Mr. Ali’s hourly pay rate, and the number of hours Mr. Ali worked during each workweek. 47. Each and every allegation contained in the foregoing paragraphs is re-alleged as if fully rewritten herein. 48. Defendants’ practice of failing to pay Plaintiff time-and-a-half rate for hours in excess of forty (40) per workweek violates the FLSA. 29 U.S.C. § 207. 49. Plaintiff and Members of the Plaintiff Class are non-exempt employees – that is, these individuals are entitled to receive overtime wages under the FLSA for all hours they have worked in excess of 40 during each seven-day workweek. 50. During their employment with the Defendants, Plaintiff Ali and Members of the Plaintiff Class worked overtime hours on a weekly basis at the request of their employer. 51. Defendants informed Plaintiff and Members of the Plaintiff Class that no overtime would be paid despite being required to work overtime hours on a weekly basis. 52. Plaintiff and Members of the Plaintiff Class received no overtime wages resulting from Defendants’ policy of paying straight-time for overtime hours worked. 53. Because Defendants have a wide-spread policy and practice of not paying employees’ overtime, Defendants and the businesses they controlled committed repeated and willful violations of 29 U.S.C. § 201, et seq. 54. As such, Plaintiff and Members of the Plaintiff Class sue for their unpaid overtime wages falling within the three-year period preceding the filing of this civil action, and continuing thereafter until time of jury verdict and judgment. 56. Further, Plaintiff and Members of the Plaintiff Class seek attorney’s fees and costs for bringing this action pursuant to the FLSA. 29 U.S.C. §216(b) states that “[t]he court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 57. Plaintiff and Members of the Plaintiff Class seek post-judgment interest at the highest rate allowed by law, assessed upon all damages, including attorney’s fees and costs. Violation of the FLSA – Failure to pay overtime wages to Plaintiff and all others similarly situated

win

16. Defendant operates Southern Komfort Kitchen, a restaurant in La Porte, Texas. 17. Defendant employs wait staff to provide services to its restaurant patrons. 18. Plaintiff was employed as a waitress at Defendant’s restaurant beginning in February 2015 and ending on January 29, 2016. Plaintiff worked 35 to 45 hours per week. 19. Defendant pays its wait staff at an hourly rate below minimum wage ($2.13 per hour) plus tips. Defendant also takes the maximum “tip credit” allowed under the FLSA against its wait staffs’ overtime rate. 20. Defendant violated the FLSA when it required Plaintiff and Class Members to participate in a “tip pool” which included ineligible employees such as managers, the owner of the restaurant and kitchen workers. Furthermore, by deducting more than the actual credit card fees associated with liquidated credit card tips, Defendant has violated the FLSA. 21. As a consequence of Defendant’s actions, it loses the right to take a credit toward its minimum wage and overtime obligations. 22. Plaintiff and Class Members are also entitled to their misappropriated tips. 27. Plaintiff has actual knowledge that Class Members have also been denied pay at the federally mandated minimum wage and overtime rate. Additionally, Plaintiff has actual knowledge that Class Members have had their tips misappropriated by Defendant. Plaintiff worked with other wait staff at Defendant’s restaurant. These employees have reported that they were subject to the same illegal pay practice described in this Complaint. Such other employees have also expressed an interest in joining this lawsuit. 28. Defendant takes a tip credit against its minimum wage and overtime obligations for all of its wait staff. 29. Defendant also requires all of its wait staff to share tips with employees that do not customarily receive tips and/or the house. 30. Defendant deducts more than the actual credit card fees associated with liquidated credit card tips for all of its wait staff. 31. The Class Members perform or have performed the same or similar work as the Plaintiff. 33. As such, Class Members are similar to Plaintiff in terms of job duties, pay structure, and/or the denial of minimum wage and overtime. 34. Defendant’s failure to pay for hours worked at the minimum wage and overtime rate required by the FLSA results from generally applicable policies or practices, and does not depend on the personal circumstances of the Class Members. 35. The experiences of the Plaintiff, with respect to her pay, are typical of the experiences of the Class Members. 36. The specific job titles or precise job responsibilities of each Class Member does not prevent collective treatment. 37. All Class Members, irrespective of their particular job requirements, are entitled to compensation for hours worked at the federally mandated minimum wage and overtime rate. 38. Although the exact amount of damages may vary among Class Members, the damages for the Class Members can be easily calculated by a simple formula. The claims of all Class Members arise from a common nucleus of facts. Liability is based on a systematic course of wrongful conduct by the Defendant that caused harm to all Class Members. 39. Due to the inherent nature of Defendant’s tip credit and tip pool policies, all of Defendant’s employees subject to a tip credit are similarly situated with respect to the violation. 40. As such, the class of similarly situated Plaintiffs is properly defined as follows: Current and former wait staff employed by Defendant at any time three years prior to the filing of this lawsuit to the present.

win

11. Get Together, Inc. created an app called IRL which is designed to allow consumers to interact with friends and relatives within the app and to plan events and get-togethers. 12. Defendant Scott Banister is the co-founder of the IRL app3 4 which was designed to use ‘growth hacking’ to collect contact information from a consumer’s phone and to send that list of contacts automated text messages without their consent. 13. Get Together, Inc. was formerly the GatherApp, Inc.5 14. The Gather App was created, advertised, and implemented much like the IRL app. 15. The Gather App was banned by Apple and other app stores for their abusive spam telemarketing techniques and privacy invasions. 16. In addition, the Gather App was sued in four different lawsuits for violations of the TCPA in 2017, much like the IRL app today over their unsolicited text messages similar to the ones in this complaint. 37. Plaintiff’s cell phone number has been registered on the Do Not Call registry since October 1, 2005. 38. On March 27, 2018 at 9:22 AM, Plaintiff received a text message from Defendant on his cellular telephone using phone number 844-607-3607 stating, “Hi! Someone you know complimented you – You can use IRL to vote on your friends, find out who voted on you, and make plans – irl.co/dl/ [hands-up emoji] Reply INFO for info, STOP to unsubscribe”. 58. Plaintiff repeats and realleges paragraphs 1 through 57 of this Complaint and incorporates them by reference. 59. Defendants sent autodialed text messages to cellular telephone numbers belonging to Plaintiff and other members of the Autodialed No Consent Class without first obtaining prior consent to send such autodialed text messages. 63. Plaintiff repeats and realleges paragraphs 1 through 57 of this Complaint and incorporates them by reference. 68. Plaintiff repeats and realleges paragraphs 1 through 57 of this Complaint and incorporates them by reference. Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiffs and the Do Not Call Registry Class) Telephone Consumer Protection Act (Violations of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Internal Do Not Call Class) Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff the Autodialed No Consent Class)

lose

22. At the time of her employment, Plaintiff Howard was a full-time high school student at Andy Dekany High School. 23. Plaintiff Howard was seventeen (17) years of age during her employment with Defendant, in 2018. 24. Plaintiff Howard was employed as a team member by the Defendant from approximately November 2018 to February 2018. Page 5 25. At the time of hiring, Defendant agreed to compensate Plaintiff Howard at a rate of $8.50 per hour. 26. Plaintiff Howard did not receive pay stubs or pay checks from Defendant. 27. Plaintiff Howard was ‘paid’ on a VISA gift card. Plaintiff Howard never received a paystub. 28. Plaintiff Howard was never given an employee handbook. 29. Plaintiff Howard was told she would be compensated at $8.50 per hour. She typically worked about thirty-five (35) hours a week. 30. Plaintiff Howard was paid once in her three months as an employee. She was paid $120.00 on a VISA card in early February of 2018. 31. Plaintiff Howard contends her ‘pay’ on the VISA card was less than she should have earned at her stated rate of pay for all hours worked. 32. Plaintiff Howard attempted to contact the corporate office to obtain payment in late February via email, however, Plaintiff Howard was unsuccessful as the corporate office did not respond in a timely manner and never resolved her complaint. 33. Plaintiff Howard contends she was terminated in late February because she complained about not being paid in accordance with the law. 34. At the time of her firing, Plaintiff Howard’s supervisor mentioned her complaint to corporate but said her firing was because her braids were a dress code violation. Plaintiff Howard had the braids since began working with the Defendant and contends that the braids were only a pretext for firing her. 35. The minimum wage in Texas in 2018 was $7.25 per hour. Defendant’s failure to adequately compensate the Plaintiff Howard is a per se violation of Texas minimum wage laws. Tex. Lab. Code § 62.051. Page 6 36. The federal minimum wage in 2018 was $7.25 per hour. Defendant’s failure to adequately compensate the Plaintiff Howard is a per se violation of the FLSA. B. Missouri Plaintiffs- Breyonna Bush and India Roberson 37. Plaintiff Bush was employed as a cook by the Defendant from approximately June 2019 and January 2020. 38. Plaintiff Bush was compensated at $9.00 an hour and typically worked between twenty (20) to forty (40) hours a week. 39. Plaintiff Bush was not given a meal break every day and when she did receive a break, they were cut short. Her breaks were typically ten (10) minutes long. 40. Plaintiff Bush often worked “off the clock” cooking until the next employee could take over her station. 41. Plaintiff Roberson was employed as a shift manager by the Defendant from approximately May 2019 to June 2020. 42. Plaintiff Roberson often worked over forty (40) hours a week. She was compensated at a rate of $10.00 per hour, although at the time of hiring she agreed to a rate of $12.50 per hour. 43. Plaintiff Roberson often worked “off the clock” cooking at her station until the next employee could take over the station. 44. When Plaintiff Roberson was compensated for her overtime work, she was compensated at $9.00 per hour. 45. Plaintiff Roberson also often worked “off the clock” at busy times. 46. Plaintiff Roberson was paid on a rapid! Paycard and often did not know how to breakdown hours and request her earned overtime pay. Page 7 C. Establishing a Collective Class 47. The FLSA Collective is defined as: 56. All previous paragraphs are incorporated as though fully set forth herein. 57. According to Texas law, an employer must pay an employee the federal minimum wage. 58. At all times relevant to this Complaint, the Texas minimum wage for non-exempt employees was $7.25 per hour. 59. Defendant violated the Texas Minimum Wage Act by not paying the Plaintiff Howard the required federal minimum wage for all hours worked between November 2018 and February 2018. In fact, she not paid at all for nearly two (2) months of her employment. 60. Accordingly, Plaintiff Howard is entitled to wages for all hours worked pursuant in an amount equal to their regular rate of pay, plus liquidated damages, attorneys’ fees and costs. See Tex. Lab. Code § 62.201; Tex. Lab. Code § 62.205. Page 9 WHEREFORE, on Count I of this Complaint, Plaintiff Howard demands judgment against Defendant and prays for: (1) unpaid minimum wages; (2) liquidated damages; (3) attorneys’ fees and costs as allowed by Tex. Lab. Code § 62.205; (4) a declaration that Defendant violated Texas law by failing to pay Plaintiff Howard the minimum wage; and (5) such other relief as the Court deems just and proper. 66. All previous paragraphs are incorporated as though fully set forth herein. 67. The Texas law requires employers to give each employee a written earnings statement covering the pay period, typically referred to pay stubs. 68. During times relevant to this action, Defendant violated this provision by not providing the Plaintiff Howard with any pay stubs or statement of earnings. 69. As Defendant failed to keep records as required pursuant to Tex. Lab. Code §62.003, this Court should enter an Order finding Defendant violated Tex. Lab. Code §62.003. WHEREFORE, on Count III of this Complaint, Plaintiff Howard demands judgment against Defendant and pray for: (1) a declaration that Defendant violated Texas law by failing to provide Plaintiff Howard with a statement of wages and (2) such other relief as the Court deems just and proper. 75. All previous paragraphs are incorporated as though fully set forth herein. 76. Tex. Lab. Code § 61.016 requires that an employee must agree in writing to accept part or all of their wages in any other form than United States currency. 77. Defendant ‘paid’ the Plaintiff Howard on a VISA card which is not a form of US Currency. 78. Plaintiff Howard never gave permission, or had it explained to her that this would be the method by which she received payment. 79. As Defendant failed to properly compensation Plaintiff Howard as required pursuant to Tex. Lab. Code § 61.016, this Court should enter an Order finding Defendant violated Tex. Lab. Code § 61.016 by failing to execute a proper form of payment. WHEREFORE, on Count V of this Complaint, Plaintiff Howard demands judgment against Defendant and pray for: (1) a declaration that Defendant violated the Texas Wage Acts by failing to properly execute a proper form of payment for Plaintiff Howard and (2) such other relief as the Court deems just and proper. Page 12 B. Collective and Class Claims: 80. All previous paragraphs are incorporated as though fully set forth herein. 81. The FLSA requires that employers compensate all non-exempt employees for every hour worked in a workweek. See 29 U.S.C. § 206(a)-(b). 82. Defendant failed to pay Plaintiffs and other similarly situated employees minimum wage for all hours worked, in violation of the FLSA. In violating the FLSA, Defendant acted willfully, without a good faith basis and with reckless disregard of applicable federal law. 83. Defendant violated the FLSA, 29 U.S.C. § 206, by not paying Plaintiffs and other similarly situated employees adequately for all hours worked. Plaintiffs and similarly situated employees suffered damages and continue to suffer damages as a result of Defendant’s acts or omissions as described herein; though, Defendant is in possession and control of necessary documents and information from which Plaintiffs would be able to precisely calculate damages. 84. Plaintiff Howard worked for approximately two (2) months without proper pay, in violation of the federal minimum wage mandate. Defendant is a sophisticated party and employer, and therefore knew (or should have known) its policies violated the FLSA. The decision and practice by Defendant to not pay minimum wage for all hours worked was neither reasonable nor in good faith. 85. Plaintiffs Bush and Roberson and other similarly situated employees worked off- the-clock continually and were not compensated at a rate of at least the federal minimum wage. 86. Accordingly, Plaintiffs and other similarly situated employees are entitled to wages for all hours worked pursuant to the FLSA in an amount equal to their regular rate of pay, plus damages, attorneys’ fees and costs. 29 U.S.C. § 216(b). Page 13 WHEREFORE, on Count I of this Complaint, Plaintiffs and all similarly situated employees demand judgment against Defendant and pray for: (1) unpaid minimum wages; (2) liquidated damages; (3) attorneys’ fees and costs as allowed by Section 16(b) of the FLSA; (4) pre-judgment and post-judgment interest as provided by law; (5) a declaration that Defendant violated the FLSA by failing to pay Plaintiffs and similarly situated employees minimum wage; and (6) such other relief as the Court deems just and proper. 87. All previous paragraphs are incorporated as though fully set forth herein. 88. Defendant is required under the FLSA, 29 U.S.C. § 207, to pay wages to Plaintiffs and other similarly situated employees at a rate no less than one-and-one-half times their regular hourly rate of pay for all time worked in excess of forty (40) hours in individual workweeks. 89. Defendant willfully failed and refused to pay Plaintiffs and other similarly situated employees overtime wages, as required under the FLSA, for all hours worked in excess of forty (40) per week. 90. Defendant’s willful failure and refusal to pay Plaintiffs and other similarly situated employees overtime wages for all hours worked in excess of forty (40) hours per week in individual workweeks at a rate of at least one and one-half their regular rate violates the FLSA, 29 U.S.C. §§ 207, 255. 91. Moreover, HZ Ops knowingly, willfully and in reckless disregard carried out its illegal pattern of failing to pay Plaintiffs and other similarly situated employees overtime compensation. 29 U.S.C. § 255(a). Page 14 92. Plaintiff Roberson also often worked over forty (40) hours a week. Plaintiff Roberson worked “off the clock” cooking at her station until the next employee could take over the station. This occurred many times a week and typically lasted thirty (30) minutes. 93. HZ Ops knew or should have known its pay practices were in violation of the 97. All previous paragraphs are incorporated as though fully set forth herein. 98. According to the MMWL, an employer must pay an employee the state mandated minimum wage. Section 290.500 R.S.Mo. et seq. Page 15 99. The Missouri minimum wage was $8.60 an hour in 2019 and $9.45 an hour in 2020. 100. Defendant violated the MMWL by not paying Plaintiffs and other similarly situated employees the legally-required minimum wage. 101. Accordingly, Plaintiffs and other similarly situated employees are entitled to wages for all hours worked pursuant in an amount equal to their regular rate of pay, plus liquidated damages, attorneys’ fees and costs. See Mo. Rev. Stat. § 290.527. WHEREFORE, on Count III of this Complaint, Plaintiffs and all similarly situated employees demand judgment against Defendant and pray for: (1) unpaid minimum wages; (2) liquidated damages; (3) attorneys’ fees and costs as allowed by the MMWL; (4) pre-judgment and post-judgment interest as provided by law; (5) a declaration that Defendant violated the FLSA by failing to pay Plaintiffs and all similarly situated employees minimum wage; and (6) such other relief as the Court deems just and proper. A. Texas Plaintiff- Jayla Howard FAILURE TO PAY MINIMUM WAGE IN VIOLATION OF MMWL MO. REV. STAT. § 290.502(3) FAILURE TO PAY OVERTIME IN VIOLATION OF MMWL MO. REV. STAT. § 290.505 102. All previous paragraphs are incorporated as though fully set forth herein. 103. Defendant is required to pay wages to employees at a rate no less than one- and-one half times their regular hourly rate of pay for all time worked in excess of forty (40) hours in individual workweeks. 104. Defendant failed and refused to pay overtime wages, as required, for all hours worked in excess of forty (40) per week. 105. Plaintiff Roberson also often worked over forty (40) hours a week. Plaintiff Roberson worked “off the clock” cooking at her station until the next employee could take over the station. This occurred many times a week and typically lasted thirty (30) minutes. Page 16 106. As a result of these willful unlawful practices, Plaintiffs and other similarly situated employees suffered a loss of overtime wages and are entitled to recover unpaid wages for up to two years prior to the filing of their claims, liquidated damages, pre- and post-judgment interest, and attorneys’ fees and costs. See MO. Rev. State. § 290.527. WHEREFORE, on Count IV of this Complaint, Plaintiffs and all similarly situated employees demand judgment against Defendant and pray for: (1) unpaid overtime wages; (2) liquidated damages; (3) attorneys’ fees and costs as allowed by the MMWL; (4) pre-judgment and post-judgment interest as provided by law; (5) a declaration that Defendant violated the MMWL by failing to pay Plaintiffs and all similarly situated employees overtime wages; and (6) such other relief as the Court deems just and proper. VIOLATIONS OF TEXAS LABOR ACTS: FAILURE TO PROVIDE A STATEMENT OF WAGES TEX. LAB. CODE § 62.003 VIOLATION OF FLSA: FAILURE TO PAY FEDERAL MINIMUM WAGE 29 U.S.C. § 206 VIOLATION OF THE FLSA: FAILURE TO PAY OVERTIME 29 U.S.C. § 207 VIOLATION OF TEXAS MINIMUM WAGE ACT TEX. LAB. CODE § 62.051 VIOLATIONS OF TEXAS LABOR CODE: FAILURE TO PROVIDE ADEQUATE FORM OF COMPENSATION TEX. LAB. CODE § 61.016

lose

13. Plaintiff brings this cause of action on behalf of herself and on 8 behalf of the CLASS of all persons similarly situated, as more fully explained 9 below and above. This action is brought and may properly be maintained as a 10 class action pursuant to the provisions of Federal Rules of Civil Procedure 11 ("FRCP") section 23 and other applicable law pertaining to class actions. 12 14. The proposed Class Plaintiff seeks to represent, sometimes 13 referred to herein as the "Class Members," is presently defined as follows: all 14 current or former non-exempt employees of any of the hotels owned, managed, or 15 operated by Defendants who are, have been, or will be employed in California 16 within four years as of the filing of the lawsuit or any similar job titles. There is a 17 well defined community of interest in the litigation and THE CLASS is 18 ascertainable. 19 a. Numerositv: THE CLASS is so numerous that individual joinder of 20 all members is impractical under the circumstances of this case. While the exact 21 number of Class Members is unknown to Plaintiff at this time, Plaintiff is informed 22 and believes and thereon alleges that it is several hundred employees or more. 23 b. Common Questions Predominate: Common questions of law and 24 fact exist as to all Class Members, and predominate over any questions that affect 25 only individual members of THE CLASS. The common questions oflaw and fact 26 include, but are not limited to: 27 28 6 5 6 7

lose

10. The Proof of Claim admitted that the last transaction and payment date was June 10, 2002, over eleven years prior to the Plaintiff’s bankruptcy filing, and that the debt was charged off on January 31, 2003, over ten years prior to the bankruptcy filing. See Exhibit A, page 3. 12. Defendant’s Proof of Claim sought payment of a debt that was barred by the Pennsylvania statute of limitations. 13. Threatening or attempting litigation to collect a debt barred by the statute of limitations is a violation of the FDCPA. See Huertas v. Galaxy Asset Management, 641 F.3d 28 (3d Cir. 2011). 14. Defendant’s filing of its Proof of Claim violated the FDCPA in the following manner: (a) using false, deceptive or misleading representations or means in connection with the collection of debt, in violation of section 1692e; (b) falsely representing the character, amount or legal status of the debt, in violation of section 1692e(2); (c) using a false representation or deceptive means to collect or attempt to collect a debt, in violation of section 1692e(10); (d) using unfair or unconscionable means to attempt to collect a debt, in violation of section 1692f, see Crawford v. LVLV Funding, LLC, 2014 WL 3361226 (11th Cir. 2014); (e) otherwise using false, deceptive, misleading and unfair or unconscionable means to collect or attempt to collect an alleged debt from the Plaintiff. 15. The acts of Defendant as above described have caused Ms. Torres harm. 17. Plaintiff brings this action individually and as a class action, pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure, on behalf of the following Class: All consumers in the in the United States of America and its territories as to whom, during the one year prior to the filing of this action and continuing through the resolution of this action, Defendant filed a proof of claim in a bankruptcy case where the breach of the contract had occurred prior to the expiration of the applicable statute of limitations. 18. The Class is so numerous that joinder of all members is impracticable. Although the precise number of Class members is known only to Defendant, Defendant regularly collects or attempts to collect debt from consumers through the filing of proofs of claim in bankruptcy cases. 19. There are questions of law and fact common to the Class which predominate over any questions affecting only individual Class members. The principal common questions include whether the Defendant violated the FDCPA by attempting to obtain payment of a time-barred debt by filing a proof of claim in a debtor’s bankruptcy case. 20. Plaintiff’s claims are typical of the claims of the Class, which all arise from the same operative facts and are based on the same legal theories. 21. Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff is committed to vigorously litigating this matter and has retained counsel experienced in handling class actions and claims involving unfair collection and unlawful business practices. Neither Plaintiff nor her counsel has any interests which might cause them not to vigorously pursue this claim. 23. A class action is a superior method for the fair and efficient adjudication of this controversy. The interest of Class members in individually controlling the prosecution of separate claims against Defendant is small because the maximum statutory damages in an individual action under the FDCPA are $1,000.00. Management of the Class claims is likely to present significantly fewer difficulties than those presented in many class claims. The identities of the Class members may be obtained from Defendant’s records. VI. 6. On October 7, 2013, Plaintiff filed a Chapter 13 bankruptcy in the United States Bankruptcy Court for the Eastern District of Pennsylvania, case number 13-18786-bif. 7. On or about November 22, 2013, Defendant filed a Proof of Claim in the aforesaid bankruptcy case seeking payment for an alleged debt in the amount of $1,296.86 for “money loaned” by Household/Orchard Bank. A true and correct copy of the Proof of Claim is attached hereto as Exhibit A. 8. The alleged debt at issue arose out of transactions which were primarily for personal, family or household purposes. 9. The Proof of Claim was a representation or means used in connection with the attempt to collect a debt and was an effort to obtain payment by legal proceeding.

lose

10. According to its website, Execu|Search has placed 62,000 people in new jobs for 27,000 companies. As such, it is reasonable that there would be at least 50 members in each Class. 11. The group of potential Class members is so numerous as to make it impracticable to bring them all before the Court, for which reason Mr. Garcia initiates this litigation for all persons similarly situated pursuant to Rule 23. 12. Despite the numerical size of the Classes, the identities of Class members can be ascertained through Execu|Search’s records. 13. Mr. Garcia and his counsel do not anticipate any difficulties in the management of this action as a class action. 14. Mr. Garcia is committed to vigorous prosecution of this action, will adequately represent the purported Class members in this action, and has retained competent counsel experienced in class action litigation. 15. Mr. Garcia is a member of Class 1 and Class 2 and has no interest antagonistic to or in conflict with other Class members. 17. Mr. Garcia’s claims or defenses are typical of the claims or defenses of the Class Members. 18. Mr. Garcia has the same interests as other Class members in prosecuting his claims against Execu|Search. 19. Mr. Garcia and all Class members sustained damages as a result of Execu|Search’s wrongful conduct. 20. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 21. Furthermore, due to the expense and burden of individual litigation, it would be extraordinarily difficult for Class members to redress the wrongs done to them individually. 23. Mr. Garcia is an experienced information technology (IT) professional with over a decade of experience in a wide range of technical applications and programming languages. 24. In and around September 2017, Bryant Vargas, a recruiter at Execu|Search, contacted Mr. Garcia about an open IT Trainer position at NewYork-Presbyterian Hospital 55. Plaintiff, on behalf of himself and those similarly situated, hereby realleges and incorporates each and every allegation contained in paragraphs 1 through 54 with the same force as though separately alleged herein. 56. Under 15 U.S.C. § 1681(b)(3)(A), before taking an adverse employment action against a job applicant based on a consumer report, the employer must provide the applicant with a copy of their consumer report. 58. For this violation, Mr. Garcia and the putative Class 1 members are entitled to the greater of their actual damages or statutory damages up to $1,000. 59. Plaintiff, on behalf of himself and those similarly situated, hereby realleges and incorporates each and every allegation contained in paragraphs 1 through 58 with the same force as though separately alleged herein. 60. Under 15 U.S.C. § 1681(b)(3)(A), before taking an adverse employment action against a job applicant based on a consumer report, the employer must provide the applicant with a description in writing of their rights under the FCRA. 61. Here, Execu|Search did not provide Mr. Garcia and the putative Class 2 members with descriptions in writing of their rights under the FCRA prior to taking adverse employment actions against them, in violation of the FCRA. 9. While the exact number of Class members is presently unknown, it is estimated that there are at least 50 Class members in Class 1 and at least 50 Class members in Class 2. Failure to Provide Copy of Consumer Report in Violation of the FCRA Failure to Provide Description of Rights in Violation of the FCRA

win

17. Plaintiff brings this action individually and as a class action on behalf of all persons similarly situated in the State of New York. 18. Plaintiff seeks to certify a class of: All consumer to who Defendant CCS sent a collection letter substantially and materially similar to the Letter sent to Plaintiff, which letter was sent on or after a date one year prior to the filing of this action to the present. 19. This action seeks a finding that Defendant CCS’s conduct violates the FDCPA, and asks that the Court award damages as authorized by 15 U.S.C. §1692k. 5 20. The Class consist of more than thirty-five persons. 21. Plaintiff’s claims are typical of the claims of the Class. Common questions of law or fact raised by this action affect all members of the Class and predominate over any individual issues. Common relief is therefore sought on behalf of all members of the Class. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 22. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to the individual members of the Class, and a risk that any adjudications with respect to individual members of the Class would, as a practical matter, either be dispositive of the interests of other members of the Class not party to the adjudication, or substantially impair or impede their ability to protect their interests. Defendant has acted in a demeanor applicable to the Class as a whole such that declaratory relief is warranted. 23. Plaintiff will fairly and adequately protect and represent the interests of the Class. The management of the class is not extraordinarily difficult, and the factual and legal issues raised by this action will not require extended contact with the members of the Class, because Defendant’s conduct was perpetrated on all members of the Class and will be established by common proof. Moreover, Plaintiff has retained counsel experienced in actions brough under consumer protection laws. 24. Plaintiff repeats, reiterates and incorporates the allegations contained in paragraphs numbered above herein with the same force and effect as if the same were set forth at length herein. 6 25. Some time prior to April 29, 2020, an obligation was allegedly incurred to Synchrony Bank/Care Credit (“Synchrony Bank”) by the Plaintiff. 26. The Synchrony Bank obligation arose out of a transaction in which money, property, insurance or services which were the subject of the transactions were primarily for personal, family or household purposes. 27. The alleged Synchrony Bank obligation is a “debt” as defined by 15 U.S.C. §1692a(5). 28. Synchrony Bank is a original “creditor” as defined by 15 U.S.C. § 1692a(4). 29. Sometime thereafter, Defendant CCS purportedly purchased the alleged Synchrony Bank debt and is attempting to collect the alleged debt. 30. Defendant CCS collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. 31. Upon information and belief, CCS did not purchase the alleged debt from Synchrony Bank. 32. Accordingly, by attempting to collect the alleged debt, CCS misrepresented its ability to collect the debt in violation of the FDCPA 33. In the alternative, and upon information and belief, if CCS purchased Plaintiff’s alleged debt from Synchrony Bank, the sale of this alleged debt is subject to the relevant provisions that Synchrony Bank imposes on its debt purchasers. 34. Synchrony Bank contracts of sale (a/k/a Forward Flow Agreements) for defaulted debt provide specific limitation on the ability of its debt purchasers to make any collection 7 attempts while alleged debtors are in disaster areas as determined by FEMA or any other appropriate government entity. 35. Accordingly, and upon information and belief that CCS did purchase Plaintiff’s alleged debt from Synchrony Bank, the Forward Flow Agreements evidencing proof of sale, prohibit CCS from seeking to collect against Plaintiff’s alleged debt, while Plaintiff resides in a disaster area. 36. On March 7, 2020, Governor Cuomo declared a State of Emergency across the entire State of New York due to the Coid-19 pandemic. 37. On March 13, 2020, President Donald Trump declared a nationwide emergency, including for the State of New York, as recognized by the Federal Register. 38. Despite the fact that Plaintiff clearly resided in a disaster area in April 2020, CCS pursued collection activities by sending collection letters to Plaintiff. 39. Given the express conditions of sale, CCS misrepresented its ability to collect Plaintiff’s debt by sending collection letters in April 2020. Accordingly, CCS has violated the 42. Plaintiff repeats the above allegations as if set forth here. 43. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to, 15 U.S.C. § 1692e. 8 44. Pursuant to 15 U.S.C. § 1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. 45. Defendant violated said section, as described above, by making a false or misleading representation in violation of Section 1692e, e(2), e(5), and e(10). 46. By reason thereof, defendant is liable to Plaintiff for judgment that Defendant’s conduct violated Section 1692e, et seq. of the FDCPA and Plaintiff is entitled to actual damages, statutory damages, costs and attorneys’ fees. 47. Plaintiff repeats the above allegations as if set forth here. 48. Alternatively, Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to, 15 U.S.C. § 1692f. 49. Pursuant to 15 U.S.C. §1692f, a debt collector may not use any unfair or unconscionable means in connection with the collection of any debt. 50. Defendant violated this section by unfairly misrepresenting Plaintiff’s rights and misleading Plaintiff as to the proper course of action. 51. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant’s conduct violated Section 1692f, et seq. of the FDCPA and Plaintiff is entitled to actual damages, statutory damages, costs and attorneys’ fees. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692f et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq.

win

22. On or around February of 2021, Plaintiff visited the Website, using a popular screen reading software called NonVisual Desktop Access, with the intent of browsing and potentially making a purchase. 24. As a result of visiting the Website, Plaintiff is aware that the Website includes multiple barriers making it impossible for himself, and any other visually impaired or blind person, from enjoying access to the Website’s content equally to that of a sighted user. 25. For example, many features on the Website fail to accurately describe the contents of graphical images, fail to properly label title, fails to distinguish one page from another, contain multiple broken links, contain headings that do not describe the topic or purpose, and the keyboard user interfaces lack a mode of operation where the keyboard focus indicator is visible. 26. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 27. Upon information and belief, Defendant has not, and have never, had adequate policies and procedures in place to ensure the Website is and will remain accessible to the blind and/or visually impaired. 28. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons, who need screen-readers to access websites, have been and are still being denied equal access to Defendant’s Website, and the numerous goods and services and benefits offered to the public through the Website. 30. If the Website were equally accessible to all, and if simple compliance with the WCAG 2.1 guidelines were met, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 31. Because of this, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including maintaining a website that is inaccessible to members of a protected class. 32. Due to Defendant’s violations of the ADA, and the harm it has caused, Plaintiff seeks damages, fees, costs, and injunctive relief. 33. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 34. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 35. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 37. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 38. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 40. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 41. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 42. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 43. Defendant’s Website is a public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 44. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 46. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 47. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 48. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 50. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 51. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 52. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 53. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 55. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 56. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 57. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 58. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 60. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 61. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 62. Plaintiff, on behalf of himself and the Class and New York City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 63. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 64. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

lose

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Website, with contact information for users to report accessibility-related problems and require that any third party vendors who participate on its Website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria. 28. Defendant offers the commercial website, WWW.RIT.EDU, to the public. The website offers features which should allow all consumers to access the services which Defendant offers in connection with their physical locations. The services offered by Defendant include, but are not limited to the following, which allow consumers to find information about: school location and hours, curriculum and programs of instruction, academic calendars, course and admission prerequisites, cost of tuition, available financial aid, career services, accreditation, faculty, campus security, transfer credits, textbooks, and other vital information needed by prospective students in order to make an informed decision about the Defendant’s school. 30. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 31. Plaintiff, Jason Camacho, attended the NACAC college fair at Javits on Nov. 5, 2018 in order to obtain information from the college exhibitors presenting and marketing at the fair including the Defendant’s school. 32. Soon after attending the Javits fair, Mr. Camacho attempted to access the Defendant’s website in order to obtain additional information about the Defendant’s school but was thwarted in his efforts to do so due to the inaccessibility of the Defendant’s website as set forth herein. 35. The stated principles of NACAC members include “They strive to eliminate bias within the educational system based on …disability.”1 36. By its failure to provide a website that is accessible to the blind or vision impaired, Defendant, that is a member of NACAC, intentionally violated NACAC’s basic principles to eliminate bias toward the disabled as well as federal, state and city statutes and regulations designed to protect those members of society who are in need of protection by those various laws. 37. NACAC maintains a business relationship with the New York Daily News newspaper which publishes full page advertisements for the NACAC college fairs at Javits and an onsite guide to the exhibitors which is distributed free of charge to attendees at the college fairs. Exhibitors, such as the Defendant, may participate in the New York Daily News advertisements and/or advertise in the onsite guide. 39. Due to the inaccessibility of Defendant’s Website, blind and visually- impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 40. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s school and enjoying the services offered by the Defendant equal to sighted individuals because: Plaintiff was unable to find information about: school location and hours, curriculum and programs of instruction, academic calendars, course and admission prerequisites, cost of tuition, available financial aid, career services, accreditation, faculty, campus security, transfer credits, textbooks, and other vital information needed by prospective students in order to make an informed decision about the Defendant’s school. Plaintiff intends to visit Defendant's school in the near future if he could access their website. 41. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 42. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 44. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 45. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 47. If the Website was accessible, Plaintiff and similarly situated blind and visually-impaired people could independently view service items, locate Defendant’s school, shop for and otherwise research related services available via the Website such as curriculum, financial aids, campus tours and other vital information. 48. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 50. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 51. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of services offered in Defendant’s physical locations and on its website, during the relevant statutory period. 52. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of services offered in Defendant’s physical locations and on its website, during the relevant statutory period. 53. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of services offered in Defendant’s physical locations and on its website, during the relevant statutory period. 55. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, RA, NYSHRL and NYCHRL by failing to update or remove access barriers on its Website so it can be independently accessible to the Class. 56. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 58. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 59. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 60. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 61. Defendant’s school and it’s exhibits at Javits are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s school. The Website is a service that is heavily integrated with these locations and is a gateway thereto. 63. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 64. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 66. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 67. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 68. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 69. Defendant’s physical exhibit locations are located in the State of New York and constitutes a public accommodation within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is heavily integrated with these physical locations and is a gateway thereto. 70. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 72. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 73. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 75. Defendant’s actions constitute willful intentional discrimination against the State Sub-class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 76. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 77. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the State Sub-Class Members will continue to suffer irreparable harm. 78. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 80. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 81. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 82. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 83. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 84. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 85. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 87. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 88. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 89. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 90. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside ...” 92. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 93. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 94. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 95. 29 U.S.C. § 794(a) provides “No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….” 96. 29 U.S.C. § 794(b) defines “program or activity” as “all operations of…(2)(A) a college, university, or other postsecondary institution, or a public system of education; or (B) a local educational agency…, system of career and technical education, or other school system.” 97. Defendant receives Federal financial assistance. 98. Defendant’s operations, including its website, is a program or activity within the meaning of 29 U.S.C. § 794. DECLARATORY RELIEF 116. Plaintiff, on behalf of himself and the Class and New York State and City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 117. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of its Website and by extension its physical locations, which Defendant owns, operates and controls and fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., N.Y.C. Admin. Code § 8-107, et seq. and The Rehabilitation Act of 1973, § 504 et seq. prohibiting discrimination against the blind. 118. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. Defendant’s Barriers on Its Website VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE REHABILITATION ACT of 1973, §504

win

A. Breastfeeding is a National Public Health Policy. CARE FIRST BLUECROSS BLUESHIELD; and CAREFIRST BLUECHOICE, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 16-CV-2162 HOSPITALIZATION AND MEDICAL SERVICES, INC. d/b/a CAREFIRST BLUECROSS BLUESHIELD; CAREFIRST OF MARYLAND, INC., d/b/a

win

11. California Labor Code section 1194 provides that notwithstanding any agreement to work for a lesser wage, an employee receiving less than the legal overtime compensation is entitled to recover in a civil action the unpaid balance of their overtime compensation, including interest thereon, reasonable attorneys' fees, and costs of suit. 12. Further, Business and Professions Code § 17203 provides that any person who engages in unfair competition may be enjoined in any court of competent jurisdiction. Business -4 - 21. Plaintiff brings this action on behalf of himself and all other similarly situated persons ("Plaintiff Class"), as a class action pursuant to California Code of Civil Procedure § 382. The Plaintiff Class is composed of and defined as follows: all non-exempt employees, employed by or formerly employed by, Defendant in the positions of merchandisers, sales representatives, - 6 - 25. Plaintiff and Plaintiff Class incorporate paragraphs 1 through 24 of this Complaint as if fully alleged herein. 26. Plaintiff and Plaintiff Class members regularly worked over eight (8) hours per -9_- 28. Plaintiff and Plaintiff Class re-allege and incorporate by reference, as though fully set forth herein, paragraphs 1 through 27 as if fully alleged herein. 29. California Labor Code sections 226.7 and 512, provide that no employer shall employ any person for a work period of more than five (5) hours without providing a meal period of not less than thirty (30) minutes or employ any person for a work period of more than ten (10) hours without a second meal period of not less than thirty (30) minutes. 30. California Labor Code section 226.7 provides that if an employer fails to provide an employee a meal period in accordance with this section, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided in accordance with this section. 31. Defendant, and each of them, failed to schedule non-exempt employees in an adequately overlapping manner so as to reasonably ensure Plaintiff and Plaintiff Class could take and/or receive such meal periods within the statutory timeframe. As a result, Plaintiff and Plaintiff Class were often forced to forego meal periods and/or work during their meal periods. - 1 0 - 37. Plaintiff and Plaintiff Class re-allege and incorporate by reference, as though fully set forth herein, paragraphs 1 through 36 as if fully alleged herein. 38. California Labor Code section 226.7 provides that employers authorize and permit all employees to take rest periods at the rate of ten (10) minutes rest time per four (4) work hours. 39. California Labor Code section 226.7(b) provides that if an employer fails to provide employee rest periods in accordance with this section, the employer shall pay the - 1 1 - 44. Plaintiff and Plaintiff Class re-allege and incorporate by reference, as though fully set forth herein, paragraphs 1 through 43 as if fully alleged herein. 45. California Labor Code section 1174 (d), requires an employer to keep at a central location in California or at the plant or establishment at which the employees are employed, payroll records showing the hours worked daily, and the wages paid to, each employee. Plaintiff - 1 2 - 51. Plaintiff and Plaintiff Class re-allege and incorporate by reference, as though fully set forth herein, paragraphs 1 through 50 as if fully alleged herein. 52. Plaintiff and certain members of the Plaintiff Class who ended their employment with Defendants during the Class Period, were entitled to be promptly paid lawful overtime compensation and other premiums, as required by Cal. Labor Code §§ 201-203. Defendants refused and/or failed to promptly compensate Plaintiff and Plaintiff Class wages owed as a result of their failure to provide meal and/or rest periods as well as pay overtime compensation. Pursuant to Cal. Labor Code § 203, such Plaintiff and Plaintiff Class seek the payment of penalties pursuant to Cal. Labor Code § 203, according to proof. 53. Accordingly, Plaintiff and Plaintiff Class are entitled to attorney's fees, and costs, pursuant to Cal. Labor Code § 1194 for the underlying claims related to this claim, including but not limited to the recovery of unpaid overtime. 54. Plaintiff and Plaintiff Class re-allege and incorporate by reference, as though fully set forth herein, paragraphs 1 through 53 of this Complaint. - 1 4 - 60. Plaintiff and Plaintiff Class re-allege and incorporate by reference, as though fully set forth herein, paragraphs 1 through 59 of this Complaint. 61. California Business and Professions Code section 17200 et. seq. (also referred to herein as the "Unfair Business Practices Act" or "Unfair Competition Law") prohibit unfair competition in the form of any unlawful, unfair or fraudulent business act or practice. 62. California Business and Professions Code section 17204 allows "any person who has suffered injury in fact and has lost money or property as a result of such unfair competition" to prosecute a civil action for violation of the Unfair Competition Law ("UCL"). 63. California Labor Code section 90.5(a) states that it is the public policy of California to vigorously enforce minimum labor standards in order to ensure employees are not required to work under substandard and unlawful conditions, and to protect employers who comply with the law from those who attempt to gain competitive advantage at the expense of their - 15 - 74. Plaintiff and Plaintiff Class re-allege and incorporate by reference, as though fully set forth herein, paragraphs 1 through 73 of this complaint. 75. California Labor Code sections 2698 and 2699 (The Labor Code Private Attorneys' General Act of 2004) provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency, or any of its departments, divisions, commissions, - 1 7 - FAILURE TO PROVIDE MEAL PERIODS OR COMPENSATION IN LIEU THEREOF (Plaintiff and Plaintiff Class Member against all Defendants) FAILURE TO KEEP ACCURATE PAYROLL RECORDS (Plaintiff and Plaintiff Class against all Defendants) FAILURE TO PAY OVERTIME WAGES (Plaintiff and Plaintiff Class Members against all Defendants) FAILURE TO PROVIDE REST PERIODS OR COMPENSATION IN LIEU THEREOF (Plaintiff and Plaintiff Class against all Defendants) FAILURE TO PAY WAGES OF TERMINATED OR RESIGNED EMPLOYEES (Plaintiff and Plaintiff Class against all Defendants) FAILURE TO INDEMNIFY FOR EXPENDITURES (Plaintiff and Plaintiff Class against all Defendants) UNFAIR COMPETITION LAW (Plaintiff and Plaintiff Class against all Defendants) VIOLATION OF THE CALIFORNIA LABOR CODE PRIVATE ATTORNEYS' GENERAL ACT - CAL. LABOR CODE $ 2698-2699 (Plaintiff and Plaintiff Class against all Defendants) ^ ^ 30-2016-00882772-CU-0E-CXC Case No.: , , „ . Judge Kim G. Dunning

win

10. Plaintiff Arnicia was employed by Defendants from September 12, 2018 until March 2019. 11. Plaintiffs both signed a document entitled “Employee Policies and Procedures.” 12. The Policies and Procedures state that Plaintiffs’ pay would be “$5- checkouts/stayovers, $2.50-part cleaning, $1 extra-stripped $10 cart stock 5t, $5 cart stock 4 and under $10 any hourly” referring to cleaning windows, chairs, conference rooms, etc. 13. The Policies contained a section titled, Workplace Policies which sets forth the expectation that the Plaintiffs were expected to be present during their scheduled working times. 14. Generally, Plaintiffs began work at 8:00 a.m. and left at 4:00 p.m. However, there were days that the Plaintiffs worked until 5:00 or 6:00 p.m. 15. Plaintiffs were not required to clock in/out or provide any other type of record of when they arrived or left. 17. Defendants failed to keep records of the employees’ hours worked or regular rate for any week in which overtime is worked as required by 29 C.F.R. §516.2-516.5. 18. Plaintiffs were not paid the required minimum wage. 19. Defendants compensation of Plaintiffs and similarly situated employees violated the minimum wage provisions of the FLSA. Therefore, Plaintiffs and similarly situated employees are entitled to minimum wage for all hours worked. 20. Defendants recklessly failed to investigate whether the manner in which Plaintiffs and similarly situated employees were being paid the minimum wage in compliance with the FLSA. 22. Since Defendants are in possession of pay records, there may be additional payments that violate the minimum wage overtime provision but cannot be identified at this time. WHEREFORE, Plaintiffs, on behalf of themselves and all other similarly situated employees, seek judgment against the Defendants as follows: a. That this Court certify that action as a collection action pursuant to 29 U.S.C. §216(b); b. Judgment against Defendants for an amount equal to Plaintiffs’ and similarly situated employees’ wages at the applicable minimum wage rate; c. An award of liquidated damages in the amount equal to the award of damages pursuant to 29 U.S.C. §216(b); d. Judgment that Defendants’ violations were willful; e. An award of reasonable attorney’s fees and costs incurred by Plaintiffs and similarly situated employees in bringing this action; and f. All such further relief as the Court deems just and equitable. 23. There are times where the Plaintiffs and other similarly situated employed worked more than 40 hours in a work week and were not paid time and a half their regular rate. WHEREFORE, Plaintiffs, on behalf of themselves and all other similarly situated employees, seek judgment against the Defendants as follows: a. That this Court certify that action as a collection action pursuant to 29 U.S.C. §216(b); b. Judgment against Defendants for an amount equal to Plaintiffs’ and similarly situated employees’ overtime wages at time and one-half their regular rate; c. An award of liquidated damages in the amount equal to the award of damages pursuant to 29 U.S.C. §216(b); d. Judgment that Defendants’ violations were willful; e. An award of reasonable attorney’s fees and costs incurred by Plaintiffs and similarly situated employees in bringing this action; and f. All such further relief as the Court deems just and equitable. 24. Margarita was injured on the job on March 5, 2019. 26. On the day Margarita was scheduled to return to work, she was still in too much pain to return to work so she sent a text to her supervisor advising that she would not be able to come in. 27. Margarita received a text back that she was fired because she couldn’t work her schedule and hadn’t responded to a prior text. WHEREFORE, Plaintiff Margarita seeks judgment for lost wages, benefits, front pay and other remuneration; all other compensatory damages allowable under law; emotional distress damages, punitive damages, prejudgment and post judgment interest and any other relief the Court deems just and proper. 9. Plaintiff Margarita was employed by Defendants from December 20, 2017 until March 2019. FLSA MINIMUM WAGE CLAIM (Individual and collective claim) The foregoing paragraphs are hereby incorporated by reference into this Count. VIOLATION OF FLA.STAT. §440.205 (Individual claim of Margarita Isaac)

lose

-13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51. Pursuant to the Seventh Amendment to the Constitution of the United States of America, Plaintiff is entitled to, and demands, a trial by jury. Respectfully Submitted this 5th Day of October, 2016. 8. Beginning in or around October 2015, Defendant contacted Plaintiff on Plaintiff’s cellular telephone number ending in -1554, in an attempt to solicit Plaintiff to purchase Defendant’s services. 9. Defendant used an “automatic telephone dialing system”, as defined by 47 U.S.C. § 227(a)(1) to place its call to Plaintiff seeking to solicit its services. Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. §227(b)  As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. §227(b)(1), Plaintiff and the ATDS Class and ATDS Revocation Class members are entitled to and request treble damages, as provided by statute, up to $1,500, for each and every violation, pursuant to 47 U.S.C. §227(b)(3)(B) and 47 U.S.C. §227(b)(3)(C).  Any and all other relief that the Court deems just and proper. Negligent Violations of the Telephone Consumer Protection Act 47 U.S.C. §227(c)  As a result of Defendant’s negligent violations of 47 U.S.C. §227(c)(5), Plaintiff and the DNC Class and DNC Revocation Class members are entitled to and request $500 in statutory damages, for each and every violation, pursuant to 47 U.S.C. 227(c)(5).  Any and all other relief that the Court deems just and proper.

lose

25. Defendant operates multiple stores throughout the United States, including its store located at 2209 W 32nd Avenue Denver, CO 80211. 26. Defendant offers its Website in connection with its physical locations. The goods and services offered by Defendant through its Website include but are not limited to the following: store locations and hours, contact information, the ability to make an online purchase, and related goods and services available both online and in stores. 27. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually impaired users, access to Defendant’s Website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s stores. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually impaired persons have been and are still being denied equal access to Defendant’s stores and the numerous goods, services and benefits offered to the public through its Website. 28. Plaintiff is a visually impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen- reader user and uses it to access the Internet. 30. Due to Defendant’s failure to build its Website in a manner that is compatible with screen reader programs, Plaintiff is and was unable to understand, and thus is denied the benefit of, much of the content and services he wishes to access or use. For example: a. Many features on the Website lacks alt. text, which is the invisible code embedded beneath a graphical image. As a result, Plaintiff was unable to differentiate what products were on the screen due to the failure of the Website to adequately describe its content. b. Many features on the Website also fail to Add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. c. The Website also contains a host of broken links, which is a hyperlink to a non-existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. 33. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s stores on its Website and other important information, preventing Plaintiff from visiting the locations to take advantage of the goods and services that it provides to the public. 34. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. In fact, Plaintiff intends to return to the Website when it is equally accessible for visually-impaired consumers in order to complete his intended transaction, as it is more convenient for Plaintiff to access the Website to make a purchase than to travel to a physical location to make the same purchase. However, as long as the Access Barriers continue to exist on the Website, Plaintiff is prevented from making such a purchase. 35. These barriers, and others, deny Plaintiff full and equal access to all of the services the Website offers, and now deter him from attempting to use the Website and/or visit Defendant physical stores. Still, Plaintiff would like to, and intends to, attempt to access Defendant’s Website in the future to research the services the Website offers, or to test the Website for compliance with the ADA. 37. If the Website were accessible, i.e. if Defendant removed the access barriers described above, Plaintiff could independently research the Website’s offerings, including store locations and hours and promotions available at the its physical locations. 38. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually impaired people. 39. Though Defendant may have centralized policies regarding the maintenance and operation of its Website, upon and information and belief, Defendant has never had a plan or policy that is reasonably calculated to make its Website fully accessible to, and independently usable by, individuals with vision related disabilities. As a result, the complained of access barriers are permanent in nature and likely to persist. 40. The law requires that Defendant reasonably accommodate Plaintiff’s disabilities by removing these existing access barriers. Removal of the barriers identified above is readily achievable and may be carried out without much difficulty or expense. 41. Plaintiff’s above request for injunctive relief is consistent with the work performed by the United States Department of Justice, Department of Transportation, and U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”), all of whom have relied upon or mandated that the public-facing pages of website complies with an international compliance standard known as Web Content Accessibility Guidelines version 42. Plaintiff and the Class have been, and in the absence of an injunction will continue to be, injured by Defendant’s failure to provide its online content and services in a manner that is compatible with screen reader technology. 43. Defendant has long known that screen reader technology is necessary for individuals with visual disabilities to access its online content and services, and that it is legally responsible for providing the same in a manner that is compatible with these auxiliary aids. 44. Indeed, the Disability Rights Section of the DOJ reaffirmed in a 2015 Statement of Interest before the United States District Court for the District of Massachusetts that it has been a “longstanding position” of the Department of Justice “that the ADA applies to website of public accommodations.” See National Association of the Deaf v. Massachusetts Institute of Technology, No. 3:15-cv-300024-MGM, DOJ Statement of Interest in Opp. To Motion to Dismiss or Stay, Doc. 34, p. 4 (D. Mass. Jun. 25, 2015) (“MIT Statement of Interest”); see also National Association of the Deaf. v. Harvard University, No. 3:15-cv-30023- MGM, DOJ Statement of Interest of the United States of America, Doc. 33, p.4 (D. Mass. Jun. 25, 2015) (“Harvard Statement of Interest”). 45. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 47. While DOJ has rulemaking authority and can bring enforcement actions in court, Congress has not authorized it to provide an adjudicative administrative process to provide Plaintiff with relief. 48. Plaintiff alleges violations of existing and longstanding statutory and regulatory requirements to provide auxiliary aids or services necessary to ensure effective communication, and courts routinely decide these types of matters. 49. Resolution of Plaintiff’s claims does not require the Court to unravel intricate, technical facts, but rather involves consideration of facts within the conventional competence of the courts, e.g. (a) whether Defendant offers content and services on its Website, and (b) whether Plaintiff can access the content and services. 50. Without injunctive relief, Plaintiff and other visually impaired consumers will continue to be unable to independently use the Website, thereby violating their rights. 51. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 53. Plaintiff’s claims are typical of the Class. The Class, like Plaintiff, are visually impaired or otherwise blind, and claim that Defendant has violated the ADA by failing to remove access barriers on its Website so it can be independently accessible to the Class. 54. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. 55. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to the Class as a whole. 56. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 57. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits throughout the United States. 58. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 60. Defendant’s physical locations are a public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 61. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 62. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 63. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 65. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 66. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 67. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et seq. prohibiting discrimination against the blind. 68. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

win

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 20. Defendant operates a commercial website, pixels.com which serves as an online retailer. The Defendant’s website offers features that should allow all individuals to access the goods and services that the Defendant offers. 21. Defendant’s website is an online marketplace that offers art, home décor, apparel, and lifestyle products which are able to customized with photographer’s and artist’s designs. Defendant’s website specializes in offering artists and photographers a platform to offer their art and photographs printed on various products. Defendant handles the printing and delivery of the products, connecting artists and consumers. Defendant’s website offers products across a range of categories, including not limited to, wall art, home décor, accessories, linen, phone cases, and stationery. In addition Defendant’s website also offers services including the ability to browse and purchase products online for delivery. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 24. During Plaintiff’s visits to the Website, the last occurring in December 2018, Plaintiff encountered multiple access barriers that denied Plaintiff full and equal access to the facilities, goods and services offered to the public and made available to the public; and that denied Plaintiff the full enjoyment of the facilities, goods and services of the Website, by being unable to learn more information, the ability to browse products available for delivery, find information on promotions and coupons, and related goods and services available online. Specifically Plaintiff attempted to browse for customized apparel as gifts for loved ones; Plaintiff was unable to browse and purchase these products due to accessibility barriers. 26. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from visiting the Website, presently and in the future. 28. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 29. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 30. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 31. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 33. Because Defendant’s Website have never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.0 guidelines for Defendant’s Website. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; b. Regularly check the accessibility of the Website under the WCAG 35. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 36. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 37. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 38. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 39. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of those services, during the relevant statutory period. 41. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 42. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 44. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 45. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 46. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 47. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 48. Defendant’s Website is a public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 50. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 51. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 53. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 54. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 55. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 56. Defendant’s Website and its’ sale of goods to the general public, constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. 57. Defendant is subject to New York Human Rights Law because it owns and operates its Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 58. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, services that Defendant makes available to the non-disabled public. 60. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 61. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 63. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 64. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 65. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 70. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 71. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 72. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 73. Defendant’s Website is a service, privilege or advantage of Defendant and its Website which offers such goods and services to the general public is required to be equally accessible to all. 75. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the goods and services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 76. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 77. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside ...” 78. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 80. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 81. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 82. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 83. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 84. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 85. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 87. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 88. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 90. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 91. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 92. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 93. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 94. Plaintiff, on behalf of himself and the Class and New York State and City Sub- Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 95. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. DECLARATORY RELIEF VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq. VIOLATIONS OF THE NYCHRL

win

13. On or about May 9, 2016, Plaintiff entered into an Apartment Rental Contract (the “Contract”) with Hamilton Point Property Management, LLC (“Hamilton”), a Delaware limited liability company, the subject of which was a rental apartment at Creekside Corners in Lithonia, Georgia. 15. In December 2016, due to flooding in Plaintiff’s Creekside Corners apartment, Plaintiff refused to pay rent of $760 per month. In response, Hamilton retained Defendants to file a Dispossessory Warrant in the Magistrate Court of DeKalb County demanding removal of Plaintiff from his apartment as well as money damages for unpaid rent, late fees, and other associated costs and fees. 16. While the Judge did grant the landlord possession in that case with a writ of possession to issue January 18, 2017 and a money judgment in the amount of $600, the Judge also gave Plaintiff a large offset of the rent that was being demanded. 17. Plaintiff has appealed that ruling and paid the money judgment into the registry of the Court and is currently in possession of the apartment as the eviction has been stayed. 18. Williams, a licensed attorney, acting within his scope of employment with Fowler and as lead attorney for Hamilton, filed the Dispossessory Warrant. 19. Included in the Dispossessory Warrant filed by Williams was a demand for late fees which exceeded the amount stated in the Contract. 21. Had Defendants undertaken even a cursory review of the late fees demanded in the Dispossessory Warrant[s] prior to filing, they would have realized that the warrant[s] demanded excessive late fees. It would appear, instead, that Defendants merely act as a “rubber stamp” for the landlord, demanding the court grant the requested relief without undertaking any meaningful review of the warrant. 29. Plaintiff incorporates the paragraphs 1-26 as if fully set forth herein. 30. Section 1692e prohibits “false, deceptive, or misleading” behavior, including using “false representation or deceptive means to collect or attempt to collect any debt.” Bishop v. Ross Earle & Bonan, PA, 817 F.3d 1268 (11th Cir. 2016). 31. More specifically, §1692e(2)(A) prohibits “the false representation of the character, amount, or legal status of any debt.” “Even an unintentional misrepresentation violates [15 U.S.C. § 1692e(2)(A)].” Berndt v. Fairfield Resorts, Inc., 337 F.Supp.2d 1120, 1131 (W.D.Wis.2004). 33. Plaintiff incorporates the paragraphs 1-26 as if fully set forth herein. 34. Section 1692e prohibits “false, deceptive, or misleading” behavior, including using “false representation or deceptive means to collect or attempt to collect any debt.” Bishop v. Ross Earle & Bonan, PA, 817 F.3d 1268 (11th Cir. 2016). 35. More specifically, §1692e(3) stands for the premise that if there has been no individualized review of a debtor's case, a communication from that attorney is considered false and misleading for purposes of the FDCPA. Newman v. Checkrite California, Inc., 912 F. Supp. 1354, 1382 (E.D. Cal. 1995). 37. By filing the Dispossessory Warrant without first reviewing the Plaintiff’s account, Defendants engaged in “false, deceptive, or misleading” behavior, in direct violation of 15 U.S.C. § 1692e(2)(A). As consequence, Plaintiff is entitled to recover statutory damages, attorney’s fees, and costs of court from Defendants in an amount to be determined at trial. 38. Plaintiff incorporates the paragraphs 1-26 as if fully set forth herein. 39. Section 1692f prohibits unfair or unconscionable means of collection. Subsection (1) of this section specifically prohibits “collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1). Bradley v. Franklin Collection Service, Inc., 739 F.3d 606, 609 (11th Cir. 2014). 41. By falsely claiming in the Dispossessory Warrant that Plaintiff owed more in late fees than he actually did, Defendants engaged in an “unfair or unconscionable means of collection”, in direct violation of 15 U.S.C. § 1692f(1). As consequence, Plaintiff is entitled to recover statutory damages, attorney’s fees, and costs of court from Defendants in an amount to be determined at trial. 42. Plaintiff incorporates the paragraphs 1-34 as if fully set forth herein. 43. As stated above, § 1692f prohibits the use of any unfair or unconscionable means to collect or attempt to collect any debt. It also provides a non-exhaustive list of behavior that would violate of the section. Its purpose is to enable the courts, where appropriate, to proscribe improper conduct which is not specifically addressed. 45. An attorney filing a lawsuit without giving any meaningful review to the account in question is a violation of § 1692f. See e.g., Johnson v. Law Offices of Farrell and Seldin, Civ. No. 12-0877 MV/RHS (D.N.M. Mar. 29, 2013). As consequence, Plaintiff is entitled to recover statutory damages, attorney’s fees, and costs of court from Defendants in an amount to be determined at trial. 46. Upon information and belief, during the one year immediately preceding the filing of this action, Defendants filed at least one hundred (100) Dispossessory Warrants against the tenants, including Plaintiff all of which sought late fees in excess of the contractual amount and were, in effect, rubber-stamped by Defendants without meaningful review. 47. Accordingly, Plaintiff brings this action on behalf of a class of similarly situated individuals, pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). 49. The identities of all class members are readily ascertainable from the DeKalb County public court records, Hamilton’s records (which are subject to subpoena), as well as Defendants’ records, since, as attorneys at law, Defendants are expected to maintain such records. 50. Numerosity. Plaintiff is informed and believes, and on that basis alleges that the Class described above is so numerous that joinder of all members would be impracticable. On information and belief, there are at least 100 members in the Class. 51. Common Questions Predominate. Common questions of law and fact exist as to all members of the Plaintiff Class and those questions predominate over any questions or issues involving only individual class members. The principal issue is whether Defendants repeatedly and systematically filed Dispossessory Warrants which sought excessive late fees. 52. Typicality. Plaintiff’s claims are typical of the claims of the class members. Plaintiff and all members of the Plaintiff Class have claims arising out of Defendant’s common uniform course of conduct complained of herein. 54. Superiority. The FDCPA explicitly permits class action suits. Jerman, at 1631. A class action is superior to the other available means for the fair and efficient adjudication of this controversy because individual joinder of all members would be impracticable. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum efficiently and without unnecessary duplication of effort and expense that individual actions would engender. False Representation in Connection With Debt Collection Activities (Ref. 15 U.S.C. § 1692e) False Representation in Connection With Debt Collection Activities (Ref. 15 U.S.C. § 1692e) Unfair Practices in Connection With Debt Collection Activities (Ref. 15 U.S.C. § 1692f) Unfair Practices in Connection With Debt Collection Activities (Ref. 15 U.S.C. § 1692f)

lose

) BUREAU, INC., ) ) Defendant. )

win

16. On September 18, 2017, Plaintiff opened a bag of Manna Pro Products, LLC Select Series rabbit food in order to feed her rabbits. This bag was clearly marked with a label stating “Contains No Corn: Helps Reduce The Risk of Digestive Disorders.” The ingredients label similarly omitted any reference to corn as an ingredient in the bag that Plaintiff had purchased. 17. In fact, it is well known by rabbit breeders that corn is very dangerous to feed to rabbit. Research has shown that including corn in the feed can increase the risk of a toxic mold, which mimics rabies and can cause death to the animals. It also is an unhealthy grain for these animals to ingest, causing them to put on “bad” fat, and have increased health issues. For this reason, many breeders and rabbit owners, such as Plaintiff, avoid any food with corn as an ingredient. 18. Plaintiff relief on the information presented to her prior to purchase and at the point of sale when purchasing this brand of rabbit food for her animals. 19. On September 18, 2017, Plaintiff noticed in her recently purchased bag of rabbit food, that there was, in fact, a lot of corn mixed in with the rabbit pellets, despite the clear labeling. Plaintiff picked out at least a half a cup of corn, by hand, from this bag purporting to contain “No corn.” 23. 33. Plaintiff brings this action, on behalf of herself and all others similarly situated, and thus, seeks class certification under Federal Rule of Civil Procedure 60. Plaintiff incorporates the above allegations by reference. 61. Defendant’s conduct resulted from policies that Defendant contrived, ratified, and implemented systematically throughout its retail locations. 62. Defendant’s conduct violates the UCL’s prohibition of fraudulent business practices. 63. To induce purchases of Defendant’s rabbit feed products, Defendant made misleading statements in its advertisements that deceived Plaintiff and Class members and reinforced its reasonable expectation and belief about the quality of its ingredients. 64. A reasonable consumer would expect that they would be able to rely on the price information provided by Defendant. 80. Plaintiff incorporates the above allegations by reference. 81. Defendant violated the FAL by using false and misleading statements, and material omissions, to promote the sale of Class Products. 82. Class Products do not possess the level of quality or value that Defendant promised. 83. Defendant made uniform representations and material omissions that communicated to Plaintiff and Class members that Class Products were of a different quality and contained different ingredients. 84. Defendant knew, or in the exercise of reasonable diligence should have known, that its representations and omissions were false and misleading at the time it made them. Defendant deliberately provided false representations and omissions to deceive reasonable consumers. 85. Defendant’s false and misleading advertising of Class Products deceived the general public. 86. As a direct and proximate result of Defendant’s misleading and false advertising, Plaintiff and Class members have suffered injury-in-fact and have lost money and property. Plaintiff and Class members reasonably relied to their detriment on Defendant’s material misrepresentations and omissions that Class Products would be of a certain quality, and contain certain ingredients. Fraudulent Business Practices in Violation of the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (On Behalf of the Class) Violations of the False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq. (On Behalf of the Class)

win

2.1 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.1 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is an infant seating and stroller company that owns and operates www.gracobaby.com (its “Website”), offering features which should allow all consumers to access the goods and services and which Defendant ensures the delivery of such goods throughout the United States, including New York State. 22. Defendant’s Website offers products and services for online sale and general delivery to the public. The Website offers features which ought to allow users to browse for items, access navigation bar descriptions, inquire about pricing, and avail consumers of the ability to peruse the numerous items offered for sale. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using a screen-reader. 24. On multiple occasions, the last occurring in June of 2020, Plaintiff visited Defendant’s website, www.gracobaby.com, to make a purchase. Despite her efforts, however, Plaintiff was denied a shopping experience similar to that of a sighted individual due to the website’s lack of a variety of features and accommodations, which effectively barred Plaintiff from being able to determine what specific products were offered for sale. 26. Many features on the Website also fail to Add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. As a result, Plaintiff and similarly situated visually impaired users of Defendant’s Website are unable to enjoy the privileges and benefits of the Website equally to sighted users. 27. Many pages on the Website also contain the same title elements. This is a problem for the visually impaired because the screen reader fails to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 28. The Website also contained a host of broken links, which is a hyperlink to a non- existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. For example, upon coming across a link of interest, Plaintiff was redirected to an error page. However, the screen-reader failed to communicate that the link was broken. As a result, Plaintiff could not get back to her original search. 30. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered to the general public. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Website, and the numerous goods and services and benefits offered to the public through the Website. 31. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from equal access to the Website. 32. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 33. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 35. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 43. Common questions of law and fact exist amongst the Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the 48. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Defendant’s Website is a public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 53. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 56. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 60. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 61. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 63. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 64. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 65. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 70. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services and facilities of its Website, which Defendant owns, operates and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 71. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL

win

17. Sometime in 2019 Plaintiff incurred a liability to Progressive Insurance related to an unpaid automobile insurance premium. 18. On or about January 27, 2021 Swiecicki received a dunning notice from Caine, as Caine & Weiner, a copy of which is attached as Exhibit 1. (the “Letter Notice”) 19. Exhibit 1 does state that Caine is a debt collector. See Exhibit 1 at p. 1 2 Id. 20. Exhibit 1 does not disclose to Swiecicki that he has a right to dispute the validity of this debt. Id. at p. 2 21. Exhibit 1 demands Swiecicki pay an amount certain to settle the debt within thirty (30) days of the letter or else the offer is hereby unilaterally revoked. Id. at p. 1 22. In addition to receiving Exhibit 1 on January 27, 2021, Swiecicki received a dunning notice via email from “Yanalte Jovel”, an employee of Caine on January 28, 2021. See Exhibit 2. (the “Email Notice”) 23. Exhibit 2 notified Caine of the settlement offer made in Exhibit 1. Id. at p. 2 24. Exhibit 2 contained a PDF attachment of Exhibit 1. Id. 25. Exhibit 2, like Exhibit 1, does not disclose to Swiecicki that he has a right to dispute the validity of this debt. Id. 26. In reviewing Exhibit 2 after Ms. Jovel’s signature block, Swiecicki noticed at the very end of the email a “Contact Us” portion which included hyperlinks to Caine’s website and a portion titled “Disclosures”. Id. at p. 3 27. At no time since receiving Exhibit 2 did Swiecicki click on the “disclosures” tab as neither Exhibit 1 or Exhibit 2 make any explicit reference to Swiecicki that if he did click on the tab, he’d be advised on his rights under the FDCPA to challenge the validity of the debt. IV. 28. The Plaintiff incorporates the foregoing paragraphs as if fully stated herein. 29. Based on the allegations herein both the Letter Notice and the Email Notice are for debts as defined by the FDCPA. 30. Based on the allegations herein both the Letter Notice and the Email Notice fail to provide Swiecicki and the putative class members with the full “mini Miranda” notice as required by the Fair Debt Collection Practices Act. 31. More specifically the Letter Notice fails to specifically inform Swiecicki and the putative class members with any information related to their rights under the FDCPA to challenge the validity of the debt. See Exhibit 1. 32. More specifically the Email Notice both (1) fails to specifically inform Swiecicki and the putative class members with any information related to their rights under the FDCPA to challenge the validity of the debt and (2) overshadows the “disclosures” which prevents Swiecicki and the putative class members from knowing they could click a hyperlink to obtain the required disclosures. See Exhibit 2 at pp. 2-3 V. 40. Class Definition. Plaintiff brings this action pursuant to Fed. R. Civ. P. 23, on behalf of a national class of similarly situated individuals and entities (the “Class”) defined as follows: All consumers to whom Caine has sent any written communications either via letter or electronic means between ONE YEAR FROM FILING OF COMPLAINT to the present to collect a debt with regard to a loan or account subject the Fair Debt Collection Practices Act (“FDCPA”) which fails to include the required mini-Miranda disclosures allowing consumers to dispute the validity of a debt. Excluded from the Class are: (1) Defendants, Defendants’ agents, subsidiaries, parents, successors, predecessors, and any entity in which Defendants or its parents have a controlling interest, and those entities’ current and former employees, officers, and directors; (2) the Judge to whom this case is assigned and the Judge’s immediate family; (3) any person who executes and files a timely request for exclusion from the Class; (4) any persons who have had their claims in this matter finally adjudicated and/or otherwise released; and (5) the legal representatives, successors and assigns of any such excluded person. 41. Subclass Definition: Plaintiff also brings this action pursuant to Fed. R. Civ. P. 23, on behalf of a Subclass of similarly situated individuals (the “Subclass”) defined as follows: All consumers to whom Caine has sent electronic communications between ONE YEAR FROM FILING OF COMPLAINT to the present to collect a debt with regard to a loan or account subject the Fair Debt Collection Practices Act (“FDCPA”) which includes the “Disclosure” hyperlink at the end of the electronic communication to the consumer. Excluded from the Class are: (1) Defendants, Defendants’ agents, subsidiaries, parents, successors, predecessors, and any entity in which Defendants or its parents have a controlling interest, and those entities’ current and former employees, officers, and directors; (2) the Judge to whom this case is assigned and the Judge’s immediate family; (3) any person who executes and files a timely request for exclusion from the Class; (4) any persons who have had their claims in this matter finally adjudicated and/or otherwise released; and (5) the legal representatives, successors and assigns of any such excluded person. 42. Numerosity: Upon information and belief, the Class and Subclass are each comprised of hundreds of Class members. Thus, the Class and Subclasses are so numerous that joinder of all members is impracticable. Class members can easily be identified through Defendant’s records. 43. Commonality and Predominance: There are several questions of law and fact common to the claims of Plaintiff, the Class and the Subclass, which predominate over any individual issues, including: a. Whether the Plaintiff, Class and Subclass members are a “consumer” as that term is defined by the FDCPA; b. Whether the debt Caine was seeking to collect from the Plaintiff, Class and/or Subclass member is a “debt” as that term is defined by the FDCPA; c. Whether Caine is a debt collector as that term is defined by the FDCPA; d. Whether Exhibit 1 contains the required mini-Miranda language related to a consumer’s right to dispute a debt as required by the FDCPA; e. Whether Caine sent substantially similar letters to Exhibit 1 to Class and Subclass Members; f. Whether Exhibit 2 contains the required mini-Miranda language related to a consumer’s right to dispute a debt as required by the FDCPA; g. Whether the use of the “Disclosure” hyperlink in Exhibit 2 complies with a consumer’s right to dispute a debt as required by the FDCPA. h. Whether Caine sent substantially similar emails to Exhibit 2 to Class and Subclass Members; i. What, if any, actual payments were made by the Plaintiff, Class and Subclass Members to Caine after receiving collection notices like Exhibit 1 and Exhibit 2; j. What, if any, disputes were sent to Caine by the Plaintiff, Class and Subclass Members to Caine after receiving collection notices like Exhibit 1 and Exhibit 2; k. Whether any Class and/or Subclass Member clicked on the “Disclosure” hyperlink after receiving collection notices like Exhibit 2; l. Whether Caine is liable for statutory damages under the FDCPA to the Plaintiff, Class and Subclass Members as a result of Caine’s violations of the FDCPA; and m. Whether the Plaintiff, Class and/or Subclass members incurred any actual damages in the form of emotional distress as a result of Caine’s violations of the FDCPA. 44. Typicality: Plaintiff’s claims are typical of the claims of members of the Class and the Subclass. All claims are based on the same legal and factual issues. The Plaintiff and each of the Class and Subclass Members are subject to Caine’s illegal collection attempted by receiving Exhibit 1 and/or Exhibit 2. Caine’s conduct was uniform to the Plaintiff, Class and/or Subclass members. 45. Adequacy of Representation: Plaintiff will fairly and adequately represent and protect the interests of the Class and Subclass. Plaintiff has retained counsel competent and experienced in complex class actions. The Plaintiff does not have an interest antagonistic to the members of the Class and.or Subclass. Caine has no defenses unique to the Plaintiff. The questions of law and fact outlined in Paragraph 43 are common to the Proposed Class and Subclass and predominate over any questions affecting only individual members of the Class and Subclass 46. Superiority: A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The expense and burden of individual litigation would make it impractical or impossible for proposed members of the Class and Subclass to prosecute their claims individually. The trial and the litigation of the claims of the Plaintiff, Class and Subclass are manageable. 47. Pursuant to Fed. R. Civ. P. 23(b)(3), this matter is properly maintainable as a class action. 48. Swiecicki incorporates all of the allegations contained in the foregoing paragraphs as if fully stated herein. 49. Swiecicki and each of the members of the Class and Subclass are a consumer under the FDCPA. 15 U.S.C. § 1692a(3). 50. Swiecicki’s account as well as the accounts of each of the members of the Class and Subclass are a debt under the FDCPA, 15 U.S.C. § 1692a(5). 51. Caine is a debt collector under the FDCPA, 15 U.S.C. §§ 1692a6). 52. Caine’s actions and practices described as demonstrated by both Exhibits 1 and 2 as well as the allegations contained in Paragraphs 28 through 32 constitute violate the FDCPA in at least the following respects: a) false, deceptive or misleading representations or means in connection with the collection of a debt, in violation of 15 U.S.C. § 1692e; b) unfair or unconscionable means to collect or attempt to collect a debt, in violation of 15 U.S.C. § 1692f; c) attempting to collect an amount not expressly authorized by the agreement creating the debt or permitted by law, in violation of 15 U.S.C. § 1692f(1); d) falsely representing the character, amount and/or legal status of the debt, in violation of 15 U.S.C. § 1692e(2). 53. As a result of Caine’s failure to comply with the provisions of the FDCPA, and the resulting injury and harm Caine’s failure caused, Swiecicki and members of the Class and Subclass are each entitled to actual damages, statutory damages, and attorneys’ fees and costs under 15 U.S.C. § 1692k. CLASS Violations of the Fair Debt Collection Practices Act 15 U.S.C. §§ 1692, et seq. (On behalf of Plaintiff, the Class and the Subclass)

lose

1. The WSJ Channel sends its users’ video viewing activity and uniquely identifying PII to data analytics and advertising company mDialog. 1. mDialog and other analytics and advertising companies maintain massive digital dossiers on consumers. 12. At no time during this process, however, does Wall Street Journal seek or obtain the consent of the user to share or otherwise disclose his or her PII to third parties for any purpose. 13. The WSJ Channel is organized into certain categories that are accessible through the software’s main user interface. (See Figure 2, showing the WSJ Channel’s graphical user interface). Users may browse around these sections to view video clips and news reports. (See id.) (Fig 2.) 15. Today’s average consumer uses more than one device to access the Internet to do things like view digital content or make online purchases. This creates challenges for online advertisers and analytics companies. Namely, to gain a broad understanding of a given consumer’s behavior across all of the devices and applications that he or she uses, these companies have to find ways to “link” their digital personas. The primary solution has been to use certain unique identifiers to connect the dots. 17. An example of a device manufacturer supplied user identity in the consumer electronics context is a device’s serial number. That’s because device serial numbers are “persistent identifiers,” meaning they are unique to a specific device and remain constant for the lifetime of the user’s device. In other words, once a Roku serial number is matched with an individual’s identity, it’s exceedingly difficult for that person to avoid being tracked via their device— making it among the most stable and reliable identifiers for a given individual. 18. Once a consumer’s identity is matched with their device’s serial number (or other “persistent identifier”), a wealth of extremely precise information can be gleaned about the individual. For instance, software applications that transmit a Roku’s serial number along with the user’s activity provide an intimate look into how the user interacts with their channels, which can reveal information such as the user’s political or religious affiliation, employment information, articles and videos viewed, and even detail about the sequence of events in which the user interacts with their Roku. 2. The President and Congress are responding to growing privacy concerns over the collection and misuse of personal information in the digital marketplace. 21. mDialog’s website quotes its CEO and founder, Greg Philpott, as saying, “Individual targeting is the holy grail for advertisers on both IP-connected devices as well as traditional television.”3 The same mDialog webpage states that, “With mDialog’s Smart Stream platform, content owners and service providers can configure their ad decisioning service to tailor a unique set of ads for each individual viewer.” 23. For its part, Congress has started to take up these issues as well. In 2011, Senators Patrick Leahy and Al Franken established the United States Senate Committee on the Judiciary, Subcommittee on Privacy, Technology, and the Law that, among other things, oversees the laws and policies governing (i) the collection, protection, use and dissemination of commercial information by the private sector, including online behavioral advertising, privacy within social networking websites and other online privacy issues, (ii) privacy standards for the collection, retention, use and dissemination of personally identifiable commercial information, and (iii) privacy implications of new or emerging technologies.5 25. Members of other subcommittees have made similar remarks. In a meeting of the Subcommittee on Consumer Protection, Product Safety, and Insurance, Senator John Rockefeller noted that, “third parties use [consumer data] to target advertising on individuals . . . It is very good business, but it is very cynical. It is an abuse of that power, passing on people’s profiles.”7 27. At the same time, and perhaps most strikingly, classified documents from the National Security Agency (NSA) reveal that the government agency targets this very information (uniquely identifying data sent from digital devices) to create detailed profiles on individuals.9 28. Despite the controversy surrounding these methods of harvesting and commodifying sensitive consumer data, Wall Street Journal chose to disclose users of its WSJ Channel’s sensitive information to a third party analytics and advertising company. 37. Numerosity: The exact number of members of the Class is unknown and is not available to Plaintiff at this time, but individual joinder in this case is impracticable. The Class likely consists of thousands of individuals. Class members can be easily identified through Defendant’s records. 39. Typicality: Plaintiff’s claims are typical of the claims of the other members of the Class. Plaintiff and the Class sustained damages as a result of Defendant’s uniform wrongful conduct during transactions with Plaintiff and the Class. 40. Adequate Representation: Plaintiff will fairly and adequately represent and protect the interests of the Class, and has retained counsel competent and experienced in complex litigation and class actions. Plaintiff has no interests antagonistic to those of the Class, and Defendant has no defenses unique to Plaintiff. Plaintiff and her counsel are committed to vigorously prosecuting this action on behalf of the members of the Class, and have the financial resources to do so. Neither Plaintiff nor her counsel has any interest adverse to those of the other members of the Class. 43. Plaintiff reserves the right to revise the foregoing “Class Allegations” and “Class Definition” based on facts learned through additional investigation and in discovery. 44. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 46. Plaintiff is a “consumer” as defined by the VPPA because she downloaded, installed, and watched videos using the WSJ Channel. 18 U.S.C. § 2710(a)(1). Under the Act, this means that she was a “subscriber” of “goods or services from a video tape service provider.” See id. 47. While the WSJ Channel was installed on her Roku, Plaintiff viewed numerous video clips using the channel. During these occasions, the WSJ Channel sent Plaintiff’s PII—including her device’s serial number and records identifying the videos that she viewed—to the third party analytics and advertising company mDialog. 48. The WSJ Channel’s transmissions of Plaintiff’s PII to mDialog constitute “knowing[] disclosures” of Plaintiff’s “personally identifiable information” to a person as proscribed by the VPPA. 18 U.S.C. § 2710(a)(1). 50. The National Institute of Standards and Technology (“NIST”) defines “personally identifiable information” as “any information that can be used to distinguish or trace an individual’s identity.”11 As described in detail in Section II above, Plaintiff’s PII transmitted to mDialog from the WSJ Channel can be used to distinguish or trace her identity. 51. At no time did Plaintiff ever provide Wall Street Journal with any form of consent—either written other otherwise—to disclose her PII to third parties. 52. Nor were Wall Street Journal’s disclosures made in the “ordinary course of business” as the term is defined by the VPPA. In particular, the WSJ Channel’s disclosures to mDialog (an analytics and advertising company) were not necessary for “debt collection activities, order fulfillment, request processing, [or] the transfer of ownership.” 18 U.S.C. § 2710(a)(2). 9. The WSJ Channel is a digital software application that allows consumers to view Wall Street Journal’s news and entertainment programming on their televisions via Roku’s media-streaming device. I. Defendant Programmed the WSJ Channel to Transmit Its Users’ PII and Video Viewing Activity to a Third Party Analytics and Mobile Advertising Company Without Their Consent. Violations of 18 U.S.C. § 2710 (On behalf of Plaintiff and the Class)

lose

13. On August 28, 2014, BHD transmitted a facsimile advertisement to Barron’s and, based on the generic nature of the content and the proximity of the Plaintiff’s business to the business of BHD, numerous other entities throughout the United States (“Junk Fax”). A copy of the Junk Fax is attached at Exhibit 1. 14. The Junk Fax contains an advertisement promoting a POS system offered by the Defendant Retail Pro. 15. As the entity whose goods are being advertised, Retail Pro is also liable for the fax advertising. 16. The TCPA makes it unlawful to “send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). 17. The Federal Communications Commission has promulgated 47 C.F.R. § 18. Prior to codification, this principle had been established by an official FCC interpretation of the TCPA entitled, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12391, 12407 (Aug. 7, 1995), which stated, “[T]he entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements.” 19. Retail Pro relies on a series of “Authorized Business Partners” to distribute their goods and services, including the POS system that was advertised in the facsimile advertisement sent to the Plaintiff. 20. Indeed, on the Retail Pro website, when a visitor selects the “Contact Us” tab, they have the option of “Locating a Business Partner Near You”. See http://www.retailpro.com/ContactUs.php (Last Visited October 9, 2014) 21. BHD is one of these “Authorized Business Partners” of Retail Pro. 22. Retail Pro grants third parties permission to use the Retail Pro trademark and tradename in their advertising. 23. In fact, in the Junk Fax sent to the Plaintiff, the Retail Pro trademark is prominently displayed. (See Exhibit 1). 24. At no time did Barron’s give either Defendant its express prior invitation or permission, or prior consent in any fashion, for the transmission of the Junk Fax. 26. Plaintiff brings this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of a class of all other persons or entities similarly situated throughout the United States. 27. Through the transmission of generic facsimile advertisements promoting their services, including transmission to the Plaintiff who is located on the other side of the country, the Defendants have engaged in widespread advertising via unsolicited facsimile transmission in violation of the TCPA. 28. Based on the generic style of the facsimile advertisement, the standard telemarketing reach of a Junk Fax campaign, and the distance between the Plaintiff and the Defendants, the Defendants have likely transmitted unsolicited facsimile advertisements to thousands of recipients throughout the United States. 29. Neither of the Defendants obtained the consent of facsimile recipients prior to the transmission of facsimile advertisements. 30. To the extent facsimile advertisements were transmitted by Defendants to consumers who had given consent, or had an established business relationship with the Defendants, of which there is no evidence at this time, the facsimile advertisements are still in violation of the TCPA as they did not contain the Compliant Opt Out Notice required by law. 32. The class as defined above is identifiable by phone records, fax transmittal records, and fax number databases, used by Retail Pro and its Business Partners or their agents, in transmitting its unsolicited facsimile advertisements. 33. The Plaintiff is a member of the class. 34. There are questions of law and fact common to Plaintiff and to the proposed class, including but not limited to the following: a. Whether Defendants violated the TCPA and FCC promulgating regulations, by engaging in fax advertising. b. Whether the facsimiles sent by Defendants to class members constitute unsolicited advertisements; c. Whether the Plaintiff and the members of the class are entitled to statutory damages as a result of Defendants’ actions. 35. Plaintiff’s claims are typical of the claims of the class. 36. Plaintiff is an adequate representative of the class because its interests do not conflict with the interests of the class, it will fairly and adequately protect the interests of the class, and it is represented by counsel skilled and experienced in class actions. 37. Common questions of law and fact predominate over questions affecting only individual members of the class and a class action is the superior method for fair and efficient adjudication of the controversy. The only individual question concerns identification of class members, which will be ascertainable from records maintained by Defendants and/or its agents. 39. Plaintiff is not aware of any litigation concerning this controversy already commenced by others who meet the criteria for class membership described above. 40. Plaintiff is capable of and willing to represent the other members of the class. 41. Plaintiff incorporates the allegations from all previous paragraphs as if fully set forth herein. 42. Defendant BHD caused unsolicited facsimile advertisements to be sent to Plaintiff and to other members of the class, in violation of the TCPA and the FCC’s promulgating regulations, promoting the goods and services of Retail Pro. 43. By causing unsolicited facsimile advertisements to be sent to the class, Defendants violated the privacy rights of class members. 44. By causing unsolicited facsimile advertisements to be sent to the class, Defendants caused class members to sustain property damage and cost in the form of paper and toner. 45. By causing unsolicited facsimile advertisements to be sent to the class, Defendants interfered with the class members’ use of their property as class members’ facsimile machines were encumbered by the transmission of Defendants’ unsolicited facsimile advertisements. 47. Defendants failed to provide the requisite Opt Out Notice on its advertisements informing the recipient of their right to cease receiving such advertisements and a cost free mechanism to make such request. 48. Failure to provide Opt Out Notice on a facsimile advertisement is a separate and distinct violation of the TCPA. 49. The TCPA provides for statutory damages in the amount of a minimum of $500 for each separate violation of the TCPA. The damages suffered by the Plaintiff and the class it seeks to represent are negligent or willful. 50. Plaintiff incorporates the allegations from all previous paragraphs as if fully set forth herein. 51. The TCPA expressly authorizes injunctive relief to prevent future violations of the Act. 52. The Plaintiff, acting on behalf of the Class, respectfully petitions the Court to order Defendants to immediately cease engaging in unsolicited facsimile advertising in violation of the TCPA.

win

(Violation of New York State Human Rights Law, N.Y. Exec. Law, Article 15 (Executive Law § 292 et seq.) (on behalf of Plaintiff and New York subclass) (Violation of New York City Human Rights Law, N.Y.C. Administrative Code § 8-102, et seq.) (on behalf of Plaintiff and New York subclass) (Violation of 42 U.S.C. §§ 12181, et seq. — Title III of the Americans with Disabilities Act) (on behalf of Plaintiff and the Class) (Violation of New York State Civil Rights Law, NY CLS Civ R, Article 4 (CLS Civ R § 40 et seq.) (on behalf of Plaintiff and New York subclass) 18. Plaintiff, on behalf of himself and all others similarly situated, seeks certification of the following nationwide class pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: “all legally deaf and hard of hearing individuals in the United States who have attempted to access the Website and as a result have been denied access to the enjoyment of goods and services offered by the Website during the relevant statutory period.” 20. There are hundreds of thousands of deaf or hard of hearing individuals in New York State. There are approximately 36 million people in the United States who are deaf or hard of hearing. Thus, the persons in the class are so numerous that joinder of all such persons is impractical and the disposition of their claims in a class action is a benefit to the parties and to the Court. 21. This case arises out of Defendant’s policy and practice of maintaining an inaccessible website denying deaf and hard of hearing persons access to the goods and services of the Website. Due to Defendant’s policy and practice of failing to remove access barriers, deaf and hard of hearing persons have been and are being denied full and equal access to independently browse and watch videos on the Website. 23. The claims of the named Plaintiff are typical of those of the Class. The Class, similarly to the Plaintiff, are deaf or hard of hearing, and claim that Defendant has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on the Website, so it can be independently accessible to the Class of people who are legally deaf or hard of hearing. 24. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the members of the Class. Class certification of the claims is appropriate pursuant to Fed. R. Civ P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 25. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to Class members clearly predominate over questions affecting only individual class members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 26. Judicial economy will be served by maintenance of this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with hearing disabilities throughout the United States. 28. Defendant operates the Website, a news source providing information about politics, sports, finance and other entertainment information. It delivers important news and information to hundreds of millions of people across the United States. 29. The Website is a service and benefit offered by Defendant throughout the United States, including New York State. The Website is owned, controlled and/or operated by Defendant. 30. The Website allows the user to browse news commentaries, information and videos. It covers a variety of topics such as politics, finance, sports, technology, and music. Defendant’s videos are available with the click of a mouse and are played through the Internet on computers, cell phones, and other electronic devices. 31. This case arises out of Defendant’s policy and practice of denying the deaf and hard of hearing access to the Website, including the goods and services offered by Defendant through the Website. Due to Defendant’s failure and refusal to remove access barriers to the Website, deaf and hard of hearing individuals have been and are being denied equal access to the Website, as well as to the numerous goods, services and benefits offered to the public through the Website. 32. Defendant denies the deaf and hard of hearing access to goods, services and information made available through the Website by preventing them from freely navigating the Website. 34. The deaf and hard of hearing access videos through closed captioning, which is a transcription or translation of the audio portion of a video as it occurs, sometimes including description of non-speech elements. Except for a deaf or hard of hearing person whose residual hearing is still sufficient to apprehend the audio portion of the video, closed captioning provides the only method by which a deaf or hard of hearing person can independently access the video. Unless websites are designed to allow for use in this manner, deaf and hard of hearing persons are unable to fully access the service provided through the video on the Website. 35. The Website contains access barriers that prevent free and full use by Plaintiff and other deaf or hard of hearing persons. 36. Due to the Website’s inaccessibility, Plaintiff and other deaf or hard of hearing individuals must in turn spend time, energy, and/or money to apprehend the audio portion of the videos offered by Defendant. Some deaf and hard of hearing individuals may require an interpreter to apprehend the audio portion of the video or require assistance from their friends and family. By contrast, if the Website was accessible, a deaf or hard of hearing person could independently watch the videos and enjoy the service provided by Defendant as hearing individuals can and do. 37. The Website thus contains access barriers which deny full and equal access to Plaintiff, who would otherwise use the Website and who would otherwise be able to fully and equally enjoy the benefits and services of the Website in New York State. 39. As described above, Plaintiff has actual knowledge of the fact that the Website contains access barriers causing the Website to be inaccessible, and not independently usable by, deaf and hard of hearing individuals. 40. These barriers to access have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits and services of Defendant and the Website. 41. Defendant engaged in acts of intentional discrimination, including but not limited to the following policies or practices: (a) constructing and maintaining a website that is inaccessible to deaf and hard of hearing class members with knowledge of the discrimination; and/or (b) constructing and maintaining a website that is sufficiently intuitive and/or obvious that is inaccessible to deaf and hard of hearing class members; and/or (c) failing to take actions to correct these access barriers in the face of substantial harm and discrimination to deaf and hard of hearing class members. 42. Defendant utilizes standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 43. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 45. Defendant operates a place of public accommodation as defined by Title III of ADA, 42 U.S.C. § 12181(7) (“place of exhibition and entertainment,” “place of recreation,” and “service establishments”). 46. Defendant has failed to make its videos accessible to individuals who are deaf or hard of hearing by failing to provide closed captioning for videos displayed on the Website. 47. Discrimination under Title III includes the denial of an opportunity for the person who is deaf or hard of hearing to participate in programs or services, or providing a service that is not as effective as what is provided to others. 42 U.S.C. § 12182(b)(1)(A)(I-III). 48. Discrimination specifically includes the failure to provide “effective communication” to deaf and hard of hearing individuals through auxiliary aids and services, such as captioning, pursuant to 42 U.S.C. § 12182(b)(1)(A)(III); 28 C.F.R. § 36.303(C). 49. Discrimination also includes the failure to maintain accessible features of facilities and equipment that are required to be readily accessible to and usable by persons with disability. 63. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation … because of the … disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 64. Defendant operates a place of public accommodation as defined by N.Y. Exec. Law § 292(9). 65. Defendant is subject to New York Human Rights Law because it owns and operates the Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 66. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to the Website, causing the videos displayed on the Website to be completely inaccessible to the deaf and hard of hearing. This inaccessibility denies deaf and hard of hearing patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 67. Specifically, under N.Y. Exec. Law § 296(2)(c)(I), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 69. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the New York State Human Rights Law, N.Y. Exc. Law § 296(2) in that Defendant has: (a) constructed and maintained a website that is inaccessible to deaf and hard of hearing class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to deaf and hard of hearing class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to deaf and hard of hearing class members. 70. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 72. The actions of Defendant were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 73. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines pursuant to N.Y. Exc. Law § 297(4)(c) et seq. for each and every offense. 74. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 75. Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 76. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 77. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 78. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof …” 80. The Website is a public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). 81. Defendant is subject to New York Civil Rights Law because it owns and operates the Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 82. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to the Website, causing videos on the Website to be completely inaccessible to the deaf and hard of hearing. This inaccessibility denies deaf and hard of hearing patrons full and equal access to the goods and services that Defendant makes available to the non-disabled public. 83. In addition, N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two … shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby…” 85. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 86. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 87. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines pursuant to N.Y. Civil Law § 40 et seq. for each and every offense. 88. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 89. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of … disability … directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 90. The Website is a public accommodation within the definition of N.Y.C. Administrative Code § 8-102(9). 92. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to the Website, causing the Website and the services integrated with the Website to be completely inaccessible to the deaf and hard of hearing. This inaccessibility denies deaf and hard of hearing patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. Specifically, Defendant is required to “make reasonable accommodation to the needs of persons with disabilities … any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to … enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Administrative Code § 8- 107(15)(a). 93. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8- 107(15)(a) in that Defendant has: (a) constructed and maintained a website that is inaccessible to deaf and hard of hearing class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to deaf and hard of hearing class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to deaf and hard of hearing class members. 95. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of the Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the subclass will continue to suffer irreparable harm. 96. The actions of Defendant were and are in violation of City law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 97. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense. 98. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 99. Pursuant to N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below.

win

(FLSA Overtime – Class) (FLSA Overtime – Individual Plaintiffs) 10. From approximately December of 2012 until approximately June of 2013, Plaintiff RONALD LOREDO worked as a landscape maintenance worker for the Defendant. 11. The Defendant recruited, hired, and employed Plaintiffs and the Class Members to perform landscaping and maintenance duties in and around Bexar County, Texas, and surrounding counties. 12. At all times relevant to this action, Plaintiffs and members of the Class performed substantially similar work for the Defendant in and around Bexar County, Texas and surrounding counties. 13. At all times relevant to this action, the Defendant controlled and supervised the work performed by the Plaintiffs and members of the Class. 15. At all times relevant to this action, the Defendant knowingly, willfully, or with reckless disregard, carried out its illegal pattern or practice of failing to pay the required overtime compensation due to the Plaintiffs and Class Members. 16. Defendant did not compensate Plaintiffs and Class Members for compensable time worked at the beginning and conclusion of their daily shifts. 17. At all times relevant to this action, the Defendant failed to maintain complete and accurate records of the Plaintiffs’ hours of work and compensation as required by the FLSA. 18. In each workweek in which Plaintiffs and Class Members worked in excess of forty hours, they were not fully paid one-and-a-half times their regular hourly rate for all hours they worked. 20. The above-described actions by the Defendant violated the Class Members’ overtime pay rights under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., for which they are entitled to relief pursuant to 29 USC § 216(b). 6. Plaintiffs bring their Claims of Relief (FLSA overtime compensation) individually, and as a collective action on behalf of all hourly employees who have performed work as landscape maintenance workers for the Defendant in and around San Antonio, Texas (the “Class”). 9. From approximately November of 2012 until approximately June of 2013, Plaintiff ANTHONY CANTU worked as a landscape maintenance worker for the Defendant.

win

12. At all times relevant, Plaintiff is, and at all times mentioned herein was, a “person” as defined by 47 U.S.C. § 153(39). 13. On or about October 24, 2014, Plaintiff was involved in an automobile accident with another individual. This other individual was insured by Mercury Insurance Group (hereafter “Mercury”) at the time of the accident. 14. Plaintiff was insured by GEICO at the time of the accident. However, on information and belief, Mercury and/or CRS wrongly concluded that Plaintiff was uninsured. 15. Upon information and belief, CRS received a file from Mercury containing Plaintiff’s cellular telephone number. On the same day it received the file, it entered Plaintiff’s cellular telephone number into an automated telephone dialing system” (“ATDS”). 26. Plaintiff brings this action on behalf of himself and on behalf of all other persons similarly situated (hereinafter referred to as “the Class”). 27. Plaintiff proposes the following Class definition, subject to amendment as appropriate: All persons within the United States who, on or after April 22, 2012, received a non-emergency telephone call from CRS to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice, and who did not have a contractual relationship with the company on whose behalf CRS made the call. Collectively, all these persons will be referred to as “Class members.” Plaintiff represents, and is a member of, the Class. Excluded from the Class are CRS and any entities in which CRS has a controlling interest; CRS’s agents and employees; any Judge to whom this action is assigned and any member of such Judge’s staff and immediate family; and claims for personal injury, wrongful death and/or emotional distress. 28. Plaintiff also proposes three Subclasses. Subclass One consists of all Class members who residents of California (hereafter “the California Subclass”). Plaintiff represents, and is a member of, the California Subclass. In this Complaint, all references to “the Class” apply likewise to the California Subclass, unless otherwise specified. 44. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 45. The foregoing acts and omissions of CRS constitute numerous and multiple violations of the TCPA, including but not limited to each of the above cited provisions of 47 U.S.C. § 227 et seq. 46. As a result of CRS’s violations of 47 U.S.C. § 227 et seq., Plaintiff and Class members are entitled to an award of $500.00 in statutory damages for each and every violation of the statute, pursuant to 47 U.S.C. § 227(b)(3)(B). 47. Plaintiff and Class members are also entitled to and do seek injunctive relief prohibiting CRS’s violation of the TCPA in the future. 49. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 50. CRS’s practice of making telephone calls to Plaintiff and members of the Subclass on their cellular telephones via an “automatic telephone dialing system” without their prior express consent within the meaning of the TCPA violates 47 U.S.C. § 227 et seq., and the Rules promulgated thereunder. 51. CRS’s conduct described herein violates Cal. Bus & Prof. Code § 17200 et seq. (the “UCL”) in the following respects: a. CRS’s utilization of automated and predictive dialing techniques to harass Plaintiff and members of the Class is unlawful and a violation of the UCL. b. CRS’s use of automated and predictive dialing techniques to harass Plaintiff and members of the Class is unlawful and a violation of the UCL. c. Each of CRS’s violations of the TCPA and Rules constitute a separate and independent violation of the UCL because such conduct was illegal and unfair competition within the meaning of the UCL. 52. The harm to Plaintiff and the Subclass arising from CRS’s illegal practices outweighs the utility, if any, of those practices. 53. The illegal business practices of CRS are immoral, unethical, oppressive, unscrupulous, and/or substantially injurious to Plaintiff and members of the Class. 54. Unless restrained by this Court, CRS will continue to engage in the illegal acts and practices alleged above. CALIFORNIA MERCURY SUBCLASS ONLY VIOLATIONS OF CALIFORNIA’S UNFAIR COMPETITION LAW, CAL. BUS. & PROF. CODE SECTION 17200, ET SEQ. KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227 ET SEQ. VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ.

lose

(FLSA Minimum Wage Violations) (FLSA Overtime Violations) (OPPA Violations) (Ohio Overtime Violations) (Ohio Minimum Wage Violations) (Quantum Meruit) (Unjust Enrichment) 16. Gulfport is an Oklahoma City-based oil and natural gas exploration and production company operating worldwide and throughout the United Stated, including Ohio. In order to provide services to many of its customers, Gulfport contracts with certain companies, such as “Icon Energy Services” and then “Platinum Energy Partners”, to provide Gulfport with personnel to perform the necessary work. 17. Many of these individuals worked for Defendant on a day-rate basis, were misclassified as independent contractors, and make up the proposed Putative Class. While exact job titles and job duties may differ, these “employees” are subjected to the same or similar illegal pay practices for similar work. Specifically, Defendant misclassified all of these workers as independent contractors and paid them a flat sum for each day worked, regardless of the number of hours that they worked that day (or in that workweek) and failed to provide them with overtime pay for hours that they worked in excess of 40 hours in a workweek. 18. For example, Plaintiff Bryon Lefort worked for Defendant as a “Lease Operator”, also known as a well tender, from approximately September 2014 to February 2020. Throughout his employment with Defendant, he was misclassified as an independent contractor and paid on a day-rate basis. 19. In this capacity, Plaintiff’s primary job duties included performing daily inspections of assigned oil and gas leases, gauges and reports daily production of oil and water in storage tanks, monitors daily plunger runs on plunger wells, and provides monitoring and maintenance on the drilling pads among other duties and responsibilities as assigned by management. Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 5 of 20 PAGEID #: 5 Page 6 20. The work Plaintiff and the Putative Class Members performed was an essential part of Defendant’s core business. For example, Plaintiff and other Putative Class Members were the night shift workers and they performed the exact same work as Defendant’s hourly, day shift employees who were/are not misclassified as “independent contractors.” 21. Defendant Gulfport has previously been sued for misclassifying other employees as “independent contractors” and failing to pay those employees time and a half for all hours worked in excess of 40 hours per week.2 In the Slone Case, employees were also sent to Defendant Gulfport via one or more other companies, like Icon and Platinum, Gulfport contracted with to provide personnel to perform necessary work. The Slone Case was settled, and Plaintiff did not join the FLSA collective or settlement. Instead of changing its practice, Defendant Gulfport continued this practice of misclassification and failing to pay overtime for other employees, including Plaintiff and the Putative Class Members. 22. During Plaintiff’s employment with Defendant while he was misclassified as an independent contractor, Defendant exercised control over all aspects of his job. Defendant determined Plaintiff’s opportunity for profit and loss. Plaintiff was not required to possess any unique or specialized skillset (other than that maintained by all other workers in his respective position) to perform his job duties. Plaintiff worked exclusively for Defendant from approximately September 2014 to February 2020. 23. Defendant controlled all of the significant or meaningful aspects of the job duties performed by Plaintiff. 24. Defendant ordered the hours and locations Plaintiff worked and rates of pay received. In general, Plaintiff was scheduled and required to work fourteen (14) days on from 2 Slone v. Gulfport Energy Corporation, W.D. OK Case No. 5:16-cv-1296 (the “Slone Case”), ECF No. 1 attached hereto as Exhibit B. Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 6 of 20 PAGEID #: 6 Page 7 6:00 p.m. until 6:00 a.m. each day and then fourteen (14) days off. However, Plaintiff was also required to work beyond the scheduled end of his shift, up to 24 hours in a row; pick up shifts from day shift employees; and work additional time or days outside of his general scheduled shift. Plaintiff was not permitted to be late at the start of his shift, nor was Plaintiff allowed to leave early before his shift ended. 25. Plaintiff and the Putative Class Members worked at Defendant Gulfport’s drilling pad locations, performing work that was directed and over supervised by Defendant. 26. Defendant specified what equipment and protective clothing was required for Plaintiff to have and use to perform his job duties. Defendant provided the large capital investments such as leasing the land, the drilling pads, and the heavy machines. 27. Plaintiff did not incur operating expenses such as leasing the land, payroll, and marketing. 28. Plaintiff was economically dependent on Defendant during his employment, which lasted more than five (5) years. 29. Defendant set Plaintiff’s rates of pay, his work schedule, and prohibited him from working other jobs for other companies while he was working on jobs for Defendant. 30. Defendant directly determined Plaintiff’s opportunity for profit and loss. Plaintiff’s earning opportunity was based on the number of days Defendant scheduled him to work. 31. Very little skill, training, or initiative was required of Plaintiff (other than the skills, training, and initiative required of all other similarly situation workers). 32. The daily and weekly activities of Plaintiff and the Putative Class Members were routine and largely governed by standardized plans, procedures, and checklists created by Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 7 of 20 PAGEID #: 7 Page 8 Defendant. Virtually every job function was pre-determined by Defendant. In fact, Plaintiff and the Putative Class Members performed the exact same job functions and duties as the hourly employees of Defendant, on the same drill pads, and even filled in for these hourly employees during the day shift if the hourly employees were unable to work that day. 33. Plaintiff and the Putative Class Members were prohibited from varying their job duties outside of the pre-determined parameters. Moreover, the job functions of Plaintiff and the Putative Class Members were primarily manual labor/technical in nature, requiring little to no official training, much less a college education or advanced degree. Plaintiff and the Putative Class Members did not have any supervisory or management duties. Finally, for the purposes of an FLSA overtime claim, Plaintiff and the Putative Class Members performed substantially similar job duties related to servicing energy operations in the field. 34. Plaintiff was not employed by Defendant on a project-by-project basis. In fact, while Plaintiff was misclassified as an “independent contractor,” he was regularly on call for Defendant and was expected to drop everything and work whenever needed. For example, if Defendant needed Plaintiff to work longer his scheduled shift, he was required to do so; if Defendant needed Plaintiff to stay additional days beyond the fourteen (14) scheduled days, he was required to do so; and if Defendant needed Plaintiff to fill in for Defendant’s hourly employees, Plaintiff was required to do so. 35. Plaintiff and the Putative Class Members performed the same or similar job duties and are subjected to the same or similar policies and procedures which dictate the day-to-day activities performed by each person. 36. The Putative Class Members also worked similar hours and were denied overtime as a result of the same illegal pay practice. The Putative Class Members all worked in excess of Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 8 of 20 PAGEID #: 8 Page 9 40 hours each week and were often scheduled for 12-hour shifts, 7 days a week, for at least 2 weeks at a time. Instead of paying them overtime, Defendant paid Plaintiff and the Putative Class Members a day-rate and misclassified them as “independent contractors”. Defendant denied Plaintiff and the Putative Class Members overtime pay for any and all hours worked in excess of 40 hours in each and every workweek. 37. Defendant’s policy of failing to pay its so-called “independent contractors,” including Plaintiff and the Putative Class Members, overtime violates the FLSA because these workers are, for all legal purposes, employees performing non-exempt job duties. 38. It is undisputed that the so-called independent contractors are operating and monitoring oilfield machinery, performing manual labor, and working long hours out in the field. 39. Because Plaintiff and the Putative Class Members were misclassified as independent contractors by Defendant, they should receive overtime for all hours that they worked in excess of 40 hours in each workweek. 40. Defendant’s day-rate system violates the FLSA and the Ohio Acts because Plaintiff and those similarly situated did not receive any overtime pay for hours worked over 40 hours each week. 41. In addition to paying Plaintiff on a day-rate basis with no overtime pay, Defendant wholly failed to pay Plaintiff and other similarly situated employees any wages for hours worked beginning in December of 2019 to February of 2020. 42. Plaintiff brings this action on his own behalf pursuant to 29 U.S.C. § 216(b), and on behalf of all other similarly situated persons who have been, are being, or will be, adversely affected by Defendant’s unlawful conduct. Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 9 of 20 PAGEID #: 9 Page 10 43. The class that Plaintiff seeks to represent and for whom Plaintiff seeks the right to send “opt-in” notices for purposes of the collective action, and of which Plaintiff is himself a member, is composed of and defined as follows: All Ohio current and former oilfield workers employed by Defendant who were classified as independent contractors and paid a day-rate instead of time and one-half for hours worked in excess of forty (40) hours in a workweek during the three (3) years preceding the fate of the filing of this Action to the present (the “FLSA Collective” or “FLSA Collective Members”). 44. As set forth herein, Defendant has violated, and is violating, Section 7 of the FLSA, 29 U.S.C. § 207, by employing the FLSA Collective Members in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA for workweeks longer than 40 hours without compensating such employees for their employment in excess of 40 hours per week at rates no less than one and one-half times the regular rates of pay for which they were employed. 45. Defendant knowingly, willfully, or in reckless disregard carried out this illegal pattern or practice of failing to pay Plaintiff and the FLSA Collective Members overtime compensation. Defendant’s failure to pay overtime compensation to these employees was neither reasonable, nor was the decision not to pay overtime made in good faith. 46. Accordingly, Plaintiff and the FLSA Collective Members are entitled to overtime wages under the FLSA in an amount equal to one and one-half times their regular rate of pay, plus liquidated damages, attorney’s fees and costs. 47. This action is maintainable as an “opt-in” collective action pursuant to 29 U.S.C. § 216(b) as to claims for unpaid overtime compensation, liquidated damages, attorneys’ fees and costs under the FLSA. In addition to Plaintiff, numerous current and former employees are similarly Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 10 of 20 PAGEID #: 10 Page 11 situated with regard to their claims for unpaid wages and damages. Plaintiff is representative of those other employees and are acting on behalf of their interests as well as his own in bringing this action. 48. These similarly situated employees are known to Defendant and are readily identifiable through Defendant’s payroll records. These individuals may readily be notified of this action and allowed to opt-in pursuant to 29 U.S.C. § 216(b), for the purpose of collectively adjudicating their claims for unpaid overtime compensation, liquidated damages, attorneys’ fees and costs under the FLSA. 49. Plaintiff also brings this action pursuant to Fed. R. Civ. P. 23(a) and (b)(3) on behalf of himself and all other current or former persons employed by Defendant within the last two years defined as: All Ohio current and former oilfield workers employed by Defendant who were classified as independent contractors and paid a day-rate instead of time and one-half for hours worked in excess of forty (40) hours in a workweek during the two (2) years preceding the fate of the filing of this Action to the present (the “Ohio Class” or “Ohio Class Members”). 50. The Ohio Class is so numerous that joinder of all class members is impracticable. 51. The Ohio Wage Act requires that employees receive overtime compensation “not less than one and one-half times” (1.5) the employee’s regular rate of pay for all hours worked over forty (40) in one workweek, “in the manner and methods provided in and subject to the exemptions of section 7 and section 13 of the Fair Labor Standards Act of 1937.” See O.R.C. § 4111.03(A); see also 29 U.S.C. § 207(a)(1). Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 11 of 20 PAGEID #: 11 Page 12 52. As an employee for Defendant, Plaintiff and the Ohio Class worked in excess of the maximum weekly hours permitted under O.R.C. §4111.03 but were not paid overtime wages at one and one half times their regular rate of pay. 53. There are questions of law or fact common to the Ohio Class including: whether Defendant employed Plaintiff and the Ohio Class Members within the meaning of the Ohio Acts; whether Plaintiff and the Ohio Class Members were improperly misclassified as independent contractors; and whether Defendant’s illegal pay practices were applied uniformly. 54. The OPPA requires that the Defendant pay Plaintiff and the Ohio Class all wages, including unpaid overtime, on or before the first day of each month, for wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and on or before the fifteenth day of each month, for wages earned by them during the last half of the preceding calendar month. See O.R.C. § 4113.15(A). 55. During all times material to this complaint, Plaintiff and the Ohio Class were not paid wages, either their regular rates, a minimum wage or overtime wages at one and one-half times their regular rate within thirty (30) days of performing the work. See O.R.C. §4113.15(B). 56. Plaintiff and the Ohio Class’s unpaid wages remain unpaid for more than thirty (30) days beyond their regularly scheduled payday. In violating the OPPA, Defendant acted willfully, without a good faith basis and with reckless disregard of clearly applicable Ohio law. 57. Plaintiff will adequately protect the interests of the Ohio Class. His interests are not antagonistic to but, rather, are in unison with, the interests of the Ohio Class Members. Plaintiff’s counsel has broad experience in handling class action wage-and-hour litigation and is fully qualified to prosecute the claims of the Ohio Class Members in this case. Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 12 of 20 PAGEID #: 12 Page 13 58. The questions of law or fact that are common to the Ohio Class predominate over any questions affecting only individual members. The primary questions that will determine Defendant’s liability to the Ohio Class Members, listed above, are common to the class as a whole, and predominate over any questions affecting only individual class members. 59. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. Requiring Ohio Class Members to pursue their claims individually would entail a host of separate suits, with concomitant duplication of costs, attorneys’ fees, and demands on court resources. Many Ohio Class Members’ claims are sufficiently small that they would be reluctant to incur the substantial cost, expense, and risk of pursuing their claims individually. Certification of this case pursuant to Fed. R. Civ. P. 23 will enable the issues to be adjudicated for all class members with the efficiencies of class litigation. V. 60. Plaintiff incorporates by reference the foregoing allegations as if fully rewritten herein. 61. Plaintiff brings this claim for violation of the FLSA’s overtime provisions on behalf of himself and the FLSA Collective Members who may join this case pursuant to 29 U.S.C. § 216(b). 62. The FLSA requires that hourly and other non-exempt employees receive overtime compensation of “not less than one and one-half times” the employees’ “regular rate.” 29 U.S.C. § 207(a)(1). Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 13 of 20 PAGEID #: 13 Page 14 63. Plaintiff and the FLSA Collective Members should have been paid overtime compensation at the rate of one and one-half times their “regular rate” for all hours worked in excess of 40 hours per workweek. 64. Defendant misclassified Plaintiff and the FLSA Collective Members as “independent contractors” and failed to pay any overtime compensation to them. 65. By engaging in that practice, Defendant willfully violated the FLSA and regulations thereunder that have the force and effect of law. 66. As a result of Defendant’s violations of the FLSA, Plaintiff and the FLSA Collective Members were injured in that they did not receive overtime compensation due to them pursuant to the FLSA. 29 U.S.C. § 216(b) entitles them to an award of “unpaid overtime compensation” as well as “an additional equal amount as liquidated damages.” Section 216(b) further provides that “[t]he court … shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.” 67. Plaintiff incorporates by reference the foregoing allegations as if fully rewritten herein. 68. Plaintiff brings this claim for violation of the FLSA’s minimum wage provisions on behalf of himself and the FLSA Collective Members who may join this case pursuant to 29 U.S.C. § 216(b). 69. The FLSA requires that hourly and other non-exempt employees receive wages of at least minimum wage. However, Plaintiff and the FLSA Collective Members did not receive any wages for work performed beginning in December 2019. Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 14 of 20 PAGEID #: 14 Page 15 70. Plaintiff and the FLSA Collective Members should have been paid compensation for their labor, but they were not. 71. By engaging in that practice, Defendant willfully violated the FLSA and regulations thereunder that have the force and effect of law. 72. As a result of Defendant’s violations of the FLSA, Plaintiff and the FLSA Collective Members were injured in that they did not receive any compensation due to them pursuant to the FLSA. 29 U.S.C. § 216(b) entitles them to an award of “unpaid minimum wages” as well as “an additional equal amount as liquidated damages.” Section 216(b) further provides that “[t]he court … shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.” 73. Plaintiff incorporates by reference the foregoing allegations as if fully rewritten herein. 74. Defendant’s practice of not misclassifying Plaintiff and the Ohio Class Members as “independent contractors” and failing to pay any overtime compensation to them violates the Ohio Wage Act. 75. As a result of Defendant’s practices, Plaintiff and other similarly situated Ohio Class employees have been damaged in that they have not received overtime wages due to them pursuant to the Ohio Wage Act. 76. Plaintiff incorporates by reference the foregoing allegations as if fully rewritten herein. Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 15 of 20 PAGEID #: 15 Page 16 77. Defendant’s failure to compensate Plaintiff and the Ohio Class Members violates the Ohio Wage Act inasmuch as they have not been compensated any wages for their labor. 78. As a result of Defendant’s practices, Plaintiff and other similarly situated Ohio Class employees have been damaged in that they have not received wages due to them pursuant to the Ohio Wage Act. 79. Plaintiff incorporates by reference the foregoing allegations as if fully rewritten herein. 80. Plaintiff and the Ohio Class Members have been employed by Defendant. 81. During relevant times, Defendant was an entity covered by the OPPA and Plaintiff and the Ohio Class Members have been employed by Defendant within the meaning of the 86. Plaintiff incorporates by reference the foregoing allegations as if fully rewritten herein. 87. Plaintiff and the Ohio Class Members rendered employment services to Defendant. 88. Defendant received the benefits of the employment services provided by Plaintiff and the Ohio Class Members. 89. Defendant’s retention of those services without providing compensation in exchange would be unjust. 90. Defendant has thereby been unjustly enriched and Plaintiff and the Ohio Class Members have been damaged. 91. The payment requested by Plaintiff and the Ohio Class Members for the benefits produced by them is based on customary and reasonable rates for such services or like services at the time and in the locality where the services were rendered. 92. Plaintiff and the Ohio Class Members are entitled to damages equal to all unpaid regular and overtime compensation earned within the six (6) years preceding the filing of this Complaint plus periods of equitable tolling. 93. Plaintiff and the Ohio Class Members are entitled to an award of pre-judgment and post-judgment interest. Case: 2:20-cv-01792-SDM-KAJ Doc #: 1 Filed: 04/08/20 Page: 17 of 20 PAGEID #: 17 Page 18 94. Plaintiff incorporates by reference the foregoing allegations as if fully rewritten herein. 95. Plaintiff and the Ohio Class Members rendered employment services to Defendant and thereby conferred benefits on it. 96. Defendant accepted and retained the benefits in circumstances that render such retention inequitable without payment of the value of the benefits. 97. Defendant has thereby been unjustly enriched and Plaintiff and the Ohio Class Members have been damaged. 98. Plaintiff and the Ohio Class Members are entitled to damages equal to all unpaid regular and overtime compensation earned within the six (6) years preceding the filing of this Complaint plus periods of equitable tolling. 99. Plaintiff and the Ohio Class Members are entitled to an award of pre-judgment and post-judgment interest. VI.

win

16. Defendants sell extended auto warranty contracts. 17. To increase their sales and avoid paying for legitimate forms of advertising, Defendants repeatedly called and sent prerecorded voice messages to thousands or possibly tens of thousands of cell phones at once. 18. When the Class members answered their cell phones or listened to their messages expecting to hear from a real person, Defendants pulled a bait and switch by playing a prerecorded voice message. 19. Unfortunately, Defendants failed to obtain consent from Plaintiff and the Class before bombarding their cell phones with these illegal voice recordings. 20. On October 23, 2020, Plaintiff received a call from Defendants and/or their agents on his cell phone number ending in 1146. 21. When Plaintiff listened to the message, he heard an artificial or prerecorded voice message advertising Defendants’ auto warranties. 22. The artificial or prerecorded message said “Hi, Jeep owner this is Jessica, calling in regards to your warranty renewal on your Jeep. Call me back at 888-217-4270. You now qualify for a $1000 instant rebate and free maintenance plan.” 23. Plaintiff called Defendants back and was solicited for a vehicle service contract from Car Guard and Mepco. 25. Plaintiff’s phone number had been registered on the Do Not Call Registry since December 17, 2004. 26. Plaintiff never consented to receive calls from Defendants. Plaintiff had no relationship with Defendants and has never requested that Defendants contact him in any manner. 27. Defendants’ calls violated Plaintiff’s statutory rights and his right to privacy. 28. Class Definition: Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23(b)(3) on behalf of himself and a class defined as follows: No Consent Class. All persons in the United States who: (1) from the last 4 years to present (2) received at least one telephone call; (3) on his or her cellular telephone; (4) that was played an artificial or prerecorded voice message; (5) for the purpose of selling Defendants’ products and/or services; 29. The following people are excluded from the Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendants, Defendants’ subsidiaries, parents, successors, predecessors, and any entity in which the Defendants or their parents have a controlling interest and its current or former employees, officers and directors; (3) persons who properly execute and file a timely request for exclusion from the Class; (4) persons whose claims in this matter have been finally adjudicated on the merits or otherwise released; (5) Plaintiff’s counsel and Defendants’ counsel; and (6) the legal representatives, successors, and assigns of any such excluded persons. 30. Numerosity: The exact number of the Class members is unknown and not available to Plaintiff, but it is clear that individual joinder is impracticable. On information and belief, Defendants placed telephone calls to thousands of consumers who fall into the definition of the Class. Members of the Class can be identified through Defendants’ records. 31. Typicality: Plaintiff’s claims are typical of the claims of other members of the Class, in that Plaintiff and the Class members sustained damages arising out of Defendants’ uniform wrongful conduct and unsolicited telephone calls. 33. Policies Generally Applicable to the Class: This class action is appropriate for certification because Defendants have acted or refused to act on grounds generally applicable to the Class as a whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible standards of conduct toward the Class members and making final injunctive relief appropriate with respect to the Class as a whole. Defendants’ practices challenged herein apply to and affect the Class members uniformly, and Plaintiff’s challenge of those practices hinge on Defendants’ conduct with respect to the Class as a whole, not on facts or law applicable only to Plaintiff. 34. Commonality and Predominance: There are many questions of law and fact common to the claims of Plaintiff and the Class, and those questions predominate over any questions that may affect individual members of the Class. Common questions for the Class include, but are not necessarily limited to the following: i. Whether Defendants’ conduct violated the TCPA; ii. Whether Defendants called and played its voice recordings to thousands of cellular and residential phones; iii. Whether Defendants obtained prior written consent prior to contacting any members of the Class; iv. Whether members of the Class are entitled to treble damages based on the knowingness or willfulness of Defendants’ conduct. 36. Plaintiff incorporates the foregoing allegations as if fully set forth herein. 37. Defendants and/or its agent placed telephone calls to Plaintiff’s and the Class members’ cellular telephones without having their prior express written consent to do so. 38. Defendants’ calls were made for a commercial purpose. 39. Defendants played an artificial or prerecorded voice message to the cellular and residential phones of Plaintiff and the Class members as proscribed by 47 U.S.C. § 227(b)(1)(A)(iii) and (B) 40. As a result of its unlawful conduct, Defendants repeatedly invaded Plaintiff’s and the Class’s personal privacy, causing them to suffer damages and, under 47 U.S.C. § 227(b)(3)(B), entitling them to recover $500 in civil fines for each violation and an injunction requiring Defendants to stop their illegal calling campaign. 41. Defendants and/or its agent made the violating calls “willfully” and/or “knowingly” under 47 U.S.C. § 227(b)(3)(C). 42. If the court finds that Defendants willfully and/or knowingly violated this subsection, the court may increase the civil fine from $500 to $1500 per violation under 47 U.S.C. § 227(b)(3)(C). Violation of 47 U.S.C. § 227 (On behalf of Plaintiff and the Class)

win

40. On August 16, 2019, Avmed and Plaintiff entered into an Assignment agreement (the “Assignment”). See Assignment attached as Exhibit B. 42. Each of the individual claims set forth herein has been assigned to Plaintiff. The claims are not subject to any carveouts, exclusions, or any other limitations in law or equity that would impair Plaintiff’s right to bring this cause of action. 43. The allegations set forth herein plainly demonstrate that Plaintiff’s assignor suffered damages as a direct result of Defendant’s individual failure to reimburse conditional payments as required under the MSP Law. 44. In addition, Section 1395y(a)(1)(A) of the Medicare statute states that, “no payment may be made under [the Medicare statute] for any expenses incurred for items or services which ... are not reasonable and necessary for the diagnosis or treatment of illness or injury.” 45. Because this section contains an express condition of payment – that is, “no payment may be made” – it explicitly links each Medicare payment to the requirement that the particular item or service be “reasonable and necessary.” 46. Once an MAO (or Medicare Payer) makes a payment for medical items and services on behalf of its enrollees, the payment is conclusive proof that the items and services were reasonable and necessary. 47. The items and services received by and paid on behalf of Plaintiff’s assignor’s Enrollees, including W.T. and W.M. below, were reasonable and necessary to treat the injuries suffered by each of the Enrollees. 49. On January 11, 2017, W.T. was enrolled in a Medicare Advantage plan issued and administered by Avmed, Inc. a Florida corporation d/b/a Avmed Health Plans and Avmed Medicare (“Avmed”). Avmed is a MAO. 50. On January 11, 2017, W.T. was injured in an accident. At the time of the accident, W.T.’s accident-related medical costs and expenses were also covered under a no-fault policy issued by Defendant. By virtue of its no-fault policy Defendant was contractually obligated to pay and provide primary coverage for W.T.’s accident-related medical expenses. 51. A list of the diagnosis codes and injuries assigned to W.T. in connection with W.T.’s accident-related treatment is attached hereto as Exhibt C. 52. The medical providers subsequently issued bills for payment of the accident-related medical expenses to W.T.’s MAO, Avmed. 53. As W.T.’s MAO, Avmed was fully responsible for all medical expenses incurred by W.T. Avmed paid $509.32 for W.T.’s accident-related medical expenses. The medical provider actually billed and charged Avmed $1,921.00 for W.T.’s accident-related medical expenses. 54. Defendant is liable to pay this amount because it was W.T.’s primary payer by virtue of a no-fault insurance policy which covered W.T. for the accident-related medical expenses detailed herein. 56. This reporting demonstrates that Defendant was aware of the accident and its responsibility to reimburse Avmed. A true and correct copy of Defendant’s report to CMS is attached hereto as Exhibit A.6 Despite Defendant reporting that it was a primary payer, and the corresponding admission that it should have paid for W.T.’s accident-related injuries, Defendant failed to do so, giving rise to a claim under the MSP Act. 57. Accordingly, Plaintiff is entitled to collect double damages against Defendant for its failure to reimburse Avmed’s conditional payment for W.T.’s accident-related expenses. The W.M. Claim Demonstrates Plaintiff’s Right to Recover for Defendant’s Failure to Meet its Reimbursement Obligations under the MSP Law 58. On December 3, 2016, W.M. was enrolled in a Medicare Advantage plan issued and administered by Avmed. 59. On December 3, 2016, W.M. was injured in an accident. At the time of the accident, W.M.’s accident-related medical costs and expenses were also covered under a no-fault policy issued by Defendant. By virtue of its no-fault policy Defendant was contractually obligated to pay and provide primary coverage for W.M.’s accident-related medical expenses. 61. The medical providers subsequently issued bills for payment of the accident-related medical expenses to W.M.’s MAO, Avmed. 62. As W.M.’s MAO, Avmed was fully responsible for all medical expenses incurred by W.M. Avmed paid $92.75 for W.M.’s accident-related medical expenses. The medical provider actually billed and charged Avmed $1,234.76 for W.M.’s accident-related medical expenses. 63. Defendant is liable to pay this amount because it was W.M.’s primary payer by virtue of a no-fault insurance policy which covered W.M. for the accident-related medical expenses detailed herein. 64. In fact, Defendant reported and admitted to CMS that it was the primary payer for W.M., including information regarding the accident, the name of the reporting entity, and the type of insurance policy involved.7 66. Accordingly, Plaintiff is entitled to collect double damages against Defendant for its failure to reimburse Avmed’s conditional payment for W.M.’s accident-related expenses. 67. This matter is brought as a class action pursuant to Federal Rule of Civil Procedure 23, on behalf of all Class Members or their assignees who paid for their beneficiaries’ accident- related medical expenses, when Defendant should have made those payments as primary payer and should have reimbursed the Class Members. 68. As discussed in this class action Complaint, Defendant has failed to provide primary payment and/or appropriately reimburse the Class Members for money they were statutorily required to pay under the MSP Law. This failure to reimburse applies to Plaintiff , as the rightful assignee of those organizations that assigned their recovery rights to Plaintiff, and to all Class Members. Class action law has long recognized that, when a company engages in conduct that has uniformly harmed a large number of claimants, class resolution is an effective tool to redress the harm. This case, thus, is well suited for class-wide resolution. 69. Class Members have been unlawfully burdened with paying for the medical costs of their beneficiaries when the law explicitly requires Defendant to make such payments. The Medicare Act and its subsequent amendments were constructed to ensure an efficient and cost- effective system of cooperation and communication between primary and secondary payers. Defendant’s failure to reimburse Plaintiff and Class Members runs afoul of the Medicare Act and has directly contributed to the ever-increasing costs of the Medicare system. 71. The Class is properly brought and should be maintained as a class action under Rule 23(b)(3) because a class action in this context is superior. Pursuant to Rule 23(b)(3), common issues of law and fact predominate over any questions affecting only individual members of the Class (“Damages Class”). Defendant, whether deliberately or not, failed to make required payments under the MSP Law and failed to reimburse Class Members and those organizations that assigned their recovery rights to Plaintiff , thus depriving Plaintiff , as assignee of the right to recovery, and Class Members of their statutory right to payment and reimbursement. 72. It is the custom and practice of CMS and primary plans to maintain records in a detailed electronic format. Based on these practices, Plaintiff maintains a reasonable methodology for generalized proof of Class-wide impact, using the MSP System. The MSP System captures, compiles, synthesizes and analyzes large amounts of data in order to identify claims for reimbursement of conditional payments. This case will not present manageability problems as compared to non-electronic data driven class actions. There is no need for a fact-specific individual analysis of intent or causation, and damages will be calculated based upon the total fee-for-service amounts associated with the payments made on behalf of Enrollees. Plaintiff is capable of using the MSP System to identify and quantify Class Members’ claims, as it has done for its own claims. 74. Administering the proposed Damages Class will be relatively simple. Defendant provided no-fault policies with claimants who are also Medicare beneficiaries. Once that data identifying these policies is compiled and organized, Plaintiff can determine which of the policy holders were Medicare beneficiaries during the applicable time. Then, using the database, Plaintiff and the Class Members can identify those payments made for medical treatment where the Defendant was (1) the primary payer and (2) for which reimbursement was not made. 78. Plaintiff incorporates by reference paragraphs 1 through 76 of this Complaint. 79. Plaintiff asserts a private cause of action pursuant to 42 U.S.C. § 1395y(b)(3)(A) on behalf of themselves and all similarly-situated parties. 80. The elements of a cause of action under 42 U.S.C. § 1395y(b)(3)(A) are: (1) the Defendant’s status as a primary plan; (2) the Defendant's failure to provide for primary payment or appropriate reimbursement; and (3) damages. Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832 F.3d 1229, 1239 (11th Cir. 2016). 81. Defendant’s no-fault policies are primary plans, which rendered the Defendant a primary payer for accident-related medical expenses. 82. As part of providing Medicare benefits to Medicare beneficiaries enrolled under the Medicare Advantage program, the Class Members and Plaintiff’s assignors paid for items and services which were also covered by no-fault policies issued by Defendant. 83. More specifically, Plaintiff’s and the Class Members’ Medicare beneficiaries were also covered by no-fault, PIP, or medical payments policies issued by the Defendant. 84. Because the Defendant is a primary payer, the Medicare payments for which Plaintiff seeks reimbursement were conditional payments under the MSP Law. 86. Plaintiff and the Class Members have suffered money damages as a direct result of Defendant’s failure to reimburse the accident-related medical expenses. 87. Defendant has derived substantial profits by placing the burden of financing medical treatments for their policy holders upon the shoulders of Plaintiff’s assignor and the Class members. 88. In this case, Defendant failed to administratively appeal the assignors’ rights to reimbursement within the administrative remedies period on a class wide basis. Defendant, therefore, is time-barred from challenging the propriety or amounts paid. 89. Plaintiff, for itself and on behalf of the Class Members, brings this claim pursuant to 42 U.S.C. § 1395y(b)(3)(A), to recover double damages from Defendant for its failure to make appropriate and timely reimbursement of conditional payments for the Enrollees’ accident-related medical expenses. 90. Plaintiff incorporates by reference paragraphs 1 through 76 of this Complaint. 92. Plaintiff complied with any conditions precedent to the institution of this action, to the extent applicable. 93. Defendant failed and/or refused to make complete payments of the Enrollees’ accident-related expenses as required by its contractual obligations. 94. Defendant failed to pay each enrollee’s covered losses, and Defendant had no reasonable proof to establish that it was not responsible for the payment. 95. Defendant’s failure to pay the medical services and/or items damaged Plaintiff and the Class Members as set forth herein. Plaintiff and the Class Members processed and paid accident-related medical expenses and are entitled to recover up to the statutory policy limits for each of the Enrollees’ medical expenses related to the subject accidents, pursuant to their agreements with CMS and the provider of services. Direct Right of Recovery Pursuant to 42 C.F.R. § 411.24(e) for Breach of Contract Private Cause of Action Under 42 U.S.C. § 1395y(b)(3)(A)

lose

16. GMC owns and operates 2 retail stores in Colorado that sell marijuana and marijuana-related items to consumers.4 17. As part of its business practice, GMC places solicitation text messages to consumers in order to solicit them to purchase marijuana and marijuana-related items. 19. Furthermore, Defendant lacks a sufficient stop call/text system that results in Defendant continuing to send text messages to consumers who have requested that the Defendant stop text messaging them. 20. For example, in Plaintiff Baker’s case, Defendant sent multiple text messages to his phone number registered on the DNC, despite his requesting that Defendant stop texting his cell phone. 21. In response to these text messages, Plaintiff Baker files this lawsuit seeking monetary and injunctive relief requiring the Defendant to cease from violating the Telephone Consumer Protection Act, as well as an award of statutory damages to the members of the Classes and costs. 22. Plaintiff Baker registered his phone number on the DNC on November 4, 2004. 23. Plaintiff Baker’s phone number is not associated with a business and is used for personal use only. 24. On September 29, 2020 at 2:21 PM, Plaintiff Baker received an unsolicited text message to his cell phone from Defendant from the phone number 720-487-9023 promoting Defendant’s business. 26. Based on an investigation conducted by Plaintiff’s attorneys, 720-487-9023 provides a message that the phone number is not configured for incoming calls when dialed. 27. Despite his stop request, Plaintiff received a second unsolicited text message from Defendant on October 28, 2020 at 3:24 PM from the phone number 720-679-8611. 28. Plaintiff replied “Stop” to this text message as well. 31. Plaintiff has never provided Defendant with consent to send him unsolicited text messages or calls to his cell phone. 32. In addition, Defendant failed to stop texting the Plaintiff after Plaintiff opted-out from the first text message that he received. 33. The unauthorized solicitation text messages that Plaintiff received from GMC, as alleged herein, have harmed Plaintiff Baker in the form of annoyance, nuisance, and invasion of privacy, and disturbed the use and enjoyment of his phone, in addition to the wear and tear on the phone’s hardware (including the phone’s battery) and the consumption of memory on the phone. 35. Plaintiff Baker brings this action pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3) and seek certification of the following Classes: Do Not Call Registry Class: All persons in the United States who from four years prior to the filing of this action through trial (1) Defendant (or an agent acting on behalf of the Defendant) texted more than one time, (2) within any 12-month period, (3) where the person’s telephone number had been listed on the National Do Not Call Registry for at least thirty days, (4) for substantially the same reason Defendant texted Plaintiff, and (5) for whom Defendant claims (a) they obtained prior express written consent in the same manner as Defendant claims they supposedly obtained prior express written consent to text Plaintiff, or (b) they obtained the person’s number in the same manner as Defendant claims they obtained Plaintiff’s number. Internal Do Not Call Class: All persons in the United States who from four years prior to the filing of this action through trial (1) Defendant (or an agent acting on behalf of Defendant) texted more than one time (2) within any 12-month period (3) for substantially the same reason Defendant texted Plaintiff. 36. The following individuals are excluded from the Classes: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendant, their subsidiaries, parents, successors, predecessors, and any entity in which either Defendant or its parents have a controlling interest and their current or former employees, officers and directors; (3) Plaintiff’s attorneys; (4) persons who properly execute and file a timely request for exclusion from the Classes; (5) the legal representatives, successors or assigns of any such excluded persons; and (6) persons whose claims against Defendant have been fully and finally adjudicated and/or released. Plaintiff Baker anticipates the need to amend the Class definitions following appropriate discovery. 38. Commonality and Predominance: There are many questions of law and fact common to the claims of the Plaintiff and the Classes, and those questions predominate over any questions that may affect individual members of the Classes. Common questions for the Classes include, but are not necessarily limited to the following: (a) whether Defendant GMC systematically sent multiple text messages to Plaintiff and other consumers whose telephone numbers were registered with the DNC without first obtaining consent to send the text messages; (b) whether Defendant GMC’s text messages to Plaintiff and other consumers were sent for telemarketing purposes; (c) whether Defendant GMC sent telemarketing text messages to consumers after being instructed to stop texting; (d) whether the Defendant engaged in telemarketing without implementing adequate internal policies and procedures for maintaining an internal do not call list; (e) whether Defendant’s conduct constitutes a violation of the TCPA; (f) whether members of the Classes are entitled to treble damages based on the willfulness of Defendant’s conduct. 39. Adequate Representation: Plaintiff Baker will fairly and adequately represent and protect the interests of the Classes, and has retained counsel competent and experienced in class actions. Plaintiff Baker has no interests antagonistic to those of the Classes, and Defendant has no defenses unique to Plaintiff. Plaintiff Baker and his counsel are committed to vigorously prosecuting this action on behalf of the members of the Classes, and have the financial resources to do so. Neither Plaintiff Baker nor his counsel have any interest adverse to the Classes. 41. Plaintiff Baker repeats and realleges paragraphs 1 through 40 of this Complaint and incorporates them by reference. 42. The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has registered his or his telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government.” 43. Any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may” may bring a private action based on a violation of said regulations, which were promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. 47 U.S.C. § 227(c). 45. Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry Class received more than one text message in a 12-month period made by or on behalf of the Defendant in violation of 47 C.F.R. § 64.1200, as described above. 46. As a result of Defendant’s conduct as alleged herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47 U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R. § 64.1200. 47. To the extent Defendant’s misconduct is determined to be willful and knowing, the Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by the members of the Do Not Call Registry Class. 48. Plaintiff Baker repeats and realleges paragraphs 1 through 40 of this Complaint and incorporates them by reference. 50. Defendant or their agents sent marketing text messages to Plaintiff and members of the Internal Do Not Call Class without implementing internal procedures for maintaining a list of persons who request not to be texted by the entity and/or by implementing procedures that do not meet the minimum requirements to allow Defendant to initiate telemarketing calls/texts. 52. Defendant has, therefore, violated 47 U.S.C. § 227(c)(5). As a result of Defendant’s conduct, Plaintiff and the other members of the Internal Do Not Call Class are each entitled to up to $1,500 per violation. 53. Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Internal Do Not Call Class) Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Do Not Registry Class)

win

1. states in substance: Unless the consumer, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector. If written dispute is made within 30 days, then we will obtain verification of the debt or copy of judgment which we will mail to you, and if so requested, the name and address of the original creditor, if different from the current creditor. or; 11. Plaintiff brings this claim on behalf of the following class, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3). 12. The Class consists of: a. all individuals with addresses in the State of Colorado; b. to whom Defendant Revenue sent an initial letter; c. attempting to collect a consumer debt; d. in two sub-classes where the letter 14. Excluded from the Plaintiff Class are the defendant and all officers, members, partners, managers, directors and employees of the defendant and their respective immediate families, and legal counsel for all parties to this action, and all members of their immediate families. 15. There are questions of law and fact common to the Plaintiff Class, which common issues predominate over any issues involving only individual class members. The principal issue is whether the Defendant’s written communication to consumers, in the form attached as Exhibit A, violate 15 U.S.C. §§ 1692e, 1692f and 1692g. 16. The Plaintiff’s claims are typical of the class members, as all are based upon the same facts and legal theories. The Plaintiff will fairly and adequately protect the interests of the Plaintiff Class defined in this complaint. The Plaintiff has retained counsel with experience in handling consumer lawsuits, complex legal issues, and class actions, and neither the Plaintiff nor his attorneys have any interests, which might cause them not to vigorously pursue this action. 18. Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is also appropriate in that the questions of law and fact common to members of the Plaintiff Class predominate over any questions affecting an individual member, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 2. states that the name of the current creditor is on the “next page” although the name of the current creditor is not on the next page; and e. which letter was sent on or after a date one year prior to the filing of this action and on or before a date twenty-one (21) days after the filing of this action. 20. Plaintiff repeats the above allegations as if set forth here. 21. Some time prior to November 3, 2020, Plaintiff allegedly incurred an obligation to non- party Valley View Hospital. 22. The obligation arose out of transactions incurred primarily for personal, family, or household purposes, specifically medical services. 23. The alleged Valley view Hospital obligation is a "debt" as defined by 15 U.S.C.§ 1692a (5). 24. Revenue is a "creditor" as defined by 15 U.S.C.§ 1692a (4). 25. Upon information and belief, Valley View Hospital contracted with Defendant Revenue to collect the alleged debt. 26. Defendant Revenue collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. Violation - November 3, 2020 Collection Letter 27. On or about November 3, 2020, Defendant Revenue sent Plaintiff a collection letter regarding the alleged debt, originally owed to Valley View hospital. See Letter attached as Exhibit A. 28. The Letter seemingly includes the notices required by 15 U.S.C. 1692g. 29. However, the notices are not compliant with the statute. 31. Defendant’s letter includes a misleading version of the Section 1692g notices. 32. Defendant’s notice did not conform to Section 1692g. 33. First, The Faulty Notice’s first sentence refers to a “debt collector”. 34. Yet, the following sentence refers to “we”, instead. 35. The contrasting terms renders the notice misleading and confusing. 36. In light of the contrasting terms, Plaintiff is confused as to whom the “we” refers if not Defendant, or alternatively to whom the term “debt collector” refers if not Defendant. 37. In addition, the Faulty Notice states “if a written dispute is made within 30 days” without a timeline for when the “30 days” begin. 38. The statute requires the notice to state “within thirty days after receipt of the notice”. 39. Plaintiff was unaware how much time she had to dispute the debt. 40. The Letter could imply that Plaintiff had thirty days from when she sends in her dispute or thirty days from the date of the letter. 41. Both of these implications are incorrect. 42. The statute only provides for thirty days “after receipt of the notice”. 43. This part of the Faulty Notice improperly truncated Plaintiff’s time for disputing the debt or falsely appeared to extend it. 44. Upon information and belief, Defendant would not honor a dispute sent more than thirty days after receipt of this letter by Plaintiff. 45. More importantly, Defendant would be under no legal obligation to do so. 47. 15 U.S.C. § 1692g requires a debt collector, in its initial communication, to include: (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 48. However, the Faulty Notice here does not state this. 49. The Faulty notice includes the statement, “If written dispute is made within 30 days, then we will obtain verification of the debt or copy of judgment which we will mail to you, and if so requested, the name and address of the original creditor, if different from the current creditor.” 50. The Faulty Notice merged the sub-section (4) and (5) notices into one sentence, separated by a comma, and then inserted the words “and if so requested”. 51. The first part of the sentence refers to a dispute but the second half refers to a request. 52. Because no written requirement is mentioned in the second part of the sentence, it appears as if Plaintiff could orally request the name and address of the original creditor. 53. Upon information and belief, Defendant would not honor an oral request for this information. 54. More importantly, Defendant would be under no legal obligation to do so. 55. The Letter is therefore false, misleading, and deceptive. 56. Due to Defendant’s actions, Plaintiff was confused and thought verbal and written disputes would present equal rights when, in fact, they did not. 61. The letter misleadingly implies that Revenue Enterprises is the creditor for this alleged debt. 62. Upon information and belief, the creditor is, in reality, Valley View Hospital. 64. Because of this obfuscation by Defendant, the Letter fails to clearly identify, or at least overshadows, the correct “name of the creditor to whom the debt is owed”. 15 U.S.C. §1692g (2). 65. Defendant’s actions were false, deceptive, and/or misleading. 66. Plaintiff was concerned and confused by the Letter. 67. Plaintiff was therefore unable to evaluate his options of how to handle this debt. 68. Because of this, Plaintiff expended time, money, and effort in determining the proper course of action. 69. In addition, Plaintiff suffered emotional harm due to Defendant’s improper acts. 70. These violations by Defendant were knowing, willful, negligent and/or intentional, and Defendant did not maintain procedures reasonably adapted to avoid any such violations. 72. Defendant’s deceptive, misleading and unfair representations with respect to its collection efforts were material misrepresentations that affected and frustrated Plaintiff's ability to intelligently respond to Defendant’s collection efforts because Plaintiff could not adequately respond to Defendant’s demand for payment of this debt. 73. Defendant’s actions created an appreciable risk to Plaintiff of being unable to properly respond or handle Defendant’s debt collection. 74. Plaintiff was confused and misled to his detriment by the statements in the dunning letter, and relied on the contents of the letter to his detriment. 75. Plaintiff would have pursued a different course of action were it not for Defendant’s statutory violations. 76. As a result of Defendant’s deceptive, misleading and false debt collection practices, Plaintiff has been damaged. 77. Plaintiff repeats the above allegations as if set forth here. 78. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to, 15 U.S.C. § 1692e. 79. Pursuant to 15 U.S.C. § 1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. 81. By reason thereof, defendant is liable to Plaintiff for judgment that Defendant’s conduct violated Section 1692e, et seq. of the FDCPA and Plaintiff is entitled to actual damages, statutory damages, costs and attorneys’ fees. 82. Plaintiff repeats the above allegations as if set forth here. 83. Alternatively, Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to, 15 U.S.C. § 1692f. 84. Pursuant to 15 U.S.C. §1692f, a debt collector may not use any unfair or unconscionable means in connection with the collection of any debt. 85. Defendant violated this section by unfairly misrepresenting Plaintiff’s rights and misleading Plaintiff as to the proper course of action. 86. By reason thereof, Defendant is liable to Plaintiff for judgment that Defendant’s conduct violated Section 1692f, et seq. of the FDCPA and Plaintiff is entitled to actual damages, statutory damages, costs and attorneys’ fees. 87. Plaintiff repeats the above allegations as if set forth here. 88. Defendant’s debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692g. 89. Defendant violated this section by failing to provide the proper notice(s) required by Section 1692g in an initial collection letter. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692e et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692f et seq. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. §1692g et seq.

lose

17. All claims set forth herein are brought by Plaintiffs on behalf of themselves and all other similarly situated persons (hereinafter “FLSA Collective Plaintiffs”), for relief as a collective action pursuant to 29 U.S.C. § 216(b), on behalf of all non-exempt employees employed by Defendants throughout the State of Florida on or after the date that is three years before the filing of the Complaint in this case, as defined herein. 18. At all relevant times, FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subject to Defendants’ decision, policy, plan and common policies, programs, practices, procedures, protocols, routines, and rules willfully failing and refusing to pay them at overtime compensation wages at a rate of one and one half times their hourly rate for work in excess of forty (40) hours per workweek. The claims of Plaintiffs stated herein are essentially the same as those of the other FLSA Collective Plaintiffs. 19. The records, if any, concerning the number of hours actually worked by FLSA Collective Plaintiffs, and the compensation actually paid to them, should be in the custody of Defendants. 21. When some employees of the Defendants would complain about the foregoing, Defendants would fire such employees. 22. At all times relevant hereto, Defendants failed to comply with 29 U.S.C. §§ 201- 209 in that FLSA Collective Plaintiffs performed services and labor for Defendants for which Defendants made no provision to pay FLSA Collective Plaintiffs the compensation to which they were lawfully entitled for all of the hours worked in excess of forty hours per week. 23. Based on the foregoing, the class of similarly situated employees employed by Defendants who may become Plaintiffs in this action are current and former employees of Defendant who were paid $10.00 an hour and who did not receive overtime pay for working in excess of 40 hours per week. 24. The class of similarly situated employees are readily identifiable from records maintained by Defendants and necessarily will present legal and factual issues which are nearly the same, if not identical, to those presented by the Plaintiffs. 25. The Claims for Relief herein, pursuant to§ 16(b) of the FLSA, 29 U.S.C. § 216(b), are properly brought under and maintained as an opt-in collective action. FLSA Collective Plaintiffs are readily ascertainable. For purpose of notice and other purposes related to this action, their names and addresses are readily available from the Defendants. Notice can be provided to FLSA Collective Plaintiffs via first class mail to the last address known to Defendants. 26. Plaintiffs allege on behalf of themselves and the FLSA Collective Plaintiffs that Global’s failure to pay overtime was knowing and willful. 28. Specifically, each pay roll period Defendants, Vimos and Salazar, would go over each employee’s total pay period hours and Vimos would arbitrarily decide how and for how many overtime hours to compensate the Plaintiffs and FLSA Collective Plaintiffs. Upon information and belief, Defendant Ballestero, as co-owner and/or manager, knew of this illicit practice of deliberately failing to pay Plaintiffs and FLSA Collective Plaintiffs for all overtime hours worked. 29. In response to inquiries from the Plaintiffs and FLSA Collective Payments regarding how their over-time hours were being calculated and paid, Defendants misrepresented to the Plaintiffs and FLSA Collective Plaintiffs the overtime legal requirements by stating that the calculations were correct. 30. Accordingly, Plaintiffs and the FLSA Collective Plaintiffs are entitled to recover all overtime pay due from overtime hours worked for which compensation was not paid, liquidated damages and attorneys’ fees under the FLSA’s three-year statute of limitations. 31. All conditions precedent have been satisfied by Plaintiffs or waived by Defendants. 32. Martin, on behalf of himself and the FLSA Collective Plaintiffs, repeats and realleges Paragraphs 1-31 as if fully set forth herein. 33. At all relevant times, Defendants have been and continue to be an employer engaged in interstate commerce and/or the production of goods for commerce, within the meaning of FLSA 29 U.S.C. §§ 206(a) and 207(a). 35. During that time, Martin rendered services to Defendants as a warehouse employee sorting packages, and fully performed his duties as directed. All of the hours worked by Martin were performed within the State of Florida. 36. Throughout the statute of limitations period covered by this claim, Martin regularly worked in excess of forty (40) hours per week. 37. During his employment, Martin was regularly not paid any wages for hours worked in excess of the forty (40) hours per week, for which Martin was compensated at an agreed rate of $10.00 per hour from December of 2016 through March of 2019. 38. Throughout his employment, Martin worked five (5) days per week for an average of ten (10) hours per day. 39. Through Martin’s employment, Defendants willfully failed to compensate him overtime wages for hours worked in excess of forty (40) hours per week. 40. At all relevant times, Defendants had and operated under a decision, policy and plan, and under common policies, programs, practices, procedures, protocols, routines and rules of willfully failing and refusing to pay Martin at one and one half times his regular rate for work in excess of forty (40) hours per workweek, even though Martin had been entitled to overtime. 41. Defendants’ failure to pay Martin and the FLSA Collective Plaintiffs overtime compensation at a rate not less than one and one-half times the rate at which they are employed for all hours worked beyond the forty (40) hour workweek, is a violation of the FLSA, in particular 29 U.S.C. §§ 206 and 207. 42. The foregoing alleged conduct constitutes a willful violation of the FLSA. 44. Gutierrez, on behalf of himself and the FLSA Collective Plaintiffs, repeats and realleges Paragraphs 1-31 as if fully set forth herein. 45. At all relevant times, Defendants have been and continues to be an employer engaged in interstate commerce and/or the production of goods for commerce, within the meaning of FLSA 29 U.S.C. §§ 206(a) and 207(a). 46. Gutierrez was employed by Defendants as a warehouse laborer from December of 2014 to November of 2018. 47. During that time, Gutierrez rendered services to Defendants as a warehouse manager and fully performed his duties as directed. All of the hours worked by Gutierrez were performed within the State of Florida. 48. Throughout the statute of limitations period covered by this claim, Gutierrez regularly worked in excess of forty (40) hours per week. 49. During his employment, Gutierrez was regularly not paid any wages for hours worked in excess of the forty (40) hours per week, for which Gutierrez was compensated at an agreed rate of $10.00 per hour from December of 2016 through March of 2019. 50. Throughout his employment, Gutierrez worked five (5) days per week for an average of ten (10) hours per day. 52. At all relevant times, Defendants had and operated under a decision, policy and plan, and under common policies, programs, practices, procedures, protocols, routines and rules of willfully failing and refusing to pay Gutierrez at one and one half times his regular rate for work in excess of forty (40) hours per workweek, even though Gutierrez had been entitled to overtime. 53. Defendants’ failure to pay Gutierrez and the FLSA Collective Plaintiffs overtime compensation at a rate not less than one and one-half times the rate at which they are employed for all hours worked beyond the forty (40) hour workweek, is a violation of the FLSA, in particular 29 U.S.C. §§ 206 and 207. 54. The foregoing alleged conduct constitutes a willful violation of the FLSA. 55. Due to Defendants’ violations, Gutierrez, on his behalf and on behalf of the FLSA Collective Plaintiffs seeks damages in the amount of his respective unpaid overtime compensation, liquidated (double) damages as provided by the FLSA for overtime violations, attorneys’ fees and costs, and such other legal and equitable relief as this Court deems just and proper. 56. Sanchez-Pino, on behalf of himself and the FLSA Collective Plaintiffs, repeats and realleges Paragraphs 1-31 as if fully set forth herein. 57. At all relevant times, Defendants have been and continue to be an employer engaged in interstate commerce and/or the production of goods for commerce, within the meaning of FLSA 29 U.S.C. §§ 206(a) and 207(a). 59. During that time, Sanchez-Pino rendered services to Defendants as a warehouse employee sorting packages, and fully performed his duties as directed. All of the hours worked by Sanchez-Pino were performed within the State of Florida. 60. Throughout the statute of limitations period covered by this claim, Sanchez-Pino regularly worked in excess of forty (40) hours per week. 61. During his employment, Sanchez-Pino was regularly not paid any wages for hours worked in excess of the forty (40) hours per week, for which Sanchez-Pino was compensated at an agreed rate of $10.00 per hour. 62. Throughout his employment, Sanchez-Pino worked five (5) days per week for an average of ten (10) hours per day. 63. Through Sanchez-Pino’s employment, Defendants willfully failed to compensate him overtime wages for hours worked in excess of forty (40) hours per week. 64. At all relevant times, Defendants had and operated under a decision, policy and plan, and under common policies, programs, practices, procedures, protocols, routines and rules of willfully failing and refusing to pay Sanchez-Pino at one and one half times his regular rate for work in excess of forty (40) hours per workweek, even though Sanchez-Pino had been entitled to overtime. 65. Defendants’ failure to pay Sanchez-Pino and the FLSA Collective Plaintiffs overtime compensation at a rate not less than one and one-half times the rate at which they are employed for all hours worked beyond the forty (40) hour workweek, is a violation of the FLSA, in particular 29 U.S.C. §§ 206 and 207. 67. Due to Defendants violations, Sanchez-Pino, on his behalf and on behalf of the FLSA Collective Plaintiffs seeks damages in the amount of his respective unpaid overtime compensation, liquidated (double) damages as provided by the FLSA for overtime violations, attorneys’ fees and costs, and such other legal and equitable relief as this Court deems just and proper. 68. Sanchez-Hernandez, on behalf of himself and the FLSA Collective Plaintiffs, repeats and realleges Paragraphs 1-31 as if fully set forth herein. 69. At all relevant times, Defendants have been and continue to be an employer engaged in interstate commerce and/or the production of goods for commerce, within the meaning of FLSA 29 U.S.C. §§ 206(a) and 207(a). 70. Sanchez-Hernandez was employed by Defendants as a warehouse laborer from March of 2015 to April of 2018. 71. During that time, Sanchez-Hernandez rendered services to Defendants as a warehouse employee sorting packages, and fully performed his duties as directed. All of the hours worked by Sanchez-Hernandez were performed within the State of Florida. 72. Throughout the statute of limitations period covered by this claim, Sanchez- Hernandez regularly worked in excess of forty (40) hours per week. 73. During his employment, Sanchez-Hernandez was regularly not paid any wages for hours worked in excess of the forty (40) hours per week, for which Sanchez-Hernandez was compensated at an agreed rate of $10.00 per hour. 75. Through Sanchez-Hernandez’s employment, Defendants willfully failed to compensate him overtime wages for hours worked in excess of forty (40) hours per week. 76. At all relevant times, Defendants had and operated under a decision, policy and plan, and under common policies, programs, practices, procedures, protocols, routines and rules of willfully failing and refusing to pay Sanchez-Hernandez at one and one half times his regular rate for work in excess of forty (40) hours per workweek, even though Sanchez-Hernandez had been entitled to overtime. 77. Defendants’ failure to pay Sanchez-Hernandez and the FLSA Collective Plaintiffs overtime compensation at a rate not less than one and one-half times the rate at which they are employed for all hours worked beyond the forty (40) hour workweek, is a violation of the FLSA, in particular 29 U.S.C. §§ 206 and 207. 78. The foregoing alleged conduct constitutes a willful violation of the FLSA. 79. Due to Defendants violations, Sanchez-Hernandez, on his behalf and on behalf of the FLSA Collective Plaintiffs seeks damages in the amount of his respective unpaid overtime compensation, liquidated (double) damages as provided by the FLSA for overtime violations, attorneys’ fees and costs, and such other legal and equitable relief as this Court deems just and proper. 80. William Sanchez, on behalf of himself and the FLSA Collective Plaintiffs, repeats and realleges Paragraphs 1-31 as if fully set forth herein. 82. William Sanchez was employed by Defendants as a warehouse laborer from March of 2016 to August of 2018. 83. During that time, William Sanchez rendered services to Defendants as a warehouse employee sorting packages, and fully performed his duties as directed. All of the hours worked by William Sanchez were performed within the State of Florida. 84. Throughout the statute of limitations period covered by this claim, William Sanchez regularly worked in excess of forty (40) hours per week. 85. During his employment, William Sanchez was regularly not paid any wages for hours worked in excess of the forty (40) hours per week, for which William Sanchez was compensated at an agreed rate of $10.00 per hour. 86. Throughout his employment, William Sanchez worked five (5) days per week for an average of ten (10) hours per day. 87. Through William Sanchez’s employment, Defendants willfully failed to compensate him overtime wages for hours worked in excess of forty (40) hours per week. 88. At all relevant times, Defendants had and operated under a decision, policy and plan, and under common policies, programs, practices, procedures, protocols, routines and rules of willfully failing and refusing to pay William Sanchez at one and one half times his regular rate for work in excess of forty (40) hours per workweek, even though William Sanchez had been entitled to overtime. 90. The foregoing alleged conduct constitutes a willful violation of the FLSA. 91. Due to Defendants violations, William Sanchez, on his behalf and on behalf of the FLSA Collective Plaintiffs seeks damages in the amount of his respective unpaid overtime compensation, liquidated (double) damages as provided by the FLSA for overtime violations, attorneys’ fees and costs, and such other legal and equitable relief as this Court deems just and proper. 92. Perez-Valdes, on behalf of himself and the FLSA Collective Plaintiffs, repeats and realleges Paragraphs 1-31 as if fully set forth herein. 93. At all relevant times, Defendants have been and continue to be an employer engaged in interstate commerce and/or the production of goods for commerce, within the meaning of FLSA 29 U.S.C. §§ 206(a) and 207(a). 94. Perez-Valdes was employed by Defendants as a warehouse laborer for approximately fourteen (14) months. 95. During that time, Perez-Valdes rendered services to Defendants as a warehouse employee sorting packages, and fully performed his duties as directed. All of the hours worked by Perez-Valdes were performed within the State of Florida. 96. Throughout the statute of limitations period covered by this claim, Perez-Valdes regularly worked in excess of forty (40) hours per week. 98. Throughout his employment, Perez-Valdes worked five (5) days per week for an average of ten (10) hours per day. 99. Through Perez-Valdes’ employment, Defendants willfully failed to compensate him overtime wages for hours worked in excess of forty (40) hours per week. 100. At all relevant times, Defendants had and operated under a decision, policy and plan, and under common policies, programs, practices, procedures, protocols, routines and rules of willfully failing and refusing to pay Perez-Valdes at one and one half times his regular rate for work in excess of forty (40) hours per workweek, even though Perez-Valdes had been entitled to overtime. 101. Defendants’ failure to pay Perez-Valdes and the FLSA Collective Plaintiffs overtime compensation at a rate not less than one and one-half times the rate at which they are employed for all hours wrked beyond the forty (40) hour workweek, is a violation of the FLSA, in particular 29 U.S.C. §§ 206 and 207. 102. The foregoing alleged conduct constitutes a willful violation of the FLSA. 103. Due to Defendants violations, Perez-Valdes, on his behalf and on behalf of the FLSA Collective Plaintiffs seeks damages in the amount of his respective unpaid overtime compensation, liquidated (double) damages as provided by the FLSA for overtime violations, attorneys’ fees and costs, and such other legal and equitable relief as this Court deems just and proper.

win

44. Hyundai is a multinational corporation with over 75,000 employees worldwide. Hyundai is currently the fourth largest automobile manufacturer in the world. 45. The Theta II Engine (G4KC), which HMC used in the Class Vehicles, is a 2.4 liter engine that was manufactured by Hyundai Motor Manufacturing Alabama, LLC at its manufacturing plant in Montgomery, Alabama. 79. Plaintiff brings this action on her own behalf, and on behalf of a nationwide class pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(2), and/or 23(b)(3). Nationwide Class: All persons or entities in the United States who are current or former owners and/or lessees of a Class Vehicle. 80. In the alternative to the Nationwide Class, and pursuant to FED. R. CIV. P. 23(c)(5), Plaintiff seeks to represent the following state class only in the event that the Court declines to certify the Nationwide Class above. Specifically, the state class consists of the following: California Class: All persons or entities in California who are current or former owners and/or lessees of a Class Vehicle for primarily personal, family or household purposes, as defined by California Civil Code § 1791(a). 81. Together, the California Class and the Nationwide Class shall be collectively referred to herein as the “Class.” Excluded from the Class are Defendants, their affiliates, employees, officers and directors, persons or entities that purchased the Class Vehicles for resale, and the Judge(s) assigned to this case. Plaintiff reserves the right to modify, change, or expand the Class definitions based on discovery and further investigation. 88. Plaintiff and the Class incorporate by reference each preceding and succeeding paragraph as though fully set forth at length herein. 89. Plaintiff brings this claim on behalf of herself and on behalf of the Members of the Class against all Defendants. 90. Defendants are “persons” as that term is defined in California Civil Code § 1761(c). 91. Plaintiff and the Class are “consumers” as that term is defined in California Civil Code §1761(d). A. The Defective Engine Components within the Class Vehicles HAPPENED. I WAS FORTUNATE TO BE ABLE TO COAST TO A CLOSE BY SIDE ROAD. I AM GRAVELY CONCERNED THAT THIS COULD HAVE HAPPENED ON THE INTERSTATE AT HIGHER SPEEDS, AND THE POTENTIAL CONSEQUENCES OF SUCH. MAKE A LARGE BAG NOISE AND I RAN OVER WHAT FELT LIKE PARTS. I COASTED A WHILE DOWN THE ROAD AND FINALLY PULLED THE CAR OVER TO THE SIDE OF THE ROAD. UPON OPENING THE HOOD I DISCOVERED OIL ALL OVER THE OWNER OF THIS CAR. THE MILEAGE AT JUST OVER 85,000 IS MAINLY HIGHWAY MILES, AND THE CAR IS SERVICED REGULARLY. Vehicle: 2011 Hyundai Sonata Date Complaint Filed: 10/26/2014 Component(s): ENGINE Date of Incident: 10/01/2014 NHTSA ID Number: 10650011 Manufacturer: Hyundai Motor America Vehicle Identification No. (VIN): 5NPEB4AC0BH... VIOLATIONS OF CALIFORNIA’S CONSUMER LEGAL REMEDIES ACT (“CLRA”) (Cal. Civ. Code § 1750, et seq.) (On Behalf of the Nationwide Class or, Alternatively, the California Class) WARRANTY COVERAGE." I'VE ALSO ADDED MY COMPLAINT TO THE FOLLOWING:[ HTTP://WWW.CHIMICLES.COM/2011-HYUNDAI-SONATA-ENGINE- FAILURE-CLASS-ACTION-LAWSUIT ] ** OUR LAST OIL CHANGE WAS 8/2/2014 AT

win

(AIDING AND ABETTING FRAUD) (AIDING AND ABETTING CONVERSION) (BREACH OF CONTRACT) (MONEY HAD AND RECEIVED) (NEGLIGENT PERFORMANCE OF UNDERTAKING) (NEGLIGENCE) (UNJUST ENRICHMENT/RESTITUTION) (UNFAIR COMPETITION LAW, CAL. BUS. & PROF. CODE § 17200) (VIOLATION OF CAL. CIV. CODE § 1689(b)(2) – Material Failure of Consideration) (VIOLATION OF CAL. CIV. CODE § 1689(b)(2) – Defendant’s Fault) 10. According to the FTC, tax-related identity theft was the most common form of identity theft reported to the FTC in 2014. The FTC received 332,646 identity theft complaints, nearly a third of which were tax-related identity theft complains. According to the FTC, tax identity theft has been the largest ID theft category within the last five years. 11. Fraudulent tax filings have been on the rise since 2010, according to data from the FTC, which is attributed to the rise in the use of electronic tax filings. According to the United States Government Accountability Office, fraudulent tax filings occur when fraudsters use stolen information of individuals to file income tax returns and divert tax refunds. 1 http://www.washingtonpost.com/news/get-there/wp/2015/03/04/unprecedented-surge-in-online-tax- scams-raises-questions-about-turbotax/ (last accessed May 18, 2015). Case5:15-cv-02287 Document1 Filed05/21/15 Page4 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 36. Plaintiff brings this action on behalf of himself and all other similarly situated individuals as a class action pursuant to Federal Rules of Civil Procedure Rule 23, and seeks to represent the following Class (collectively, “Class”): All persons in the United States who purchased TurboTax Online, TurboTax Mobile, or TurboTax Desktop tax preparation software and whose TurboTax accounts were accessed by fraudsters and used to file fraudulent tax returns through TurboTax. 37. Excluded from the proposed Class are governmental entities; Defendants, officers, directors, and employees of Defendant; the Judge assigned to this action; and putative Class Counsel. 38. This action has been brought and may properly be maintained as a class action under Rule 23 because it satisfies the class action prerequisites of numerosity, commonality, typicality, and adequacy: a. Numerosity: Individual joiner of the Class members would be wholly impracticable. TurboTax is estimated to be used by 30,000,000 individuals annually to file their taxes. In 2014, the FTC reportedly received approximately 109,000 (1/3 of 332,646) tax ID fraud complaints. Case5:15-cv-02287 Document1 Filed05/21/15 Page8 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 39. Plaintiff repeats and re-makes every allegation above as it set forth herein in full. Case5:15-cv-02287 Document1 Filed05/21/15 Page10 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 43. Plaintiff incorporates the allegations in each above numbered paragraph. 44. As a consequence of the above-alleged wrongful acts of Defendant, Plaintiff and members of the class are entitled to rescind their contract on the ground that the consideration to Plaintiff and class members for Defendant’s TurboTax tax preparation software has failed in a material respect, in that Plaintiff’s account with Defendant and accounts of all class members with Defendant were accessed by fraudsters and used to file fraudulent state and/or federal tax returns using Plaintiff’s personal information and personal information of each class member. As a result, Plaintiff and members of the class have been deprived of a material aspect of the benefit of the bargain of the contract of completing and filing electronically their state and federal tax return using the TurboTax tax preparation software. Accordingly, Plaintiff contends that the contract is rescinded pursuant to California Civil Code § 1689(b)(4) and is of no force or effect. Case5:15-cv-02287 Document1 Filed05/21/15 Page11 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 46. Plaintiff incorporates the allegations in each above numbered paragraph. 47. Intuit entered into a written contract with consumers – Plaintiff and class members, in which it promised to safeguard the confidential personal and tax return information entrusted to it by Plaintiff and class members. 48. Intuit encouraged customers to “file with confidence.” 49. However, Intuit breached the promise to safeguard the confidential personal and tax return information of Plaintiff and class members when, although well aware of the frequency of tax fraud incidents, especially of those filed through its TurboTax system, it failed to implement reasonable and adequate security measures and allowed fraudsters to either access Plaintiff and class members’ accounts or to create new accounts using their personal information, without flagging as suspicious or investigating these filings. 50. As a proximate result of Defendant’s breach of its contractual promise, Plaintiff and class members have suffered direct and measurable economic losses, threat of future losses as a result of being placed an increased risk of fraud in the future, emotional injury, and other damages as allowed by law. 51. Plaintiff incorporates the allegations in each above numbered paragraph. 52. Plaintiff and class members conferred upon Defendant an economic benefit in the form of monies paid for the purchase of TurboTax software. 53. Part of the monies paid by Plaintiff and class members should have been spent by Intuit for implementing and maintaining reasonable and adequate security measures to protect their personal information. Case5:15-cv-02287 Document1 Filed05/21/15 Page12 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 57. Plaintiff incorporates the allegations in each above numbered paragraph. 58. In maintaining Plaintiff’s account and accounts of class members, Intuit owed them a duty to exercise reasonable care in safeguarding and protecting that information. This duty included, among other things, maintaining and testing TurboTax software and system and taking reasonable security measures to protect and adequately secure personal information and customer accounts from unauthorized use or access. Intuit was aware of the fact that tax fraud was the most common form of fraud and that tax fraud was frequently perpetrated through its system. 59. Intuit breached that duty of care by failing to adequately secure and protect Plaintiff’s and class members’ personal information from theft and/or misuse by third parties. 60. It was foreseeable that if Intuit did not take reasonable and adequate security measures, the data of Plaintiff and class members would be stolen or misused. Fraudulent tax filings were the highest form of identity fraud for the past five years and Intuit itself identified many fraudulent or suspicious filings, but allegedly refused to implement stronger security measures proposed by some of its employees. 61. As a direct and proximate result of Intuit’s failure to take reasonable care and use adequate security measures to protect personal information placed in its care, Plaintiff and class members had Case5:15-cv-02287 Document1 Filed05/21/15 Page13 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 68. Plaintiff incorporates the allegations in each above numbered paragraph. 69. Intuit undertook for consideration to performance tax preparation services for Plaintiff and class members for consideration. As part of the tax preparation services, Plaintiff and class members Case5:15-cv-02287 Document1 Filed05/21/15 Page14 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 7. Intuit is an American software company that develops financial and tax preparation software and related services for small businesses, accountants and individuals. Intuit makes the personal finance programs Quicken and TurboTax, as well as the small business accounting program QuickBooks. The Company also produced professional tax solutions ProSeries and Lacerte, among other things. 72. Plaintiff incorporates the allegations in each above numbered paragraph. 73. Defendant received money belonging to Plaintiff and all others similarly situated when it sold them TurboTax tax preparation software. Defendant benefitted from the receipt of their money and retained it. Defendant is obligated to make restitution to Plaintiff and all others similarly situated for their purchase of TurboTax tax preparation software. 74. Plaintiff seeks relief as prayed for below. 75. Plaintiff incorporates the allegations in each above numbered paragraph. 76. On information and belief, Plaintiff alleges that Intuit had knowledge of the fact that fraudulent tax returns had been filed and that there was a high likelihood that they would continue to be filed using information of individuals and businesses similarly situated to Plaintiff and class members. 77. Intuit substantially assisted in the advancement of fraud by failing to implement reasonable and adequate security measures that would prevent fraudsters from accessing accounts of Intuit’s existing customers and/or from creating new accounts using other individuals’ personal information and by failing to flag suspicious filings. 78. Intuit also substantially assisted in the advancement of fraud by transmitting the fraudulent tax returns to the I.R.S. and state tax authorities. 79. As a result of Defendant’s actions and/or inactions, Plaintiff and class members suffered economic and emotional injury. 8. Intuit has more than $4 billion in annual revenue and a market capitalization of more than $10 billion. 80. Plaintiff and class members seek relief as prayed for below. Case5:15-cv-02287 Document1 Filed05/21/15 Page15 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 81. Plaintiff incorporates the allegations in each above numbered paragraph. 82. Fraudsters’ actions in filing fraudulent tax returns and diverting tax refunds to their own accounts constituted conversion. 83. On information and belief, Plaintiff alleges that Intuit had knowledge of the fact that fraudulent tax returns had been filed and tax refunds had been fraudulently diverted and that there was a high likelihood that fraudulent tax returns would continue to be filed using information of individuals and businesses similarly situated to Plaintiff and class members and that tax returns would continue to be wrongfully converted. 84. Intuit substantially assisted fraudsters in converting Plaintiff and class members’ funds by transmitting fraudulent income tax returns to the I.R.S. and/or state tax authorities and by allowing fraudsters to use TurboTax to divert the tax refund to prepaid debit cards or fraudsters’ accounts. 85. As a result of Defendant’s actions and/or inactions, Plaintiff and class members suffered economic and emotional injury. 86. Plaintiff and class members seek relief as prayed for below. 87. Plaintiff incorporates the allegations in each above numbered paragraph. 88. Cal. Bus. & Prof. Code §§ 17200, et seq. prohibits unfair competition in the form of any unlawful, unfair, or fraudulent business act or practice. Bus. & Prof. Code § 17204 allows “any person who has suffered injury in fact and has lost money or property” to prosecute a civil action for violation of the UCL. Such a person may bring such an action on behalf of themselves and others similarly situated who are affected by the unlawful, unfair, or fraudulent business practice. 89. Defendant failed to take reasonable and adequate security precautions, such as implementing a two-factor authentication process, to protect TurboTax accounts of Plaintiff and class members from being hacked and accessed by fraudsters, and has refused and/or failed to issue a refund for the purchase price of TurboTax software to Plaintiff and class members upon learning that their TurboTax accounts were hacked by fraudsters and used to file fraudulent tax returns and Plaintiff and class Case5:15-cv-02287 Document1 Filed05/21/15 Page16 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 9. Intuit maintains offices abroad and in the United States, but sells most of its products within the United States. It currently employs approximately 8,000 individuals in their national and international offices combined. B. Spike in Fraudulent Tax Filings In the Recent Years A. Defendant and its Business

win

10. On or about August 5, 2013, a representative of Peak Systems, Inc., an information technology staffing firm, contacted Ms. Plasters regarding employment with UBS on a long-term project beginning immediately and continuing for at least eighteen months. 11. On August 12, 2013, Ms. Plasters began working for UBS as an independent contractor. 12. On or about August 29, 2013, UBS requested that Ms. Plasters complete and return a standardized form document entitled “NOTIFICATION AND AUTHORIZATION” allowing UBS to procure a consumer report investigating her background and credit history through “CARCO, and/or any other agent acting on UBS’s behalf.” 14. In connection with her work for UBS, Ms. Plasters agreed to UBS’s requirement of a background check and consumer report by Carco. On August 29, 2013, Ms. Plasters signed the “NOTIFICATION AND AUTHORIZATION” form supplied by UBS. 15. Upon information and belief, the Notification and Authorization form is a standardized form document typically used by UBS in the course of its employment hiring practices and policies, and Defendant has required consumer job applicants to sign that form in connection with hundreds, if not thousands, of job applications over the years. 16. The Notification and Authorization stated in pertinent part as follows: “I authorize all corporations, credit agencies, financial institutions, educational institutions, courts, law enforcement agencies, former employers, business associates and/or any other person and/or entity to release information they may have about me to any of the companies referenced above, and I release the companies and persons disclosing this information from any liability and responsibility in doing so.” (Emphasis added). 17. The Notification and Authorization violated section 1681b(b)(2) of the FCRA because it did not consist “solely of the disclosure that a consumer report may be obtained for employment purposes.” 15 U.S.C. § 1681b(b)(2)(A)(i); Reardon v. Closetmaid Corp., 2013 WL 6231606 (W.D. Pa. Dec. 2, 2013); Singleton v. Domino’s Pizza, LLC, 2012 WL 245965 (D. Md. Jan. 25, 2012). 18. Upon information and belief, Carco performed a background check about Ms. Plasters on or about August 29, 2013 for employment purposes and provided the results to UBS. 20. Ms. Plasters contacted UBS seeking a copy of the report upon which the decision was based, but received no response. 21. Section 1681b(b)(3) of the FCRA requires that “in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates” a copy of the report and a written description of the consumer’s rights under the FCRA. 22. In connection with Ms. Plasters, UBS was a “person intending to take” adverse action within the meaning of the FCRA. 23. UBS did not provide to Ms. Plasters a copy of the consumer report or a written statement of her rights under the FCRA. As a matter of policy and practice, UBS does not provide notice to prospective or current employees or independent contractors, or copies of any consumer reports they obtain which contain adverse public record information, prior to taking adverse actions against them. 24. UBS’s practices and procedures described herein affected not only the Plaintiff but also other prospective and existing employees and independent contractors against whom adverse action was taken. 25. At all times pertinent hereto, UBS was acting by and through its agents, servants and/or employees who were acting within the scope and course of their agency or employment, and under the direct supervision and control of the Defendant herein. 27. Plaintiff brings this action individual and as a class action for UBS’s violations of section 1681b(b)(2) and 1681b(b)(3) of the FCRA, pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure, on behalf of the following Classes: (a) All natural persons residing within the United States and its Territories regarding whom, beginning two (2) years prior to the filing of this Complaint and continuing through the conclusion of this action, the Defendant procured or caused to be procured a consumer report for employment purposes using a written disclosure containing language substantially similar in form to the Notification and Authorization form provided to Plaintiff Plasters described above. (b) All natural persons residing within the United States who (i) within two (2) years prior to the filing of the Complaint; (ii) were the subject of a consumer report used by Defendant for employment purposes; (iii) were the subject of an adverse employment action by Defendant; and, (iv) were not provided with a copy of the report and/or a written summary of their rights under the FCRA prior to the adverse action. 29. There are questions of law and fact common to the Class that predominate over any questions affecting only individual Class members. The principal questions include whether UBS willfully violated section 1681b(b)(2) of the FCRA by procuring or causing to be procured consumer reports for employment purposes without providing a clear and conspicuous disclosure in a document that consists solely of the disclosure that a consumer report may be obtained for employment purposes, and whether UBS willfully violated section 1681b(b)(3) of the FCRA by employing a policy and practice of failing to provide consumers with a copy of the consumer report about them before taking an adverse employment action based upon that information. 30. Plaintiff’s claims are typical of the claims of the Class, which all arise from the same operative facts and are based upon the same legal theories. 31. Plaintiff will fairly and adequately protect the interests of the class. Plaintiff is committed to vigorously litigating this matter. Plaintiff has secured counsel experienced in handling consumer class actions. Neither Plaintiff nor her counsel has any interests which might cause them not to vigorously pursue this claim. 33. A class action is a superior method for the fair and efficient adjudication of this controversy. The interest of Class members in individually controlling the prosecution of separate claims against UBS is small as the maximum statutory damages are limited to $1,000.00 under the FCRA. Management of the Class claims is likely to present significantly fewer difficulties than those presented in many individual claims. The identities of the Class members may be obtained from UBS’s records. VI. 6. Among other things, the FCRA regulates the collection, maintenance, and disclosure of consumer credit and background information reported by consumer reporting agencies (“CRAs”) and used by employers such as UBS. 7. Before taking any adverse action based in whole or in part on the report, the person, such as an employer, intending to take such adverse action shall provide a copy of the report and a description in writing of the consumer’s rights under the FCRA to the consumer. See 15 U.S.C. §§ 1681b(b)(3). 9. UBS’s practices not only violate the FCRA as a matter of law, they exact serious consequences on consumer job applicants and interstate commerce. Consumers are prejudiced in their ability to adequately determine whether the information is being properly reported. Pursuant to UBS’s practice, by the time the consumer is made aware of the consumer report, it is too late to correct the contents of the report because it has already formed the basis of UBS’s decision whether to hire the applicant. B. The Representative Plaintiff’s Experience A. Defendant’s Practices As An Employer

lose

12. Beginning around at least October 2014, Plaintiff received a number of unsolicited phone calls from BF to her wireless phone, for which Plaintiff provided no consent to call. 13. Such calls were often made by prerecorded or artificial voice message. 14. The incoming calls from BF received by Plaintiff came from the following numbers: 877-225-6229, 408-295-7085, and other numbers 15. Plaintiff advised BF to stop calling her, but the calls continued. 22. Plaintiff brings this action on behalf of herself and on behalf of and all others similarly situated (“the Class”). 23. Plaintiff represents, and is a member of the Class, consisting of all persons within the United States who received any unsolicited telephone calls from Defendant or its agents on their paging service, cellular phone service, mobile radio service, radio common carrier service, or other service, through the use of any automatic telephone dialing system or artificial or pre-recorded voice system as set forth in 47 U.S.C. § 227(b)(1)(A)(3), which telephone calls by Defendant or its agents were not made for emergency purposes or with the recipients’ prior express consent, within four years prior to the filing through the present. 34. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 35. Each such telephone call was made using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers. By using such equipment, Defendant was able to effectively make thousands of phone calls simultaneously to lists of thousands of wireless phone numbers of consumers without human intervention. These telephone calls also featured a prerecorded voice and were made without the prior express consent of the Plaintiff and other members of the Class to receive such telephone calls. 40. Plaintiff incorporates by reference the above paragraphs 1 through 33 inclusive, of this Complaint as though fully stated herein. 41. Each such telephone call was made using equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers. By using such equipment, Defendant was able to effectively make thousands of phone calls simultaneously to lists of thousands of wireless phone numbers of consumers without human intervention. These telephone calls also featured a prerecorded voice and were made without the prior express consent of the Plaintiff and other members of the Class to receive such telephone calls. 42. Defendant also made telephone calls featuring a prerecorded or artificial voice without the prior express consent of the Plaintiff and other members of the Class to receive such telephone calls. 46. As a result of Defendant’s, and Defendant’s agents’, negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for herself and each Class member $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 47. Pursuant to 47 U.S.C. § 227(b)(3)(A), Plaintiff seeks injunctive relief prohibiting such conduct in the future. 48. Any other relief the Court may deem just and proper. 49. As a result of Defendant’s, and Defendant’s agents’, willful and/or knowing violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for herself and each Class member treble damages, as provided by statute, up to $1,500.00 for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. §§ 227 ET SEQ. NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. §§ 227 ET SEQ. THE TCPA, 47 U.S.C. §§ 227 ET SEQ. VIOLATION OF THE TCPA, 47 U.S.C. §§ 227 ET SEQ.

win

11. Davidson Fink LLP has been attempting to collect from plaintiffa residential mortgage loan obtained for personal, family or household purposes (housing). 12. The loan was alleged to be in default when Davidson Fink LLp first became involved with it. 13. on or about June24,2013, Davidson Fink LLp filed, on behalf of Deutsche Bank National rrust company, a foreclosure action against Andrew carlin in Nassau county Supreme Court. 14. Davidson Fink LLP attempted to provide the notice required by l5 U.S.C. g16929 "i nli. com,/oractice-areas/business-law as an attachment to the complaint. 15. A copy ofthe summons, complaint and exhibits is attached as Appendix A. The $16929 notice is the I ls page. 16. Prior to the complaint, Mr. Carlin did not receive any letter or other communication from Davidson Fink LLp. on information and belief, none was sent. 17. Section 16929 provides: g f6929. Validation of debts (a) Notice of debt; contents. within five days after the initial communication the collection of any debt, a debt nformation is contained in the initial written notice containing-- s paid the debt' send the consumer a (l) the amount of the debt; (2) the name ofthe creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirtv davs after receipt of the notice.,- disputes the validity of the debt, o; ,ni p;;ii;" thereof, the debt will be assumed to be v;lid by the debt;"fi":;;;;-^' (4) a statement that if the consumer notifies the debt collector in writing within the thirty-_day pe_riod that the debt, or any p".tio" thereof, is disputed, the debi iolector wi[ obtain verific'ati"" "iirr. deb.t or a copy ofa judgment against the consumer and a copy ofsuch verification or judgment w I be ma ed to the consume. ny iri.r a.nt--- collector; and (5) a statement,that, upon the consumer's written request within the thirty-day period, the debt colrector wilr provide tt e .,iosu.,e. toitt --- the name and address of the original creditor, if different f.o- tfi" - current creditor. t collector in writing (a) that the debt, or any debt coilector s#if::::::1,ffi iixlr,n" f, until the debt collector obtains a judgment, or f such verificatio , is mailed to th ommunications violate this title may continue during the 30-day period referred to in s-ubsectio_n (a) unless the consumer has notified"the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumei ' collection not overshadow tIo dispute the (c) Admission -of liability. The failure of a consumer to dispute the validity of a debt under this section may not be construed uy r"y "ouit as ao ai-issioo of liability by the consumer. (d).Legal pleadings. A communication in the form of a formar preading in a civir action shall not be treated as an initial communication ro.'pu.por", or subsection (a). (e) Notice provisions. The sen does not relate to the collection Internal Revenue Code of l9g6 Leach-Btitey Act [1.i USCSSS { state law rerating to notice 6fdata securitv breach or Drivacv. or anv rePulation prescribed under any such provision of U*l sfraii noi-be ireated as an initiar communication in connectiori with debt coilitio; f; pu.por.. or this section. 18. The 1lm page ofAopendix A states that "the amount ofthe debt is stated in the complaint hereto attached." 19. The complaint does not state the present amount ofthe debt. Attached is a Schedule c which lists the original loan amount and the principal balance owing. However, the complaint also claims unspecified interest, taxes, assessment, water rates, insurance premiums, escrow "and/or other charges." (Paragraph ,,seventh,'). 2. That the dcfcmdan(s) and all pasons claiming by, through or undcr rhcm, or citha ormy of thcm, subsequcnt to dlc commencement ofthis lclioa and cvery oihcr pcrson or corporstion whosc right, tillg c{nveyanco or oncumbrancc is subgcqucnt to or sub8cqusntly rccorde( may bc bancd and forcver forroloscd ofall right, ctaim, lien, interest or quity of redemption in and to said mortgaged prcmises; 20. By letrer of July 12,2013, Mr. Carlin disputed the debt (dppgniliLB). 21 More than five days afterwards, by letter of August 9, 2013, Davidson Fink LLp provided additional information about the debt (Appcn-dix c [some exhibits omitted]). 22. This letter enclosed a "payoff statement" which stated an amount ofthe debt, but also stated that "the Total Amount Due may include estimated fees, costs, additional payments and,/or escrow disbursements that will become due prior to the ,statement Void After' date, but which are not yet due as of the date this payoff Statement is issued.', 23. As a result, Davidson Fink LLp did not provide the .,amount of the debt,,as required by g 1692g(a)( I ) . Miller v. McCalla, Raymer, padrick, Cobb, Nichols, and Clark, L.L.c. ,214 F .3d 872 (7'h cir. 2000) (not sufficient to state that unpaid principal balance of residential mortgage loan was $178,844.65, and that this did not include unspecified accrued but unpaid interest, unpaid late charges, escrow advances, and other charges authorized by loan agreement). 24. It is the policy and practice of Davidson Fink LLp to attempt to comply with $16929 by: a Attaching the $16929 notice to the compraint, which is excluded from the definition of "initiar communication" under amended $ 1692g and which in any event does not contain a statement ofthe ,,amount ofthe debt,,as required by 91692g(a)(1). b. Providing a "payoff statement" ifthe consumer requests the actual amount ofthe debt, which payoff statement incrudes unaccrued charges and thus also does not state .,the amount ofthe debt.,, 25. Plaintiff incorporates paragraphs 1-24. 26. The standard policy and practice employed by Davidson Fink LLp for the purpose of attempting to comply with l5 u.s.c. gl6929 violates l5 u.s.c. g1692g(a)(l), because the consumer is never furnished with a statement of the amount of the debt. 27 . Plaintiff brings this claim on behalf of a class, pursuant to Fed.R.civ.p. 23(a) and 23(bX3). 28. The class consists of(a) all individuals against whom Davidson Fink LLp filed a foreclosure complaint (b) without also providing a letter containing the amount presently owed, (c) which complaint was filed or served on or after a date one year prior to the filing ofthis action and ending 20 days after the filing of this action. 29. The class is so numerous that joinder of all members is not practicable. There are more than 40 class members. 3. That thc said mortgsgcd prcrnises, or euch psrt hcrcofas mry bc ncccsllry to raise thc amounts duc for prinoipsl, intcrtsl' cosls, reasonsblc sttomcy's fccs, allonanccs and disburscments, togethcr with ury monics advanccd and paid, nay bc decrced to bo sold according t9 law; 30. There are questions of law and fact cornmon to the class members, which common questions predominate over any questions relating to individual class members. The predominant common question is whether defendant's standard practice for complying with 15 U.S.C. $16929 violates the FDCPA. 31. Plaintiffls claim is typical of the claims of the class members. All are based on the same factual and legal theories. 32. Plaintiffwill fairly and adequately represent the class members. plaintiffhas retained counsel experienced in class actions and FDCpA litigation. 33. A class action is superior for the fair and efficient adjudication of this matter, in that: defendant for: a. Individual actions are not economically feasible. b. Members of the class are likely to be unaware of their rights; c. Congress intended class actions to be the principal enforcement mechanism under the FDCPA. WHEREFORE, the court should enter judgment in favor of plaintiff and against i. A declaration that defendant's practice violates the FDCpA; ii. Statutory damages; iii. Attomey's fees, litigation expenses and costs ofsuit; iv. Such other and further reliefas the Court deems proper. 4. That out ofthc monies arising lion thc salc thcrcof, thc plaintiffmay bc paid rhc amounts duc on 6aid bond/notc/loan agccmctrt and mortgage End any sum which may havc bcen paid by the plaintiffto prorect the licn ofplaintilfu mortgagc os hcr€in sct fonh, with tntcrtst upon sEid amounts fom hc dolos ofthc respcctivc paymcnts and advanccs thcreof, thc costs and cxpcnrce ofthis action, additlonal allowance, if rny,8td rcssmablc aEorncyrs f€€€, lf pmvidcd for in sEid bond, nole, loan ag:ccmcnt or mortgagc, so fir is the smount ofsuch monry properly applicablc thcrrto will pay thc samc; 5. Thc prcmiscs rre bcing sold subjc.ct to: (a) All common chorgcs, ifany, whioh are at drc time a licn on thc prcrnises, togethcr wi$ such ioteEst or perlahics Es may have hwfully E rrucd $crcon lo thc dstc of paymcnq (b) Covcnrn6, restsictiorE 8nd c6s.mcsb ofrccod and zoning regulrtioDs and ordinances of the City, Town and Vinsge in which eaid premisco lic; (c) Righrs of thc publio gnd othm ln ard b any pan of fio morrgagod premiscs th8t llcs withln the bounde ofany sftsq allcy or highway; (d) Any stalo offrct8 thst rn accuratc strlry, cumnrly datcd might disclosci (c) Any state of forts an inspcction world illsclosc, it bairrg rEd€rstood thst thc propcrty is sold in an 'ag is" and "vhcre is" conditioo; (f) Any and all teranoies, posscssuy intctcsts and/or lcoscs aftcting said premiser which are not cxtinguishrd by this forechsrnc action; (g) Thc dgbt ofredcmption ofthe Unibd Slstcs ofAmcric& ifany; 6, That ifhe procccds ofaaid salo oftho morEagcd premises sforqsaid bo insuEicicnt to pay thc amount found duc 10 thc plaifliff with intcrcst and cosb, the officcr making thc ule be re{ulrcd to spccify the amount ofsuch deficicncy in his report ofsalc 60 rhst plaintiffnay tharcafler be ablc to makc application to this CouG pursuant to Scdion 137f of$c Real Proporty Aotions and Proceedings law, for ajudgnrcnt against thc defsndrn(s) rEfcn8d to in psragnph FOURTH of thls Comphint for any dcficiarcy which may retnain aftcr applyirg all of such monsys so applicablc thercto, crcept thrt thit shtll Dot rpply to iry d€feodrut who hrs becn dlrcharged ln bukruptty fron tlrc subrcct debB 7. Thot cithcr or 8ny ofthc poflics to th's ection may bemmo a purchescr upon sudr sslc; 8, That this Court ifrcqucsad, forthwltr appoint e Reccivcr ofthc rcnts and profits ofsaid premises with thG uguEl pov/ers snd duties; 9. That thc ptaiotiff nuy have sucb other or furthcr rclicfi, 6 both, as may be just and equitsblc, Plaintiffspccifically rcsrrvcs its right to share in any s rplls monics arising from the salc ofsubjoct prcmies by virtue ofio position ss ajudgmcnt or othq, licn crtdltor a<cluding the modgage being forcclecd herch; DareD: )'*tL lfi7ota Rochester, Ncw Yo* Eorrclosue Dcpartrncnt 28 East Main Stsel, Suitc t700 Rochestcr, New York 14614 Tcl: (585) 760-8218 BY: DEI,ITSCEE BANK NATIONAI, TRUST COMP^NY ^S TRUSTEE FOR IEE UOLDERS OF MORCAN STANLEY AAS CAPITAL I INC., TRUST 2005-Hr'3, NOT&S, SERTES 20r-r i Index No.; VERIFIED COMPLAINT Defendants. The plainriffherein, by Davldron Flnk LLp, its auomcyg complains of0rc dcfcndsne above namcd, and for iis cause ofaction, allegcs: NOTES, SERIES 2007-1i and aJOHN DOE and $IARY DOE,, (Said nam* being fictitious, lt being hc intention of , En8lts, porso&9 an intcrcst in horcin.) Dcfcndants. Filcd: rndcxNo.: l34bltfr Vallcy, CA, is a mrporation outhorlzed O do busincss in th.s Satc or quali6cs as a .forcign bmkx pursuant to thc Elevar stahrtes ar4 as suci, has srandiry and capacity to bring his rcthn in tho courts of the Statc ofNew yodc SI9QND: Upor information and bclief, that at all times hereinaftcr mcndoncd thc dcfendan(s) set forth in schedule A residc or havc o place ofbusinass Bt thc addrcss sGt fodh thcrein and ore made dcfendants in this ection in thc cepacitics therein alleged and for thc purposc offorecrosing and cxtinguiehing any other right" titrc or intlrest said dcfcodcns may havo in the subjcct premiscs. !!!l!!: That the Unitcd Sutes of Arneric.a, Thc pcopre of the statc of Ncw yorr, The surc Tax commission ofthc starc ofNrw york, rhc Industrial conmissioner ofthc starc of Fitcd: I I Ncw York' and all othcr agcncics or instrummurities ofth€ Fcdcral, state or locar govommenr (howcv6 de8ignatco, ifmadc partlca to dlis action and lfsppc{ring in Schcdutc B, arc made p8ni6 solcly by rca.son ofthc facs s€t f6tl in said schedulc, and for no othc! rEason. FOIIRTH: Thrt hcr€toforc, ihc dcfendaflt, Andrcw p. Carlin, for tho purposo of sccuring to plsintiffor its assignor, its successon and assigns, thc sum of t200,000.@, rfuly madc a ccrtain bond notq losn rgr€cm€ot, extensioo BBrEemcnt consolidation Bgrrcmcnt, or recrcting agrccnalt, ss thc c&sc may b€, whcrcin and whcrcby thcy bound themselvcs, thcir heirs, ercoutors, admlnl8EstoE and sssigns, rnd cach and cvcry oue of thcm, jolnLly End scvcrally, in thc amount ofsaH sum ofnoncy, afl as more fuuy appclrs togethcr rvith the tenDs ofrcpayment ofsald sunr or righu ofthc plaintiff in said bond, norc or othcr i*tsuronL A copy of said inrtrumcnt' or ur aflidavit rcg*ding same, is uadred herdo and msde s part hercof. [![f!: That as security for tbe payment ofsrid indcbtedn€ss, a mongage was ExecuM, acknowlcdgcd and dclivered to thc ptaintiffor its assignor, whereby the mortgrgor or mortgrgors thcrcin namcd, baryaincd, grantcd and sold to fic mo'rtgagcc n8mcd thcrcitr, its succcssors and ersigns, thc premises morc particulerry dcscribcd thcein (hercinaflcr called 'mortgagcd prcmilcsi), unds c.rtain conditions wih rights, dulics Ed privitcgcs between or among thsn as mora fully appcars in said mortgagq a copy ofwhidr is attachcd hcrao and madc a psrt hcrcof. SIXTH: That the said mongagc was duly recordcd (ard the mortgage tax duc thclcon was duly paid) in thc propa County Clcrkb Ofticc at the place and timc which apperrs thercon SEVENfi: That the defcndan(s), eo named, hrve failod and regl€ctcd to comply wjth thc tcrDr and Fovisions ofsaid mortgagc, bond/note/loan agrecment, and said instumeo(s) seourod by said mortgege by omitting and foiling to pey ltems ofprinclpal 8lld interEst or t8xes, asocssmcnts, watlr ratcs, incurrnce prcmiums, escrow and/or othcr cirarges, all as more fulty appcars in schedule c snd accordingly rhc praintirfhcrcby clccts to ""ll duc hc cotirc araounr sccurad by the mortgagc dcscribcd in paragraph FIFTH hcrcof. The dcfault has continucd bcyond rhe applicable grace period set fortlr in the mortgrge, and by rcason thcrco( praintifihas clected and hcrcby elects to dccrare immediatcly duc and payable thc cntirc unpaid balancc of principal. I I EIGHTH: That Schedutc C slts fo(h the pdncipal balanc€ due End $e ilare (anaf raE) from which lnt",..t aceued and a, othcr irems Bnd crurgcs arising fmm said dc&urt which arc Dow duc. NINTH: That ln orde to Forcct its socurity, the plaintitrhu pai4 ifsct fo hin SchcdulG C, or may bo compelled to pay dtring rhc pondency of this action locsl tsxca, Bs$ssmcnts, watrr ratcs, insurancc prcmiums, inspcctioru ard othcr chergcs afecting he mortgagd prcmis€s, and thc plsintiffrcqucsb that sry suns thts paid by it for ssid pupoBes (together with intcrest therton), should bc addcd ro the eum otlaerwlgc duc and bc dccmcd serured by the said mortgagc and bc adjudgcd s tnlid lisn on thc motg8ged preEises. TENTH: Thrt c8ch of orc abov+namcd dcfan&nts has, or olalms to havg sorDo inter!3t in, or licn upon said mongagcd premiscs or some part lhorrof, which intcrcst or licn, if any, has accrucd subsequcnt !o thc licn ofplaintiffs mongage. ELEWjNTH: Thar thc phintif is now $c solq tnrc and lawful holder of &e said bond/nolcy'lon agrcemcal 8nd mortgage sccuring thc sEc End thcre arc no pcnding pmceedings at lew or olheMse to mllca sr coforcr seid bond/notc ud mortgago. Copias of AssigEmen(s) ofModgagc, ifany, 8rc BUEch€d hcreto ond mEd€ e p{i hereof. TWELFTII: Thar Schcdulcs, Exhibits and othcr itcms athchad b this Complaint arc cxpressly rncorporated and madc a pert ofthc compraint for aI purpos* wilh thc same forcc and Eftct as ifthey were complctcly and fulty sct forth hcrcin whaeva rcfcrenco has bcan madc to caoh or any of drem. ' THTRTEENTH: That by rcason of lhc forcgohg, drcre is now duc and owing to the plaintiffupon caid bond, rnte, loan agrccmcnr, assumption agrecncnt, elitcnsion agrccment or consolidation agrcement the BmouDt sct forth in Schcdule C. FOURTEENTII: That ifthe security for thc indebtcdness coosists ofmorc lhan onc parcel' plaintifrrcspectfully tEquests hat rhejudgmcnt of foreclosurc provide for thc salc ofhc paroels in a particular order to he exicrt! ncccssary to satiss thc indebtcdncse or that if tro mortgage so sratcs, $e morlgagcd prcmiscs nay bc sold in onc prrccl, FIFTEENTH: Thc plainriffshall nor be demed to have saiv.d, allerrd, rcleascd or changcd thc election hcreinbcforc made by rcason ofthc paymrnt or pcrformancg sncr be dstc of lhe commcncement of this action, ofany or all ofhe dcfaulG mcntioncd hGreini and suoh crcction sha[ continuc and rcmrin effcctive uDtir thc cos* ,nd disbuscmcnb oft]tis sctioo, and I all Fcscnt and futurc dcfautts undcr thc note and mortgsge 8rd occlrrdng prior !o lhc dlscontinuencc o[ drls acdon are fully pald and curcd. SIXTEENTH: Pursua to th€ F8h Debt Collcction practices Act, this Ection may be dcemed to bo an ettcmpt to colcct I dobt on bcharfofbc prrintifr. Any information ob*incd as a result of this action will bc used for $at purposc. SEVENTEENII: At thc rimc this procccding is commencad, thc plaintillis the owner and holdcr ofthe subjecr mortg,age a8d note, or hos bccn dclcgBtcd the aurhority to lnstitutc a nongagc foroclosurc action by thc owncr and holda ofthe arbjoct flortgsge and notc. EIGHTEENTH: lf applicablc, plaintitrhar complicd wlth a[ of thc provislons of scction fivc hundred nincy-fiv+e offr banking raw and rny rulcs and rcgulatJonr promurgated thaoundor, section six-l or six-m ofthe brnking raw, ecction rhirtccn hundred four sfthc reat pmpcrty actions and pocccdlngs law, and IIAMp Suplcmcnt0l DiEctivc ttr(n. NINETEENTH: Pldntifthas complicd widr all of trc provisions pursuant to RpApL !g I104 rnd 1305. WIIEREFTORE, plaintifr demands judgrncnr: l. Adjudging and decreeing thc amounts duc the plaintifffor principal, intrtEr, costs and roasonable anomey's tece, ifprovidcd for in tho said bond/nolc/loan agrcementor morttage; and

win

2.1 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.1 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 21. Defendant is a shoe and accessories retailer that owns and operates www.shoemall.com (its “Website”), offering features which should allow all consumers to access the goods and services and which Defendant ensures the delivery of such goods throughout the United States, including New York State. 22. Defendant’s Website offers products and services for online sale and general delivery to the public. The Website offers features which ought to allow users to browse for items, access navigation bar descriptions, inquire about pricing, and avail consumers of the ability to peruse the numerous items offered for sale. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using a screen-reader. 24. On multiple occasions, the last occurring in January of 2020, Plaintiff visited Defendant’s website, www.shoemall.com, to make a purchase. Despite her efforts, however, Plaintiff was denied a shopping experience similar to that of a sighted individual due to the website’s lack of a variety of features and accommodations, which effectively barred Plaintiff from being able to determine what specific products were offered for sale. 26. Many features on the Website also fail to Add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. As a result, Plaintiff and similarly situated visually impaired users of Defendant’s Website are unable to enjoy the privileges and benefits of the Website equally to sighted users. 27. Many pages on the Website also contain the same title elements. This is a problem for the visually impaired because the screen reader fails to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 28. The Website also contained a host of broken links, which is a hyperlink to a non- existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. For example, upon coming across a link of interest, Plaintiff was redirected to an error page. However, the screen-reader failed to communicate that the link was broken. As a result, Plaintiff could not get back to her original search. 30. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered to the general public. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Website, and the numerous goods and services and benefits offered to the public through the Website. 31. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from equal access to the Website. 32. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 33. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 35. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 36. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 38. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 40. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 43. Common questions of law and fact exist amongst the Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYCHRL. 45. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 47. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 48. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Defendant’s Website is a public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 53. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 56. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 58. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 60. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 61. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 62. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 64. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 65. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of herself and the Class and New York City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 71. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL

lose

[Violations of the Fair Labor Standards Act—Overtime Wage Brought on behalf of the Plaintiffs and the FLSA Collective] 20. Defendants committed the following alleged acts knowingly, intentionally and willfully. 21. Defendants knew that the nonpayment of overtime pay, spread of hours pay, and failure to provide the required wage notice at the time of hiring would financially injure Plaintiff and similarly situated employees and violate state and federal laws. 22. From November 2015 to April 2016 Plaintiff was hired by Defendants to work as a Hibachi Chef for Defendants’ restaurant located at 179 Walt Whitman Rd, Huntington Station, 37. Defendants knowingly and willfully operated their business with a policy of not paying Plaintiffs and other similarly situated employees either the FLSA overtime rate (of time and one-half), or the New York State overtime rate (of time and one-half), in violation of the FLSA and New York Labor Law and the supporting federal and New York State Department of Labor Regulations. 38. Defendants knowingly and willfully operated their business with a policy of not paying the New York State “spread of hours” premium to Plaintiffs and other similarly situated employees. 39. Plaintiff brings this action individually and on behalf of all other and former non- exempt employees who have been or were employed by the Defendants at their restaurant location for up to the last three (3) years, through entry of judgment in this case (the “Collective Action Period”) and whom failed to receive spread-of-hours pay, and overtime compensation for all hours worked in excess of forty (40) hours per week (the “Collective Action Members”), and 8 have been subject to the same common decision, policy, and plan to not provide required wage notices at the time of hiring, in contravention to federal and state labor laws. 40. Upon information and belief, the Collection Action Members are so numerous the joinder of all members is impracticable. The identity and precise number of such persons are unknown, and the facts upon which the calculations of that number may be ascertained are presently within the sole control of the Defendants. Upon information and belief, there are more than ten (10) Collective Action members, who have worked for or have continued to work for the Defendants during the Collective Action Period, most of whom would not likely file individual suits because they fear retaliation, lack adequate financial resources, access to attorneys, or knowledge of their claims. Therefore, Plaintiff submits that this case should be certified as a collection action under the FLSA, 29 U.S.C. §216(b). 41. Plaintiff will fairly and adequately protect the interests of the Collective Action Members, and have retained counsel that is experienced and competent in the field of employment law and class action litigation. Plaintiff has no interests that are contrary to or in conflict with those members of this collective action. 42. This action should be certified as collective action because the prosecution of separate actions by individual members of the collective action would risk creating either inconsistent or varying adjudication with respect to individual members of this class that would as a practical matter be dispositive of the interest of the other members not party to the adjudication, or subsequently impair or impede their ability to protect their interests. 43. A collective action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all members is impracticable. Furthermore, inasmuch as the damages suffered by individual Collective Action Members may be relatively 9 small, the expense and burden of individual litigation makes it virtually impossible for the members of the collective action to individually seek redress for the wrongs done to them. There will be no difficulty in the management of this action as collective action. 44. Questions of law and fact common to members of the collective action predominate over questions that may affect only individual members because Defendants have acted on grounds generally applicable to all members. Among the questions of fact common to Plaintiffs and other Collective Action Members are: a. Whether the Defendants employed Collective Action members within the meaning of the FLSA; b. Whether the Defendants failed to pay the Collective Action Members overtime wages for all hours worked above forty (40) each workweek in violation of the FLSA and the regulation promulgated thereunder; c. Whether the Defendants failed to pay the Collective Action Members spread of hours payment for each day an employee worked over 10 hours; d. Whether the Defendants failed to provide the Collective Action Members with a wage notice at the time of hiring as required by the NYLL; e. Whether the Defendants’ violations of the FLSA are willful as that terms is used within the context of the FLSA; and, f. Whether the Defendants are liable for all damages claimed hereunder, including but not limited to compensatory, punitive, and statutory damages, interest, costs and disbursements and attorneys’ fees. 45. Plaintiff knows of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a collective action. 10 46. Plaintiff and others similarly situated have been substantially damaged by Defendants’ unlawful conduct. 47. Plaintiff brings his NYLL claims pursuant to Federal Rules of Civil Procedure (“F. R. C. P.”) Rule 23, on behalf of all non-exempt persons employed by Defendants at their restaurant location doing business as 110 Japan on or after the date that is six years before the filing of the Complaint in this case as defined herein (the “Class Period”). 48. All said persons, including Plaintiffs, are referred to herein as the “Class.” The Class members are readily ascertainable. The number and identity of the Class members are determinable from the records of Defendants. The hours assigned and worked, the positions held, and the rate of pay for each Class Member is also determinable from Defendants’ records. For purpose of notice and other purposes related to this action, their names and addresses are readily available from Defendants. Notice can be provided by means permissible under said F.R.C.P 23. 49. The proposed Class is so numerous that joinder of all members is impracticable, and the disposition of their claims as a class will benefit the parities and the Court. Although the precise number of such persons is unknown, and the facts on which the calculation of the number is presently within the sole control of the Defendants, upon information and belief, there are more than ten (10) members of the class. 50. Plaintiff’s claims are typical of those claims which could be alleged by any member of the Class, and the relief sought is typical of the relief that would be sought by each member of the Class in separate actions. All the Class members were subject to the same corporate practices of Defendants, as alleged herein, of failing to pay overtime compensation. Defendants’ corporation wide policies and practices, including but not limited 11 to their failure to provide a wage notice at the time of hiring, affected all Class members similarly, and Defendants benefited from the same type of unfair and/ or wrongful acts as to each Class member. Plaintiffs and other Class members sustained similar losses, injuries and damages arising from the same unlawful policies, practices and procedures. 51. Plaintiff is able to fairly and adequately protect the interests of the Class and has no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced and competent in representing plaintiffs in both class action and wage and hour employment litigation cases. 52. A class action is superior to other available methods for the fair and efficient adjudication of the controversy, particularly in the context of wage and hour litigation where individual Class members lack the financial resources to vigorously prosecute corporate defendants. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of efforts and expenses that numerous individual actions engender. The losses, injuries, and damages suffered by each of the individual Class members are small in the sense pertinent to a class action analysis, thus the expenses and burden of individual litigation would make it extremely difficult or impossible for the individual Class members to redress the wrongs done to them. Further, important public interests will be served by addressing the matter as a class action. The adjudication of individual litigation claims would result in a great expenditure of Court and public resources; however, treating the claims as a class action would result in a significant saving of these costs. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent and/or varying adjudications with respect to the individual members of the Class, establishing incompatible standards of 12 conduct for Defendants and resulting in the impairment of class members’ rights and the disposition of their interests through actions to which they were not parties. The issues in this action can be decided by means of common, class-wide proof. In addition, if appropriate, the Court can, and is empowered to, fashion methods to efficiently manage this action as a class action. 53. Upon information and belief, defendants and other employers throughout the state violate the New York Labor Law. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing claims because doing so can harm their employment, future employment, and future efforts to secure employment. Class actions provide class members who are not named in the complaint a degree of anonymity which allows for the vindication of their rights while eliminating or reducing these risks. 54. There are questions of law and fact common to the Class which predominate over any questions affecting only individual class members, including: a. Whether Defendants employed Plaintiffs and the Class within the meaning of the New York law; b. Whether Plaintiffs and Class members are entitled to overtime under the New York Labor Law; c. Whether Defendants maintained a policy, pattern and/or practice of failing to pay Plaintiff and the Rule 23 Class spread-of-hours pay as required by the NYLL; d. Whether the Defendants provided wage notices at the time of hiring to Plaintiffs and class members as required by the NYLL; 13 e. At what common rate, or rates subject to common method of calculation were and are the Defendants required to pay the Class members for their work 55. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 56. The FLSA provides that no employer engaged in commerce shall employ a covered employee for a work week longer than forty (40) hours unless such employee receives compensation for employment in excess of forty (40) hours at a rate not less than one and one- half times the regular rate at which he or she is employed, or one and one-half times the minimum wage, whichever is greater. 29 USC §207(a). 57. The FLSA provides that any employer who violates the provisions of 29 U.S.C. §207 shall be liable to the employees affected in the amount of their unpaid overtime compensation, and in an additional equal amount as liquidated damages. 29 USC §216(b). 58. Defendants’ failure to pay Plaintiff and the FLSA Collective their overtime pay violated the FLSA. 59. At all relevant times, Defendants had, and continue to have, a policy of practice of refusing to pay overtime compensation at the statutory rate of time and a half to Plaintiff and Collective Action Members for all hours worked in excess of forty (40) hours per workweek, which violated and continues to violate the FLSA, 29 U.S.C. §§201, et seq., including 29 U.S.C. §§207(a)(1) and 215(a). 14 60. The FLSA and supporting regulations required employers to notify employees of employment law requires employers to notify employment law requirements. 29 C.F.R. §516.4. 61. Defendants willfully failed to notify Plaintiff and FLSA Collective of the requirements of the employment laws in order to facilitate their exploitation of Plaintiff’s and FLSA Collectives’ labor. 62. Defendants knowingly and willfully disregarded the provisions of the FLSA as evidenced by their failure to compensate Plaintiff and Collective Class Members the statutory overtime rate of time and one half for all hours worked in excess of forty (40) per week when they knew or should have known such was due and that failing to do so would financially injure Plaintiffs and Collective Action members. 63. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 64. Pursuant to the New York Wage Theft Prevention Act, an employer who fails to pay proper overtime compensation shall be liable, in addition to the amount of any underpayments, for liquidated damages equal to the total of such under-payments found to be due the employee. 65. Defendants’ failure to pay Plaintiff and the Rule 23 Class their overtime pay violated the NYLL. 66. Defendants’ failure to pay Plaintiff and the Rule 23 Class was not in good faith. 67. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 68. Plaintiff brings this Cause of Action pursuant to 29 U.S.C § 216(b) on behalf of themselves and all other similarly situated persons, if any, who consent in writing to join this action. 69. The FLSA prohibits any arrangement between the employer and a tipped employee whereby any part of the tip received becomes the property of the employer. A tip is the sole property of the tipped employee. 70. Upon information and belief, Defendants did not allow Plaintiffs and the FLSA Collective to retain all the tips they earned. Rather, upon information and belief, Defendants unlawfully retained portions of the tips earned by Plaintiffs and the FLSA Collective. 71. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255. Defendants were aware or should have been aware that the practices described in this Collective Action Complaint were unlawful. Defendants have not made a good faith effort to comply with the FLSA with respect to the compensation of Plaintiffs and the FLSA Collective. 72. Because Defendants' violations of the FLSA have been willful, a three-year statute of limitations applies, pursuant to 29 U.S.C. § 255. 73. Due to Defendants' FLSA violations, Plaintiff, on behalf of himself and the FLSA Collective, are entitled to recover from Defendants the tips that were unlawfully retained by the Defendants, an additional, equal amount as liquidated damages for Defendants' willful violations 16 of the FLSA, together with interest, reasonable attorneys' fees, costs and disbursements in connection with this action, pursuant to 29 U.S.C. § 216(b). 74. Plaintiff re-alleges and incorporate by reference all allegations in all preceding paragraphs as if fully set forth herein. 75. At all times relevant to this action, Plaintiff was employed by some or all of the Defendants within the meaning of NYLL §§ 2 and 651. 76. NYLL § 196-d bars an employer from retaining “any part of a gratuity or of any charge purported to be gratuity [.]” 77. Defendants retained part of Plaintiff’s gratuities for unauthorized purpose in violation of NYLL § 196-d. 78. Defendants’ retention of Plaintiff’s gratuities was willful. 79. Accordingly, Plaintiff is entitled to recover from Defendants, jointly and severally, damages in the amount of unlawfully retained gratuities and an amount equal to one quarter of their unlawfully retained gratuities in the form of liquidated damages, as well as reasonable attorneys’ fees and costs of the action, including pre-and post-judgment interest, pursuant to NYLL § 198. 80. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 17 81. The NYLL requires employers to pay an extra hour’s pay for every day that an employee works an interval in excess of ten hours pursuant to NYLL §§190, et seq., and §§650, et seq., and New York State Department of Labor regulations §146-1.6. 82. Defendants’ failure to pay Plaintiff and Rule 23 Class spread-of-hours pay was not in good faith. 91. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 92. The NYLL and supporting regulations require employers to provide written notice of the rate or rates of pay and the basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as a part of minimum wage, including tip, meal, or lodging allowances; the regular pay day designated by the employer; the name of the employer; any “doing business as” names used by the employer; the physical address of employer’s main office or principal place of business, and a mailing address if different; the telephone number of the employer. NYLL §195-1(a). 93. Defendants intentionally failed to provide notice to employees in violation of New York Labor Law § 195, which requires all employers to provide written notice in the employee’s primary language about the terms and conditions of employment related to rate of pay, regular pay cycle and rate of overtime on his or her first day of employment. 94. Defendants not only did not provide notice to each employee at Time of Hire, but failed to provide notice to each Plaintiff even after the fact. 95. Due to Defendants’ violations of New York Labor Law, each Plaintiff is entitled 18 to recover from Defendants, jointly and severally, $50 for each workday that the violation occurred or continued to occur, up to $5,000, together with costs and attorneys’ fees pursuant to New York Labor Law. N.Y. Lab. Law §198(1-b). 96. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein. 97. The NYLL and supporting regulations require employers to provide detailed paystub information to employees every payday. NYLL §195-1(d). 98. Defendants have failed to make a good faith effort to comply with the New York Labor Law with respect to compensation of each Plaintiff, and did not provide the paystub on or after each Plaintiffs’ payday. 99. Due to Defendants’ violations of New York Labor Law, each Plaintiff is entitled to recover from Defendants, jointly and severally, $250 for each workday of the violation, up to $5,000 for each Plaintiff together with costs and attorneys’ fees pursuant to New York Labor Law N.Y. Lab. Law §198(1-d). Prayer For Relief WHEREFORE, Plaintiff, on behalf of himself, and the FLSA collective plaintiffs and rule 23 class, respectfully request that this court enter a judgment providing the following relief: a) Authorizing plaintiff at the earliest possible time to give notice of this collective action, or that the court issue such notice, to all persons who are presently, or have been employed by defendants as non-exempt tipped or non-tipped employees. Such notice shall inform them that the civil notice has been filed, of the nature of the action, of their 19 right to join this lawsuit if they believe they were denied proper hourly compensation and premium overtime wages; b) Certification of this case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; c) Designation of Plaintiff as representatives of the Rule 23 Class, and counsel of record as Class counsel; d) Certification of this case as a collective action pursuant to FLSA; e) Issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly situated members of the FLSA opt-in class, apprising them of the pendency of this action, and permitting them to assert timely FLSA claims and state claims in this action by filing individual Consent to Sue forms pursuant to 29 U.S.C. § 216(b), and appointing Plaintiff and his counsel to represent the Collective Action Members; f) A declaratory judgment that the practices complained of herein are unlawful under FLSA and New York Labor Law; g) An injunction against Best Buffet, Inc., its officers, agents, successors, employees, representatives and any and all persons acting in concert with them as provided by law, from engaging in each of unlawful practices and policies set forth herein; h) An award of unpaid overtime wages due under FLSA and New York Labor Law; i) An award of unpaid “spread of hours” premium due under the New York Labor Law; j) An award of unlawfully retained gratuities; k) An award of “spread of hours” premium due under the New York Labor Law; l) An award of damages for Defendants’ failure to provide wage notice at the time of hiring as required under the New York Labor Law. 20 m) An award of liquidated and/or punitive damages as a result of Defendants’ knowing and willful failure to pay overtime compensation pursuant to 29 U.S.C. §216; n) An award of liquidated and/ or punitive damages as a result of Defendants’ willful failure to pay overtime compensation and “spread of hours” premium pursuant to New York Labor Law; o) An award of costs and expenses of this action together with reasonable attorneys’ and expert fees pursuant to 29 U.S.C. §216(b) and NYLL §§198 and 663; p) The cost and disbursements of this action; q) An award of prejudgment and post-judgment fees; r) Providing that if any amounts remain unpaid upon the expiration of ninety days following the issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent, as required by NYLL §198(4); and s) Such other and further legal and equitable relief as this Court deems necessary, just, and proper. [Violation of New York Labor Law—New York Pay Stub Requirement] [Violation of the Fair Labor Standards Act — Improper Retention of Tips 15 Brought on behalf of Plaintiffs and the FLSA Collective] [Violation of New York Labor Law Unlawful —Retention Gratuities Under NYLL] [Violation of New York Labor Law—Time of Hire Wage Notice Requirement] [Violation of New York Labor Law—Overtime Pay Brought on behalf of Plaintiffs and the Rule 23 Class] [Violation of New York Labor Law—Spread of Time Pay Brought on behalf of Plaintiffs and the Rule 23 Class]

win

27. Gabe’s is a privately held corporation with its headquarters located in Morgantown, West Virginia. According to its website, Gabe’s sells “ brand name fashions and footwear for the entire family, home décor and kitchen tools, work gear, great gets for pets, and more.” See https://www.gabesstores.com/about-gabes (last accessed November 26, 2019). 28. Gabe’s owns and operates 107 stores in thirteen (13) states: Delaware, Georgia, Indiana, Kentucky, Maryland, New Jersey, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia. Id. Gabe’s employs AMs at each its stores. 29. Gabe’s maintains strict control, oversight, and discretion over the operation of its stores, including its employment practices with respect to Plaintiff and the members of the putative AM Class and AM Collective. 31. Consistent with Gabe’s policy, pattern and/or practice, Plaintiff and the members of the putative AM Class and AM Collective worked in excess of forty (40) hours per workweek without being paid overtime compensation. AMs are scheduled to work at least 47.5 hours each workweek (with a 30-minute lunch break each day), however, in reality AMs work more hours each workweek. 32. All of the work that Plaintiff and the members of the putative AM Class and AM Collective performed has been assigned by Gabe’s, who is aware of the work they performed. This work required little skill and no capital investment. Nor did it include managerial responsibilities, or the exercise of meaningful independent judgment and discretion. 33. Pursuant to a centralized, company-wide policy, pattern and/or practice, Gabe’s classifies all AMs as exempt from the overtime provisions of the FLSA and PMWA. 34. The primary job duties of Plaintiff and the members of the putative AM Class and AM Collective did not include hiring, firing, or disciplining other employees. 35. The primary job duties of Plaintiff and the members of the putative AM Class and AM Collective did not materially differ from the job duties of non-exempt hourly paid employees. 36. The primary job duties of Plaintiff and the members of the putative AM Class and AM Collective did not include the exercise of meaningful independent discretion with respect to their duties. 38. Plaintiff and the members of the putative AM Class and AM Collective are similarly situated in that they have substantially similar job duties and are subject to Gabe’s common compensation policies, patterns, and/or practices. 39. Upon information and belief, Gabe’s did not perform a person-by-person analysis of Plaintiff and the members of the putative AM Class’s and AM Collective’s job duties when making the decision to classify AMs as exempt from overtime under the FLSA and PMWA. 40. Due to the foregoing, Gabe’s failure to pay overtime wages for work performed by Plaintiff and the members of the putative AM Class and AM Collective in excess of forty (40) hours per week was willful. 41. The work performed by Plaintiff and the members of the putative AM Class and AM Collective constitutes compensable work time under the FLSA and PMWA and was not preliminary, postliminary or de minimis. 42. Gabe’s unlawful conduct has been widespread, repeated, and consistent. 43. Plaintiff brings the First Cause of Action, 29 U.S.C. § 216(b), on behalf of herself and the putative AM Collective. 44. At all relevant times, Plaintiff and the members of the putative AM Collective were engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 203(e) and 207(a). 45. Gabe’s is an employer of Plaintiff and the members of the putative AM Collective and is engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 203(e) and 207(a). 47. Gabe’s has failed to pay Plaintiff and the members of the putative AM Collective overtime compensation to which they are entitled under the FLSA. 48. Gabe’s has failed to keep accurate records of time worked by Plaintiff and the members of the putative AM Collective. 49. Defendant is liable under the FLSA for, among other things, failing to properly compensate Plaintiff and the members of the putative AM Collective. 50. Consistent with Defendant’s policy and pattern or practice, Plaintiff and the members of the putative AM Collective were not paid overtime compensation when they worked beyond forty (40) hours in a workweek. 51. All of the work that Plaintiff and the members of the putative AM Collective performed has been assigned by Defendant, and/or Defendant has been aware of such work. 53. Defendant is aware or should have been aware that federal law required it to pay Plaintiff and the members of the putative AM Collective overtime compensation for all hours worked in excess of forty (40) in a workweek. 54. Plaintiff and the members of the putative AM Collective perform or performed the same primary duties. 55. Defendant’s unlawful conduct has been widespread, repeated, and consistent. 56. Plaintiff bring the Second Cause of Action, 43 Pa. Stat. § 333.113, under Rule 23 of the Federal Rules of Civil Procedure on behalf of herself and the members of the AM Class. 57. The persons in the AM Class are so numerous that joinder of all members is impracticable. Although Plaintiff does not know the precise number of such persons, the facts on which the calculation of that number can be based are presently within the sole control of Defendant. 58. Upon information and belief, the size of the AM Class is at least fifty (50) workers. 59. The Second Cause of Action is properly maintainable as a class action under Federal Rule of Civil Procedure 23(b)(3). There are questions of law and fact common to the AM Class that predominate over any questions solely affecting individual members. 61. The claims of Plaintiff are typical of the claims of the members of the putative AM Class she seeks to represent. Plaintiff and the members of the putative AM Class work or have worked for Defendant and have been subjected to its policy and pattern or practice of failing to pay overtime wages for hours worked in excess of forty (40) hours per week. 62. Plaintiff will fairly and adequately represent and protect the interests of the members of the putative AM Class. Plaintiff understands that, as the class representatives, she assumes a fiduciary responsibility to the members of the putative AM Class to represent their interests fairly and adequately. Plaintiff recognizes that as the class representative, she must represent and consider the interests of the members of the putative AM Class just as she would represent and consider her own interests. Plaintiff understands that in decisions regarding the conduct of the litigation and any potential settlement she must not favor her own interests over those members of the putative AM Class. Plaintiff recognizes that any resolution of a class action lawsuit, including any settlement or dismissal thereof, must be in the best interests of the members of the putative AM Class. Plaintiff also understands that in order to provide adequate representation, she must remain informed of developments in the litigation, cooperate with class counsel by providing them with information and any relevant documentary material in their possession, and testify, if required, in a deposition and in trial. 64. Class certification of Plaintiff’s claims is appropriate because Gabe’s has acted or refused to act on grounds generally applicable to the AM Class, making appropriate both declaratory and injunctive relief with respect to the AM Class. The AM Class is entitled to injunctive relief to end Gabe’s common and uniform policy and practice. 65. Plaintiff has retained counsel competent and experienced in complex class action wage and hour litigation. 66. Plaintiff knows of no difficulty that would be encountered in the management of this litigation that would preclude its maintenance as a class action. 67. Plaintiff realleges and incorporates by reference the above allegations. 68. Gabe’s has engaged in a widespread policy, pattern or practice of violating the FLSA in regard to Plaintiff and the members of the putative AM Collective, as detailed in this Collective Action Complaint. 70. Gabe’s knew or recklessly disregarded the fact that their underfunding of store labor budgets resulted in Plaintiff and the members of the putative AM Collective (who were not paid overtime) working more than forty (40) hours in a workweek without receiving any overtime compensation. This allowed Gabe’s to avoid paying additional wages (including overtime) to the non-exempt, store-level employees. 71. Because Gabe’s underfunded store labor budgets, which in turn limited the amount of money available to pay non-exempt employees to perform manual and customer service tasks, AMs were required to – and did – perform these non-exempt tasks. 72. In fact, the performance of non-management work was the primary duty of Plaintiff and the members of the AM Collective. These primary duties included serving customers, ringing customers up on the cash register, preparing food, working the drive-thru, stocking, counting inventory, and cleaning the store. 73. Gabe’s knew, by virtue of the fact that its upper level management employees (as its authorized agents) actually saw Plaintiff and the members of the AM Collective primarily perform manual labor and non-exempt duties, that Plaintiff and other similarly situated AMs were not performing activities that complied with any FLSA exemption. Inasmuch as Gabe’s is a substantial corporate entity aware of its obligations under the FLSA, it acted willfully or recklessly in failing to classify Plaintiff and other similarly situated AMs as non-exempt employees. 75. Gabe’s unlawful conduct, as described above, was willful and/or in reckless disregard of the applicable wage and hour laws pursuant to Gabe’s centralized, company-wide policy, pattern, and/or practice of attempting to minimize labor costs by violating the FLSA. 76. As further evidence of its willful or reckless failure to classify Plaintiff and the members of the AM Collective as non-exempt employees, Gabe’s has uniformly failed to: (a) accurately track or record actual hours worked by Plaintiff and the members of the putative AM Collective; and (b) provide Plaintiff and the members of the putative AM Collective with a method to accurately record the hours they actually worked. 77. Gabe’s did not make a good faith effort to comply with the FLSA with respect to its timekeeping and compensation of Plaintiff and the members of the putative AM Collective. 78. Gabe’s was or should have been aware that the FLSA required it to pay employees performing non-exempt duties an overtime premium for hours worked in excess of forty (40) per week. 80. Upon information and belief, there are potentially hundreds of similarly situated current and former AMs who have been underpaid in violation of the FLSA and who would benefit from the issuance of a court-supervised notice of this lawsuit and the opportunity to join it. Thus, notice should be sent to the members of the putative AM Collective, pursuant to 29 U.S.C. § 216(b). 81. The members of the putative AM Collective are known to Gabe’s, are readily identifiable, and can be located through Gabe’s records. 82. Because Gabe’s violations of the FLSA have been willful, a three-year statute of limitations applies, pursuant to 29 U.S.C. § 255, as it may be further extended or tolled by agreement, equity or operation of law. 83. As a result of Gabe’s willful violations of the FLSA, Plaintiff and the members of the putative AM Collective have suffered damages by being denied overtime compensation in accordance with the FLSA, in amounts to be determined at trial, and are entitled to recovery of such amounts, as well as liquidated damages and attorneys’ fees, pursuant to 29 U.S.C. § 216(b). 84. Plaintiff realleges and incorporates by reference the above allegations. 85. The overtime wage provisions set forth in 43 Pa. Stat. § 333.101 et seq. of the PMWA apply to Gabe’s. 87. At all relevant times, Defendant has employed, and/or continues to employ, “employee[s],” including Plaintiff and the members of the putative AM Class, within the meaning of the PMWA. 88. The PMWA requires an employer, such as Defendant, to compensate all non- exempt employees for all hours worked. Plaintiff and the members of the putative AM Class are non-exempt employees entitled to be paid overtime compensation for all overtime hours worked. 89. The members of the putative AM Class are similarly situated because they all performed the same primary duties, responsibilities and activities, and all are subject to Gabe’s common policy and practice, implemented throughout the state of Pennsylvania, of misclassifying them as exempt from the overtime requirements of the PMWA. 90. The primary duties of Plaintiff and the members of the putative AM Class were non-exempt in nature and included serving customers, breaking down shipments, preparing food, setting up displays, stocking shelves, physically moving merchandise, counting inventory, and cleaning the store. 91. Gabe’s unlawful conduct was willful and/or in reckless disregard of the PMWA, and was done pursuant to Gabe’s centralized, company-wide policy, pattern and/or practice of attempting to minimize labor costs by misclassifying Plaintiff and the members of the putative AM Class as exempt but requiring them to perform non-exempt duties as their primary duties. 92. At all relevant times, Defendant had a policy and practice of failing and refusing to pay overtime compensation to Plaintiff and the members of the putative AM Class for all hours worked in excess of forty (40) in a workweek. 94. As a result of Gabe’s violation of the PMWA, Plaintiff and the members of the putative AM Class suffered damages by being denied overtime compensation in accordance with the PMWA, in amounts to be determined at trial, and are entitled to recovery of such amounts, as well as attorneys’ fees, pursuant to 43 Pa. Stat. § 333.113. Fair Labor Standards Act: Unpaid Overtime Wages (Brought on Behalf of Plaintiff and the AM Collective) Pennsylvania Minimum Wage Act – Unpaid Overtime (Brought on behalf of Plaintiff and the AM Class)

win

12. At all times relevant to the complaint herein, Defendant engaged in telecommunications by means of telephone facsimile machines as defined by the TCPA 47 U.S.C. § 227(a)(3). 13. Upon information and belief, Defendant regularly advertises its goods and services to recipients by transmitting fax advertisements. 14. Upon information and belief, the faxes were sent by means of a telephone facsimile machine that has the capacity to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or onto paper, and send thousands of faxes per day to facsimile numbers that were preselected by Defendant. 15. Upon information and belief, Defendant has no procedure or means for recipients who do not consent to receiving the faxes to stop receiving them. 16. In this instant case, Defendant had no prior established business relationship with Plaintiff. Plaintiff had never in the past used Defendant’s services, nor given Defendant consent to receive unsolicited fax advertisements from Defendant. 17. Within four (4) years prior to the commencement of this action, Defendant, or a third party agent acting on behalf of Defendant, willfully and knowingly transmitted facsimiles to Plaintiff that advertised the commercial availability or quality of property, goods, or services. 18. Specifically, on or about January 6, 2015, the Defendant caused to be delivered, which Plaintiff received at Plaintiff’s facsimile number ending in 4993, facsimile advertisements which solicited Plaintiff’s business by advising Plaintiff that Defendant sells dental products. See Exhibit A. 20. Plaintiff did not give Defendant, or any third party acting on behalf of Defendant, prior express invitation or permission to transmit the aforementioned facsimiles, thereby rendering them unsolicited. 21. Plaintiff did not agree to make available its facsimile number for advertisement in a directory. 22. Defendant transmitted at least one (1) unsolicited advertisement to Plaintiff. Discovery may reveal the transmission of additional faxes. 24. Defendant failed to provide the proper notice to Plaintiff and the putative class members of the method and/or process of how to opt-out of receiving such future facsimile advertisements with the all of the requirements of 47 U.S.C. § 227(b)(2)(D). 25. Specifically, Defendant failed to comply with the statute, which requires: a notice contained in an unsolicited advertisement complies with the requirements under this subparagraph only if— (i) the notice is clear and conspicuous and on the first page of the unsolicited advertisement; (ii) the notice states that the recipient may make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines and that failure to comply, within the shortest reasonable time, as determined by the Commission, with such a request meeting the requirements under subparagraph (E) is unlawful; (iii) the notice sets forth the requirements for a request under subparagraph (E); (iv) the notice includes— (I) a domestic contact telephone and facsimile machine number for the recipient to transmit such a request to the sender; and (II) a cost-free mechanism for a recipient to transmit a request pursuant to such notice to the sender of the unsolicited advertisement; the Commission shall by rule require the sender to provide such a mechanism and may, in the discretion of the Commission and subject to such conditions as the Commission may prescribe, exempt certain classes of small business senders, but only if the Commission determines that the costs to such class are unduly burdensome given the revenues generated by such small businesses. 27. Plaintiff brings this action individually and on behalf of and all others similarly situated (“the Class”). 28. Plaintiff represents, and is a member of, the Classes, consisting of: a. All persons in the United States who received any unsolicited fax advertisement on their telephone facsimile machines from Defendant or its agents(s) and/or employee(s) within the four years prior to the filing of the Complaint. b. All persons in the United States who received any unsolicited fax advertisement on their telephone facsimile machines from Defendant or its agent(s) and/or employee(s) where said advertisements failed to properly notify the recipient of their ability to opt-out of receiving such fax advertisements from Defendant in the future. 29. Defendant and its employees or agents are excluded from the Classes. Plaintiff does not know the number of members in the Classes, but believe the Class members number in the thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 31. This suit seeks only damages and injunctive relief for recovery of economic injury on behalf of the Class, and it expressly is not intended to request any recovery for personal injury and claims related thereto. Plaintiff reserves the right to expand the Class definition to seek recovery on behalf of additional persons as warranted as facts are learned in further investigation and discovery. 32. The joinder of the Class members is impractical and the disposition of their claims in the Class action will provide substantial benefits both to the parties and to the court. The Class can be identified through Defendant’s records or Defendant’s agents’ records. 34. As a recipient of unsolicited fax advertisements from Defendant and of fax advertisements which failed to properly advise of Plaintiff’s ability to opt-out, Plaintiff is asserting claims that are typical of the Class. Plaintiff will fairly and adequately represent and protect the interests of the Classes in that Plaintiff has no interests antagonistic to any member of the Classes. 35. Plaintiff and the members of the Classes have all suffered irreparable harm as a result of the Defendant’s unlawful and wrongful conduct. Absent a class action, the Classes will continue to face the potential for irreparable harm. In addition, these violations of law will be allowed to proceed without remedy and Defendant will likely continue such illegal conduct. Because of the size of the individual Class member’s claims, few, if any, Class members could afford to seek legal redress for the wrongs complained of herein. 36. Plaintiff has retained counsel experienced in handling class action claims and claims involving violations of the Telephone Consumer Protection Act. 37. A class action is a superior method for the fair and efficient adjudication of this controversy. Class-wide damages are essential to induce Defendant to comply with federal and state laws. The interest of Class members in individually controlling the prosecution of separate claims against Defendant is small because the maximum statutory damages in an individual action for violation of privacy are minimal. Management of these claims is likely to present significantly fewer difficulties than those presented in many class claims. 38. Defendant has acted on grounds generally applicable to the Classes, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the Class as a whole. 40. At all times herein, Plaintiff was and is entitled to the rights, protections and benefits provided under the Telephone Consumer Protection Act, 47 U.S.C. § 227. 41. The transmission of facsimiles to Plaintiff as set forth above, violated 47 U.S.C. § 227(b)(1)(C). 42. Based upon the foregoing, Plaintiff is entitled to statutory damages pursuant to 47 U.S.C. § 227(b)(3)(B) and 227(b)(3)(C). 43. Based upon the foregoing, Plaintiff is entitled to an Order, pursuant to 47 U.S.C. § 227(b)(3)(A), enjoining Defendant from transmitting any advertisements in violation of 47 U.S.C. § 227(b)(1)(C). 44. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully set forth herein at length. 45. At all times herein, Plaintiff was and is entitled to the rights, protections and benefits provided under the Telephone Consumer Protection Act, 47 U.S.C. § 227. 46. The transmission of facsimiles to Plaintiff as set forth above, violated 47 U.S.C. § 227(b)(2)(D). 47. Based upon the foregoing, Plaintiff is entitled to statutory damages pursuant to 47 U.S.C. §§ 227(b)(3)(B) and 227(b)(3)(C). Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 Violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227

lose

10. Plaintiff and similarly situated employees worked "off-the-clock" outside their regularly scheduled hours during the Violation Period without receiving compensation for such "off-the-clock" work, as required by the FLSA. 13. The net effect of Defendant's plan, policy and practice of not paying Plaintiff and class members for such "off-the-clock" work, including not compensating Plaintiff and class members for all such related overtime work, was a scheme to save payroll costs and payroll taxes for which it has enjoyed ill gained profits at the expense of Plaintiff and other members of the class. 14. Considering Plaintiff and class members worked forty or more hours during weekly pay periods of the Violation Period for Defendant, had Plaintiff and class members properly been compensated for all "off-the-clock" work, such work time would have been added to their pay and treated as overtime compensation under the FLSA. Defendant Failed to Keep Accurate Time Records 15. Defendant failed to accurately record actual hours worked by its Covered Employees as required by the FLSA, 29 C.F.R. §516.2(a)(7). 16. Instead of accurately recording all time worked by Plaintiff and those similarly situated, Defendant willfully required, induced, forced, encouraged, expected and/or, suffered or permitted, its Covered Employees to perform tasks and work additional time in excess of forty (40) hours per week during weekly pay periods of the Violation Period, for which all such hours were not recorded. 17. Defendant knew, and was aware at all times, that it was not recording all of its Covered Employees' work hours. 19. During all times material, Defendant had a common plan, policy and practice of not compensating Plaintiff and class members for all hour worked, including overtime hours at the required FLSA overtime rate, all in violation of the provisions of the FLSA, 29 U.S.C. § 207(a)(l). As a result of Defendant's unlawful practices, it benefited from reduced labor and payroll costs. 20. Specifically, Defendant had a common plan, policy and practice of failing and refusing to compensate Plaintiff and class members for all hours spent in "donning and doffing" personal protective equipment and, "showering" (including overtime compensation for all such hours over 40 within weekly pay periods at the required overtime rate at all times material), all in violation of the FLSA, 29 U.S.C. § 207(a)(l ). As a result of Defendant's unlawful practices, it benefited from reduced labor and payroll costs. 21. During all times material, Defendant also had a common plan, policy and practice of failing to compensate Plaintiff and members of the class for its unequal "rounding off' of their punch-in and punch-out times (to its advantage), including overtime compensation for all such time over 40 hours within weekly pay periods at the required overtime rate, all in violation of the FLSA, 29 U.S.C. § 207(a)(l). As a result of Defendant's unlawful practices, it benefited from reduced labor and payroll costs. 23. Plaintiffs and class members' "off-the-clock" claims (including "donning and doffing", "showering" and "rounding off" claims) are unified by a common theory of Defendant's FLSA violations. 24. As a result of Defendant's improper and willful failure to pay Plaintiff and those similarly situated in accordance with the requirements of the FLSA, they have suffered lost wages, overtime compensation and other damages, for which they are entitled to recover from Defendant. 25. Plaintiff brings this case as a collective action on behalf of herself, individually, and on behalf of herself and others similarly situated pursuant to 29 U.S.C. § 216(b) to recover unpaid wages, unpaid overtime compensation, liquidated damages, unlawfully withheld wages, statutory penalties, attorneys' fees and costs, and other damages owed. 27. This action is properly maintained as a collective action because Plaintiff is similarly situated to the members of the collective class with respect to Defendant's aforementioned compensation and work-related plans, policies and practices. 28. Plaintiff and the collective class have been subjected to Defendant's aforementioned common plans, policies and practices of requiring, inducing, forcing, encouraging, expecting and/or, suffering or permitting, its management and supervisory personnel to work Plaintiff and class members "off the clock" (including "donning and doffing", "showering" and "rounding off' time) in order to stay within or below its budgeted labor hours, all in violation of the FLSA. 29. Defendant required, induced, forced, encouraged, expected and/or, suffered and permitted, Plaintiff and the collective class to work hours during weekly pay periods of the Violation Period without full compensation and, to work more than forty ( 40) hours per week during weekly pay periods of the Violation Period, without being paid overtime compensation, in violation of 29 U.S.C. § 207(a)(l) and 29 C.F.R. § 778.315. 31. Defendant's conduct, as alleged herein, was willful, without good faith, and has caused significant damage to Plaintiff and the collective class. 32. Defendant is liable under the FLSA for failing to properly compensate Plaintiff and the collective class for all previously described "off-the-clock" hours 33. Plaintiff therefore requests this Court to authorize notice to the members of the collective class to inform them of the pendency of this action and their right to "opt-in" to this lawsuit pursuant to 29 U.S.C. § 216(b), for the purpose of seeking unpaid overtime compensation, liquidated damages under the FLSA, and the other relief requested herein. 34. Plaintiff estimates there are several thousand members of the collective class. The precise number of collective class members can be easily ascertained by using Defendant's payroll and personnel records. Given the composition and size of the class, members of the collective class may be informed of the pendency of this action directly via U.S. mail, e-mail and by posting notice in Defendant's production and manufacturing plants nationwide. 36. Plaintiff and other class members are similarly situated individuals within the meaning of the FLSA, 29 U.S.C. § 216(b). 37. Section 207(a)(l) of the FLSA states that an employee must be paid overtime, equal to at least 1.5 times the employee's regular rate of pay, for all hours worked in excess of forty ( 40) hours per week. Pursuant to 29 C.F .R. § 778.315, compensation for hours worked in excess of forty ( 40) hours per week may not be considered paid to an employee unless that employee is compensated for all such overtime hours worked. 38. Plaintiff and other Covered Employees regularly performed work duties during weekly pay periods of the Violation Period but were not paid for all hours worked and were not paid overtime wages for all overtime work -- all in violation of the FLSA. 39. Through its actions and common plans, policies and practices, as aforementioned, Defendant has violated the FLSA by regularly and repeatedly failing to compensate Plaintiff and similarly situated individuals for all actual hours worked, including for overtime hours worked. 40. Defendant's actions were willful and not in good faith. 41. Defendant has had actual as well as constructive knowledge of its aforementioned "off- the-clock" FLSA violations. 43. As a direct and proximate cause of Defendant's unlawful conduct, Plaintiff and similarly situated employees have suffered and will continue to suffer a loss of income and other damages. 44. Defendant is liable to Plaintiff and other members of the class for actual damages, liquidated damages and equitable relief, pursuant to 29 U.S.C. § 216(b), as well as reasonable attorneys' fees, costs and expenses. 7. Plaintiff is a former hourly-paid PPE equipped production and manufacturing employee or, similarly-titled employee (hereinafter "Covered Employees") of Defendant who performed job duties at one or more of Defendant's production/manufacturing facilities in West Memphis, Arkansas, during the Violation Period. 8. Defendant classified all its Covered Employees as non-exempt under the FLSA and paid them an hourly rate of pay. Plaintiff was subjected to the same FLSA violations, as described hereinafter, as other hourly-paid PPE equipped production and manufacturing employees of Defendant. 9. Plaintiff and others similarly situated routinely were scheduled by Defendant to work at least forty ( 40) hours per week, but at times worked additional hours, including overtime hours in excess of forty ( 40) hours per week. Covered Employees Worked "Off-The-Clock" VIOLATION OF THE FAIR LABOR STANDARDS ACT

win

28. Upon information and belief, Corporate Defendants WIWI 1 NAIL & SPA INC d/b/a WiWi Nails & Spa; and WIWI NAILS & SPA INC d/b/a WiWi Nails & Spa are joint employers of Plaintiff and constitute an enterprise as the term is defined by 29 USC §203(r) insofar as they do business as WiWi Nail at the same location concurrently, and as such jointly share staff, including Plaintiff, pay Plaintiff for the work performed; and are otherwise engaged in related activities performed through unified operation and/or common control for a common business purpose, and are co-owned by the same partners. 29. At all times relevant herein, WIWI 1 NAIL & SPA INC d/b/a WiWi Nails & Spa; and WIWI NAILS & SPA INC d/b/a WiWi Nails & Spa was, and continues to be, an “enterprise engaged in commerce” within the meaning of FLSA. 31. There are at least thirteen (13) nail saloon employees at any one time. 32. Defendants committed the following alleged acts knowingly, intentionally and willfully against the Plaintiff, the FLSA Collective Plaintiffs, and the Class. 33. Pursuant to NYCRR Part 146-2.2 and 29 USC § 203(m), an employer cannot take credit towards the basic minimum wage if a service employee or food service worker has not received notification of the tip credit. 34. At all relevant times, Defendants knowingly and willfully failed to pay Plaintiff and similarly situated employees at least the New York minimum wage for each hour worked. 35. At all relevant times, Defendants knowingly and willfully failed to pay Plaintiff his lawful overtime compensation of one and one-half times (1.5x) their regular rate of pay for all hours worked over forty (40) in a given workweek. 36. While employed by Defendants, Plaintiff was not exempt under federal and state laws requiring employers to pay employees overtime. 37. Defendants failed to keep full and accurate records of Plaintiff's hours and wages. 38. Upon information and belief, Defendants failed to keep full and accurate records in order to mitigate liability for their wage violations. Defendants never furnished any notice of their use of tip credit. 40. Defendants knew that the nonpayment of overtime pay and New York’s “spread of hours” premium for every day in which Plaintiff worked over ten (10) hours would financially injure Plaintiff and similarly situated employees and violate state and federal laws. 41. Defendants did not post the required New York State Department of Labor posters regarding minimum wage pay rates, overtime pay, tip credit, and pay day. Plaintiff WEIDONG LI 42. From on or about April 15, 2019 to June 22, 2019, Plaintiff WEIDONG LI was employed by Defendants to work as a nail saloon worker and masseur at 739 State Highway 28, Suite 4, Oneonta, NY 13820. 43. Plaintiff WEIDONG LI paid one hundred fifty dollars ($150) a month to live in the company-provided dormitory at 45-47 London Avenue, Oneonta, NY 13820. 44. From on or about April 15, 2019 to June 22, 2019, Plaintiff WEIDONG LI’s regular work schedule ran from 09:30 to 20:30 for eleven (11) hours a day for six (6) days a week, with one (1) day off, not fixed for a total of sixty-six (66) hours each week. 45. At all relevant times, Plaintiff WEIDONG LI did not have a fixed time for lunch or for dinner. 46. In fact, Plaintiff WEIDONG LI had less than ten (10) minutes to eat and even then he was on call, meaning that if customer’s order came, his break stopped and he had to deliver. 48. From on or about May 25, 2019 to June 22, 2019 , Plaintiff WEIDONG LI’s pay was decreased because he was “too old.” 49. As such, Plaintiff WEIDONG LI was unlawfully discriminated against and had his pay reduced to a flat compensation at a rate of six hundred dollars ($600.00) per week. 50. On June 22, 2019, Plaintiff WEIDONG LI was unlawfully terminated, again because he was too old, when four younger workers were hired. 51. These four younger workers included two workers who did not have the requisite nail saloon license at the time of hire. 52. At all relevant times, Plaintiff WEIDONG LI was not paid overtime pay for overtime work. 53. At all relevant times, Plaintiff WEIDONG LI was never informed of his hourly pay rate or any tip deductions toward the minimum wage. 54. Throughout his employment, Plaintiff WEIDONG LI was not given a statement with his weekly payment reflecting employee’s name, employer’s name, employer’s address and telephone number, employee’s rate or rates of pay, any deductions made from employee’s wages, any allowances claimed as part of the minimum wage, and the employee’s gross and net wages for each pay day in Chinese, Plaintiff’s native language. 55. Throughout his employment, Plaintiff WEIDONG LI was not compensated at least at one-and-one-half his promised hourly wage for all hours worked above forty (40) in each workweek. 57. As part of his employment with Defendants, Plaintiff WEIDONG LI was compelled to purchase gloves and masks for one hundred dollars ($100) from Defendants. 58. Plaintiff brings this action individually and as class representative individually and on behalf of all other and former non-exempt employees who have been or were employed by the Defendants for up to the last three (3) years, through entry of judgment in this case (the “Collective Action Period”) and whom were not compensated at their promised hourly rate for all hours worked and at one and one half times their promised work for all hours worked in excess of forty (40) hours per week (the “Collective Action Members”). 59. Plaintiff brings his NYLL claims pursuant to Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) Rule 23, on behalf of all non-exempt personnel employed by Defendants on or after the date that is six years before the filing of the Complaint in this case as defined herein (the “Class Period”). 60. All said persons, including Plaintiff, are referred to herein as the “Class.” 62. The proposed Class is so numerous that joinder of all members is impracticable, and the disposition of their claims as a class will benefit the parties and the Court. Although the precise number of such persons is unknown, and the facts on which the calculation of the number is presently within the sole control of the Defendants, upon information and belief, there are more than forty (40) members of the class. Commonality 64. Plaintiff's claims are typical of those claims which could be alleged by any member of the Class, and the relief sought is typical of the relief that would be sought by each member of the Class in separate actions. All the Class members were subject to the same corporate practices of Defendants, as alleged herein, of failing to pay minimum wage or overtime compensation. Defendants’ corporate-wide policies and practices affected all Class members similarly, and Defendants benefitted from the same type of unfair and/or wrongful acts as to each Class member. Plaintiff and other Class members sustained similar losses, injuries and damages arising from the same unlawful policies, practices and procedures. Adequacy 65. Plaintiff is able to fairly and adequately protect the interests of the Class and have no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced and competent in representing Plaintiffs in both class action and wage-and-hour employment litigation cases. Superiority Defendants Constitute an Enterprise

win

23. Over the past year, beginning on or around May 2020, Defendant sent numerous telemarketing text messages to Plaintiff’s cellular telephone number ending in 1156 (the “1156 Number”). 25. Defendant continued to hound Plaintiff with constant text messages, forcing Plaintiff to reply “JOIN” and then “STOP” in yet another attempt to cease Defendant’s harassing text messages by opting-in and immediately opting-out. 26. After two failed attempts to opt-out via text message, Plaintiff visited Defendant’s storefront in Mt. Morris, Michigan, and personally requested that Defendant halt any further communications to Plaintiff. 27. But, even after speaking with Defendant’s employees, Defendant’s text messages still persisted including the below messages sent during August 2020: 29. Despite Plaintiff’s third request to opt-out from any further communications, Defendant ignored Plaintiff’s demand letter and again sent Plaintiff additional promotional text messages, including the below text messages sent on or about October 15 and 16, 2020: 30. Defendant’s text messages were transmitted to Plaintiff’s cellular telephone, and within the time frame relevant to this action. 31. Defendant’s text messages constitute telemarketing because they encouraged the future purchase or investment in property, goods, or services, i.e., selling Plaintiff cannabis products. 32. The information contained in the text message advertises Defendant’s specials and “Daily Deals,” which Defendant sends to promote its business. 33. Plaintiff received the subject texts within this judicial district and, therefore, Defendant’s violation of the TCPA occurred within this district. Upon information and belief, Defendant caused other text messages to be sent to individuals residing within this judicial district. 35. Plaintiff is the subscriber and sole user of the 1156 Number, and is financially responsible for phone service to the 1156 Number. 36. Plaintiff has been registered with the national do-not-call registry since November 11, 2010. 37. The impersonal and generic nature of Defendant’s text message demonstrates that Defendant utilized an ATDS in transmitting the messages. See Jenkins v. LL Atlanta, LLC, No. 1:14- cv-2791-WSD, 2016 U.S. Dist. LEXIS 30051, at *11 (N.D. Ga. Mar. 9, 2016) (“These assertions, combined with the generic, impersonal nature of the text message advertisements and the use of a short code, support an inference that the text messages were sent using an ATDS.”) (citing Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1354 (S.D. Fla. 2014) (plaintiff alleged facts sufficient to infer text messages were sent using ATDS; use of a short code and volume of mass messaging alleged would be impractical without use of an ATDS); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010) (finding it "plausible" that defendants used an ATDS where messages were advertisements written in an impersonal manner and sent from short code); Hickey v. Voxernet LLC, 887 F. Supp. 2d 1125, 1130; Robbins v. Coca-Cola Co., No. 13-CV-132-IEG NLS, 2013 U.S. Dist. LEXIS 72725, 2013 WL 2252646, at *3 (S.D. Cal. May 22, 2013) (observing that mass messaging would be impracticable without use of an ATDS)). 38. The text messages originated from telephone numbers 810-242-3171 and 810-255- 4543, both numbers which upon information and belief are owned and operated by Defendant. 39. The numbers used by Defendant are known as a “long code,” a standard 10-digit phone number that enabled Defendant to send SMS text messages en masse, while deceiving recipients into believing that the message was personalized and sent from a telephone number operated by an individual. 41. Specifically, upon information and belief, Defendant utilized a combination of hardware and software systems to send the text messages at issue in this case. The systems utilized by Defendant have the capacity to store telephone numbers using a random or sequential generator, and to dial such numbers from a list without human intervention. 42. To send the text messages, Defendant used a messaging platform (the “Platform”) that permitted Defendant to transmit thousands of automated text messages without any human involvement. 43. The Platform has the capacity to store telephone numbers, which capacity was in fact utilized by Defendant. 44. The Platform has the capacity to generate sequential numbers, which capacity was in fact utilized by Defendant. 45. The Platform has the capacity to dial numbers in sequential order, which capacity was in fact utilized by Defendant. 46. The Platform has the capacity to dial numbers from a list of numbers, which capacity was in fact utilized by Defendant. 47. The Platform has the capacity to dial numbers without human intervention, which capacity was in fact utilized by Defendant. 48. The Platform has the capacity to schedule the time and date for future transmission of text messages, which occurs without any human involvement. 50. The above execution these instructions occurred seamlessly, with no human intervention, and almost instantaneously. Indeed, the Platform is capable of transmitting thousands of text messages following the above steps in minutes, if not less. 51. Further, the Platform “throttles” the transmission of the text messages depending on feedback it receives from the mobile carrier networks. In other words, the platform controls how quickly messages are transmitted depending on network congestion. The platform performs this throttling function automatically and does not allow a human to control the function. 53. Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant’s text messages also inconvenienced Plaintiff and caused disruption to her daily life. 54. Defendant’s unsolicited text messages caused Plaintiff actual harm. Specifically, Plaintiff estimates that she has wasted approximately 60 minutes reviewing all of Defendant’s unwanted messages and driving to Defendant’s storefront to personally request that she be removed from Defendant’s text message blasts. 55. Next, Plaintiff wasted approximately 15 minutes locating and retaining counsel for this case in order to stop Defendant’s unwanted text messages. 56. In all, Defendant’s violations of the TCPA caused Plaintiff to waste over an hour of her time in addressing and attempting to stop Defendant’s solicitations. 57. Furthermore, Defendant’s text messages took up memory on Plaintiff’s cellular phone. The cumulative effect of unsolicited text messages like Defendant’s poses a real risk of ultimately rendering the phone unusable for text messaging purposes as a result of the phone’s memory being taken up. See https://www.consumer.ftc.gov/articles/0350-text-message-spam#text (finding that text message solicitations like the ones sent by Defendant present a “triple threat” of identity theft, unwanted cell phone charges, and slower cell phone performance). 59. Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of herself and all others similarly situated. 61. Defendant and its employees or agents are excluded from the Classes. Plaintiff does not know the number of members in the Classes, but believes the Class members number in the several thousands, if not more. 65. The common questions in this case are capable of having common answers. If Plaintiff’s claim that Defendant routinely transmits text messages to telephone numbers assigned to cellular telephone services is accurate, Plaintiff and the Class members will have identical claims capable of being efficiently adjudicated and administered in this case. 70. Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth herein. 71. It is a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system … to any telephone number assigned to a … cellular telephone service ….” 47 U.S.C. § 227(b)(1)(A)(iii). 72. Defendant–or third parties directed by Defendant–used equipment having the capacity to dial numbers without human intervention to make non-emergency telephone calls to the cellular telephones of Plaintiff and the other members of the Class. 73. These calls were made without regard to whether or not Defendant had first obtained express permission from the called party to make such calls. In fact, Defendant did not have prior express consent to call the cell phones of Plaintiff and the other members of the putative Class when its calls were made. 75. Defendant knew that it did not have prior express consent to make these calls, and knew or should have known that it was using equipment that at constituted an automatic telephone dialing system. The violations were therefore willful or knowing. 76. As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA, Plaintiff and the other members of the putative Class were harmed and are each entitled to a minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an injunction against future calls. Id. 77. Plaintiff re-alleges and incorporates the allegations set forth in paragraph 1 through 69 as if fully set forth herein. 78. At all times relevant, Defendant knew or should have known that its conduct as alleged herein violated the TCPA. 79. Defendant knew that it did not have prior express consent to make these calls, and knew or should have known that its conduct was a violation of the TCPA. 80. Because Defendant knew or should have known that Plaintiff and Class Members had not given prior express consent to receive its autodialed calls, the Court should treble the amount of statutory damages available to Plaintiff and the other members of the putative Class pursuant to § 227(b)(3) of the TCPA. 81. As a result of Defendant’s violations, Plaintiff and the Class Members are entitled to an award of $1,500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B) and 47 U.S.C. § 227(b)(3)(C). 82. Plaintiff re-alleges and incorporates the allegations set forth in paragraph 1 through 69 as if fully set forth herein. 83. The TCPA’s implementing regulation, 47 C.F.R. § 64.1200(c), provides that “[n]o person or entity shall initiate any telephone solicitation” to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the federal government.” 84. 47 C.F.R. § 64.1200(e), provides that § 64.1200(c) and (d) “are applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers.”1 85. 47 C.F.R. § 64.1200(d) further provides that “[n]o person or entity shall initiate any call for telemarketing purposes to a residential telephone subscriber unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity.” 86. Any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may” may bring a private action based on a violation of said regulations, which were promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. 47 U.S.C. § 227(c). 88. Defendant violated 47 U.S.C. § 227(c)(5) because Plaintiff and the Do Not Call Registry Class received more than one telephone call in a 12-month period made by or on behalf of Defendant in violation of 47 C.F.R. § 64.1200, as described above. As a result of Defendant’s conduct as alleged herein, Plaintiff and the Do Not Call Registry Class suffered actual damages and, under section 47 U.S.C. § 227(c), are entitled, inter alia, to receive up to $500 in damages for such violations of 47 C.F.R. § 64.1200. 89. To the extent Defendant’s misconduct is determined to be willful and knowing, the Court should, pursuant to 47 U.S.C. § 227(c)(5), treble the amount of statutory damages recoverable by the members of the Do Not Call Registry Class. 90. Plaintiff re-alleges and incorporates the allegations set forth in paragraph 1 through 69 as if fully set forth herein. 91. The TCPA provides that any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may” bring a private action based on a violation of said regulations, which were promulgated to protect telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. 47 U.S.C. § 227(c)(5). 93. Under 47 C.F.R § 64.1200(e) the rules set forth in 47 C.F.R. § 64.1200(d) are applicable to any person or entity making telephone solicitations or telemarketing calls to wires telephone numbers. (e) The rules set forth in paragraph (c) and (d) of this section are applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers to the extent described in the Commission's Report and Order, CG Docket No. 02-278, FCC 03-153, “Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991. 47 C.F.R. § 64.1200(e). 94. Plaintiff and the Internal Do Not Call Class members made requests to Defendant not to receive calls from Defendant. 95. Defendant failed to honor Plaintiff and the Internal Do Not Call Class members’ requests. 96. Upon information and belief, Defendant has not instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of their behalf, pursuant to 47 C.F.R. § 64.1200(d). 97. Because Plaintiff and the Internal Do Not Call Class members received more than one text message in a 12-month period made by or on behalf of Defendant in violation of 47 C.F.R. § 98. As a result of Defendant’s violations of 47 U.S.C. § 227(c)(5), Plaintiff and the Internal Do Not Call Class members are entitled to an award of $500.00 in statutory damages, for each and every negligent violation, pursuant to 47 U.S.C. § 227(c)(5). 99. As a result of Defendant’s violations of 47 U.S.C. § 227(c)(5), Plaintiff and the Internal Do Not Call Class members are entitled to an award of $1,500.00 in statutory damages, for each and every knowing and/or willful violation, pursuant to 47 U.S.C. § 227(c)(5). 100. Plaintiff and the Internal Do Not Call Class members also suffered damages in the form of invasion of privacy. 101. Plaintiff and the Internal Do Not Call Class members are also entitled to and seek injunctive relief prohibiting Defendant’s illegal conduct in the future, pursuant to 47 U.S.C. § 227(c)(5). Knowing and/or Willful Violation of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Classes) PROPOSED CLASSES Violations of the TCPA, 47 U.S.C. § 227 (c)(2) (On Behalf of Plaintiff and the Internal Do Not Call Class) Violations of the TCPA, 47 U.S.C. § 227(b) (On Behalf of Plaintiff and the Classes)

lose

I. Glyphosate and the Enzyme It Targets 28. Glyphosate, the active ingredient in Roundup, is a non-selective biocide, meaning that it will kill most plants and many simple organisms. Unlike selective biocides, glyphosate cannot be used on most conventional lawns, as it would kill grass that has not been genetically modified. 57. Plaintiffs re-allege and incorporate by reference the allegations set forth in the preceding paragraphs of this Complaint. 58. This action is maintainable as a class action pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. 59. Plaintiffs bring this action on behalf of a National Class defined as follows: National Class: All consumers who purchased Roundup Products, containing the statement “Glyphosate targets an enzyme found in plants but not in people or pets” on the labeling, in the United States within the applicable statute of limitations. 71. All of the foregoing paragraphs are re-alleged as if fully set forth herein. 72. Plaintiff Blitz brings this cause of action as a member of the Wisconsin Class. 80. All of the foregoing paragraphs are re-alleged as if fully set forth herein. 81. Plaintiff Blair brings this cause of action on behalf of members of the Illinois Class. 82. The Illinois Consumer Fraud and Deceptive Business Practices Act (“Illinois CFA”) prohibits “unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation . . . or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’ [815 ILCS 510/2] . . . in the conduct of trade or commerce . . . whether any person has in fact been misled, deceived or damaged thereby.” 815 ILCS 505/2. 83. In using a false statement to market their Roundup Products, Defendants employed deception, fraud, false pretense, false promise, and misrepresentation. 84. Defendants violated 815 ILCS 505/2, by: a. Representing that Roundup Products have “characteristics, … benefits, [and] quantities that they do not have,” 815 ILCS 510/2 (a)(5); b. Representing that Roundup Products “are of a particular standard, quality, [and] grade” when “they are of another,” 815 ILCS 510/2 (a)(7); c. Labeling Roundup Products “with intent not to sell them as advertised,” 815 ILCS 510/2 (a)(9); and d. Engaging in “conduct which similarly creates a likelihood of confusion or misunderstanding,” 815 ILCS 510/2 (a)(12). 91. All of the foregoing paragraphs are re-alleged as if fully set forth herein. 92. Plaintiff Chick brings this cause of action against Defendant Monsanto on behalf of members of the California Class. 93. This cause of action is brought pursuant to California’s Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750-1785 (the “CLRA”). Breach of Express Warranty 169. All of the foregoing paragraphs are re-alleged as if fully set forth herein. 170. Plaintiffs bring this claim on behalf of the National Class and the various state Classes set forth herein. 171. Defendants provided Plaintiffs and members of the National Class with written express warranties including, but not limited to, warranties that the glyphosate present in Roundup “targets an enzyme found in plants but not in people or pets.” 172. Plaintiffs and members of the National Class purchased Roundup Products believing them to conform to the express warranties. 173. Defendants breached these warranties. 174. As a proximate result of the breach of warranties by Defendants, Plaintiffs and the members of the National Class did not receive goods as warranted and did not receive the benefit of the bargain. They have, therefore, been injured and have suffered damages in an amount to be proven at trial. Violations of California’s Consumers Legal Remedies Act Violations of Wisconsin’s Deceptive Trade Practices Act

lose

11. On information and belief, on or about May 2, 2013, Defendants transmitted by telephone facsimile machine an unsolicited facsimile to Plaintiff. A copy of the facsimile is attached hereto as Exhibit A. 13. Plaintiff had not invited or given permission to Defendants to send the fax. 14. On information and belief, Defendants faxed the same and other unsolicited facsimiles without the required opt-out language to Plaintiff and more than 25 other recipients or sent the same and other advertisements by fax with the required opt-out language but without first receiving the recipients’ express invitation or permission. 15. There is no reasonable means for Plaintiff (or any other class member) to avoid receiving unauthorized faxes. Fax machines are left on and ready to receive the urgent communications their owners desire to receive. 16. Defendants’ facsimile attached as Exhibit A did not display a proper opt-out notice as required by 47 C.F.R. § 64.1200. 17. In accordance with Fed. R. Civ. P. 23(b)(1), (b)(2) and (b)(3), Plaintiff brings this class action pursuant to the JFPA, on behalf of the following class of persons: All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) from which Defendants did not have prior express invitation or permission, or (4) which did not display a proper opt-out notice. Excluded from the Class are the Defendants, their employees, agents and members of the Judiciary. Plaintiff seeks to certify a class which include but are not limited to the fax advertisements sent to Plaintiff. Plaintiff reserves the right to amend the class definition upon completion of class certification discovery. 20. Typicality (Fed. R. Civ. P. 23 (a) (3)): The Plaintiff's claims are typical of the claims of all class members. The Plaintiff received the same or similar faxes as the faxes sent by or on behalf of the Defendants advertising products, goods and services of the Defendants during the Class Period. The Plaintiff is making the same claims and seeking the same relief for itself and all class members based upon the same federal statute. The Defendants have acted in the same or in a similar manner with respect to the Plaintiff and all the class members by sending Plaintiff and each member of the class the same or similar faxes or faxes which did not contain the proper opt-out language or were sent without prior express invitation or permission. 21. Fair and Adequate Representation (Fed. R. Civ. P. 23 (a) (4)): The Plaintiff will fairly and adequately represent and protect the interests of the class. It is interested in this matter, has no conflicts, and has retained experienced class counsel to represent the class. 22. Need for Consistent Standards and Practical Effect of Adjudication (Fed. R. Civ. P. 23 (b) (1)): Class certification is appropriate because the prosecution of individual actions by class members would: (a) create the risk of inconsistent adjudications that could establish incompatible standards of conduct for the Defendants, and/or (b) as a practical matter, adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are not parties. 25. The JFPA makes it unlawful for any person to “use any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement . . . .” 47 U.S.C. § 227(b)(1)(C). 26. The JFPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227 (a) (5). 29. The Fax. Defendants sent the advertisement on or about May 2, 2013, via facsimile transmission from telephone facsimile machines, computers, or other devices to the telephone lines and facsimile machines of Plaintiff and members of the Plaintiff Class. The Fax constituted an advertisement under the Act. Defendants failed to comply with the Opt-Out Requirements in connection with the Fax. The Fax was transmitted to persons or entities without their prior express invitation or permission and/or Defendants are precluded from asserting any prior express invitation or permission or that Defendants had an established business relationship with Plaintiff and other members of the class, because of the failure to comply with the Opt-Out Notice Requirements. By virtue thereof, Defendants violated the JFPA and the regulations promulgated thereunder by sending the Fax via facsimile transmission to Plaintiff and members of the Class. Plaintiff seeks to certify a class which includes this fax and all others sent during the four years prior to the filing of this case through the present. 31. The TCPA/JFPA provides a private right of action to bring this action on behalf of Plaintiff and the Plaintiff Class to redress Defendants’ violations of the Act, and provides for statutory damages. 47 U.S.C. § 227(b)(3). The Act also provides that injunctive relief is appropriate. Id. 32. The JFPA is a strict liability statute, so the Defendants are liable to the Plaintiff and the other class members even if their actions were only negligent. 33. The Defendants knew or should have known that (a) the Plaintiff and the other class members had not given express invitation or permission for the Defendants or anybody else to fax advertisements about the Defendants’ products, goods or services; (b) the Plaintiff and the other class members did not have an established business relationship; (c) Defendants transmitted advertisements; (d) the Faxes did not contain the required Opt-Out Notice; and (e) Defendants’ transmission of advertisements that did not contain the required opt-out notice or were sent without prior express invitation or permission was unlawful.

lose

(Declaratory Relief) (on behalf of Plaintiff and the Class) 110. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 111. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that Pfchangs.com contains access barriers denying blind customers the full and equal access to the goods, services and facilities of Pfchangs.com and by extension P.F. Chang’s Restaurants, which P.F. Chang’s owns, operates, and/or controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Administrative Code § 8-107, et seq. prohibiting discrimination against the blind. 112. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. WHEREFORE, Plaintiff prays for judgment as set forth below. (Violation of 42 U.S.C. §§ 12181, et seq. — Title III of the Americans with Disabilities Act) (on behalf of Plaintiff and the Class) (Violation of New York State Civil Rights Law, NY CLS Civ R, Article 4 (CLS Civ R § 40 et seq.) (on behalf of Plaintiff and New York subclass) (Violation of New York City Human Rights Law, N.Y.C. Administrative Code § 8-102, et seq.) (on behalf of Plaintiff and New York subclass) (Violation of New York State Human Rights Law, N.Y. Exec. Law, Article 15 (Executive Law § 292 et seq.) (on behalf of Plaintiff and New York subclass) 22. Plaintiff seeks certification of the following New York subclass pursuant to Fed.R.Civ.P. 23(a), 23(b)(2), and, alternatively, 23(b)(3): “all legally blind individuals in New York State who have attempted to access Pfchangs.com and as a result have been denied access to the enjoyment of goods and services offered in P.F. Chang’s Restaurants, during the relevant statutory period.” 23. There are hundreds of thousands of visually impaired persons in New York State. There are approximately 8.1 million people in the United States who are visually impaired. Id. Thus, the persons in the class are so numerous that joinder of all such persons is impractical and the disposition of their claims in a class action is a benefit to the parties and to the Court. 24. This case arises out of Defendant’s policy and practice of maintaining an inaccessible website denying blind persons access to the goods and services of Pfchangs.com and P.F. Chang’s Restaurants. Due to Defendant’s policy and practice of failing to remove access barriers, blind persons have been and are being denied full and equal access to independently browse, select and shop on Pfchangs.com and by extension the goods and services offered through Defendant’s website to P.F. Chang’s Restaurants. 26. The claims of the named Plaintiff are typical of those of the class. The class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that P.F. Chang’s has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on their website, Pfchangs.com, so it can be independently accessible to the class of people who are legally blind. 27. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the members of the class. Class certification of the claims is appropriate pursuant to Fed. R. Civ P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 29. Judicial economy will be served by maintenance of this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 30. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the class, unless otherwise indicated. 31. P.F. Chang’s operates P.F. Chang’s Restaurants, a casual dining Chinese restaurant that serves other Asian cuisine with locations throughout the United States. The company currently operates approximately 5 restaurants in the state of New York. 32. Pfchangs.com is a service and benefit offered by P.F. Chang’s and P.F. Chang’s Restaurants throughout the United States, including New York State. Pfchangs.com is owned, controlled and/or operated by P.F. Chang’s. 33. Pfchangs.com is a commercial website that offers products and services for online sale that are available in P.F. Chang’s restaurant locations. The online store allows the user to browse menu items, order its selection of soups, salads, desserts, and gift cards; sign up for a P.F. Chang’s preferred card and view nutrition information, find restaurant locations; and perform a variety of other functions. 35. This case arises out of P.F. Chang’s policy and practice of denying the blind access to Pfchangs.com, including the goods and services offered by P.F. Chang’s restaurants through Pfchangs.com. Due to P.F. Chang’s failure and refusal to remove access barriers to Pfchangs.com, blind individuals have been and are being denied equal access to P.F. Chang’s Restaurants, as well as to the numerous goods, services and benefits offered to the public through Pfchangs.com. 36. P.F. Chang’s denies the blind access to goods, services and information made available through Pfchangs.com by preventing them from freely navigating Pfchangs.com. 37. The Internet has become a significant source of information for conducting business and for doing everyday activities such as shopping, banking, etc., for sighted and blind persons. 38. The blind access websites by using keyboards in conjunction with screen-reading software which vocalizes visual information on a computer screen. Except for a blind person whose residual vision is still sufficient to use magnification, screen access software provides the only method by which a blind person can independently access the Internet. Unless websites are designed to allow for use in this manner, blind persons are unable to fully access Internet websites and the information, products and services contained therein. 40. Pfchangs.com contains access barriers that prevent free and full use by Plaintiff and blind persons using keyboards and screen reading software. These barriers are pervasive and include, but are not limited to: lack of alt-text on graphics, inaccessible forms, inaccessible image maps, the lack of adequate prompting and labeling; the denial of keyboard access; and the requirement that transactions be performed solely with a mouse. 42. Similarly, Pfchangs.com lacks accessible image maps. An image map is a function that combines multiple words and links into one single image. Visual details on this single image highlight different "hot spots," which, when clicked on, allow the user to jump to many different destinations within the website. For an image map to be accessible, it must contain alt-text for the various "hot spots." The image maps on Pfchangs.com do not contain adequate alt-text and are therefore inaccessible to Plaintiff and other blind individuals. 43. Pfchangs.com also lacks prompting information and accommodations necessary to allow blind shoppers who use screen readers to locate and accurately fill-out online forms. On a shopping site such as Pfchangs.com, these forms include search fields to locate menu items, fields that specify the number of items desired, and fields used to fill-out personal information, including address and credit card information. Due to the lack of adequate labeling, Plaintiff and blind customers cannot easily make purchases or inquiries as to P.F. Chang’s menu items or specials, nor can they enter their personal identification and financial information with confidence and security. 44. More specifically, Plaintiff and blind customers are prevented from ordering online, accessing the menu options, and using the restaurant locator due to Pfchangs.com’s pop-up features. In addition, the complexity in selection options in the final stage of purchasing a P.F. Chang’s gift card makes it impossible to complete the transaction. 46. Pfchangs.com requires the use of a mouse to complete a transaction. Yet, it is a fundamental tenet of web accessibility that for a web page to be accessible to Plaintiff and blind people, it must be possible for the user to interact with the page using only the keyboard. Indeed, Plaintiff and blind users cannot use a mouse because manipulating the mouse is a visual activity of moving the mouse pointer from one visual spot on the page to another. Thus, Pfchangs.com’s inaccessible design, which requires the use of a mouse to complete a transaction, denies Plaintiff and blind customers the ability to independently make purchases on Pfchangs.com. 47. Due to Pfchangs.com’s inaccessibility, Plaintiff and blind customers must in turn spend time, energy, and/or money to make their purchases at a P.F. Chang’s restaurant. Blind customers would have to wait longer at the restaurant or require assistance in navigating the restaurant. By contrast, if Pfchangs.com was accessible, a blind person could independently investigate products and programs and make purchases via the Internet as sighted individuals can and do, and not have to endure an extended wait. 48. Pfchangs.com thus contains access barriers which deny full and equal access to Plaintiff, who would otherwise use Pfchangs.com and who would otherwise be able to fully and equally enjoy the benefits and services of P.F. Chang’s restaurants in New York State. 49. Plaintiff JOSE DEL-ORDEN has made numerous attempts to complete a purchase on Pfchangs.com, most recently in March 2016, but was unable to do so independently because of the many access barriers on Defendant’s website, causing Pfchangs.com to be inaccessible and not independently usable by, blind and visually impaired individuals. 51. These barriers to access have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits and services of Pfchangs.com and P.F. Chang’s Restaurants. 52. P.F. Chang’s engaged in acts of intentional discrimination, including but not limited to the following policies or practices: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 53. P.F. Chang’s utilizes standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 54. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 56. P.F. Chang’s Restaurants located in New York State and throughout the United States are sales establishments and public accommodations within the definition of 42 U.S.C. § 12181(7)(E). Pfchangs.com is a service, privilege or advantage of P.F. Chang’s Restaurants. Pfchangs.com is a service that is by and integrated with these restaurants. 57. Defendant is subject to Title III of the ADA because they own and operate P.F. Chang’s Restaurants. 58. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(I) it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 59. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(II), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 60. Specifically, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(II), unlawful discrimination includes, among other things, “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.” 62. There are readily available, well established guidelines on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 63. The acts alleged herein constitute violations of Title III of the ADA, 42 U.S.C. § 12101 et seq., and the regulations promulgated thereunder. Patrons of P.F. Chang’s Restaurants who are blind have been denied full and equal access to Pfchangs.com, have not been provided services that are provided to other patrons who are not disabled, and/or have been provided services that are inferior to the services provided to non-disabled patrons. 64. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 66. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the proposed class and subclass will continue to suffer irreparable harm. 67. The actions of Defendant were and are in violation of the ADA and therefore Plaintiff invokes his statutory right to injunctive relief to remedy the discrimination. 68. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 69. Pursuant to 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 70. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 71. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation … because of the … disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 73. Defendant is subject to New York Human Rights Law because they own and operate the P.F. Chang’s Restaurants and Pfchangs.com. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 74. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to Pfchangs.com, causing Pfchangs.com and the services integrated with P.F. Chang’s Restaurants to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 75. Specifically, under N.Y. Exec. Law § 296(2)(c)(I), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 76. In addition, under N.Y. Exec. Law § 296(2)(c)(II), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 78. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the New York State Human Rights Law, N.Y. Exc. Law § 296(2) in that Defendant has: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 79. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 80. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Pfchangs.com and P.F. Chang’s Restaurants under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 82. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines pursuant to N.Y. Exc. Law § 297(4)(c) et seq. for each and every offense. 83. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 84. Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 85. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 86. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 87. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof …” 89. P.F. Chang’s Restaurants located in New York State and throughout the United States are sales establishments and public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Pfchangs.com is a service, privilege or advantage of P.F. Chang’s Restaurants. Pfchangs.com is a service that is by and integrated with these restaurants. 90. Defendant is subject to New York Civil Rights Law because they own and operate P.F. Chang’s Restaurants and Pfchnags.com. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 91. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to Pfchangs.com, causing Pfchangs.com and the services integrated with P.F. Chang’s Restaurants to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 92. There are readily available, well established guidelines on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 94. Specifically, under NY Civ Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside …” 95. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 96. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 97. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines pursuant to N.Y. Civil Law § 40 et seq. for each and every offense. 98. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein.

win

2:16-cv-13060-NGE-SDD Doc # 1 Filed 08/23/16 Pg 19 of 23 Pg ID 19 20 Connecticut Consumer Protection Act, §§ 42-110 et seq. (On Behalf of the Connecticut Subclass) 50. Plaintiffs incorporate by reference each and every preceding allegation as if it is specifically set forth herein. 51. Defendants engaged in commercial conduct by selling the EpiPens and placing them into the stream of commerce. 52. Defendants made misstatements regarding the EpiPens by suggesting that two were required for effectiveness and that this requirement was the reason they were selling the two packs only; omitted material information concerning the EpiPens, such as their effectiveness in single doses and the reason for the two pack requirements; and engaged in unconscionable, unfair, and/or deceptive acts by 2:16-cv-13060-NGE-SDD Doc # 1 Filed 08/23/16 Pg 14 of 23 Pg ID 14 15 requiring consumers to buy the EpiPens as two packs. These deceptive and/or misleading representations regarding EpiPens would have deceived an objectively reasonable person. 53. Defendants’ unfair practices offend public policy and are immoral, unethical, oppressive, unscrupulous, and substantially injurious to consumers. 54. Plaintiffs and members of the Class would not have purchased the two packs had they been fully informed regarding the above-referenced policies and procedures, or only would have done so in light of the risk to their health from avoiding such purchase. 55. Defendants profited from the two pack requirement for EpiPens, which was a thinly veiled mechanism for increasing their price. 56. Defendants’ concealment of material facts, including the effectiveness of single EpiPens doses and the actual reason for the two pack requirement, constitutes unconscionable commercial practices, deception, false pretenses, the knowing concealment, suppression, or omissions of material facts with the intent that others would rely on such concealment, suppression, or omission in connection with the sale of the EpiPens under the substantially similar Consumer Protection laws of all other states in which Defendants do business. 57. State legislatures generally enact Unfair Trade and Deceptive Practices Acts and/or Consumer Protection Acts to protect consumers from 2:16-cv-13060-NGE-SDD Doc # 1 Filed 08/23/16 Pg 15 of 23 Pg ID 15 16 deceptive, fraudulent, and unconscionable trade and business practices. Defendants violated these statutes by falsely representing that two doses of EpiPens were required in order to purportedly justify the Double Pack requirement and attendant price increase. 58. Defendants’ acts violate the applicable Unfair Trade and Deceptive Practices Acts and/or Consumer Protection Acts of all States where Defendants do business. 59. Defendants’ acts rise to the level of intentional, willful, and wanton misconduct and/or gross negligence. 60. As a direct and proximate result of Defendants’ acts and violations of the applicable Unfair Trade and Deceptive Practices Acts and/or Consumer Protection Acts of all States where Defendants do business, Plaintiffs and members of the Class have suffered actual damages. 61. Plaintiffs and members of the Class are entitled to recover statutory penalties, actual, consequential, and punitive damages, equitable and declaratory relief, costs and reasonable attorneys’ fees. 62. Plaintiffs repeat and reallege each and every allegation set forth above as if fully set forth herein. 2:16-cv-13060-NGE-SDD Doc # 1 Filed 08/23/16 Pg 16 of 23 Pg ID 16 17 63. The Kentucky Consumer Protection Act prohibits “[u]nfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” Ky. Rev. Stat. Ann. 367.170. 64. Plaintiff Debra Bailey and members of the Kentucky Subclass purchased “goods or services primarily for personal, family or household purposes” as alleged herein. 65. Defendants engaged in unfair, false, misleading, or deceptive acts or practices through the unlawful conduct alleged herein. 66. As a result of Defendants’ unfair, false, misleading, or deceptive acts or practices alleged herein, Plaintiff Debra Bailey and the members of the Kentucky Subclass have suffered damages and an ascertainable loss of money or property in an amount to be determined at trial. 67. Plaintiff Debra Bailey and members of the Class are entitled to recover statutory penalties, actual, consequential, and punitive damages, equitable and declaratory relief, costs and reasonable attorneys’ fees. 68. Plaintiffs repeat and reallege each and every allegation set forth above as if fully set forth herein. 2:16-cv-13060-NGE-SDD Doc # 1 Filed 08/23/16 Pg 17 of 23 Pg ID 17 18 69. The Michigan Consumer Protection Act prohibits “Unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce.” MCL § 445.903. 70. Plaintiffs Anastasia Johnston, individually and on behalf of Claire Johnston, Claire Johnston, and Karl Thomsen and members of the Michigan Subclass purchased “goods or services primarily for personal, family or household purposes” as alleged herein. 71. Defendants engaged in unfair, false, misleading, or deceptive acts or practices through the unlawful conduct alleged herein. 72. As a result of Defendants’ unfair, false, misleading, or deceptive acts or practices alleged herein, Plaintiffs Anastasia Johnston, individually and on behalf of Claire Johnston, Claire Johnston, and Karl Thomsen and the members of the Michigan Subclass have suffered damages and an ascertainable loss of money or property in an amount to be determined at trial. 73. Plaintiffs Anastasia Johnston, individually and on behalf of Claire Johnston, Claire Johnston, and Karl Thomsen and members of the Class are entitled to recover statutory penalties, actual, consequential, and punitive damages, equitable and declaratory relief, costs and reasonable attorneys’ fees. 74. Plaintiffs repeat and reallege each and every allegation set forth above as if fully set forth herein. 75. The New Hampshire Consumer Protection Act prohibits “any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state.” N.H. Rev. Stat. Ann. 80. Plaintiffs repeat and reallege each and every allegation set forth above as if fully set forth herein. 81. The Connecticut Consumer Protection Act prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat. Ann. § 42-110b. 82. Plaintiff Rachel Fernandez, individually and on behalf of minor Hope Moran, and members of the Connecticut Subclass purchased goods or services primarily for personal, family or household purposes as alleged herein. 83. Defendants engaged in unfair, false, misleading, or deceptive acts or practices through the unlawful conduct alleged herein. 84. As a result of Defendants’ unfair, false, misleading, or deceptive acts or practices alleged herein, Plaintiff Rachel Fernandez, on behalf of herself and minor Hope Moran, and the members of the Connecticut Subclass have suffered damages and an ascertainable loss of money or property in an amount to be determined at trial. 85. Plaintiff Rachel Fernandez, individually and on behalf of minor Hope Moran, and members of the Class are entitled to recover statutory penalties, actual, consequential, and punitive damages, equitable and declaratory relief, costs and reasonable attorneys’ fees. 2:16-cv-13060-NGE-SDD Doc # 1 Filed 08/23/16 Pg 20 of 23 Pg ID 20 21 86. Plaintiffs re-allege and incorporate by reference all prior paragraphs. 87. Defendants’ conduct described herein was malicious, willful, reckless, and/or wanton. 88. Defendants’ financial benefits resulting from their unlawful and inequitable conduct are economically traceable to their misleading statements regarding the need for double doses of EpiPens and the reason for their two pack- only sales strategy. 89. The Class has conferred Defendants an economic benefit nature of ill- gotten profits resulting from unlawful and inequitable conduct to the Class Members’ detriment. 90. Defendants’ economic benefit is a direct and proximate result of Defendants’ unlawful practices and conduct. 91. It would be inequitable and unjust for Defendants to retain any of the unlawful gains and/or profits resulting from its unlawful and inequitable conduct. 92. Plaintiffs and members of the Class are entitled to recover statutory penalties, actual, consequential, and punitive damages, equitable and declaratory relief, costs and reasonable attorneys’ fees. Kentucky Consumer Protection Act, KRS §§ 367.110 et seq. (On Behalf of the Kentucky Subclass) Michigan Consumer Protection Act, MCL § 445.901 et seq. (On Behalf of the Michigan Subclass) New Hampshire Consumer Protection Act, RSA §§ 358-A et seq. (On Behalf of the New Hampshire Subclass) 2:16-cv-13060-NGE-SDD Doc # 1 Filed 08/23/16 Pg 18 of 23 Pg ID 18 19 Unjust Enrichment, Restitution, and Disgorgement Violation of State Deceptive and Unfair Trade Practice Acts and/or Consumer Protection Acts

lose

23. Defendant is an online shaving product retailer. Defendant manufactures, markets and sells shaving equipment and men’s personal care products, which can be purchased individually or order via subscription on Defendant’s website, www.harrys.com (its “Website”). Defendant owns, operates, manages, and controls www.harrys.com, which allows Defendant to sell shaving equipment, razors, and other personal care products on state, national and international scale. 24. Defendant’s Website is a commercial marketplace. The Website offers features of a physical marketplace in that it allows all consumers to browse goods and services, provides details about the products, notifies them of special sale or clearance items, and completes purchases of products, which Defendant will thereafter ensure the delivery of throughout the United States, including in New York State. 25. Defendant’s Website is integrated with its retail business operations, serving as its gateway. The Website offers products and services for online sale and general -9- delivery to the public. The Website offers features which ought to allow users to learn about Defendant’s products and services, browse for items or information, access navigation bar descriptions, view prices, savings, coupons, and other sale or discount items, and peruse the numerous items offered for sale. The features offered by www.harrys.com include products descriptions, information about the company, review boards, and purchase portals. 26. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff and other blind or visually-impaired users access to its Website, thereby denying the facilities and services that are offered and integrated with its retail operations. Due to its failure and refusal to remove access barriers to its Website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s retail operations and the numerous facilities, goods, services, and benefits offered to the public through its Website. 27. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff has visited the Website on separate occasions using her NVDA screen-reader. 28. During Plaintiff’s visits to the Website, www.harrys.com, the last occurring in September of 2020, Plaintiff encountered multiple access barriers which effectively denied her the full enjoyment of the goods and services of the Website. Plaintiff visited Defendant’s Website with an intent to browse and attempt to purchase a shaving set for her husband. Despite her efforts, however, Plaintiff was denied a shopping experience similar to that of a sighted individual due to the website’s lack -10- of a range of features and accommodations, which effectively barred Plaintiff from being able to make her desired purchase. 29. Many features on the Website lacks alt. text, which is the invisible code embedded beneath a graphical image. As a result, Plaintiff was unable to differentiate what products were on the screen due to the failure of the Website to adequately describe its content. This was especially problematic on Defendant’s website because to Plaintiff, who can barely see the images on the screen, all of the images of Defendant’s shaving sets looked to be utterly identical. And with no alt. text embedded in the images to describe the sets differences, this led Plaintiff to aimlessly attempt to unsuccessfully navigate until her screen reader would read something to her in an effort to guide her with browsing and attempting to purchase a product on Defendant’s website.. 30. Additionally, many features on the Website also fail to add a label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what she or she is expected to insert into the subject field. This was an issue on Defendant’s Website particularly in the scent and color-selection sections. As a result, Plaintiff and similarly situated visually- impaired users of Defendant’s Website are unable to enjoy the privileges and benefits of the Website equally to sighted users. 31. The Website also contained a host of broken links, which is a hyperlink to a non- existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website -11- once a broken link is encountered. For example, upon coming across a link of interest, Plaintiff was redirected to an error page. However, the screen-reader failed to communicate that the link was broken. As a result, Plaintiff could not get back to her original search. 32. Moreover, because www.harrys.com contains numerous navigational buttons lacking alt. text, Plaintiff’s screen reader could not help her navigate the pages of the site at all, and she quickly found herself hopelessly lost within the site with just a few clicks of her mouse. 33. Worse still, when Plaintiff finally stumbled on a shaving set she thought her husband would like, the “Winston” set, she found that no matter how hard she tried, the site would not let her add just that set to her cart and checkout. Every time Plaintiff selected the “Add to Cart” button, it appeared that nothing would happen. She eventually tried to navigate to the checkout page itself, but she was completely unable to figure out how to get to this page because her reader could not locate the button that would take her to the checkout screen. 34. Plaintiff has made multiple strides and attempts to complete a purchase on www.harrys.com, most recently in September of 2020, but was unable to do so independently because of the many access barriers on Defendant’s website. These access barriers have caused www.harrys.com to be inaccessible to, and not independently usable by, blind and visually-impaired persons. 35. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the -12- past, and now deter and bar Plaintiff on a regular basis from returning and accessing the Website in the near future to successfully complete a purchase. 36. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, products, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from visiting the Website, presently and in the future. 37. But for the Website’s access barriers, Plaintiff would have returned to and further utilized Defendant’s Website. 38. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 39. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 40. Because simple compliance with the WCAG 2.1 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive -13- so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 41. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 42. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 43. Because Defendant’s Website has never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring: a. that Defendant retain a qualified consultant acceptable to Plaintiff (“Mutually Agreed Upon Consultant”) who shall assist it in improving the accessibility of its Website so the goods and services on them may be equally accessed and enjoyed by individuals with vision related disabilities; 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, -14- including onsite training to create accessible content at the design and development stages; c. that Defendant work with the Mutually Agreed Upon Consultant to perform an automated accessibility audit on a periodic basis to evaluate whether Website may be equally accessed and enjoyed by individuals with vision related disabilities 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 Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; 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 tollfree phone number to report accessibility-related problems; and f. that Plaintiff, their counsel and its experts monitor Defendant’s Website for up to two years after the Mutually Agreed Upon Consultant validates it is free of accessibility errors/violations to ensure it has adopted and implemented adequate accessibility policies. 44. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. -15- 45. Defendant has, upon information and belief, invested substantial amounts of money in developing and maintaining its Website and, through the site, has generated significant revenue. The invested amounts are far greater than the associated cost of making their Website equally accessible to visually-impaired consumers. 46. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 47. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period. 48. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 49. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL and the NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment -16- of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL and the NYCHRL. 50. Plaintiff’s claims are typical of the Class. The Class, similarly, to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA, NYSHRL, and the NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 51. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 52. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 53. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial -17- system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 54. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 55. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 56. Defendant’s Website is a public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general public, and as such, must be equally accessible to all potential consumers. 57. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 58. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 59. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: -18- [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 60. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 61. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 62. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 72 of this Complaint as though set forth at length herein. 63. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.”. 64. The Website www.harrys.com is a sales establishment and public accommodation within the definition of N.Y. Exec. Law § 292(9). 65. Defendant is subject to the New York Human Rights Law because it owns and operates www.harrys.com. Defendant is a person within the meaning of N.Y. Exec. Law. § 292(1). 66. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its site, causing www.harrys.com to be completely inaccessible to the blind. This inaccessibility denies blind patrons the full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 67. Specifically, under N.Y. Exec. Law, “unlawful discriminatory practice” includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications -20- would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 68. In addition, under N.Y. Exec. Law § 296(2)(c)(II), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 69. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed by using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 70. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296(2) in that Defendant has: (a) constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 71. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. -21- 72. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of www.harrys.com under N.Y. Exec. Law § 296(2) et seq. and/or its implementing regulations. 73. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 74. The actions of Defendant were and are in violation of the NYSHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 75. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines pursuant to N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 76. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 77. Pursuant to N.Y. Exec. Law § 297, and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. 78. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 79. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, -22- withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 80. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 81. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 82. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with such Website to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, products, and services that Defendant makes available to the non-disabled public. 83. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 84. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive -23- and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 85. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 86. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the products, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 87. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 88. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 89. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 90. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 91. Plaintiff, on behalf of herself and the Class and New York City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 92. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the products, services, and facilities of its Website, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 93. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF -24- VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL -19-

win

(26 Me. Rev. Stat. §§ 664, 670: Overtime Wages) (Brought on Behalf of Plaintiff Gagnon and All Maine Class Members) (FLSA: UNPAID OVERTIME WAGES) (Brought on Behalf of Plaintiff and All Putative Collective Action Members) (Maine Law: Unpaid Wages) (Brought on Behalf of Plaintiff Gagnon and All Maine Class Members) 23. Defendant employed Plaintiff and the Putative Collective Action Members and Maine Class Members within the relevant periods. 24. Defendant maintained control, oversight, and discretion over the operation of its restaurants, including its employment practices with respect to Plaintiff, the Putative Collective Action Members, and the Maine Class Members, within the relevant periods. 6 25. Plaintiff, the Putative Collective Action Members, and the Maine Class Members performed work as DMs or ADMs that was integrated into the normal course of Defendant’s business, within the relevant periods. 26. Consistent with Defendant’s policy, pattern and practice, Plaintiff, the Putative Collective Action Members, and the Maine Class Members regularly worked in excess of 40 hours per workweek without being paid overtime premium wages, in violation of the FLSA and Maine Law, within the relevant periods. As but one non-exhaustive example, Plaintiff Gagnon worked more than 40 hours during the week of July 4, 2016. 27. Hannaford assigned all of the work performed by Plaintiff, the Putative Collective Action Members, and the Maine Class Members, and is aware of all the work that they have performed, within the relevant periods. 28. This work required no capital investment. Nor did it include primarily managerial responsibilities, or the exercise of meaningful independent judgment and discretion. 29. During the FLSA relevant period and the Maine relevant period, Plaintiff, the Putative Collective Action Members, and the Maine Class Members performed the same primary job duties: selling the grocery products and services that constitute Defendant’s marketplace offerings, helping and serving customers, cleaning, checking to make sure that supplies were properly shelved, and checking inventory. 30. Throughout the relevant periods, the primary job duties of Plaintiff and all similarly situated Putative Collective Action Members and Maine Class Members did not include: hiring, firing, disciplining, or directing the work of other employees, and exercising meaningful independent judgment and discretion. 7 31. Throughout the relevant periods, the primary job duties of Plaintiff, the Putative Collective Action Members, and the Maine Class Members did not materially differ from the duties of non-exempt hourly paid employees, which included many duties that were manual and non-exempt in nature. The performance of manual labor and non-exempt duties occupied the majority of Plaintiff’s working hours. 32. Pursuant to a centralized, company-wide policy, pattern and practice, Defendant classified all Putative Collective Action Members as exempt from the overtime provisions of the FLSA and Maine Law, within the relevant periods. 33. Upon information and belief, Defendant did not perform a person-by-person analysis of the job duties of the Putative Collective Action Members when making the decision to classify all of them uniformly as exempt from the overtime protections of the FLSA and Maine Law during their employment in the relevant periods. 34. Pursuant to a centralized, company-wide policy, pattern and practice, Defendant increased uniformly the salaries for Plaintiff and all Putative Collective Action Members effective on or about December 1, 2016 to at or above the minimum salary threshold for claiming exempt status that was announced by the U.S. Department of Labor’s new overtime rules scheduled to become effective December 1, 2016. 35. Upon information and belief, Defendant did not perform a person-by-person analysis of the job duties of Plaintiff and the Putative Collective Action Members when making the decision to increase uniformly the salaries of all of them effective on or about December 1, 2016 to meet or exceed the minimum salary level required to continue claiming that those positions are exempt from the overtime protections of the FLSA and Maine Law. 8 36. Throughout the relevant periods, Defendant established labor budgets to cover labor costs for the store in which Plaintiff and the Putative Collective Action Members worked. The wages of Defendant’s store-level employees were deducted from the labor budgets. However, Defendant did not provide sufficient money in the labor budgets to cover all hours needed to complete the necessary manual and non-exempt tasks in each store. Defendant knew or recklessly disregarded the fact that the underfunding of store labor budgets resulted in Plaintiff and other Putative Collective Action Members (who were not paid overtime) working more than 40 hours in a workweek without receiving any overtime premium compensation, which allowed Defendant to avoid paying additional wages (including overtime) to the non- exempt, store-level employees. 37. Throughout the relevant periods, Defendant knew, by virtue of the fact that their Store Managers, Assistant Store Managers, and their managers (as its authorized agents) actually saw Plaintiff and other Putative Collective Action Members perform primarily manual labor and non-exempt duties, that as a result of the underfunded labor budgets, the amount of money available to pay non-exempt employees to perform such work was limited (and, ultimately, insufficient). Within the relevant periods, Defendant knew that Plaintiff and other Putative Collective Action Members were primarily performing the work of non-exempt employees and, based on their actual job duties, they did not fall within any FLSA or Maine Law exemptions. Inasmuch as Defendant is a substantial corporate entity aware of its obligations under the FLSA and Maine Law, it acted willfully or recklessly in failing to classify and pay Plaintiff and the Putative Collective Action Members as non-exempt employees. 38. Throughout the relevant periods, Defendant is aware or should have been aware, through the Store Managers, Assistant Managers, and their managers (as their authorized 9 agents), that Plaintiff and the Putative Collective Action Members were primarily performing non-exempt duties. As a supermarket chain operating at over 180 locations in the United States and over 70 locations in Maine, Defendant knew or recklessly disregarded the fact that the FLSA and Maine Law required Defendant to pay non-exempt employees an overtime premium for hours worked in excess of 40 per workweek. 39. Defendant’s unlawful conduct, as described above, was willful or in reckless disregard of the FLSA and Maine Law and was accomplished through Defendant’s centralized, company-wide policy, pattern, and practice of attempting to minimize labor costs by violating the FLSA and Maine Law. 40. As part of its regular business practice within the relevant periods, Defendant intentionally, willfully, and repeatedly engaged in a policy, pattern, and practice of violating the FLSA and Maine Law with respect to Plaintiff, the Putative Collective Action Members and the Maine Class Members. This policy, pattern, and practice includes, but it is not limited to, Defendant’s knowledge of its obligations and the kind of work that Plaintiff, the Putative Collective Action Members, and the Maine Class Members were, and have been, performing. As a result, Defendant has: a. willfully misclassified Plaintiff, the Putative Collective Action Members, and the Maine Class Members; b. willfully failed to pay Plaintiff, the Putative Collective Action Members, and the Maine Class Members overtime wages for hours they worked in excess of 40 hours per week; and c. willfully failed to provide enough money in their store-level labor budgets for non-exempt employees to perform their duties and responsibilities, forcing 10 Plaintiff, the Putative Collective Action Members, and the Maine Class Members to perform such non-exempt tasks. 41. Defendant’s willful violations of the FLSA and Maine Law are further demonstrated by the fact that during the relevant periods, Defendant has failed to maintain accurate and sufficient time records for Plaintiff and the Putative Collective Action Members and the Maine Class. Defendant acted recklessly or in willful disregard of the FLSA and Maine Law by instituting a policy and practice that did not allow Plaintiff to record all hours worked during the relevant periods. 42. Due to the foregoing, Defendant’s failure to pay overtime wages for work performed by the Putative Collective Action Members and Maine Class Members in excess of 40 hours per workweek was willful or reckless, and has been widespread, repeated, and consistent. 43. Pursuant to 29 U.S.C. §§ 207 and 216(b), Plaintiff seeks to prosecute her FLSA claims as a Collective Action on behalf of all Putative Collective Action Members at any time during the FLSA relevant period. 44. Defendant is liable under the FLSA for, inter alia, failing to pay premium overtime wages during the FLSA relevant period to Plaintiff and the Putative Collective Action Members for all hours worked over 40 in any given workweek. 45. Upon information and belief, there are likely hundreds of Putative Collective Action Members who were not paid premium overtime wages during the FLSA relevant period in violation of the FLSA and who would benefit from the issuance of a court-supervised notice 11 of this lawsuit and the opportunity to join. Thus, notice should be sent to the Putative Collective Action Members pursuant to 29 U.S.C. § 216(b). 46. The Putative Collective Action Members are known to Defendant, are readily identifiable, and can be located through Defendant’s records. 47. Plaintiff Gagnon, pursuant to Fed. R. Civ. P. 23, brings this class action on behalf of herself and all other DMs and ADMs who were paid a salary by Defendant but were not paid overtime premiums for working more than 40 hours in a workweek in the state of Maine during the Maine relevant period under Maine law (the “Maine Class Members”). Plaintiff alleges that the Maine Class Members are entitled to, inter alia: (i) unpaid overtime wages for hours worked above forty (40) hours in a workweek, as required by law, and (ii) liquidated damages, penalties, interest, reimbursement of attorney’s fees and costs, and all other available relief under the applicable statutes pursuant to Maine law. 48. Plaintiff Gagnon, individually and on behalf of all other DMs and ADMs who terminated employment with Defendant during the Maine relevant period, hereby makes demand for the prompt payment of all unpaid wages due and owing under Maine Law, and, pursuant to Fed. R. Civ. P. 23, brings this class action on behalf of a subclass including herself and all other DMs and ADMs who suffered damages due to failure to pay required overtime wages upon termination under 26 Me. Rev. Stat. § 626 as a result of Defendant’s violations of Maine Law in the state of Maine during the Maine relevant period under Maine law (the “Maine Termination Subclass Members”). Plaintiff alleges that the Maine Class Members are entitled to, inter alia: (i) unpaid overtime wages for hours worked above forty (40) hours in a workweek, as required by law, and (ii) liquidated damages, penalties, interest, reimbursement of 12 attorney’s fees and costs, and all other available relief under the applicable statutes pursuant to Maine law. 49. Upon information and belief, the Maine Class contains more than 40 persons and is so numerous so that joinder of all individual members is impracticable. 50. Upon information and belief, the Maine Termination Subclass contains more than 40 persons and is so numerous that joinder of all individual members is impracticable. 51. Defendant’s conduct with respect to Plaintiff Gagnon and the Maine Class (and Maine Termination Subclass) raises questions of law and fact that are common to the entire class, including whether Defendant employed Plaintiff Gagnon and all members of the Maine Class within the meaning of Maine Law; the nature and extent of the class-wide injury and the appropriate measure of damages for the Maine Class (and Maine Termination Subclass); whether Defendant had and has a policy of misclassifying the salary-paid DMs and ADMs as exempt from coverage of the overtime provisions of Maine Law; whether Defendant failed to pay Gagnon and all members of the Maine Class (and Maine Termination Subclass) the legally required amount of overtime compensation for hours worked in excess of forty (40) hours per workweek, in violation of Maine Law; and whether Defendant is liable for all damages claimed by Gagnon and all members of the Maine Class (and Maine Termination Subclass). 52. Plaintiff Gagnon’s claims and Defendant’s anticipated defenses are typical of the claims or defenses applicable to the entire class. 53. Plaintiff Gagnon’s interests in pursuing this lawsuit are aligned with the interests of the entire Maine Class (and Maine Termination Subclass). 54. Plaintiff Gagnon will fairly and adequately protect the Maine Class Members’ (and Maine Termination Subclass member’s) interests because her experienced and well- 13 resourced counsel are free of any conflicts of interest and are prepared to vigorously litigate this action on behalf of all Maine Class members (and Maine Termination Subclass members). 55. A class action provides the fairest and most efficient method for adjudicating the legal claims of all Maine Class Members (and Maine Termination Subclass members). 56. Defendant violated Maine Law by failing to pay proper overtime wages to Plaintiff Gagnon and other Maine Class Members (and Maine Termination Subclass members) for workweeks in which they worked over 40 hours. 57. There are questions of law and fact common to the members of the Maine Class (and Maine Termination Subclass) that predominate over any questions solely affecting the individual members of the Maine Class (and Maine Termination Subclass). 58. The critical question of law and fact common to Plaintiff Gagnon and the Maine Class (and Maine Termination Subclass) that will materially advance the litigation is whether Defendant is required by Maine Law to pay Plaintiff Gagnon and the Maine Class (and Maine Termination Subclass) at a rate of 1.5 times their regular hourly rate for overtime hours worked. 59. Other questions of law and fact common to the Maine Class (and Maine Termination Subclass) that will materially advance the litigation include, without limitation: a. Whether Defendant can prove that its unlawful policies were implemented in good faith; b. Whether Defendant is liable for all damages claimed by Gagnon and the Maine Class (and Maine Termination Subclass), including, without limitation, compensatory, punitive and statutory damages, interest, penalties, costs and disbursements, and attorneys’ fees; and 14 c. Whether Defendant should be enjoined from continuing to violate Maine Law in the future. 60. Plaintiff Gagnon’s claims are typical of the claims of the members of the Maine Class (and Maine Termination Subclass). Plaintiff Gagnon has the same interests in this matter as all other members of the Maine Class (and Maine Termination Subclass). 61. Plaintiff Gagnon is an adequate class representative, is committed to pursuing this action, and has retained competent counsel experienced in wage and hour law and class action litigation. 62. Class certification of Plaintiff Gagnon’s claim under Maine Law is appropriate pursuant to FED. R. CIV. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Maine Class (and Maine Termination Subclass), making appropriate declaratory relief with respect to the Maine Class (and Maine Termination Subclass) as a whole. 63. Class certification of Plaintiff Gagnon’s claim under Maine Law is also appropriate pursuant to FED. R. CIV. P. 23(b)(3) because questions of law and fact common to the Maine Class (and Maine Termination Subclass) predominate over questions affecting only individual members of the Maine Class (and Maine Termination Subclass), and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 64. Plaintiff Gagnon knows of no difficulty that would be encountered in the management of this litigation that would preclude its maintenance as a class action. 15 65. Plaintiff, on behalf of herself and all Putative Collective Action Members, re- alleges and incorporates by reference the preceding paragraphs. 66. Throughout the FLSA relevant period, Defendant has been, and continues to be, an employer engaged in interstate commerce and/or the production of goods for commerce, within the meaning of the FLSA, 29 U.S.C. §§ 206(a) & 207(a). 67. Throughout the FLSA relevant period, Defendant employed Plaintiff, and employed or continue to employ each of the Putative Collective Action Members within the meaning of the FLSA. 68. Throughout the FLSA relevant period, Defendant has engaged in a widespread pattern and practice of violating the FLSA, as described in this Complaint. 69. Plaintiff has consented in writing to be parties to this action, pursuant to 29 U.S.C. § 216(b). See Exhibit A. 70. The overtime wage provisions set forth in 29 U.S.C. §§ 201, et seq., apply to Defendant. 71. Throughout the FLSA relevant period, Defendant has had a policy and practice of refusing to pay premium overtime compensation to the Putative Collective Action Members for hours worked in excess of 40 hours per workweek. 72. As a result of Defendant’s willful failure to compensate its employees, including Plaintiff and the Putative Collective Action Members, at a rate not less than one and one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek 16 throughout the FLSA relevant period, Defendant has violated, and continues to violate, the FLSA, 29 U.S.C. §§ 201, et seq., including 29 U.S.C. §§ 207(a)(1) & 215(a). 73. As a result of Defendant’s willful failure to record, report, credit, and compensate its employees, including Plaintiff and the Putative Collective Action Members, throughout the FLSA relevant period, Defendant failed to make, keep, and preserve records with respect to each of its employees sufficient to determine the wages, hours and other conditions and practices of employment in violation of the FLSA, 29 U.S.C. §§ 201, et seq., including 29 U.S.C. §§ 211(c) & 215(a). 74. Throughout the FLSA relevant period, as a result of Defendant’s policy and practice of minimizing labor costs by underfunding labor budgets for its stores, Defendant knew or recklessly disregarded the fact that Plaintiff and the Putative Collective Action Members were primarily performing manual labor and non-exempt tasks. 75. Due to Defendant’s (a) failure to provide enough labor budget funds; (b) failure to take into account the impact of the underfunded labor budgets on the job duties of Plaintiff and the Putative Collective Action Members; (c) actual knowledge, through its Store Managers, Assistant Managers, and their managers, that the primary duties of Plaintiff and the Putative Collective Action Members were manual labor and other non-exempt tasks; (d) failure to perform a person-by-person analysis of Plaintiff’s and the Putative Collective Action Members’ job duties to ensure that their jobs primarily required performing exempt job duties; and (e) policy and practice that did not allow Plaintiff and the Putative Collective Action Members to record all hours worked, Defendant knew or showed reckless disregard that its conduct was prohibited by the FLSA. 29 U.S.C. § 255(a). 17 76. As a result of Defendant’s FLSA violations, Plaintiff, on behalf of herself and the Putative Collective Action Members, is entitled (a) to recover from Defendant unpaid wages for all of the overtime hours worked, as premium overtime compensation; (b) to recover an additional, equal amount as liquidated damages for Defendant’s willful or reckless violations of the FLSA; and (c) recover their unreasonably delayed payment of wages, reasonable attorneys’ fees, and costs and disbursements of this action, pursuant to 29 U.S.C. § 216(b). 77. Defendant’s violations of the FLSA have been willful or reckless, thus a three- year statute of limitations applies, pursuant to 29 U.S.C. § 255. 78. Plaintiff Gagnon, on behalf of herself and all Maine Class Action Members, re- alleges and incorporates by reference the paragraphs preceding Count I. 79. At all times within the Maine relevant period, Plaintiff was an employee covered by the Maine Laws, and was entitled to receive pay at her regular rate for the first 40 hours worked in a work week and overtime at a rate of one and one-half times her regular rate of pay for all hours over 40 in a workweek. 80. Defendant violated the provisions of Maine’s Wage Payment Statute, 26 Me. Rev. Stat. § 621-A, by failing to timely pay in full, at regular intervals not to exceed 16 days, all wages earned by Plaintiff and members of the Maine Class (and Maine Termination Subclass) at the regular rate for each hour worked under 40 hours per week and at the overtime rate (one and one-half times the regular rate) for each hour worked over 40 hours per week, within the Maine relevant period. As such, Defendant is liable to Plaintiff and members of the Maine Class (and Maine Termination Subclass) under 26 Me. Rev. Stat. § 626-A. 18 81. Defendant willfully violated 26 Me. Rev. Stat. § 621-A. 82. Defendant’s untimely payment of wages and continued refusal to pay wages owed to Plaintiff and members of the Maine Class (and Maine Termination Subclass) throughout the Maine relevant period, constitute violations of 26 Me. Rev. Stat. § 621-A. 83. Plaintiff and members of the Maine Class (and Maine Termination Subclass) have suffered economic loss as a result of Defendant’s violation of the law during the Maine relevant period and seek redress for these injuries pursuant to 26 Me. Rev. Stat. § 626-A. 84. Plaintiff Gagnon, on behalf of herself and all Maine Class Members (and Maine Termination Subclass Members), re-alleges and incorporates by reference the paragraphs preceding Count I. 85. Defendant required Plaintiff and the members of the Maine Class (and Maine Termination Subclass) to work more than 40 hours in any one week without paying them one and one-half times their regular rate of pay throughout the FLSA relevant period, in violation of 26 Me. Rev. Stat. § 664. 86. Defendant’s failures to pay Plaintiff and the members of the Maine Class (and Maine Termination Subclass) one and one-half their regular rate of pay for all hours worked in excess of 40 in a workweek throughout the FLSA relevant period constituted a willful violation of 26 Me. Rev. Stat. § 664. 87. Plaintiff and the members of the Maine Class (and Maine Termination Subclass) have suffered economic loss throughout the FLSA relevant period as a result of Defendant’s 19 violations of 26 Me. Rev. Stat. § 664 and seek redress for these injuries pursuant to 26 Me. Rev. Stat. § 670.

win

1. Calling or otherwise communicating with clients or prospective clients; 12. There are questions of law and fact common to Class, including the following: A. Whether Defendants in following their policies and procedures required Plaintiff and Class members to engage in the following work activities without being paid or properly being paid overtime for said work activities: 13. The claims of Plaintiff are typical of the Class he seeks to represent. Moreover, the questions of law and fact common to the members of the class predominate over any questions affecting only individual members, as all Class Members are current or former employees who were not properly paid (or not paid earned overtime) for the work activities described in paragraph 12A. 14. Plaintiff will fairly and adequately protect the interests of the Class. The interests of the named plaintiff are consistent with, and not antagonistic to, those of the Class. 16. A class action is superior to other available methods for the fair and efficient adjudication of this controversy and is consistent with the legislative history and objectives of the 2. Calling or otherwise communicating with prospective employees to match them with clients; 20. Aerotek and Allegis employ recruiters in hundreds of offices throughout the country. Across the United States, at any given time, there are approximately 4,000 to 5,000 recruiters working for Aerotek and Allegis. 21. Aerotek and Allegis have multiple offices in Wisconsin, which also employ Recruiter Trainees and Post-Training Recruiters. At any given time, there are over 100 recruiters working for Aerotek and Allegis in Wisconsin. 22. As a staffing agency / recruiting firm, Aerotek and Allegis is paid by employers in multiple fields of employment, which Aerotek and Allegis divide into teams. Examples of teams of recruiters include the engineering team, the scientific team, the commercial team and the energy team. 23. Aerotek and Allegis contract with employers (clients) to find prospective employees in given fields. When Aerotek and Allegis successfully match a prospective employee with an employer, Aerotek and Allegis receive a fee. 24. Recruiters are the employees who do the actual communicating with prospective employees in order to begin and complete the match. A significant portion of a recruiter’s work consists of reading off a script. Recruiters have limited contact with the clients. 25. Recruiters work under the direct supervision of an account manager. Recruiters do not manage the business, nor do they manage a particular functional area of the business. Recruiters apply established procedures and do the actual work of the business. 27. Recruiters are also expected to meet with clients face-to-face from time to time along with their supervisors, who are Account Managers. Typically, those meetings take place over lunch. 28. Recruiters were expected to meet face-to-face with prospective employees, current contractors and Aerotek management as needed and directed. 29. Every recruiter must complete a training period. Recruiter Trainees are characterized as “non-exempt” under the FLSA (and Wisconsin law) by Aerotek and Allegis. The training period is typically 13 weeks long. 3. Meeting with coworkers and supervisors; and 30. Commencing with the third week of training, the Recruiter Trainees would become Post-Training Recruiters. Recruiter Trainees spent their days communicating with and receiving communication from prospective employees and clients. 31. Aerotek and Allegis required Recruiter Trainees to record the time they worked on timesheets. 32. The typical day for a Recruiter Trainee would commence with a 7:30 a.m. in- person meeting with management. At that meeting, Recruiter Trainees would receive a list of contacts to make throughout the day. 34. Each working day, at approximately 5:30 p.m., Aerotek and Allegis required all Recruiter Trainees to attend a meeting to assess what work needed to be completed for the day. Recruiter Trainees were required to work an additional 30 to 60 minutes per day to complete their work following this meeting. 35. Aerotek and Allegis required Recruiter Trainees to work more than 40 hours per week, but they also instructed Recruiter Trainees not to record more than 40 hours per week on their timesheets. 36. Aerotek and Allegis management knew that Recuiter Trainees were working in excess of 40 hours per week and receiving no compensation for the time worked in excess of 40 hours per week. 37. It was Aerotek and Allegis’ policy and practice that Recruiter Trainees work in excess of 40 hours per week without receiving compensation for the time worked in excess of 40 hours per week. 38. The work performed by Recruiter Trainees was an integral and indispensable part of their employment with Aerotek and Allegis and was pursued necessarily and primarily for Aerotek and Allegis’ benefit. 39. If a Recruiter Trainee successfully completed the training period, Aerotek and Allegis characterized the Post-Training Recruiter as “exempt” under the FLSA (and Wisconsin law). 41. The actual day-to-day duties of Post-Training Recruiters were the same as the duties performed by Recruiter Trainees, except that Post-Training Recruiters were required to work longer hours and to take and make calls over the weekend. Post-Training Recruiters typically worked 60 hours per week. 42. Post-Training Recruiters lack the authority to formulate, affect or implement management policies or operating practices. 43. Post-Training Recruiters do not have the authority to commit the employer in matters that have significant financial impact. 44. Post-Training Recruiters do not have the authority to waive or deviate from established policies and procedures without prior approval. 45. Aerotek and Allegis knew that they misclassified the Post-Training Recruiters as exempt under the FLSA and Wisconsin law. It knew that Post-Training Recruiters were working in excess of 40 hours per week. It intentionally failed to pay Post-Training Recruiters time-and- a-half for work performed in excess of 40 hours per week. 46. The work performed by Post-Training Recruiters was an integral and indispensable part of their employment with Aerotek and Allegis and was pursued necessarily and primarily for Aerotek and Allegis’ benefit. 47. Drake began his employment with Aerotek and Allegis in January, 2012. He was hired as a Recruiter Trainee. 49. After about two weeks into the training period, Drake attended every 7:30 a.m. meeting and every 5:30 p.m. meeting on the days he worked. He worked until 6:00 p.m. or 6:30 p.m. on a daily basis. 50. When not on call, Drake recorded an unpaid hour of lunch when in fact he worked over his lunch hour, with one exception. 51. During his training period, Drake worked about 45 to 55 hours per week, but never received overtime pay for the five to fifteen hours of overtime he worked (with one minor exception described below). In fact, he did not receive any pay for the time he worked in excess of 40 hours during his training period. 52. During one week of his training period, Drake recorded two hours of overtime worked. While Aerotek and Allegis paid him time-and-a-half for those two hours of work, Aerotek and Allegis management admonished him never to record overtime hours again. 53. During Drake’s training period, Aerotek and Allegis knowingly and intentionally failed to pay him for the time he worked in excess of 40 hours, with the exception of two hours, as noted above. 54. Drake passed the training period and began working as a Post-Training Recruiter. During his tenure as a Post-Training Recruiter, he worked between 50 and 60 hours per week. 55. As a Post-Training Recruiter, Drake lacked the authority to formulate, affect or implement management policies or operating practices. 56. As a Post-Training Recruiter, Drake did not have the authority to commit the employer in matters that had significant financial impact. 58. As a Post-Training Recruiter, Drake did not have the authority to waive or deviate from established policies and procedures without prior approval. 59. During Drake’s tenure as a Post-Training Recruiter, Aerotek and Allegis knowingly and intentionally failed to pay him time-and-a-half for hours worked in excess of 40 per week. 60. It was Aerotek and Allegis’ policy and practice that Post-Training Recruiters be misclassified as exempt and that Aerotek and Allegis not pay Post-Training Recruiters time-and- a-half for work performed in excess of 40 hours per week. 61. Plaintiff and Class Members were unaware of their rights under the FLSA and state law until prior to filing of this lawsuit. 62. Plaintiff re-alleges and incorporates the preceding paragraphs of this Complaint as if fully set forth herein. 63. During the three years preceding this action, or since commencement of employment (whichever is applicable), Aerotek and Allegis have failed to pay Plaintiff and the Recruiter Trainee Class Members for time worked in excess of 40 hours in a single week during the training period, as required by 29 U.S.C. sec. 207(a) and (g). 65. Plaintiff re-alleges and incorporates the preceding paragraphs of this Complaint as if fully set forth herein. 66. During the three years preceding this action, or since commencement of employment (whichever is applicable), Aerotek and Allegis have failed to pay Plaintiff and the Post-Training Recruiter Class Members time-and-a-half for time worked in excess of 40 hours in a single week, as required by 29 U.S.C. sec. 207(a) and (g). 67. Aerotek and Allegis’s violation of 29 U.S.C. sec. 207(a) and (g) is “willful” within the meaning of 28 U.S.C. sec. 255(a). 68. Plaintiff re-alleges and incorporates the preceding paragraphs of this Complaint as if fully set forth herein. 69. Aerotek and Allegis have failed to keep and preserve accurate records of hours worked by Plaintiff and the Class Members, as well as other required records, in violation of 29 U.S.C. secs. 211(c) and 211(a)(5), by failing to record time spent by Plaintiff and the Class Members in the activities described in the above paragraphs. 71. The time Plaintiff and the members of the Recruiter Trainee Subclass spent engaged in the activities described in the above paragraphs is compensable under Wis. Admin. Code sec. DWD 272.12. 72. Aerotek and Allegis have failed to properly pay Plaintiff and the Recruiter Trainee Subclass Members their wages earned pursuant to Wis. Stats. Sec’s. 104.02 and 109.03, and Wis. Admin. Code sec. DWD 272.03 by not paying them for the time spent engaged in the activities described in the above paragraphs. 73. Plaintiff re-alleges and incorporates the preceding paragraphs of this Complaint as if fully set forth herein. 74. The time Plaintiff and the Wisconsin Class members spent engaged in the activities described in the above paragraphs is compensable under Wis. Admin. Code sec. DWD 272.12. 75. Aerotek and Allegis have failed to pay Plaintiff and the Wisconsin Class Members at the rate of one-and-one-half times their regular hourly rate of pay for all hours worked in excess of 40 hours in a single week, as required by Wis. Stats. Sec’s. 104.02 and 109.03, and Wis. Admin. Code sec. DWD 272.03. 76. Plaintiff re-alleges and incorporates the preceding paragraphs of this Complaint as if fully set forth herein. 78. Aerotek and Allegis did not pay Plaintiff and the Wisconsin Class Members for the on-duty meal period described in the foregoing paragraph, in violation of Wisconsin law. 79. Plaintiff re-alleges and incorporates the preceding paragraphs of this Complaint as if fully set forth herein. 80. Aerotek and Allegis have violated Wis. Stats. Sec’s. 104.02, 109.03 and Wis. Admin. Code sec’s. DWD 272.10, 272.11 and 274.06 by failing to keep and preserve accurate records of hours worked by Plaintiff and the Wisconsin Class Members, as well as other required records, by failing to record time spent by Plaintiff and the Class Members in the activities described in the above paragraphs. FAILURE TO PAY OVERTIME COMPENSATION DURING THE TRAINING PERIOD. FAILURE TO PAY OVERTIME COMPENSATION DURING THE POST-TRAINING PERIOD. FAILURE TO PAY WAGES. FAILURE TO MAINTAIN RECORDS. FAILURE TO PAY FOR OVERTIME.

win

10. Beginning in or around December 18, 2014, Plaintiff signed up for two memberships to Defendants’ gym to be charged to Plaintiff’s single debt account. 11. On or around February 16, 2016, Plaintiff called Defendants to cancel both memberships under the debit account and to immediately cease Defendants’ charging of Plaintiff’s account. In fact, Plaintiff asked Defendants’ representative three times to make sure that both gym memberships would be canceled, and Defendants’ representative confirmed all three times. 23. Plaintiff brings this action on behalf of herself and all others similarly situated, as a member of the proposed class (hereafter “The Class”) defined as follows: All persons in the United States whose bank accounts were debited on a reoccurring basis by Defendants without Defendants obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers within the one year prior to the filing of this Complaint. 24. Plaintiff represents, and is a member of, The Class, consisting of all persons within the United States whose bank account was debited on a recurring basis by Defendants without Defendants obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers within the one year prior to the filing of this Complaint. 25. Defendants, their employees and agents are excluded from The Class. Plaintiffs do not know the number of members in The Class, but believe the Class members number in the hundreds, if not more. Thus, this matter should be certified as a Class Action to assist in the expeditious litigation of the matter. 42. Plaintiff reincorporates by reference all of the preceding paragraphs. 43. Section 907(a) of the EFTA, 15 U.S.C. §1693e(a), provides that a “preauthorized electronic fund transfer from a consumer’s account may be authorized by the consumer only in writing, and a copy of such authorization shall be provided to the consumer when made.” 44. Section 903(9) of the EFTA, 15 U.S.C. § 1693a(9), provides that the term “preauthorized electronic fund transfer” means “an electronic fund transfer authorized in advance to recur at substantially regular intervals.” 45. Section 205.l0(b) of Regulation E, 12 C.F.R. § 205.l0(b), provides that “[p ]reauthorized electronic fund transfers from a consumer’s account may be authorized only by a writing signed or similarly authenticated by the consumer. The person that obtains the authorization shall provide a copy to the consumer.” 46. Section 205.10(b) of the Federal Reserve Board's Official Staff Commentary to Regulation E, 12 C.F.R. § 205.l0(b), Supp. I, provides that “[t]he authorization process should evidence the consumer’s identity and assent to the authorization.” Id. at ¶10(b), comment 5. The Official Staff Commentary further provides that “[a]n authorization is valid if it is readily identifiable as such and the terms of the preauthorized transfer are clear and readily understandable.” Id. at ¶10(b), comment 6. DEFENDANTS VIOLATED THE ELECTRONIC FUNDS TRANSFER ACT (On Behalf of Plaintiff and the Class)

win

11. Consumers’ Checkbook/Center for the Study of Services (“CSS”) is an independent, nonprofit consumer organization based in Washington, D.C. Its stated purpose is “to provide consumers information to help them get high quality services and products at the best possible prices.” 12. Beginning in June 2014, and continuing through March 2015, CSS conducted a survey of seven national retail chains and Amazon.com tracking prices weekly for six to 10 big-ticket items from each retailer.1 Most price checks were made online with spot checking of in-store prices. 13. The CSS survey discovered that for some of the stores, including Sears, “some of the products for almost all of the weeks we checked were offered at sale prices.” 29. Plaintiff brings this action on behalf of himself and all other similarly situated Class members pursuant to Rule 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure and seeks certification of the following Class against Defendant: All persons who purchased one or more items offered at a purported discount from an “original” or “regular” any time between August 26, 2011 to the date of certification (the “Class Period”). 30. Plaintiff also brings this action individually and as a Class action pursuant to Federal Rule of Civil Procedure 23 on behalf of all persons located within the state of California (the “California Class”) and on behalf of all persons located within states with similar consumer protection laws (collectively with the Nationwide and California Classes, the “Classes”). 31. Excluded from the Classes are Defendant, as well as its officers, employees, agents or affiliates, and any judge who presides over this action, as well as all past and present employees, officers and directors of Sears. 41. Plaintiff repeats and re-alleges the allegations contained in every preceding paragraph as if fully set forth herein. 42. The UCL defines unfair business competition to include any “unlawful, unfair or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or misleading” advertising. Cal. Bus. & Prof. Code §17200. 43. The UCL imposes strict liability. Plaintiff need not prove that Defendant intentionally or negligently engaged in unlawful, unfair, or fraudulent business practices – but only that such practices occurred. 44. The harm to Plaintiff and California Class members outweighs the utility of Defendant’s practices. There were reasonably available alternatives to further Defendant’s legitimate business interests, other than the misleading and deceptive conduct described herein. 45. A business act or practice is “fraudulent” under the UCL if it is likely to deceive members of the consuming public. 50. Plaintiff repeats and re-alleges the allegations contained in every preceding paragraph as if fully set forth herein. 51. The UCL defines unfair business competition to include any “unlawful, unfair or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or misleading” advertising. Cal. Bus. & Prof. Code § 17200. 52. A business act or practice is “unlawful” under the UCL if it violates any other law or regulation. 59. Plaintiff repeats and re-alleges the allegations contained in every preceding paragraph as if fully set forth herein. 76. Plaintiff repeats and re-alleges the allegations contained in every preceding paragraph as if fully set forth herein. 77. This cause of action is brought pursuant to the Consumers Legal Remedies Act (“CLRA”), California Civil Code §1750, et seq., and similar laws in other states. Plaintiff and each member of the proposed class are “consumers” as defined by California Civil Code §1761(d). Defendant’s sale of merchandise to Plaintiff and the California Class were “transactions” within the meaning of California Civil Code §1761(e). The products purchased by Plaintiff and the California Class are “goods” within the meaning of California Civil Code §1761(a). 78. Defendant violated, and continues to violate, the CLRA by engaging in the following practices proscribed by California Civil Code §1770(a) in transactions with Plaintiff and the California Class which were intended to result in, and did result in, the sale of merchandise: a. representing that its merchandise has characteristics, uses, and/or benefits, which they do not; b. advertising goods or services with intent not to sell them as advertised; c. making false or misleading statements of fact concerning reasons for, existence of, or amounts of price reductions. 82. Plaintiff repeats and re-alleges the allegations contained in every preceding paragraph as if fully set forth herein. A. Sears Regularly Engages in Deceptive Pricing Unjust Enrichment on Behalf of the Classes, or in the Alternative, on Behalf of the California Class Violation of Unfair Competition Law – Unlawful Acts Business and Professions Code §17200, et seq. on Behalf of the California Class Violation of Unfair Competition Law – Unfair Acts Business and Professions Code §17200, et seq. on Behalf of the California Class Violations of the Consumer Protection Laws on Behalf of Classes in the States with Similar Laws Violation of the California False Advertising Law, California Business & Professions Code §17500, et seq. on Behalf of the California Class Violation of Unfair Competition Law – Fraudulent Acts Business and Professions Code § 17200, et seq. on Behalf of the California Class Violation of the Consumers Legal Remedies Act (“CLRA”), California Civil Code §1750, et seq. on Behalf of the California Class

lose

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendants’ Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendants’ Websites, with contact information for users to report accessibility-related problems. 24. It is, upon information and belief, Defendants’ policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendants’ website, and to therefore specifically deny the goods and services that are offered and integrated with Defendants’ dry cleaning and restoration locations. Due to Defendants’ failure and refusal to remove access barriers to their website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendants’ dry cleaning and restoration locations and the numerous goods, services, and benefits offered to the public through the Website. 25. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 28. Due to the inaccessibility of Defendants’ Website, blind and visually- impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendants offer to the public on their Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 29. These access barriers on Defendants’ Website have deterred Plaintiff from visiting Defendants’ physical dry cleaning and restoration location, and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendants’ physical dry cleaning and restoration locations on their Website and other important information, preventing Plaintiff from visiting the location to utilize their services. 30. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 31. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 33. Defendants therefore use standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 34. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . their title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 36. If the Website was accessible, Plaintiff and similarly situated blind and visually-impaired people could independently view service items, locate Defendants’ dry cleaning and restoration location and hours of operation, shop for and otherwise research related products and services via the Website. 37. Although Defendants may currently have centralized policies regarding maintaining and operating their Website, Defendants lack a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 40. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendants’ Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendants’ physical locations, during the relevant statutory period. 41. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendants’ Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendants’ physical locations, during the relevant statutory period. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendants’ Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendants’ physical locations, during the relevant statutory period. 44. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendants have violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access barriers on their Website so either can be independently accessible to the Class. 45. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendants have acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of their litigation. 48. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 50. Defendants’ dry cleaning and restoration locations are a public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendants’ Website is a service, privilege, or advantage of Defendants’ dry cleaning and restoration locations. The Website is a service that is integrated with these locations. 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 53. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 54. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 56. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 58. Defendants’ physical location is located in the State of New York and provides services throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendants’ Website is a service, privilege or advantage of Defendants. Defendants’ Website is a service that is by and integrated with these physical location. 59. Defendants are subject to New York Human Rights Law because they own and operate their physical location and Website. Defendants are persons within the meaning of N.Y. Exec. Law § 292(1). 60. Defendants are violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to their Website, causing their Website and the services integrated with Defendants’ physical location to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendants make available to the non-disabled public. 62. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 63. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make their Website accessible would neither fundamentally alter the nature of Defendants’ business nor result in an undue burden to Defendants. 65. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 66. Defendants discriminate, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendants’ Website and their physical location under § 296(2) et seq. and/or their implementing regulations. Unless the Court enjoins Defendants from continuing to engage in these unlawful practices, Plaintiff and the Sub- Class Members will continue to suffer irreparable harm. 67. Defendants’ actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 68. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 71. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 72. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 73. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 74. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in her or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 76. Defendants are subject to New York Civil Rights Law because they own and operate their physical location and Website. Defendants are persons within the meaning of N.Y. Civil Law § 40-c(2). 77. Defendants are violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to their Website, causing their Website and the services integrated with Defendants’ physical location to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendants make available to the non-disabled public. 78. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 79. Under NY Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside ...” 80. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 82. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 83. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 84. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 85. Defendants’ location is a sales establishments and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9), and their Website is a service that is integrated with their establishments. 86. Defendants are subject to NYCHRL because they own and operate their physical location in the City of New York and their Website, making them persons within the meaning of N.Y.C. Admin. Code § 8-102(1). 88. Defendants are required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 89. Defendants’ actions constitute willful intentional discrimination against the Sub-Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8- 107(4)(a) and § 8-107(15)(a) in that Defendants have: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 90. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 92. Defendants’ actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 93. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 94. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 95. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 96. Plaintiff, on behalf of herself and the Class and New York State and City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 98. A judicial declaration is necessary and appropriate at that time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendants’ Barriers on Their Website VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

win

(On Behalf of Plaintiff and All Classes) 43. Plaintiff re-alleges and hereby incorporates by reference Paragraphs 1 through 42 above. 49. Plaintiff re-alleges and hereby incorporates by reference Paragraphs 1 through 48 above. 56. Plaintiff re-alleges and hereby incorporates by reference Paragraphs 1 through 55 above. 57. Plaintiff Thomas submitted timely payments to Defendant Bank of America to be applied to his credit card account maintained with Defendant Bank of America. 6. Plaintiff Thomas is an independent contractor who provides computer programming services. 7. In or about June 2015, Plaintiff Thomas obtained an Alaska Airlines Signature Visa credit card through Bank of America (“Alaska Airlines Visa”). 8. On January 28, 2018, Plaintiff Thomas made his monthly online payment that was due on February 6, 2018. Plaintiff Thomas inadvertently paid $345.00, instead of the $348.00 that was due. Plaintiff Thomas did not receive any notification when making his payment that would have alerted him that the payment was $3.00 short, e.g. “The payment you have scheduled is less than the amount currently due. Would you still like to proceed?”. 9. On January 29, 2018, Plaintiff Thomas’ payment posted to his Alaska Airlines Visa account and reflected payment of $348.00. CONSUMER PROTECTION ACT, RCW 19.86, et seq. (On Behalf of Plaintiff and All Classes) THE FAIR CREDIT REPORTING ACT – 15 USC § 1681n and 15 USC § 1681o (Plaintiff Thomas)

win

(Breach of Implied Warranty of Merchantability) (Breach of Express Warranty) (Negligence) (Strict Liability In Tort – Restatement (Second) Of Torts § 402A) (Violation of the Florida Deceptive and Unfair Trade Practices Act) 26. Defendant Forjas Taurus manufactures “Rossi” branded .38 Special revolvers and .357 Magnum revolvers in Sao Leopoldo, Brazil. Defendant Braztech is the exclusive North American importer and distributor of Rossi firearms. The Revolvers 27. The Revolvers are “Rossi” branded Models R35102, R35202, R85104, R97206, R97104, R46202, R46102, for use with .38 Special cartridges. The Revolvers’ swing-out cylinder is designed to hold either five (5) or six (6) cartridges. They all have the same owner’s manual. 29. The Revolver has two defects (“the Safety Defects”) that render the internal safety mechanisms inoperable. 30. Rebound Slide – Hammer Seat Defect: For the blocking function of the hammer seat – rebound slide seat alignment to be effective, the seats or tabs must be aligned vertically and fitted together to be in close contact when the hammer is in the rebound position. This fitting will provide the maximum material resistance to hammer rotation from a drop or sharp impact. The Revolvers suffer from a design and/or manufacturing defect in that the seats or tabs, which are metal injection molded components, are improperly fitted or shaped. As a result, the seats are not aligned and are misshaped so that the hammer can rotate forward and fire a cartridge even when the trigger is not pulled. 31. Hammer Block Defect: Certain Revolvers suffer from a second design and/or manufacturing defect relating to the hammer block. In Revolvers with the Hammer Block Defect, the side plate has a hammer block groove that is too wide and angled forward too much. As a result, the location of the hammer block changes as it moves up-and-down and allows it to fall away from its normal blocking position and become trapped on the revolver's fame. When it becomes trapped, the hammer block does not return to the blocking position when the trigger is released and, therefore, does not prevent a drop-fire. 33. The Taurus Defendants claim in their owner’s manuals that the Revolvers are equipped with safety features to prevent drop fire incidents: The hammer is of the rebounding type, in which the firing pin is not thrust into contact with the chambered cartridge except when the trigger is pulled. In addition, the hammer- trigger mechanism incorporates an interior hammer block which interposes a block of steel between the hammer nose and primer. The hammer block is withdrawn only when the hammer is cocked, thus preventing an accidental discharge should the revolver be dropped, uncocked, and sustain a sharp blow on the hammer. Therefore, unlike most single-action revolvers, your Rossi revolver is mechanically safe when carried with the cylinder fully loaded. 34. Despite these representations and assurances, the common design and manufacture of the Revolvers as described is defective and as a result the internal safety mechanisms are impaired or completely ineffective such that an unintended discharge is more likely when the Revolvers are dropped from a height at which the Revolvers are normally used. 35. Since the design of the Rebound Slide – Hammer Seat Defect is common to all Revolvers and is found in all Revolvers, the use and/or maintenance of the Revolvers by Plaintiffs and Class Members have no effect on the defective design of the Revolvers and the damages resulting from the defective design. Furthermore, the defectively manufactured side plate hammer block groove (the Hammer Block Defect) is machine cut and is not impacted by the use and/or maintenance of the Revolvers by Plaintiffs and Class Members. 37. Upon information and belief, for years, the Taurus Defendants have knowingly manufactured, marketed, and sold thousands of defective Revolvers with the Safety Defects to consumers throughout Florida and the United States. 38. Upon information and belief, the Taurus Defendants consciously and intentionally decided not to recall and/or retrofit the defective Revolvers which they know are unreasonably dangerous and defective. 39. Upon information and belief, discovery of internal documents from the Defendants will show that they have been aware of the problems with the Safety Defects since the early production of the Revolvers and such discovery will most likely reveal that Taurus has been aware of the Safety Defects since the Revolvers were first designed, manufactured, imported, tested, produced, and distributed in the United States. 40. Defendants have not taken any steps to warn consumers in Florida or elsewhere in the United States about the dangers of using the Revolvers. 41. The Safety Defects have manifested, sometimes causing serious bodily injury. The Defendants are and were aware of those manifestations (and upon information and belief, Defendants are and were aware of many more), but have refused to remedy the defects. 43. Plaintiffs William Burrow and Oma Louise Burrow (the “Burrows”) own one of the Revolvers, a Rossi model R35102 revolver, S/N EX43410. Mr. Burrow purchased the Revolver new from Academy Sports + Outdoors on October 26, 2012 for $259.99 (“Plaintiffs’ Revolver”). Plaintiffs’ Revolver has the Safety Defects that are common to the Revolvers. 46. The design and manufacture of the Plaintiffs’ Revolver as it relates to the Safety Defects is the same as all the Revolvers, and, as a result, it did not prevent an unintended discharge when it was dropped from a height at which the Revolvers are normally used. 47. Plaintiffs bring this suit as a nationwide class action on behalf of themselves and all others similarly situated pursuant to Rules 23(a), 23(b)(2), and/or 23(b)(3) of the Federal Rules of Civil Procedure. The Class that Plaintiffs seek to represent is defined as follows: All individuals in the United States who own a Revolver. 48. Subject to additional information obtained through further investigation and discovery to be conducted, the foregoing definition of the Class may be expanded or narrowed by amendment or amended complaint. Specifically excluded from the Class are the Taurus Defendants, their officers, directors, agents, trustees, parents, children, corporations, trusts, representatives, employees, principals, servants, partners, joint ventures, or entities controlled by the Taurus Defendants, and their heirs, successors, assigns, or other persons or entities related to or affiliated with the Taurus Defendants and/or their officers and/or directors, or any of them; the Judge assigned to this action, and any member of the Judge’s immediate family; and persons who seek recovery for physical injuries suffered as a result of a defective Revolver. 51. Typicality: Plaintiffs’ claims are typical of the claims of the members of the Class, as all such claims arise out of the Taurus Defendants’ conduct in designing, manufacturing, testing, marketing, advertising, warranting and selling the defective Revolvers. The defects of the Revolvers render each Class Member’s claims, legal theory, and injury common and typical. 53. Predominance and Superiority: The class action in this instance is appropriate for certification because questions of law and fact common to the members of the Class predominate over questions affecting only individual members, and this Class action is superior to other available methods for the fair and efficient adjudication of this controversy, since individual joinder of the Class is impracticable. The common liability issues in this Class Action may be resolved efficiently on a class-wide basis. Should individual Class Members be required to bring separate actions, assuming Class Members were aware of the latent defects, this Court and/or courts throughout the nation would be confronted with a multiplicity of lawsuits burdening the court system while also creating the risk of inconsistent rulings and contradictory judgments. In contrast to proceeding on a case-by-case basis, in which inconsistent results will magnify the delay and expense to all parties and the court system, this class action presents far fewer management difficulties while providing unitary adjudication, economies of scale and comprehensive supervision by a single court. The common design defects of the Revolvers are latent defects, and the Revolvers are defective in a way that would not be apparent to Plaintiffs and Class Members. As a result, Class Members are unaware of the defects and their claims against Defendants as a result of the latent defects; therefore, without notice of the defects, a failure of justice will occur in the absence of a class action. 57. Plaintiffs, individually, and on behalf of all others similarly situated, incorporate by reference the paragraphs 1-56 and all Exhibits attached hereto as though expressly stated herein in this paragraph. 59. Plaintiffs and all Class Members are “consumers” and the transactions at issue in this Complaint constitute '”trade or commerce” as defined by Florida Statutes §§ 501.203(7) and (8), respectively. Florida Statute § 501.204(1) declares unlawful “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 60. Consumers and the consuming public under the FDUTPA include Florida residents and non-residents of Florida and Florida has a strong interest in regulating the conduct of corporations headquartered within the state. There are no geographical or residential restrictions contained within the express language of the FDUTPA and the Act applies to Taurus Defendants regardless of where the distribution and/or sale of Revolvers occurred. 61. In violation of the FDUTPA, the Taurus Defendants employed fraud, deception, false promise, misrepresentation and the knowing concealment, suppression, or omission of material facts in their distribution, sale, marketing, and/or advertisement of the Revolvers, including information in the Taurus Manuals, on the website of the Taurus Defendants, and the material facts as set forth in the following paragraph. The actions occurred, at least in part, at the Taurus Defendants’ facilities in Miami, Florida. 64. The Taurus Defendants violated the FDUPTA by failing to disclose to and concealing from Plaintiffs, Class Members, prospective purchasers, and the public the defects in the Revolvers. 65. The Taurus Defendants engaged in the concealment, suppression, or omission of the aforementioned material facts with the intent that others, such as Plaintiffs, Class Members, and/or the general public would rely upon the concealment, suppression, or omission of such material facts. 66. These misrepresentations, practices, and omissions of the material facts are likely to affect a consumer’s choice of or conduct regarding the ownership and/or use of the Revolvers and the issue is not whether Plaintiffs and Class Members relied on the misrepresentations, practices, concealment, and omissions of the material facts, but whether the misrepresentations, practices, concealment, and omissions of the material facts were likely to deceive a consumer acting reasonably in the same circumstances and Plaintiffs and Class Members need not prove individual reliance. Since proof of reliance is not necessary, issues relating to causation and damages will be common to Plaintiffs and all Class Members. To the extent reliance is required by law, reliance and damages are sufficiently shown by the fact that Plaintiffs and Class Members own and/or use the Revolvers. 67. The Taurus Defendants’ concealment, suppression, or omission of material facts as alleged herein constitutes unfair, deceptive and fraudulent business practices within the meaning of the FDUTPA. 69. Upon information and belief, the Taurus Defendants knew that, at the time the Revolvers left the Taurus Defendants’ control, the Revolvers contained the Safety Defect described herein. At the time of manufacture, distribution, and/or sale, the Revolvers contained the common design defects. The defects reduced the effectiveness and performance of the Revolvers and rendered them unable to perform the ordinary purposes for which they were used as well as caused the resulting damage described herein. 70. As a direct and proximate cause of the violation of the FDUTPA, described herein, Plaintiffs and Class Members have been injured in that they own and/or use Revolvers with the defects based on misrepresentations and nondisclosure of the material facts alleged herein, including but not limited to, nondisclosure of the defects. Furthermore, Plaintiffs and Class Members are damaged because they did not receive a firearm with the characteristics, features, and capabilities as represented by the Taurus Defendants. The Revolvers that were delivered to the Plaintiffs and Class Members have a lower market value than they would have had if the Defendants had delivered firearms that were not defective and had effective internal safety features. 71. The Taurus Defendants’ unlawful conduct is continuing, with no indication that the Taurus Defendants’ unlawful conduct will cease. 73. The Taurus Defendants acted willfully, knowingly, intentionally, unconscionably and with reckless indifference when it committed these acts of consumer fraud described herein. Said acts and practices on the part of the Taurus Defendants were and are illegal and unlawful pursuant to Florida Statute § 501.204. 74. As a direct result and proximate result of the Taurus Defendants’ violations of the FDUTPA, Plaintiffs and Class Members have suffered damages, regardless of whether the Revolvers have malfunctioned or manifested the defects in some way. Plaintiffs and the Class Members are entitled to compensatory damages, including damages for the diminished value of the Revolvers. Further, Plaintiffs and Class Members are entitled to equitable and declaratory relief, damages allowed under FDUTPA, costs, the establishment of a common fund if necessary, and statutory attorney fees. 75. Plaintiffs, individually, and on behalf of all others similarly situated, incorporate by reference paragraphs 1-56 and all Exhibits attached hereto as though expressly stated herein in this paragraph. 77. Plaintiffs, on behalf of themselves, and the Class, demand judgment against the Taurus Defendants for compensatory damages for himself and each member of the Class, for the establishment of a common fund, plus attorney’s fees, interest and costs. 78. Plaintiffs, individually, and on behalf of all others similarly situated, incorporate by reference paragraphs 1-56 and all Exhibits attached hereto as though expressly stated herein in this paragraph. 79. The Taurus Defendants designed the Revolvers with the Safety Defect, rendering the Revolvers inherently dangerous and creating a substantial, clear, extreme and unreasonable risk of serious injury or death to Plaintiffs and Class Members. The Taurus Defendants manufactured, assembled, marketed, distributed, and sold the Revolvers with the defects. The Revolvers were in the same defective condition due to the defects from the time they left the Taurus Defendants’ control until they reached the Plaintiffs and Class Members, all of whom use the Revolvers in the manner intended by the Taurus Defendants. 80. The Revolvers were sold in substantial and unreasonably dangerous condition to an extent beyond that which would be contemplated by the ordinary consumer, including, Plaintiffs and Class Members. 82. The Taurus Defendants are strictly liable in tort for all injuries, damages, and losses that have or may result from the unintentional and unwanted discharge of a Revolver, and for the cost of rendering the Revolvers safe. 83. Plaintiffs, on behalf of themselves, and the Class, demand judgment against the Taurus Defendants for compensatory and punitive damages for himself and each member of the Class, for the establishment of a common fund, plus attorney’s fees, interest and costs. 84. Plaintiffs, individually, and on behalf of all others similarly situated, incorporate by reference paragraphs 1-56 and all Exhibits attached hereto as though expressly stated herein in this paragraph. 86. The Plaintiffs registered their Revolvers with the Taurus Defendants by submitting a signed “Warranty Card” to the Defendants. The Plaintiffs are in privity with the Taurus Defendants. 87. The express warranties made to the Plaintiffs and Class Members in the owner’s manual include the following: (a) “Rossi revolvers are designed and made to offer maximum safety when correctly used;” (b) “Rossi revolvers are manufactured to perform properly with the original parts as designed;” (c) “[t]he hammer is of the rebounding type, in which the firing pin is not thrust into contact with the chambered cartridge except when the trigger is pulled;” (d) “the hammer-trigger mechanism incorporates an interior hammer block which interposes a block of steel between the hammer nose and primer” and that “[t]he hammer block is withdrawn only when the hammer is cocked, thus preventing an accidental discharge should the revolver be dropped, uncocked, and sustain a sharp blow on the hammer;” (e) “unlike most single-action revolvers, your Rossi revolver is mechanically safe when carried with the cylinder fully loaded;” and (f) “[b]efore shipment, your firearm was carefully inspected and test fired in order to ensure that it conformed to our specifications and standards.” The Taurus Defendants breached these express warranties by not providing a product which could provide the benefits described in this paragraph and as a result of the Taurus Defendants’ breach of these express warranties, Plaintiffs and Class Members have been damaged. 89. The express warranties made to the Plaintiffs and Class Members and set forth in the “The Rossi Revolver Lifetime Repair Policy” include that the Taurus Defendants “will repair, free of charge, any firearm manufactured or distributed by BrazTech International L.C.” 90. Prior to the filing of this lawsuit, the Plaintiffs notified the Defendants of the mechanical failure in their Revolver. 91. The Taurus Defendants breached these express warranties by not providing a product which was not safe and which has not been and cannot be repaired. As a result of the Taurus Defendants’ breach of these express warranties, Plaintiffs and Class Members have been damaged. 92. The Taurus Defendants provided the express warranties described above to Plaintiffs and Class Members. Plaintiffs and Class Members are the express beneficiaries of the express warranties. To the extent required by law, the Taurus Defendants have expressly waived privity of contract as a requirement to the enforceability of any of their express warranties. 94. The breach of the express warranties described above is a proximate cause of the Plaintiffs’ and the Class Members’ injuries, and the warranties have failed in their essential purpose. 95. Plaintiffs, on behalf of themselves, and the Class, demand judgment against the Taurus Defendants for compensatory damages for themselves and each member of the Class, for the establishment of a common fund, plus attorney’s fees, interest and costs. 96. Plaintiffs, individually, and on behalf of all others similarly situated, incorporate by reference paragraphs 1-56 and all Exhibits attached hereto as though expressly stated herein in this paragraph. 97. At all times mentioned herein, the Taurus Defendants designed, manufactured, marketed, distributed, and sold the Revolvers with the defects, and prior to ownership of the Revolvers by Plaintiffs and Class Members, the Taurus Defendants impliedly warranted to Plaintiffs and Class Members that the Revolvers were of quality and fit for the use for which they were intended, that the Revolvers were merchantable, would operate effectively, were safe for normal use, suitable for the ordinary and usual purposes for which they were intended, and would not create an unreasonable risk of injury to consumers. 98. Plaintiffs and Class Members, in owning and/or using the Revolvers, relied upon the skill and judgment of the Taurus Defendants.

win

10. Beginning in or around October of 2019, Defendant contacted Plaintiff Sidney Naiman’s cellular telephone number ending in -5502 in an attempt to solicit Plaintiff to purchase Defendant’s services. 22. Plaintiffs bring this action individually and on behalf of all others similarly situated, as a member the four proposed classes (hereafter, jointly, “The Classes”). The class concerning the ATDS claim for no prior express consent (hereafter “The ATDS Class”) is defined as follows: All persons within the United States who received any solicitation/telemarketing telephone calls from Defendant to said person’s cellular telephone made through the use of any automatic telephone dialing system or an artificial or prerecorded voice and such person had not previously consented to receiving such calls within the four years prior to the filing of this Complaint 23. The class concerning the National Do-Not-Call violation (hereafter “The DNC Class”) is defined as follows: All persons within the United States registered on the National Do-Not-Call Registry for at least 30 days, who had not granted Defendant prior express consent nor had a prior established business relationship, who received more than one call made by or on behalf of Defendant that promoted Defendant’s products or services, within any twelve-month period, within four years prior to the filing of the complaint. 9. Beginning in or around November of 2019, Defendant contacted Plaintiff Fred Heidarpour’s cellular telephone number ending in -5903 multiple times in an attempt to solicit Plaintiff to purchase Defendant’s services. Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. §227(b) • As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. §227(b)(1), Plaintiffs and the ATDS Class members are entitled to and request treble damages, as provided by statute, up to $1,500, for each and every violation, pursuant to 47 U.S.C. §227(b)(3)(B) and 47 U.S.C. §227(b)(3)(C). • Any and all other relief that the Court deems just and proper. Knowing and/or Willful Violations of the Telephone Consumer Protection Act 47 U.S.C. §227(c) • As a result of Defendant’s willful and/or knowing violations of 47 U.S.C. §227(c)(5), Plaintiffs and The DNC Class members are entitled to and request treble damages, as provided by statute, up to $1,500, for each and every violation, pursuant to 47 U.S.C. §227(c)(5). • Any and all other relief that the Court deems just and proper. Negligent Violations of the Telephone Consumer Protection Act 47 U.S.C. §227(b) • As a result of Defendant’s negligent violations of 47 U.S.C. §227(b)(1), Plaintiffs and the ATDS Class members are entitled to and request $500 in statutory damages, for each and every violation, pursuant to 47 U.S.C. 227(b)(3)(B). • Any and all other relief that the Court deems just and proper.

lose

10. At all times relevant, Plaintiff was a citizen of the State of California. Plaintiff is, and at all times mentioned herein was, a “person” as defined by 47 U.S.C. § 153 (10). 11. Defendant is, and at all times mentioned herein was, a corporation and a “person,” as defined by 47 U.S.C. § 153 (10). 12. At all times relevant Defendant conducted business in the State of California and in the County of San Diego, within this judicial district. 13. At no time did Plaintiff ever enter into a business relationship with Defendants. 14. Plaintiff did not provide Plaintiff’s cellular telephone numbers to Defendant through any medium at any time. 24. Plaintiff brings this action on behalf of herself and on behalf of and all others similarly situated (“the Class”). 36. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 37. The foregoing acts and omissions of Defendant constitutes numerous and multiple negligent violations of the TCPA, including but not limited to each and every one of the above-cited provisions of 47 U.S.C. § 227 et seq. 38. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq, Plaintiff and The Class are entitled to an award of $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). 39. Plaintiff and the Class are also entitled to and seek injunctive relief prohibiting such conduct in the future. KNOWING AND/OR WILLFUL VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 ET SEQ. THE TCPA, 47 U.S.C. § 227 ET SEQ. • As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1), Plaintiff seeks for herself and each Class member $500.00 in statutory damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B). • Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such conduct in the future. • Any other relief the Court may deem just and proper.

lose

15. The Defendant is defined as a “public accommodation" because it is an entity which owns and operates a "Place of Public Accommodation," 42 U.S.C. § 12181(7)(E) and 28 C.F.R. § 36.104. (2) or “[P]laces of public accommodation,” “[A] bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.” 16. The Defendant owns, operates, and controls an internet website known as www.BurlingtonCoatFactory.com (“website” or “Defendant’s website”) in which the general public may view the inventory and order online. Therefore, according to 42 U.S.C. § 12181(7)(E), the Defendant’s website is itself a “Place of Public Accommodation” and the website is subject to the requirements of Title III of the ADA and its implementing regulation; 42 U.S.C. §12182, §12181(7)(E); 28 C.F.R. Part 36. 17. The website is a place of public accommodation, as the website allows the general public access the Defendant’s inventory of clothing, accessories, shoes, home goods and toys. Further, the website offers the ability to order said consumer inventory online in a substantially similar way as if an individual were to purchase the Defendant’s inventory of clothing, accessories, shoes, home goods and toys from one of the many1 physical store locations of the Defendant’s related retail store corporations. As such, the website is a store, which is a public accommodation; 42 U.S.C. §12181(7)(E). 19. Under the ADA, Public Accommodations that utilize the Internet for communications regarding their programs, goods or services, must offer those communications through adequate accessible means. 20. The Defendant’s website allows the general public (consumer) to efficiently, privately, and conveniently view, order and direct shipment of purchases of its inventory of clothing, accessories, shoes, home goods and toys. 21. The Plaintiff utilizes JAWS Screen Reader software (hereinafter referenced as “screen reader software”), which is the most popular screen reader software utilized worldwide. Screen reader software allows individuals who are visually impaired (such as the Plaintiff) to comprehend information available on the internet; thus also allows such individuals the ability to access and comprehend store/shopping websites. 22. On February 19, 2016, the Plaintiff attempted to utilize the Defendant’s website to view (with the intent of purchase) the clothing, accessories, shoes, home goods and toys available for purchase on/through the website. However, the Defendant’s website did not integrate with Plaintiff’s screen reader software so the Plaintiff could not use the website. 23. The Defendant’s website contained (and still contains) a multitude of programing errors such that it is not compatible with screen reader software and therefore does not conform to the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”). 25. Thus, the Defendant has discriminated against Plaintiff on the basis of disability in the full and equal enjoyment of the services, facilities, privileges, advantages or accommodations through its website. Thus, Defendant (as a Public Accommodation) and its website (place of public accommodation) are in violation of 42 U.S.C. § 12182(a) and 28 C.F.R. § 36.201. The Defendant has failed to adequately program its website to accurately and sufficiently integrate with common commercially available screen reader software utilized by Plaintiff and others with visual disabilities. 26. As a result of the Defendant’s discrimination, Plaintiff Gomez was unable to use the website, and suffered an injury in fact including loss of dignity, mental anguish, and other tangible injuries. 27. Plaintiff Gomez continues to desire to utilize the Defendant’s website, but he is unable to do so as he is unable to comprehend the Defendant’s website, thus he will continue to suffer irreparable injury from the Defendants’ intentional acts, policies, and practices set forth herein unless enjoined by this Court. 29. The Defendant’s website is\was not designed and programmed to interface with commercially available screen reader software for disabled individuals who are visually impaired in the same manner as the website is offered to the general public. 30. The Defendant’s website is\was so poorly functional for visually impaired individuals who require screen reader software, that any utilization of the website contains barriers that prevent full and equal use (of the website) by individuals with disabilities who are visually impaired. 31. On information and belief, the Defendant has not designated an employee as a Web Accessibility Coordinator to insure full and equal use of its website by individuals with disabilities. 32. On information and belief, the Defendant has not adopted a Web Accessibility Policy to insure full and equal use of its website by individuals with disabilities. 33. On information and belief, the Defendant has not instituted a Web Accessibility Committee to insure full and equal use of its website by individuals with disabilities. 34. The Defendant’s website does not meet the Web Content Accessibility Guidelines (“WCAG”) 2.0 Basic Level of web accessibility3. 36. On information and belief, the Defendant is aware of the access barriers within its website which prevent individuals with disabilities who are visually impaired from the means to comprehend the Defendant’s inventory of clothing, accessories, shoes, home goods, and toys, and\or to purchase said items online from the Defendant. 37. Such barriers result in discriminatory and unequal treatment of individuals with disabilities who are visually impaired. Thus, the Defendant has refused to make its website accessible to individuals with disabilities who are visually impaired. 38. Enforcement of Plaintiff Gomez’s rights is right and just pursuant to 28 40. Plaintiff Gomez brings this case as a class action pursuant to Federal Rule of Civil Procedure Rule 23, in that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class [F.R.C.P. Rule 23(a)(1)], the claims and defenses of the representative party is typical of those of the class [F.R.C.P. Rule 23(a)(3)], and Plaintiff Gomez (as the representative party) will fairly and adequately protect the interests of the class [F.R.C.P Rule 23(a)(4)]. 42. According to the National Federation for the Blind5, there are over 5 million Americans with visual disabilities; over a half-million Americans with visual disabilities reside within the state of Florida. 43. Clearly, the Class of Others Similarly Situated to Plaintiff Gomez which is to be represented by Plaintiff Gomez is so numerous that a joinder of each individual member is impracticable; F.R.C.P. Rule 23(a)(1). 44. Plaintiff Gomez is a representative of the Class due to the fact that he suffers from a qualified disability, he is visually impaired and he requires screen reader software interface in order to comprehend and effectively communicate with public accommodations on the internet, such as the Defendant’s website 45. The questions of law and fact relating to the representative Plaintiff are similar and common to the law and fact questions which would be raised by other members of the Class if they were individually named plaintiffs herein. 46. Similarly, the claims and defenses to be raised by and against the parties herein are typical of the claims or defenses which would be raised by the members of the Class if they were a party to this action. 48. The relief sought herein is for the benefit of all members of the Class and consistent injunctive relief should be provided for each member of the Class. 49. Prosecution of this matter by individual members of the Class would only create a risk of inconsistent and varying adjudications and the establishment of incompatible standard by defendant and adjudication which may be dispositive of the interest of the other Class members. 50. The questions of law and fact common to the members of the Class, such as the degree of non-compliance, which will be raised and adjudicated herein, predominate over any questions affecting only the individual Plaintiff or individual members of the Class. As a result, this class action is the optimal method for reaching a fair and efficient adjudication of the controversy raised herein. 51. The Defendant has discriminated against Plaintiff Gomez and the members of the Class by denying effective communication through its website. 52. The Defendant has failed to provide any mechanism by which to adequately serve visually impaired individuals such as Plaintiff Gomez and others similarly situated. The Defendant is operating in violation of Plaintiffs’ rights as protected by the ADA and is entitled to injunctive relief. 42 U.S.C. §12188. 54. Plaintiff Gomez and others similarly situated will continue to suffer irreparable injury from Defendant’s intentional acts, policies, and practices set forth herein unless enjoined by the court. 55. Notice to the Defendants is not required as a result of the Defendant’s failure to cure the violations. 56. Plaintiff Gomez and others similarly situated re-allege and incorporate by reference the allegations set forth in ¶¶s 1 – 55 above 57. The Americans with Disabilities Act (“ADA”) is landmark civil rights legislation that is the result of decades of advocacy to improve the lives and role in society of all persons with disabilities. The ADA was enacted and effective as of July 26, 1990. The ADA legislation has been protecting disabled persons from discrimination due to disabilities for over 25 years. 58. “Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). 59. “After thoroughly investigating the problem, 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 675 (2001) (internal quotation marks omitted). 61. Pursuant to 42 U.S.C. §12181(7)(E) & (F), the Defendant’s website is a place of public accommodation under the ADA because it is a “sales or rental establishment” and is also an “other service establishment”. As such, the Defendant’s website must be in compliance with the ADA. However, the Defendant’s website is\was not in compliance with the ADA. Plaintiff Gomez suffered an injury in fact because of the Defendant’s non-compliance. 62. A sampling review of just part of the Defendant’s website revealed that the website is not functional for users who are visually impaired, as follows: ID Scenario Issue Description Assistive Technology WCAG 2 Guideline Defendant COMPLAINT – CLASS ACTION Plaintiff Andres Gomez, on his own behalf and on behalf of all Other Individuals Similarly Situated, hereby sue Defendant Burlington Coat Factory Direct Corporation for civil rights violations and for injunctive relief, attorney’s fees and costs (including, but not limited to, court costs and expert fees) pursuant to Title III of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§12181-12189 (“ADA”), 28 C.F.R. Part 36, and allege as follows:

win

22. Defendants offer the commercial website, WWW.ELLIMAN.COM, to the public. The website offers features which should allow all consumers to access the services which Defendants offers in connection with their physical locations. The services offered by Defendants include, but are not limited to the following, which allow consumers to: find information about real estate sales offices locations and hours of operation, information about real estate for sale or rental and information about various neighborhoods. 23. It is, upon information and belief, Defendants’ policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendants’ website, and to therefore specifically deny the services that are offered and are heavily integrated with Defendants’ real estate sales offices. Due to Defendants’ failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendants’ real estate sales offices and the numerous services and benefits offered to the public through the Website. 24. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 27. Due to the inaccessibility of Defendants’ Website, blind and visually- impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities and services Defendants offers to the public on their Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 29. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 30. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 31. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendants have engaged in acts of intentional discrimination, including, but not limited to, the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 33. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 34. Because Defendants’ Website have never been equally accessible, and because Defendants lacks a corporate policy that is reasonably calculated to cause their Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendants to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendants to comply with WCAG 2.0 guidelines for Defendants’ Website. The Website must be accessible for individuals with disabilities who use computers, laptops, tablets and smart phones. Plaintiff seeks that this permanent injunction require Defendants to cooperate with the Agreed Upon Consultant to: a. Train Defendants’ employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; b. Regularly check the accessibility of the Website under the WCAG 35. If the Website was accessible, Plaintiff and similarly situated blind and visually-impaired people could independently view service items, locate Defendants’ real estate sales offices and hours of operation, shop for and otherwise research related services available via the Website such as real estate for sale or rental information. 36. Although Defendants may currently have centralized policies regarding maintaining and operating its Website, Defendants lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 37. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 38. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendants’ Website and as a result have been denied access to the equal enjoyment of services offered in Defendants’ physical locations, during the relevant statutory period. 40. Common questions of law and fact exist amongst Class, including: a. Whether Defendants’ Website is a “public accommodation” under the ADA; b. Whether Defendants’ Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendants’ Website denies the full and equal enjoyment of its services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendants’ Website denies the full and equal enjoyment of its services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 41. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendants have violated the ADA, NYSHRL or NYCHRL by failing to update or remove access barriers on their Website so it can be independently accessible to the Class. 43. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 44. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 45. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 46. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 47. Defendants’ real estate sales offices are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendants’ Website is a service, privilege, or advantage of Defendants’ real estate sales offices. The Website is a service that is heavily integrated with these locations and is a gateway thereto. 49. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 50. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 52. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 53. Plaintiff, on behalf of himself and the New York Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 54. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 55. Defendants’ physical locations are located in State of New York and throughout the United States and constitute public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendants’ Website is a service, privilege or advantage of Defendants. Defendants’ Website is a service that is heavily integrated with these physical locations and is a gateway thereto. 56. Defendants are subject to New York Human Rights Law because they own and operate their physical locations and Website. Defendants are a person within the meaning of N.Y. Exec. Law § 292(1). 58. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 59. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 61. Defendants’ actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendants have: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 62. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 63. Defendants discriminate, and will continue in the future to discriminate against Plaintiff and New York Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendants’ Website and their physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendants from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 64. Defendants’ actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 67. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 68. Plaintiff, on behalf of himself and the New York Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 69. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 70. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 72. Defendants’ New York City physical locations are public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Defendants’ Website is a service, privilege or advantage of Defendants and their Website is a service that is heavily integrated with these establishments and is a gateway thereto. 73. Defendants are subject to New York Civil Rights Law because they own and operate its physical locations and Website. Defendants are a person within the meaning of N.Y. Civil Law § 40-c(2). 74. Defendants are violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to their Website, causing its Website and the services integrated with Defendants’ physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities and services that Defendants make available to the non-disabled public. 75. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 77. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 78. Defendants discriminate, and will continue in the future to discriminate against Plaintiff and New York Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 79. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 80. Plaintiff, on behalf of himself and the New York Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 81. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 83. Defendants are subject to NYCHRL because they own and operate their physical locations in the City of New York and their Website, making them a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 84. Defendants are violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to their Website, causing their Website and the services integrated with their physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities and services that Defendants make available to the non-disabled public. 85. Defendants are required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 87. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 88. As such, Defendants discriminate, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendants from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 89. Defendants’ actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 90. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense. 91. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 92. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 94. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant deny, that their Website contains access barriers denying blind customers the full and equal access to the services and facilities of its Website and by extension its physical locations, which Defendants own, operate and control and fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 95. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendants’ Barriers on Their Website VIOLATION OF THE NEW YORK STATES CIVIL RIGHTS LAW VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL

lose

11. Defendants sent advertisements by facsimile to Plaintiff and a class of similarly-situated persons. Whether Defendants did so directly or with the assistance of a third party (yet unknown to Plaintiff), Defendants are directly liable for violating the TCPA. 12. Plaintiff has received at least one of Defendants’ advertisements by facsimile. A true and correct copy of the fax received in March 2015 is attached as Exhibit A. Plaintiff intends to discover the number of other Defendants’ advertisements sent to Plaintiff by fax. 13. Exhibit A is a one-page document Defendants sent by fax advertising pharmaceuticals. The fax advertises the commercial availability or quality of property, goods, or services. The fax provides information about the availability and price of various pharmaceuticals purportedly offered by sale by Westminster, and methods of contacting Westminster to receive the various pharmaceuticals. 15. Exhibit A does not include the mandatory opt-out notice required by 47 C.F.R. § 64.1200 (a) (4). 16. Plaintiff did not expressly invite or give permission to anyone to send Exhibit A or any other advertisement from Westminster to Plaintiff’s fax machine. 17. On information and belief, Defendants sent advertisements by facsimile to Plaintiff and more than 39 other persons in violation of the TCPA. 18. Plaintiff and the other class members owe no obligation to protect their fax machines from Defendants. Their fax machines are ready to send and receive their urgent communications, or private communications about patients’ medical needs, not to receive Defendants’ unlawful advertisements. 19. Plaintiff brings this action as a class action on behalf of itself and all others similarly situated as members of a class, initially defined as follows: Each person that was sent one or more telephone facsimile messages promoting the commercial availability or quality of property, goods, or services offered by “Westminster”, but not stating on the first page that the fax recipient may make a request to the sender not to send any future ads and that failure to comply, within 30 days, with such a request is unlawful. Plaintiff expressly reserves the right to modify the proposed class definition or propose subclasses. 21. On information and belief, Defendants’ fax advertising campaigns involved other, substantially-similar advertisements also sent without the opt-out notice required by the TCPA. Plaintiff intends to locate those advertisements in discovery. 22. This action is brought and may properly be maintained as a class action pursuant to Fed. R. Civ. P. 23. This action satisfies Rule 23 (a)’s numerosity, commonality, typicality, adequacy requirements. Additionally, prosecution of Plaintiff’s claims separately from the putative class’s claims would create a risk of inconsistent or varying adjudications under Rule 23 (b) (1) (A). Furthermore, the questions of law or fact that are common in this action predominate over any individual questions of law or fact making class representation the superior method to adjudicate this controversy under Rule 23 (b) (3). 23. Numerosity/impracticality of joinder. On information and belief, the class consists of more than 39 persons and, thus, is so numerous that individual joinder of each member is impracticable. The precise number of class members and their identities are unknown to Plaintiff, but will be obtained from Defendants’ records or the records of third parties. 25. Typicality of claims. Plaintiff’s claims are typical of the claims of the other class members, because Plaintiff and all class members were injured by the same wrongful practices. Plaintiff and the members of the class received Defendants’ advertisements by facsimile and those advertisements did not contain the opt-out notice required by the TCPA. Under the facts of this case, because the focus is upon Defendants’ conduct, if Plaintiff prevails on its claims, then the putative class members will prevail as well. 26. Adequacy of representation. Plaintiff is an adequate representative of the class because its interests do not conflict with the interests of the class it seeks to represent. Plaintiff has retained counsel competent and experienced in complex class action litigation, and TCPA litigation in particular, and Plaintiff intends to vigorously prosecute this action. Plaintiff and its counsel will fairly and adequately protect the interest of members of the class. 28. A class action is the superior method of adjudicating the common questions of law or fact that predominate over individual questions. A class action is superior to other available methods for the fair and efficient adjudication of this lawsuit, because individual litigation of the claims of all class members is economically unfeasible and procedurally impracticable. The likelihood of individual class members prosecuting separate claims is remote, and even if every class member could afford individual litigation, the court system would be unduly burdened by individual litigation of such cases. Plaintiff knows of no difficulty to be encountered in the management of this action that would preclude its maintenance as a class action. Relief concerning Plaintiff’s rights under the laws herein alleged and with respect to the class would be proper. Plaintiff envisions no difficulty in the management of this action as a class action. 29. Plaintiff incorporates the preceding paragraphs as though fully set forth herein. 3. Private right of action. A person may, if otherwise permitted by the laws or rules of court of a state, bring in an appropriate court of that state: (A) An action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) An action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) Both such actions. 47 U.S.C. § 227 (b) (3). 30. Plaintiff brings Count I on behalf of itself and a class of similarly situated persons against Defendants. 31. The TCPA prohibits the “use of any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine….” 47 U.S.C. § 227 (b) (1). 33. The TCPA provides a private right of action as follows: 34. The Court, in its discretion, may treble the statutory damages if a violation was knowing or willful. 47 U.S.C. § 227 (b) (3). 35. Here, Defendants violated 47 U.S.C. § 227 (b) (1) (C) by sending advertisements by facsimile (such as Exhibits A) to Plaintiff and the other class members without first obtaining their prior express invitation or permission. 36. The TCPA requires that every advertisement sent by facsimile must include an opt-out notice clearly and conspicuously displayed on the bottom of its first page. 47 C.F.R. § 64.1200 (a) (4). 37. Defendants failed to include a clear and conspicuous opt-out notice on Exhibit A. 39. Defendants violated the TCPA by failing to state on the first page of each fax advertisement that their failure to comply with an opt-out request within 30 days would be unlawful. Exhibit A. 40. Facsimile advertising imposes burdens on recipients that are distinct from the burdens imposed by other types of advertising. The required opt-out notice provides recipients the necessary information to opt-out of future fax transmissions, including a notice that the sender’s failure to comply with the opt-out request will be unlawful. 47 C.F.R. § 64.1200 (a) (4). 41. Defendants’ failure to include a compliant opt-out notice on their fax advertisements makes irrelevant any express consent or established business relationship (“EBR”) that otherwise might have justified Defendants’ fax advertising campaigns. 47 C.F.R. § 64.1200 (a) (4). 42. The TCPA is a strict liability statute and Defendants are liable to Plaintiff and the other class members even if their actions were negligent. 47 U.S.C. § 227 (b) (3). 44. If Defendants’ actions were knowing or purposeful, then the Court has the discretion to increase the statutory damages up to 3 times the amount. 47 U.S.C. § 227 (b) (3). 45. Westminster is liable for the fax advertisements at issue because it sent the faxes, caused the faxes to be sent, participated in the activity giving rise to or constituting the violation, the faxes were sent on its behalf, or under general principles of vicarious liability, including actual authority, apparent authority and ratification. 46. Defendants knew or should have known that Plaintiff and the other class members had not given express invitation or permission for Defendants or anybody else to fax advertisements about Defendants’ goods, products, or services, that Plaintiff and the other class members did not have an established business relationship with Defendants, that Exhibit A is an advertisement, and that Exhibit A did not display compliant opt-out notices as required by the TCPA. 49. Plaintiff brings Count II on behalf of itself and a class of similarly situated persons and against Defendants. 50. By sending advertisements to their fax machines, Defendants improperly and unlawfully converted the class’s fax machines to Defendants’ own use. Where printed (as in Plaintiff’s case), Defendants also improperly and unlawfully converted the class members’ paper and toner to Defendants’ own use. Defendants also converted Plaintiff’s time to Defendants’ own use, as they did with the valuable time of the other class members. 51. Immediately prior to the sending of the unsolicited faxes, Plaintiff and the other class members each owned an unqualified and immediate right to possession of their fax machines, paper, toner, and employee time. 52. By sending them unsolicited faxes, Defendants permanently misappropriated the class members’ fax machines, toner, paper, and employee time to their own use. Such misappropriation was wrongful and without authorization. 53. Defendants knew or should have known that their misappropriation of paper, toner, and employee time was wrongful and without authorization. 54. Plaintiff and the other class members were deprived of the use of the fax machines, paper, toner, and employee time, which could no longer be used for any other purpose. Plaintiff and each class member thereby suffered damages as a result of their receipt of unsolicited fax advertisements from Defendants. CONVERSION TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227

win

71. This matter is brought by Plaintiff on behalf of itself and those similarly situated, under Federal Rule of Civil Procedure 23(a), 23(b)(1), 23(b)(2), and 23(b)(3). 72. Prosecuting separate actions by individual class members, in lieu of proceeding as a class action, would create a risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for Defendant. 73. As alleged above, Defendant has acted or refused to act on grounds that apply generally to the proposed Class and Subclasses, such that final injunctive relief or declaratory relief is appropriate. 74. The questions of law or fact common to Class and Subclass Members predominate over any questions affecting only individual members, and a class action is superior to other methods for fairly and efficiently adjudicating this controversy.

lose

21. Defendant is a jewelry company that owns and operates the website, www.berricle.com (its “Website”), offering features which should allow all consumers to access the goods and services which Defendant ensures the delivery of throughout the United States, including New York State. 22. Defendant’s Website offers its products and services for online sale and general delivery to the public. The Website offers features which ought to allow users to browse for items, access navigation bar descriptions and prices, and avail consumers of the ability to peruse the numerous items offered for sale. 23. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen-reader user and uses it to access the Internet. Plaintiff has visited the Website using a screen-reader. 25. For example, many features on the Website lacks alt. text, which is the invisible code embedded beneath a graphical image. As a result, Plaintiff was unable to differentiate what products were on the screen due to the failure of the Website to adequately describe its content. 26. Many features on the Website also fail to contain a proper label element or title attribute for each field. This is a problem for the visually impaired because the screen reader fails to communicate the purpose of the page element. It also leads to the user not being able to understand what he or she is expected to insert into the subject field. As a result, Plaintiff was unable to enjoy the privileges and benefits of the Website equally to sighted users. 27. Many pages on the Website also contain the same title elements. This was a problem for Plaintiff because in certain instances the screen reader failed to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 30. These access barriers effectively denied Plaintiff the ability to use and enjoy Defendant’s website the same way sighted individuals do. 31. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered to the general public. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Website, and the numerous goods and services and benefits offered to the public through the Website. 33. If the Website were equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 34. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 35. Because simple compliance with the WCAG 2.1 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 36. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 38. Upon information and belief, because BERRICLE LLC.’s Website has never been accessible and because BERRICLE LLC. does not have, and has never had, an adequate corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring: a. that BERRICLE LLC. retain a qualified consultant acceptable to Plaintiff (“Mutually Agreed Upon Consultant”) who shall assist it in improving the accessibility of its Website so the goods and services on them may be equally accessed and enjoyed by individuals with vision related disabilities; b. that BERRICLE LLC. 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, including onsite training to create accessible content at the design and development stages; c. that BERRICLE LLC. work with the Mutually Agreed Upon Consultant to perform an automated accessibility audit on a periodic basis to evaluate whether its Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; d. that BERRICLE LLC. 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 its Website may be equally accessed and enjoyed by individuals with vision related disabilities on an ongoing basis; e. that BERRICLE LLC. 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 tollfree phone number to report accessibility-related problems; and f. that Plaintiff, their counsel and its experts monitor Defendant’s Website for up to two years after the Mutually Agreed Upon Consultant validates it is free of accessibility errors/violations to ensure it has adopted and implemented adequate accessibility policies. 40. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 41. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 42. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 44. Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered, during the relevant statutory period. 45. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its products, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYCHRL. 46. Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that Defendant has violated the ADA or NYCHRL by failing to update or remove access barriers on its Website so either can be independently accessible to the Class. 48. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 49. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 50. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 51. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 53. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 54. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the products, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 55. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 57. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 58. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 59. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 60. Defendant’s Website is a sales establishment and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9). 61. Defendant is subject to NYCHRL because it owns and operates its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 63. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 64. Defendant’s actions constitute willful intentional discrimination against the Sub- Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 65. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 68. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 71. Plaintiff, on behalf of himself and the Class and New York City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 73. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

lose

11. Every human hair contains three distinct parts: the shaft, root, and follicle. The hair shaft is the strand of hair that is visible above the skin. The hair root is the section of the hair that lies beneath the skin. The hair follicle is the skin that holds the hair root.1 42. Plaintiff brings this action on her own behalf and on behalf of all other persons similarly situated. The Class which Plaintiff seeks to represent comprises: 56. Plaintiff repeats and re-alleges the allegations set forth in the preceding paragraphs and incorporates the same as if set forth herein at length. 57. This cause of action is brought pursuant to Business and Professions Code Section 17200, et seq., on behalf of Plaintiff and a Class consisting of all persons residing in the United States and/or State of California who purchased the Products for personal use and not for resale during the time period of four years prior to the filing of the complaint through the present. A. “Unfair” Prong 58. Under California’s Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200, et seq., a challenged activity is “unfair” when any injury it causes outweighs any benefits provided to consumers and the injury is one that the consumers themselves could not reasonably avoid. Camacho v. Auto Club of Southern California, 142 Cal. App. 4th 1394, 1403 (2006). 59. Defendant’s false and deceptive advertising as alleged herein does not confer any benefit to consumers. 60. Defendant’s false and deceptive advertising as alleged herein causes injuries to consumers, who do not receive a product consistent with their reasonable expectations. 61. Defendant’s false and deceptive advertising as alleged herein causes injuries to consumers, who end up overpaying for the Products that are not as advertised. 62. Consumers cannot avoid any of the injuries caused by Defendant’s false and deceptive advertising. 63. The injuries cause by Defendant’s false and deceptive advertising outweighs any benefits. 86. Plaintiff repeats and re-alleges the allegations set forth in the preceding paragraphs and incorporates the same as if set forth herein at length. 87. This cause of action is brought pursuant to Business and Professions Code Section 17500, et seq., on behalf of Plaintiff and the Class consisting of all persons residing in the United States and/or State of California who purchased the Products for personal consumption and not for resale during the time period of four years prior to the filing of the complaint through the present. 96. Plaintiff repeats and re-alleges the allegations set forth in the preceding paragraphs and incorporates the same as if set forth herein at length. 97. This cause of action is brought pursuant to Civil Code Section 1750, et seq., the Consumers Legal Remedies Act (“CLRA”), on behalf of Plaintiff and a Class consisting of all persons residing in the United States and/or State of California who purchased the Products for personal consumption and not for resale during the time period of four years prior to the filing of the complaint through the present. 98. The Class consists of thousands of persons, the joinder of whom is impracticable. FALSE AND MISLEADING ADVERTISING IN VIOLATION OF BUSINESS & PROFESSIONS CODE § 17500, et seq. (On Behalf of the Class) Hair Loss VIOLATION OF CALIFORNIA CONSUMERS LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE § 1750, et seq. (On Behalf of the Class) VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW BUSINESS & PROFESSIONS CODE § 17200, et seq. (On Behalf of the Class)

lose

13. Named Plaintiffs bring this action for violations of the FLSA as a collective action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b), on behalf of all persons presently and formerly employed by Defendants who were non-exempt employees, who were subject to Defendants’ unlawful pay practices and policies discussed herein, and who worked for Defendants at any point in the three years preceding the date the instant action was initiated (the members of this putative class are referred to as “Collective Plaintiffs”). 15. Named Plaintiffs and Collective Plaintiffs are similarly situated, have substantially similar job duties, have substantially similar pay provisions, and are all subject to Defendants’ unlawful policies and practices as discussed herein. 16. There are numerous similarly situated current and former employees of Defendants who were compensated improperly for overtime work in violation of the FLSA and who would benefit from the issuance of a Court Supervised Notice of the instant lawsuit and the opportunity to join in the present lawsuit. 17. There are numerous similarly situated current and former employees of Defendants who Defendants failed to pay an overtime premium for hours worked in excess of forty (40) per workweek, all of whom would benefit from the issuance of a Court Supervised Notice of the instant lawsuit and the opportunity to join in the present lawsuit. 18. Similarly situated employees are known to Defendants, are readily identifiable by Defendants, and can be located through Defendants’ records. 19. Therefore, Named Plaintiffs should be permitted to bring this action as a collective action for and on behalf of themselves and those employees similarly situated (i.e., “Collective Plaintiffs”), pursuant to the “opt-in” provisions of the FLSA, 29 U.S.C. § 216(b). 20. The foregoing paragraphs are incorporated herein as if set forth in full. 21. Named Plaintiffs were hourly employees of Defendant East Coast, who within the last three years were employed by Defendant East Coast. 23. Collective Plaintiffs were/are hourly employees of Defendant East Coast, who within the last three years were employed by Defendant East Coast. 24. Upon information and belief, each paycheck issued to Collective Plaintiffs provides that they were hourly employees and were paid an hourly wage. 25. Defendants did not designate Named Plaintiffs as exempt employees under federal or state law. 26. Defendants did not designate Collective Plaintiffs as exempt employees under federal or state law. 27. Upon information and belief, Defendants have maintained an unlawful wage payment system for at least the last three years and have enforced such unlawful policies. 52. At all times relevant herein, Defendants have and continue to be employers within the meaning of the FLSA. 53. At all times relevant herein, Defendants were responsible for paying wages to Named Plaintiffs and Collective Plaintiffs. 54. At all times relevant herein, Named Plaintiffs and Collective Plaintiffs were employed with Defendants as “non-exempt employees” within the meaning of the FLSA. 55. Under the FLSA, an employer must pay a non-exempt employee at least one and one half times his or her regular rate for each hour worked in excess of forty (40) hours per workweek. 56. Defendants’ violations of the FLSA include, but are not limited to, not paying Named Plaintiffs and Collective Plaintiffs proper overtime compensation for hours worked in excess of forty (40) per workweek and issuing paychecks designed to hide Defendants’ unlawful conduct. 57. Defendants’ conduct in failing to pay Named Plaintiffs and Collective Plaintiffs properly is willful and not based upon any reasonable interpretation of the law. 58. As a result of Defendants’ unlawful conduct, Named Plaintiffs and Collective Plaintiffs have suffered damages as set forth herein. 59. The foregoing paragraphs are incorporated herein as if set forth in full. 61. At all times relevant herein, Defendants were responsible for paying wages to Named Plaintiffs. 62. At all times relevant herein, Named Plaintiffs were employed with Defendants as “non-exempt employees” within the meaning of the New Jersey Wage Laws. 63. Under the New Jersey Wage Laws, an employer must pay a non-exempt employee at least one and one half times his or his regular rate for each hour worked in excess of forty (40) hours per workweek. 64. Defendants’ violations of the New Jersey Wage Laws include, but are not limited to, not paying Named Plaintiffs proper overtime compensation for time worked in excess of forty (40) hours per workweek and issuing paychecks designed to hide Defendants’ unlawful conduct. 65. Defendants’ conduct in failing to pay Named Plaintiffs properly was willful and not based upon any reasonable interpretation of the law. Fair Labor Standards Act (“FLSA”) (Failure to pay Overtime Compensation) (Named Plaintiffs and Collective Plaintiffs v. Defendants) New Jersey Wage Laws (Failure to pay Overtime Compensation) (Named Plaintiffs v. Defendants)

win

15. The Kikka defendants form a successful restaurateur, then as a sushi supplier company with over 25 years of experience, and several years operation and experience in the New Orleans area.. The company currently specializes in operation of small in-store sushi restaurants and a sushi supplier in the New Orleans metropolitan area, and beyond. 16. At all times relevant to this action, KIKKA has employed Plaintiff and other employees to work at an hourly rate as restaurant workers, as well as in the other services listed hereinabove. Plaintiffs and the other KIKKA workers performed most or all of their work for KIKKA within the Eastern District of Louisiana. 18. Upon information and belief, KIKKA and/or Tonny Soesanto instigated the creation of West Bank Holdings II with the intention that West Bank Holdings II would become the “employer” of Plaintiffs, through check issuance on paper, and the other KIKKA workers, or some of them. 19. Plaintiffs had no knowledge of West Bank Holdings II as an employer and Plaintiffs never had reason to believe that they were employees of any entity other than KIKKA, and in fact any and all payment distributed to them, work assignments, hours, uniforms, tools, and otherwise were provided by KIKKA. 20. West Bank Holdings II is an instrumentality or alter ego of KIKKA and Tonny Soesanto and is, at most, a joint employer with those defendants. KIKKA and Tonny Soesanto at all relevant times continued to control the restaurant employees hiring and firing, work schedules and employment conditions, rates and methods of payment, and employment records. 21. Although Plaintiffs were non-exempt employees under the FLSA and routinely worked in excess of 40 hours per week, Defendants never paid Plaintiffs an overtime rate of one and one- half times their regular rate of pay for hours worked in excess of 40 hours per workweek. 22. Defendants have also willfully and improperly applied the same unlawful pay practice to many other non-exempt employees. Plaintiffs are aware of other current and former non-exempt employees of Defendants who also worked overtime hours for Defendants without receiving overtime pay. 24. Plaintiffs bring this suit as a collective action pursuant to 29 U.S.C. § 216(b) on behalf of themselves and all others employed by Defendants as restaurant employees, chefs, cooks, and clerical workers within three (3) years prior to the filing of this Complaint who, like Plaintiffs, have not been compensated at one and one-half their regular rate of pay for all hours worked in excess of forty (40) in a single workweek. 25. Plaintiffs have consented in writing to be a part of this action. Plaintiff signed consent forms are attached hereto as Exhibit A. 26. More than a dozen additional current and/or former employees of Defendants have signed consent forms to join this action as “opt-in” members of the FLSA Collective. These consent forms will be filed at a later date. As this case proceeds, it is likely that other individuals will file consent forms and join this action as “opt-in” plaintiffs. 27. Defendants classify and pay all of their restaurant clerical employees, such as Plaintiff, in the manner described herein. As such, Defendants maintained a common pay practice or policy and the FLSA Collective are similarly situated to Plaintiffs. 28. Defendants’ restaurant employees all perform the same essential job functions and duties although one employee might have more tenure, experience, or require less supervision than another employee in the same or similar position. As such, the FLSA Collective are similarly situated to Plaintiffs. 29. Although the exact amount of damages may vary, damages for each individual can be calculated using the same method and formula. 31. The FLSA Collective should be allowed to receive notice about this lawsuit and given an opportunity to join. Like Plaintiffs, these similarly situated employees are entitled to recover their unpaid overtime wages, liquidated damages, attorneys’ fees, and other damages. Therefore, notice is appropriately sent to the following class: All individuals who were employed by KIKKA A/K/A KIKKA SUSHI, Tonny Soesanto, or any other related entity as restaurant employees during any workweek between JUNE 29, 2017 and up to the time notice of this action is provided. 32. Defendants willfully engaged in a pattern of violating the FLSA as described in this Complaint in ways including, but not limited to, failing to pay their employees overtime compensation. Defendants’ conduct constitutes a willful violation of the FLSA within the meaning of 29 33. Plaintiffs incorporate by reference the allegations contained in all of the above paragraphs as if fully set forth herein. 34. The FLSA applies to Defendants’ employment of Plaintiffs and the FLSA Collective. 35. The FLSA mandates that employees are entitled to overtime premium pay at a rate of no less than one and one-half times the employee's regular rate for all hours worked in excess of 40 hours per workweek. 36. Defendants have willfully refused to pay overtime to Plaintiffs and the FLSA Collective for hours worked in excess of 40 hours per workweek. 38. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the meaning of the FLSA. Defendants knew or showed reckless disregard for the fact that their compensation practices were in violation of the FLSA.

lose

(Violation of 42 U.S.C. §§ 12181 et seq. – Title III of the Americans with Disabilities Act) (Violation of New York State Human Rights Law, N.Y. Exec. Law Article 15 (Executive Law § 292 et seq.)) 26. Defendants control and operate ZOYA.com. in New York State and throughout the United States and the world. 27. ZOYA.com is a commercial website that offers products and services for online sale. The online store allows the user to browse nail polish and nail care products, make purchases, and perform a variety of other functions. 28. Among the features offered by ZOYA.com are the following: (a) Consumers may use the website to connect with ZOYA on social media, using such sites as Facebook, Twitter, Instagram, and Pinterest; (b) an online store, allowing customers to purchase the various lines of nail polish, nail care and other related products; and (c) learning about career opportunities, shipping and return policies, the various collections, nail care, and learning about the company and their founder. 29. This case arises out of ZOYA’s policy and practice of denying the blind access to the goods and services offered by ZOYA.com. Due to ZOYA’s failure and refusal to remove access barriers to ZOYA.com, blind individuals have been and are being denied equal access to ZOYA, as well as to the numerous goods, services and beneftheir offered to the public through ZOYA.com. 31. ZOYA.com contains access barriers that prevent free and full use by Plaintiff and blind persons using keyboards and screen-reading software. These barriers are pervasive and include, but are not limited to: lack of alt-text on graphics, inaccessible drop-down menus, the lack of navigation links, the lack of adequate prompting and labeling, the denial of keyboard access, empty links that contain no text, redundant links where adjacent links go to the same URL address, and the requirement that transactions be performed solely with a mouse. 32. Alternative text (“Alt-text”) is invisible code embedded beneath a graphical image on a website. Web accessibility requires that alt-text be coded with each picture so that a screen-reader can speak the alternative text while sighted users see the picture. Alt-text does not change the visual presentation except that it appears as a text pop-up when the mouse moves over the picture. There are many important pictures on ZOYA.com that lack a text equivalent. The lack of alt-text on these graphics prevents screen readers from accurately vocalizing a description of the graphics (screen-readers detect and vocalize alt-text to provide a description of the image to a blind computer user). As a result, Plaintiff and blind ZOYA.com customers are unable to determine what is on the website, browse the website or investigate and/or make purchases. 34. On ZOYA.com, blind customers are not aware if the desired products, such as nail polish, have been added to the shopping bag because the screen-reader does not indicate the type of product. Moreover, blind customers are unable to select the quantity of the product they desire. Therefore, blind customers are essentially prevented from purchasing any items on ZOYA.com. 35. Furthermore, ZOYA.com lacks accessible image maps. An image map is a function that combines multiple words and links into one single image. Visual details on this single image highlight different “hot spots” which, when clicked on, allow the user to jump to many different destinations within the website. For an image map to be accessible, it must contain alt-text for the various “hot spots.” The image maps on ZOYA.com’s menu page do not contain adequate alt-text and are therefore inaccessible to Plaintiff and the other blind individuals attempting to make a purchase. When Plaintiff tried to access the menu link in order to make a purchase, she was unable to access it completely. 37. Moreover, the lack of navigation links on Defendants’ website makes attempting to navigate through ZOYA.com even more time consuming and confusing for Plaintiff and blind consumers. 38. ZOYA.com requires the use of a mouse to complete a transaction. Yet, it is a fundamental tenet of web accessibility that for a web page to be accessible to Plaintiff and blind people, it must be possible for the user to interact with the page using only the keyboard. Indeed, Plaintiff and blind users cannot use a mouse because manipulating the mouse is a visual activity of moving the mouse pointer from one visual spot on the page to another. Thus, ZOYA.com’s inaccessible design, which requires the use of a mouse to complete a transaction, denies Plaintiff and blind customers the ability to independently navigate and/or make purchases on ZOYA.com. 40. ZOYA.com thus contains access barriers which deny the full and equal access to Plaintiff, who would otherwise use ZOYA.com and who would otherwise be able to fully and equally enjoy the beneftheir and services of ZOYA.com in New York State and throughout the United States. 41. Plaintiff, Linda Slade, has made numerous attempts to complete a purchase on ZOYA.com, most recently on August 23, 2019, but was unable to do so independently because of the many access barriers on Defendants’ website. These access barriers have caused ZOYA.com to be inaccessible to, and not independently usable by, blind and visually-impaired persons. Amongst other access barriers experienced, Plaintiff was unable to purchase nail polish. 42. As described above, Plaintiff has actual knowledge of the fact that Defendants’ website, ZOYA.com, contains access barriers causing the website to be inaccessible, and not independently usable by, blind and visually-impaired persons. 43. These barriers to access have denied Plaintiff full and equal access to, and enjoyment of, the goods, beneftheir and services of ZOYA.com. 45. Defendants utilizes standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 46. Because of Defendants’ denial of full and equal access to, and enjoyment of, the goods, beneftheir and services of ZOYA.com, Plaintiff and the class have suffered an injury- in-fact which is concrete and particularized and actual and is a direct result of Defendants’ conduct. 47. Plaintiff, on behalf of herself and all others similarly situated, seeks certification of the following nationwide class pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: “all legally blind individuals in the United States who have attempted to access ZOYA.com and as a result have been denied access to the enjoyment of goods and services offered by ZOYA.com, during the relevant statutory period.” 48. Plaintiff seeks certification of the following New York subclass pursuant to Fed.R.Civ.P. 23(a), 23(b)(2), and, alternatively, 23(b)(3): “all legally blind individuals in New York State who have attempted to access ZOYA.com and as a result have been denied access to the enjoyment of goods and services offered by ZOYA.com, during the relevant statutory period.” 49. There are hundreds of thousands of visually-impaired persons in New York State. There are approximately 8.1 million people in the United States who are visually- impaired. Id. Thus, the persons in the class are so numerous that joinder of all such persons is impractical and the disposition of their claims in a class action is a benefit to the parties and to the Court. 51. There are common questions of law and fact common to the class, including without limitation, the following: (a) Whether ZOYA.com is a “public accommodation” under the ADA; (b) Whether ZOYA.com is a “place or provider of public accommodation” under the laws of New York; (c) Whether Defendants, through their website, ZOYA.com, denies the full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities in violation of the ADA; and (d) Whether Defendants, through their website, ZOYA.com, denies the full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities in violation of the law of New York. 52. The claims of the named Plaintiff are typical of those of the class. The class, similar to the Plaintiff, is severely visually-impaired or otherwise blind, and claims ZOYA has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on their website, ZOYA.com, so it can be independently accessible to the class of people who are legally blind. 54. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to Class members clearly predominate over questions affecting only individual class members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 55. Judicial economy will be served by maintenance of this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar sutheir by people with visual disabilities throughout the United States. 56. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the class, unless otherwise indicated. 57. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 56 of this Complaint as though set forth at length herein. 59. ZOYA.com is a sales establishment and public accommodation within the definition of 42 U.S.C. §§ 12181(7). 60. Defendants are subject to Title III of the ADA because they own and operate ZOYA.com. 61. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(I), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 62. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(II), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 63. Specifically, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(II), unlawful discrimination includes, among other things, “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.” 65. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their websites accessible, including but not limited to ensuring adequate prompting and accessible alt-text. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendants’ business nor result in an undue burden to Defendants. 66. The acts alleged herein constitute violations of Title III of the ADA, 42 U.S.C. § 12101 et seq., and the regulations promulgated thereunder. Patrons of ZOYA who are blind have been denied full and equal access to ZOYA.com, have not been provided services that are provided to other patrons who are not disabled, and/or have been provided services that are inferior to the services provided to non-disabled patrons. 67. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 68. As such, Defendants discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of ZOYA.com in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. and/or their implementing regulations. 70. The actions of Defendants were and are in violation of the ADA, and therefore Plaintiff invokes her statutory right to injunctive relief to remedy the discrimination. 71. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 72. Pursuant to 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. 73. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 72 of this Complaint as though set forth at length herein. 74. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.”. 75. ZOYA.com is a sales establishment and public accommodation within the definition of N.Y. Exec. Law § 292(9). 76. Defendants are subject to the New York Human Rights Law because they own and operate ZOYA.com. Defendants are a person within the meaning of N.Y. Exec. Law. § 292(1). 78. Specifically, under N.Y. Exec. Law § unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 79. In addition, under N.Y. Exec. Law § 296(2)(c)(II), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 80. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed by using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendants’ business nor result in an undue burden to Defendants. 82. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 83. As such, Defendants discriminate, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of ZOYA.com under N.Y. Exec. Law § 296(2) et seq. and/or their implementing regulations. Unless the Court enjoins Defendants from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 84. The actions of Defendants were and are in violation of the New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 85. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines pursuant to N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 86. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 87. Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff prays for judgment as set forth below. 88. Plaintiff repeats, realleges and incorporates by reference the allegations contained in paragraphs 1 through 87 of this Complaint as though set forth at length herein. 89. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 90. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . .” 91. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 92. ZOYA.com is a sales establishment and public accommodation within the definition of N.Y. Civil Rights Law § 40-c(2). 93. Defendants are subject to New York Civil Rights Law because they own and operate ZOYA.com. Defendants are a person within the meaning of N.Y. Civil Law § 40-c(2). 95. There are readily available, well-established guidelines on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other business entities in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed by using a keyboard. Incorporating the basic components to make their website accessible would neither fundamentally alter the nature of Defendants’ business nor result in an undue burden to Defendants. 96. In addition, N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 97. Specifically, under N.Y. Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the Defendants shall reside . . .” 98. Defendants have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing.

win

18. Plaintiff brings this action on behalf of himself and on behalf of all others similarly situated (“The Class”). 19. Plaintiff represents, and is a member of, “The Class” defined as follows: “All persons in California whose inbound and outbound telephone conversations were monitored, recorded, eavesdropped upon and/or wiretapped without their consent by Defendant within the four years prior to the filing of the original Complaint in this action.” 20. Defendant, and its employees and agents are excluded from The Class. Plaintiff does not know the number of members in The Class, but believe this number to be in the tens of thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 21. This suit seeks only damages and injunctive relief for recovery of economic injury on behalf of The Class and it expressly is not intended to request any recovery for personal injury and claims related thereto. Plaintiff reserves the right to expand The Class definition to seek recovery on behalf of additional persons as warranted as facts are learned in further investigation and discovery. 22. The joinder of The Class members is impractical and the disposition of their claims in the Class action will provide substantial benefits both to the parties and to the Court. The Class can be identified through Defendant’s records. 29. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 30. Californians have a constitutional right to privacy. Moreover, the California Supreme Court has definitively linked the constitutionally protected right to privacy within the purpose, intent and specific protections of the Privacy Act, including specifically, Penal Code § 632. “In addition, California’s explicit constitutional privacy provision (Cal. Const., 1 § 1) was enacted in part specifically to protect California from overly intrusive business practices that were seen to pose a significant and increasing threat to personal privacy. (Citations omitted). Thus, Plaintiff believes that California must be viewed as having a strong and continuing interest in the full and vigorous application of the provisions of section 632 prohibiting the recording of telephone conversations without the knowledge or consent of all parties to the conversation. 39. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 40. Defendant invaded Plaintiff and the members of The Class’ right to privacy by intentionally allowing the unauthorized eavesdropping, wiretapping, recording, and listening of the telephone conversation with Plaintiff and the members of The Class and negligently maintaining the confidentiality of the information of Plaintiff and the members of The Class, as set for above. 41. The intrusion through the unauthorized eavesdropping, wiretapping, recording, and listening of the telephone conversations with Plaintiff and the members of The Class and the negligently maintaining of the confidentiality of the information of Plaintiff and The Class, was offensive and objectionable to Plaintiff, the Class, and to a reasonable person of ordinary sensibilities. 42. The intrusion was into a place or thing which was private and which is entitled to be private, in that Plaintiff and The Class’ personal conversations and information provided to Defendant were made privately, were intended not to be recorded, and were intended to be kept confidential and protected from unauthorized disclosure. 46. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 47. Defendant, as aforesaid herein, has various statutory and common law duties not to engage in the aforementioned wire-tapping, eavesdropping, recording, and listening conduct such that Plaintiff and The Class’ rights to privacy were invaded and breached. 48. Defendant negligently and recklessly engages in the aforementioned eavesdropping, wiretapping, recording, and listening conduct of Plaintiff and The Class. 49. These activities of Defendant as aforesaid in this cause of action and in this Complaint, legally caused actual, statutorily-imposed and/or demonstrable damages to Plaintiff and The Class. 7. Defendant is, and at all times mentioned herein was, a professional corporation. Plaintiff is informed and believes, and on the basis of that information and belief alleges, that at all times mentioned in this Complaint, Defendants were the agents and employees of their co-defendants, and in doing the things alleged in this Complaint, were acting within the course and scope of that agency and employment. 8. At all times relevant, Plaintiff was an individual residing within the State of California. INVASION OF PRIVACY: COMMON LAW INVASION OF PRIVACY: VIOLATION OF PENAL CODE § 630 ET SEQ. NEGLIGENCE PAGE 12 OF 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

lose

(Declaratory Relief) (on behalf of Plaintiff and the Class) 106. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 107. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that the Website contains access barriers denying deaf and hard-of-hearing individuals the full and equal access to the goods and services of the Website, which Defendant owns, operates, and/or controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Administrative Code § 8-107, et seq. prohibiting discrimination against the deaf and hard of hearing. 108. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. (Violation of New York City Human Rights Law, N.Y.C. Administrative Code § 8-102, et seq.) (on behalf of Plaintiff and New York subclass) (Violation of New York State Human Rights Law, N.Y. Exec. Law, Article 15 (Executive Law § 292 et seq.) (on behalf of Plaintiff and New York subclass) (Violation of 42 U.S.C. § 12181, et seq. — Title III of the Americans with Disabilities Act) (on behalf of Plaintiff and the Class) (Violation of New York State Civil Rights Law, NY CLS Civ R, Article 4 (CLS Civ R § 40 et seq.) (on behalf of Plaintiff and New York subclass) 22. Plaintiff, on behalf of herself and all others similarly situated, seeks certification of the following nationwide class pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: “all legally deaf and hard-of-hearing individuals in the United States who have attempted to access the Website and as a result have been denied access to the enjoyment of goods and services offered by the Website during the relevant statutory period.” 23. Plaintiff seeks certification of the following New York subclass pursuant to Fed. R. Civ. P. 23(a), 23(b)(2), and, alternatively, 23(b)(3): “all legally deaf and hard-of-hearing individuals in New York State who have attempted to access the Website and as a result have been denied access to the enjoyment of goods and services offered by the Website, during the relevant statutory period.” 24. There are hundreds of thousands of deaf or hard-of-hearing individuals in New York State. There are approximately 36 million people in the United States who are deaf or hard of hearing. Thus, the persons in the Class are so numerous that joinder of all such persons is impractical and the disposition of their claims in a class action is a benefit to the parties and to the Court. 25. This case arises out of Defendant’s policy and practice of maintaining an inaccessible website denying deaf and hard-of-hearing persons access to the goods and services of the Website. Due to Defendant’s policy and practice of failing to remove access barriers, deaf and hard-of-hearing persons have been and are being denied full and equal access to independently browse and watch videos on the Website. 26. There are common questions of law and fact common to the class, including without limitation, the following: a. Whether the Website is a “public accommodation” under the ADA; b. Whether the Website is a “place or provider of public accommodation” under the laws of New York; c. Whether Defendant through the Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with hearing disabilities in violation of the ADA; and d. Whether Defendant through the Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with hearing disabilities in violation of the laws of New York. 27. The claims of the named Plaintiff are typical of those of the Class. The Class, similarly to the Plaintiff, are deaf or hard of hearing, and claim that Defendant has violated the ADA, and/or the laws of New York by failing to update or remove access barriers on the Website, so it can be independently accessible to the Class of people who are legally deaf or hard of hearing. 28. Plaintiff will fairly and adequately represent and protect the interests of the members of the Class because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the members of the Class. Class certification of the claims is appropriate pursuant to Fed. R. Civ P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 29. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to Class members clearly predominate over questions affecting only individual Class members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 30. Judicial efficiency will be served by maintenance of this lawsuit as a class action in that it will avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with hearing disabilities throughout the United States. 31. References to Plaintiff shall be deemed to include the named Plaintiff and each member of the Class, unless otherwise indicated. 32. Defendant operates the Website, which is an online learning community for people who want to learn from educational videos. It delivers information to millions of people across the United States. 33. The Website is a service and benefit offered by Defendant throughout the United States, including New York State. The Website is owned, controlled and/or operated by Defendant. 34. The Website allows users to browse, view, and purchase educational videos about many topics and skills and to browse and view previews prior to making purchases. Defendant’s videos are available with the click of a mouse and are played through the Internet on computers, cell phones, and other electronic devices. 35. This case arises out of Defendant’s policy and practice of denying the deaf and hard of hearing full and equal access to the Website, including the goods and services offered by Defendant through the Website. Due to Defendant’s failure and refusal to remove access barriers to the Website, deaf and hard-of-hearing individuals have been and are being denied equal access to the Website, as well as to the numerous goods, services and benefits offered to the public through the Website. 36. Defendant denies the deaf and hard of hearing access to goods, services, and information made available through the Website by preventing them from freely enjoying, interpreting, and understanding the content on the Website. 37. The Internet has become a significant source of information for conducting business and for doing everyday activities such as reading news, watching videos, etc., for deaf and hard-of-hearing persons. 38. The deaf and hard of hearing access videos through closed captioning, which is a transcription or translation of the audio portion of a video as it occurs, sometimes including description of non-speech elements. Except for a deaf or hard-of-hearing person whose residual hearing is still sufficient to apprehend the audio portion of the video, closed captioning provides the only method by which a deaf or hard-of-hearing person can independently access the video. Unless websites are designed to allow for use in this manner, deaf and hard-of-hearing persons are unable to fully access the service provided through the videos on the Website. 39. There are well-established guidelines for making websites accessible to disabled people. These guidelines have been in place for several years and have been followed successfully by other large business entities in making their websites accessible. The Web Accessibility Initiative (“WAI”), a project of the World Wide Web Consortium which is the leading standards organization of the Web, has developed guidelines for website accessibility, called the Web Content Accessibility Guidelines (“WCAG”). The federal government has also promulgated website accessibility standards under Section 508 of the Rehabilitation Act. These guidelines are readily available via the Internet, so that a business designing a website can easily access them. These guidelines recommend several basic components for making websites accessible, including but not limited to adding closed captioning to video content. 40. The Website contains access barriers that prevent free and full use by Plaintiff and other deaf or hard-of-hearing persons, including but not limited to the lack of closed captioning. This barrier is in violation of WCAG 2.1 Guideline 1.2.2, which mandates that video content contain captioning. 41. The Website contains numerous educational videos that lack captioning. The videos Watercolor in the Woods: A Beginner’s Guide to Painting the Natural World by Rosalie Haizlett; Illustrating Expressive Portraits in Procreate by Maia Faddoul; and Donut Flat Lays: Tips for Better Overhead Photos by Tabitha Park are amongst many others on the Website do not contain closed captioning. The lack of captioning prevents Plaintiff and other deaf or hard-of- hearing people from understanding the content of those videos, thus preventing them from learning about the topics being taught. 42. Due to the Website’s inaccessibility, Plaintiff and other deaf or hard-of-hearing individuals must in turn spend time, energy, and/or money to apprehend the audio portion of the videos offered by Defendant. Some deaf and hard-of-hearing individuals may require an interpreter to apprehend the audio portion of the video or require assistance from their friends or family. By contrast, if the Website was accessible, a deaf or hard-of-hearing person could independently watch the videos and enjoy the services provided by Defendant as hearing individuals can and do. 43. The Website thus contains access barriers which deny full and equal access to Plaintiff, who would otherwise use the Website and who would otherwise be able to fully and equally enjoy the benefits and services of the Website in New York State. 44. Plaintiff attempted to watch the educational videos Watercolor in the Woods: A Beginner’s Guide to Painting the Natural World by Rosalie Haizlett; Illustrating Expressive Portraits in Procreate by Maia Faddoul; and Donut Flat Lays: Tips for Better Overhead Photos by Tabitha Park on the Website most recently on May 15, 2020 but was unable to do so independently because of the lack of closed captioning on the Website, causing it to be inaccessible and not independently usable by deaf and hard-of-hearing individuals. 45. As described above, Plaintiff has actual knowledge of the fact that the Website contains access barriers causing the Website to be inaccessible, and not independently usable by, deaf and hard-of-hearing individuals. 46. These access barriers have denied Plaintiff full and equal access to, and enjoyment of, the goods, benefits, and services of Defendant and the Website. 47. Defendant engages in acts of intentional discrimination, including but not limited to the following policies or practices: (a) constructing and maintaining a website that is inaccessible to deaf and hard-of-hearing Class members with knowledge of the discrimination; and/or (b) constructing and maintaining a website that is sufficiently intuitive and/or obviously inaccessible to deaf and hard-of-hearing Class members; and/or (c) failing to take actions to correct access barriers in the face of substantial harm and discrimination to deaf and hard-of-hearing Class members. 48. Defendant utilizes standards, criteria, and methods of administration that have the effect of discriminating or perpetuating the discrimination of others. 49. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 50. Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12182(a), provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Title III also prohibits an entity from “[u]tilizing standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.” 42 U.S.C. § 12181(b)(2)(D)(I). 51. Defendant operates a place of public accommodation as defined by Title III of ADA, 42 U.S.C. § 12181(7), a “place of education,” a “place of exhibition or entertainment,” a “place of recreation,” and “service establishments.” 52. Defendant has failed to make its videos accessible to individuals who are deaf or hard of hearing by failing to provide closed captioning for videos displayed on the Website. 53. Discrimination under Title III includes the denial of an opportunity for the person who is deaf or hard of hearing to participate in programs or services or providing a service that is not as effective as what is provided to others. 42 U.S.C. § 12182(b)(1)(A)(I-III). 54. Discrimination specifically includes the failure to provide “effective communication” to deaf and hard-of-hearing individuals through auxiliary aids and services, such as captioning, pursuant to 42 U.S.C. § 12182(b)(1)(A)(III); 28 C.F.R. § 36.303(C). 55. Discrimination also includes the failure to maintain accessible features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities. 28 C.F.R. §36.211. 56. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(I), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 57. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(II), it is unlawful discrimination to deny individuals with disabilities or a class of individuals with disabilities and the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations, which is equal to the opportunities afforded to other individuals. 58. Specifically, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(II), unlawful discrimination includes, among other things, “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.” 59. In addition, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(III), unlawful discrimination also includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 60. The acts alleged herein constitute violations of Title III of the ADA, 42 U.S.C. § 12101 et seq., and the regulations promulgated thereunder. Individuals who are deaf and hard of hearing have been denied full and equal access to the Website have not been provided services that are provided to other patrons who are not disabled, and/or have been provided services that are inferior to the services provided to non-disabled patrons. 61. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 62. Modifying its policies, practices, and services by providing closed captions to make its videos accessible to deaf and hard-of-hearing individuals would not fundamentally alter the nature of Defendant’s business, nor would it pose an undue burden to this flourishing company. 63. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed Class and Subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of the Website in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. and/or its implementing regulations. 64. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the proposed Class and Subclass will continue to suffer irreparable harm. 65. The actions of Defendant were and are in violation of the ADA and therefore Plaintiff invokes his statutory right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 67. Pursuant to 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 68. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 69. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 70. Defendant operates a place of public accommodation as defined by N.Y. Exec. Law § 292(9). 71. Defendant is subject to New York Human Rights Law because it owns and operates the Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 72. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to the Website, causing the videos displayed on the Website to be completely inaccessible to the deaf and hard of hearing. This inaccessibility denies deaf and hard-of-hearing patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 73. Specifically, under N.Y. Exec. Law § 296(2)(c)(I), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations.” 74. In addition, under N.Y. Exec. Law § 296(2)(c)(II), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 75. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the New York State Human Rights Law, N.Y. Exc. Law § 296(2) in that Defendant has: (a) constructed and maintained a website that is inaccessible to deaf and hard-of-hearing Class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to deaf and hard-of-hearing Class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to deaf and hard-of-hearing Class members. 76. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 77. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed Class and Subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of the Website under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the Subclass will continue to suffer irreparable harm. 78. The actions of Defendant were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 79. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines pursuant to N.Y. Exc. Law § 297(4)(c) et seq. for each and every offense. 80. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 81. Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 82. Plaintiff realleges and incorporates by reference the foregoing allegations as though fully set forth herein. 83. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 84. N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof . . . . ” 85. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 86. The Website is a public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). 87. Defendant is subject to New York Civil Rights Law because it owns and operates the Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 88. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to the Website, causing videos on the Website to be completely inaccessible to the deaf and hard of hearing. This inaccessibility denies deaf and hard-of-hearing patrons full and equal access to the goods and services that Defendant makes available to the non-disabled public. 89. In addition, N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . . . ” 90. Specifically, under N.Y. Civil Rights Law § 40-d, “any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside . . . . ” 91. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 92. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed Class on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 93. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines pursuant to N.Y. Civil Law § 40 et seq. for each and every offense. 94. Plaintiff realleges and incorporates by reference the foregoing allegations as if set forth fully herein. 95. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person who is the owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation . . . [b]ecause of any person’s . . . disability . . . directly or indirectly . . . [t]o refuse, withhold from or deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation.” 96. The Website is a public accommodation within the definition of N.Y.C. Administrative Code § 8-102. 97. Defendant is subject to City Law because it owns and operates the Website. Defendant is a person within the meaning of N.Y.C. Administrative Code § 8-102. 98. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to the Website, causing the Website and the services integrated with the Website to be completely inaccessible to the deaf. This inaccessibility denies deaf patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. Specifically, Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . it is an unlawful discriminatory practice for any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability not to provide a reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Administrative Code § 8-107(15)(a). 99. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8107(15)(a) in that Defendant has: (a) constructed and maintained a website that is inaccessible to deaf and hard-of-hearing Class members with knowledge of the discrimination; and/or (b) constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to deaf and hard-of-hearing Class members; and/or (c) failed to take actions to correct these access barriers in the face of substantial harm and discrimination to deaf and hard-of-hearing Class members. 100. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 101. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed Class and Subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations, and/or opportunities of the Website under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the Subclass will continue to suffer irreparable harm. 102. The actions of Defendant were and are in violation of City Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 103. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense. 104. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 105. Pursuant to N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below.

lose

(Terms and Conditions of Hertz’ Gold Plus Rewards Program) (Terms and Conditions for Use of Hertz’ Website) 10. Hertz allows consumers to use its website, www.hertz.com, to make reservations for rental of cars and other motor vehicles. 11. On a web page entitled, “THE HERTZ CORPORATION WEBSITE GENERAL TERMS AND CONDITIONS OF USE,” (“Hertz’ General Terms of Use”) Hertz provides notice to consumers of terms and conditions to which they must agree in order to use Hertz’ website and states that the terms and conditions constitute an “Agreement”: “We offer this website, subject to the following terms and conditions (“Agreement”). Please read this Agreement carefully before using this website. By using this website, you accept the terms and conditions set forth in this Agreement.”4 12. Hertz’ General Terms of Use contains a New Jersey choice of law provision: “Except to the extent expressly provided in the following paragraph, this Agreement (including any of our policies referred to herein) shall be governed by and construed in accordance with the laws of the State of New Jersey in the United States without regard to New Jersey’s conflict of law provisions.” 14. Hertz’ General Terms of Use also states: “Except as otherwise required by law …, price, rate and availability of products or services are subject to change without notice.” 5 15. This statement is shown in the screenshot below with the above language highlighted: 16. Nowhere on this page does Hertz specify whether the provision that “price, rate and availability of products or services are subject to change without notice” is or is not applicable to reservations made using the Hertz website by New Jersey citizens or whether New Jersey is (or is not) one of the places where the law requires “otherwise.” 18. This statement in shown in the screenshot below with the above language highlighted: 19. Nowhere on this page does Hertz specify whether the provision that “not all products or services discussed or referenced in this website are available to all persons or in all geographic locations or jurisdictions. In addition, restrictions may apply to use of products or services obtained in one jurisdiction in other jurisdictions” is or is not applicable to reservations made using the Hertz website by New Jersey citizens or whether New Jersey is (or is not) one of the places where there are restrictions applicable to “use of products or services.” 20. Hertz’ General Terms of Use states that it was last updated on April 30, 2013. 6 21. However, past versions of the same webpage containing provisions identical to those referenced above can be found dating back to June 1, 2011.7 22. Accordingly, those terms and conditions have been in place, at a minimum, for more than four years prior to the filing of this lawsuit. Terms and Conditions of Hertz’ Gold Plus Rewards Program 24. The webpage containing Hertz’ Gold Plus Terms states, “Gold Plus Rewards offers are void where prohibited by law.”9 25. The following screenshot shows the above statement as it appears on the Hertz website with the statement in question highlighted: 26. Nowhere on this web page does Hertz specify whether such offers are or are not void, unenforceable or inapplicable within the State of New Jersey or whether the State of New Jersey is or is not one of the locations where such offers are prohibited by law. 27. Past versions of this page can be found dating back to June 8, 2012.10 On that date, the page stated, as it does now, that Gold Plus Rewards offers are void where prohibited by law without specifying whether the State of New Jersey is or is not one of the places where such offers are void because they are prohibited by law. 28. This action is brought and may properly proceed as a class action, pursuant to Fed. R. Civ. P. 23(a) and (b)(3). 30. The members of the Classes for whose benefit this action is brought are so numerous that joinder of all members is impracticable. 32. Plaintiff asserts claims that are typical of the claims of the members of the Classes he seeks to represent, because all such claims arise out of the same, or similar, notices or contracts used by Defendant in its transactions with Plaintiffs. 33. Plaintiff will fairly and adequately protect the interests of the Classes. 34. Plaintiff does not have any interests which are incompatible or contrary to those of the Classes. 35. The questions of law or fact common to the Class members, as detailed above, predominate over any questions affecting only individual members. 36. A class action is superior to other available methods for the fair and efficient adjudication of the claims of Plaintiffs and the putative Classes. 37. Specifically, the Classes are too numerous for individual actions and the economic damages, statutorily required for Plaintiff and the putative Class members, are too small to warrant individual actions when compared to the expense and burden of individual litigation. 39. The members of the Classes are readily identifiable from the records of Defendant. 40. Plaintiff has retained competent counsel who is experienced in the prosecution of consumer class action litigation. The proposed Class Counsel will fairly and adequately represent the interests of the Class. Proposed Class Counsel has identified and investigated the potential claims in this action. Proposed Class Counsel has extensive experience in handling class actions, other complex litigation, and consumer claims of the type asserted in the instant action. Proposed Class Counsel has knowledge of the applicable law for this action and will commit the necessary resources to representing this Class. 41. Plaintiff, on behalf of himself and the Hertz Gold Plus Rewards Program Class re- asserts and incorporates by reference each and every allegation set forth in the preceding paragraphs as though stated in full herein. 42. Plaintiff and the members of the Hertz Gold Plus Rewards Program Class are “consumers” within the meaning of TCCWNA. 43. Hertz’ web page entitled “Gold Plus Rewards Reward Terms and Conditions” is a consumer contract, notice, or sign within the meaning of TCCWNA, as set forth at N.J.S.A. 56:12- 15 and -16. 44. TCCWNA states, in relevant part: No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey[.] 47. Plaintiff, on behalf of himself and the Hertz Renters Class, re-asserts and incorporates by reference each and every allegation set forth in the preceding paragraphs as though stated at length herein. 48. Plaintiff and the members of the Hertz Renters Class are "consumers" within the meaning of TCCWNA. 49. Hertz’ web page entitled, “THE HERTZ CORPORATION WEBSITE GENERAL TERMS AND CONDITIONS OF USE” is a consumer contract, notice, or sign within the meaning of TCCWNA. 50. TCCWNA states, in relevant part: No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey[.] Terms and Conditions for Use of Hertz Website Terms and Conditions for Use of Hertz’ Website ....................................................................... 3 Terms and Conditions of Hertz’ Gold Plus Rewards Program ................................................... 5 CLASS ALLEGATIONS ............................................................................................................... 6

lose

14. Defendant owns and manages buildings throughout the United States, including the building at issue, Parker Towers, located at 104-20 Queens Boulevard, Forest Hills, New York. It rents within this building, studio apartments, and apartments with one or more bedrooms. 15. Defendant’s Website is heavily integrated with this apartment building, serving as its gateway. Through the Website, Defendant’s tenants and prospective tenants are, inter alia, able to: learn information about the building, including its location, apartment features and building amenities; view images and floorplans of the apartments; search availabilities; learn about pricing, schedule a tour and apply for an apartment. 16. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff Fischler and other blind or visually-impaired users access to its Website, thereby denying the facilities and services that are offered and integrated with its apartment buildings. Due to its failure and refusal to remove access barriers to its Website, Plaintiff Fischler and visually-impaired persons have been and are still being denied equal access to its apartment buildings and the numerous facilities, goods, services, and benefits offered to the public through its Website. 17. Plaintiff Fischler cannot use a computer without the assistance of screen- reading software. He is, however, a proficient screen-reader user and uses it to access the Internet. He has visited the Website on separate occasions using screen-reading software. -7- 18. During his visits to Defendant’s Website, the last occurring on or about March 7, 2019, Plaintiff Fischler encountered multiple access barriers that denied him the full enjoyment of the facilities, goods, and services of the Website, and the facilities, goods, and services of Defendant’s apartment building. Because of these barriers he was unable to, substantially equal to sighted individuals: a. Know what is on the Website. This is largely due in part to the non-text images, which are labeled only with a file name and no accompanying alt-text. For example, after clicking the “Photo Gallery” link, Plaintiff Fischler is taken to a new page which includes several images labeled only with a file name. Similarly, after selecting the “Floor plans” link, he is given the options to view floor plans of the various units. However, the floor plans are images with non-descriptive labels such as “D residence Floor plan 1,” with no alt-text describing the layout. Plaintiff Fischler’s efforts to learn about the apartments via the brochures was equally unsuccessful. For example, Plaintiff Fischler selected the brochure for K&U residences. No images are detected within the PDF; a sighted user, in comparison, is given twenty-nine (29) images. b. Navigate the Website. The screen reader has significant difficulty navigating this Website. Links are not properly labeled. For example, the sighted user is given a link labeled “Search Apartments” at the top of the home page. This link is not detected by the screen reader. The link for “Schedule a Tour” is poorly labeled, labeled only with a URL. Plaintiff Fischler was unable to find it without assistance from a sighted user. Once he located the link, it was inaccessible to a screen reader. When he clicked on the link, nothing happened. A sighted user is given a pop-up window with a calendar to select a date. Plaintiff Fischler was able to locate an apartment search form -8- farther down the page, but the filters do not function properly with the screen reader. Plaintiff Fischler was only able to narrow his search by number of bedrooms, not “max rent” or “move in date.” There were other oddly labeled links on the Website including a link labeled “times” and one labeled “chains.” Lastly, Plaintiff Fischler encountered repeated issues with screen reader focus. The bots repeatedly try to hijack screen reader focus and if focus is placed on the bots, the screen reader does not detect any links. Lastly, when Plaintiff Fischler tried to filter his apartment search results, he was kicked out of the Website. c. Apply for an apartment or Contact the Building. The application form is not accessible to the screen reader because Plaintiff Fischler could not get the audio captcha to play. Plaintiff Fischler encountered the same problem with the “Contact Us” form. 19. Plaintiff Fischler was denied full and equal access to the facilities and services Defendant offers to the public on its Website because he encountered multiple accessibility barriers that visually-impaired people often encounter with non-compliant Website: a. Lack of alt-text for images. b. Frames do not have a title. c. Form field labels are not unique on a page or enclosed in a fielset with a legend that makes the label unique. d. Links use general text like “click here” with no surrounding text explaining the link’s purpose. -9- e. Several links on a page share the same link text but go to different destinations. f. Webpages have markup errors. Defendant Must Remove Barriers to Its Website 20. Due to the inaccessibility of its Website, blind and visually-impaired customers such as Plaintiff Fischler, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendant offers to the public on its Website. The Website’s access barriers that Plaintiff Fischler encountered have caused a denial of his full and equal access in the past, and now deter him on a regular basis from accessing the Website. These access barriers have likewise deterred him from visiting Defendant’s apartment building and enjoying it equal to sighted individuals. 21. If the Website was equally accessible to all, Plaintiff Fischler could independently navigate it, learn about the building, including building and apartment amenities, learn about available apartments, schedule a tour and apply for an apartment, as sighted users can. 22. Through his attempts to use the Website, Plaintiff Fischler has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 23. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff Fischler and other visually-impaired consumers with equal access to the Website, Plaintiff Fischler alleges that Defendant has engaged in acts of intentional discrimination, including, but not limited to, the following policies or practices: -10- a. Constructing and maintaining a Website that is inaccessible to visually-impaired individuals, including Plaintiff Fischler; b. Failing to construct and maintain a Website that is sufficiently intuitive to be equally accessible to visually-impaired individuals, including Plaintiff Fischler; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually impaired consumers, such as Plaintiff Fischler, as a member of a protected class. 24. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 25. Title III of the ADA expressly contemplates the injunctive relief that Plaintiff Fischler seeks under 42 U.S.C. § 12188(a)(2). 26. Because its Website has never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff Fischler seeks a permanent injunction under 42 U.S.C. § 12188(a)(2) requiring Defendant to retain a qualified consultant acceptable to Plaintiff Fischler to assist Defendant to comply with WCAG 2.0 guidelines for its Website: a. Remediating the Website to be WCAG 2.0 compliant; b. Training Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; -11- c. Regularly checking the accessibility of the Website under the WCAG 2.0 guidelines; d. Regularly testing user accessibility by blind or vision-impaired persons to ensure that the Website complies under the WCAG 2.0 guidelines; and, e. Developing an accessibility policy that is clearly disclosed on the Website, with contact information for users to report accessibility-related problems. 27. Although Defendant may currently have centralized policies on maintaining and operating its Website, it lacks a plan and policy reasonably calculated to make it fully and equally accessible to, and independently usable by, blind and other visually impaired consumers. 28. Without injunctive relief, Plaintiff Fischler and other visually impaired consumers will continue to be unable to independently use the Website, violating its rights. 29. Defendant has, upon information and belief, invested substantial sums in developing and maintaining its Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making its Website equally accessible to visually impaired customers. 30. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 31. Plaintiff Fischler seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access the Website and as a result have been denied access to the equal enjoyment of -12- goods and services offered in Defendant’s apartment building during the relevant statutory period (“Class Members”). 32. Plaintiff Fischler seeks to certify a State of New York subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access the Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s apartment building during the relevant statutory period (“New York Subclass Members”). 33. Plaintiff Fischler seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access the Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s apartment building during the relevant statutory period (“New York City Subclass Members”). 34. Common questions of law and fact exist amongst the Class Members, New York Subclass Members and New York City Subclass Members: a. Whether Defendant’s apartment building is a place of “public accommodation”; b. Whether the Website is a “public accommodation” or a service or good “of a place of public accommodation” under Title III of the ADA; c. Whether the Website is a “place or provider of public accommodation” or an “accommodation, advantage, facility or privilege” under the NYSHRL or NYCHRL; -13- d. Whether the Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating Title III of the ADA; and e. Whether the Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 35. Plaintiff Fischler’s claims are typical of the Class Members, New York Subclass Members and New York City Subclass Members: they are all severely visually impaired or otherwise blind, and claim that Defendant has violated Title III of the ADA, NYSHRL or NYCHRL by failing to update or remove access barriers on its Website so it can be independently accessible to the visually impaired individuals. 36. Plaintiff Fischler will fairly and adequately represent and protect the Class and Subclasses’ interests because he has retained and is represented by counsel competent and experienced in complex class action litigation, and because he has no interests antagonistic to the Class or Subclasses. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class and Subclasses, making appropriate both declaratory and injunctive relief with respect to Plaintiff, the Class and Subclasses. 37. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class and Subclass Members predominate over questions affecting only individuals, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. -14- 38. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 39. Plaintiff Fischler, individually and on behalf of the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 40. Title III of the ADA prohibits “discriminat[ion] on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). 41. Defendant’s apartment building is a public accommodation under Title III of the ADA, 42 U.S.C. § 12181(7). The Website is a service, privilege, or advantage of the apartment building. The Website is a service that is integrated with the building. 42. Under Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 43. Under Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). -15- 44. Under Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 45. These acts violate Title III of the ADA, and the regulations promulgated thereunder. Plaintiff Fischler, who is a member of a protected class of persons under Title III of the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, he has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. 46. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff Fischler requests the relief as set forth below. -16- 47. Plaintiff Fischler, individually and on behalf of the New York Subclass Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 48. Defendant’s State of New York apartment buildings constitutes a sales establishment and public accommodation under N.Y. Exec. Law § 292(9). The Website is a service, privilege or advantage of Defendant’s apartment building. The Website is a service that is by and integrated with this apartment building. 49. Defendant is subject to NYSHRL because it owns and operates its apartment building in the State of New York and the Website. Defendant is a “person” within the meaning of N.Y. Exec. Law § 292(1). 50. Defendant is violating the NYSHRL in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with its apartment building to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. N.Y. Exec. Law §§ 296(2)(a), 296(2)(c)(i), 296(2)(c)(ii). 51. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their websites accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components -17- to make its Website accessible would neither fundamentally alter the nature of its business nor result in an undue burden to them. 52. Defendant’s actions constitute willful intentional discrimination against the class because of a disability, violating the NYSHRL, N.Y. Exec. Law § 296(2), in that Defendant has: a. Constructed and maintained a Website that is inaccessible to Class Members with knowledge of the discrimination; and/or b. Constructed and maintained a Website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. Failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 53. Defendant discriminates, and will continue in the future to discriminate against Plaintiff Fischler and New York Subclass Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of the Website and its New York apartment building under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the New York Subclass Members will continue to suffer irreparable harm. 54. As Defendant’s actions violate the NYSHRL, Plaintiff Fischler seeks injunctive relief to remedy the discrimination, compensatory damages, civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for every offense, and reasonable attorneys’ fees and costs. -18- 55. Plaintiff Fischler, individually and on behalf the New York City Subclass Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 56. The Defendant’s apartment building located in New York City is a sales establishment and public accommodation under the NYCHRL, N.Y.C. Admin. Code § 8- 102(9), and its Website is a service that is integrated with this establishment. 57. Defendant is subject to NYCHRL because it owns and operates its New York City apartment building and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 58. Defendant is violating the NYCHRL in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its New York City apartment building to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. N.Y.C. Admin. Code §§ 8-107(4)(a), 8-107(15)(a). 59. Defendant’s actions constitute willful intentional discrimination against the Subclass because of a disability, violating the NYCHRL, N.Y.C. Admin. Code § 8- 107(4)(a) and § 8-107(15)(a,) in that it has: a. Constructed and maintained a Website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. Constructed and maintained a Website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or -19- c. Failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 60. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff Fischler and the New York City Subclass Members because of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishment under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the New York City Subclass will continue to suffer irreparable harm. 61. As Defendant’s actions violate the NYCHRL, Plaintiff Fischler seeks injunctive relief to remedy the discrimination, compensatory damages, civil penalties and fines for each offense, and reasonable attorneys’ fees and costs. N.Y.C. Admin. Code §§ 8-120(8), 8-126(a). 62. Plaintiff Fischler, individually and on behalf the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 63. An actual controversy has arisen and now exists between the parties in that Plaintiff Fischler contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of its Website and by extension its apartment building, which Defendant owns, operates and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. -20- §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 64. A judicial declaration is necessary and appropriate now in order that each of the parties may know its respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant, Its Website And Its Website’s Barriers VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.

win

21. Defendant is a restaurant that operates its restaurant as well as the Website to the public. The restaurant is located at 171 Spring Street, New York, New York. Defendant’s restaurant constitutes a place of public accommodation. Defendant’s restaurant provides to the public important goods and services. Defendant’s Website provides consumers with access to an array of goods and services which allow consumers to find information about the restaurant location and hours, food, to inquire about pricing and other products available online and in the restaurant for purchase and view privacy policies and other goods and services offered by the Defendant. 22. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s Website, and to therefore specifically deny the goods and services that are offered and integrated with Defendant’s restaurant. Due to Defendant’s failure and refusal to remove access barriers to its Website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s restaurant and the numerous goods, services, and benefits offered to the public through the Website. 24. During Plaintiff’s visits to the Website, the last occurring in February 2020, Plaintiff encountered multiple access barriers that denied Plaintiff full and equal access to the facilities, goods and services offered to the public and made available to the public; and that denied Plaintiff the full enjoyment of the facilities, goods, and services of the Website, as well as to the facilities, goods, and services of Defendant’s physical location in New York by being unable to learn more information on the location and hours of the restaurant, food, inquiries about pricing and other products available online and in the restaurant for purchase and view privacy policies and other goods and services offered by Defendant. 26. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 27. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical location, and enjoying it equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical restaurant on its Website and other important information, preventing Plaintiff from visiting the location to purchase a meal. 28. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 30. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually- impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is not sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 31. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 32. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . their title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 34. If the Website was accessible, Plaintiff and similarly situated blind and visually- impaired people could independently locate Defendant’s restaurant’s locations and hours of operation, shop for and otherwise research related products and services via the Website. 35. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 37. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 38. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical location, during the relevant statutory period. 39. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical location, during the relevant statutory period. 40. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical location, during the relevant statutory period. 41. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the 46. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 47. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 48. Defendant’s restaurant is a place of public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s restaurant. The Website is a service that is integrated with these locations. 49. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 50. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 52. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 54. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 55. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 56. Defendant’s physical location is located in the State of New York and constitute a sales establishment and place of public accommodation within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant. Defendant’s Website is a service that is by and integrated with this physical location. 57. Defendant is subject to New York Human Rights Law because it owns and operates its physical location and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 58. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical location to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 60. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 61. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 63. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 64. Defendant discriminates and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website and its physical locations under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 65. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 66. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 67. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 68. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 69. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 71. Defendant’s location is a sales establishment and place of public accommodation within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its establishment. 72. Defendant is subject to NYCHRL because it owns and operates its physical location in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 73. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical location to be completely inaccessible to the blind. The inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 74. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 76. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 77. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 78. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 79. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 80. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 82. Plaintiff, on behalf of himself and the Class and New York State and City Sub- Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 83. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of its Website and by extension its physical location, which Defendant owns, operate and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 84. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE NYSHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL

win

18. In accordance with Fed. R. Civ. P. 23, Plaintiff brings this action on behalf of the following class of persons (the “Class”): All persons and entities who held telephone numbers that received one or more telephone facsimile transmissions that (1) promoted the commercial availability or quality of property, goods, or services offered by “Qiagen,” and (2) did not (i) provide a toll-free telephone number and facsimile number where the fax recipient may make a request to the sender not to send any future ads nor (ii) inform the fax recipient that the sender’s failure to comply within 30 days of such a request is unlawful. 19. Plaintiff reserves the right to modify or amend the definition of the proposed Class before the Court determines whether certification is proper, as more information is gleaned in discovery. 26. Plaintiff hereby incorporates by reference each of the preceding paragraphs as though fully set forth herein. 27. The TCPA provides strict liability for sending fax advertisements in a manner that does not comply with the statute. Recipients of fax advertisements have a private right of action to seek an injunction or damages for violations of the TCPA and its implementing regulations. 47 U.S.C. § 227(b)(3). 35. Plaintiff hereby incorporates by reference each of the preceding paragraphs as though fully set forth herein. 36. The California Junk Fax Law states that “Unsolicited advertisement means any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person or entity without that person's or entity's prior express invitation or permission.” 37. The California Junk Fax Law provides “it is unlawful for a person or entity, if either the person or entity or the recipient is located within California, to use any telephone facsimile machine, computer, or other device to send, or cause another person or entity to use such a device to send, an unsolicited advertisement to a telephone facsimile machine.” Violations of the Telephone Consumer Protection Act 47 U.S.C. § 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(4) Violations of the California Junk Fax Law Cal. Bus. and Prof. Code Section 17538.43

lose

23. The Defendant’s website is offered to the public. The website offers features that should allow all consumers to access the goods and services that the Defendant offers through its physical locations, including, but not limited to, features that allow consumers to find information about location addresses and hours, detailed information pertaining to the services it offers in stores, the Find a Studio feature, promotional Introductory Offers, and other services. 25. The plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. The plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. The plaintiff has visited the website on separate occasions using the JAWS screen-reader. 26. During the plaintiff’s visits to the website, the last occurring in May 2018, the plaintiff encountered multiple access barriers that denied the plaintiff full and equal access to the facilities, goods and services offered to the public and made available to the public; and that denied the plaintiff the full enjoyment of the facilities, goods, and services of the website, as well as to the facilities, goods, and services of Defendant’s locations in New York by being unable to learn more information about location addresses and hours, detailed information pertaining to the services it offers in stores, the Find a Studio feature, promotional Introductory Offers, and other services, among other things readily available to sighted individuals. 28. Due to the inaccessibility of Defendant’s website, blind and visually-impaired customers such as the plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services the defendant offers to the public on its website. The access barriers the plaintiff encountered have caused a denial of the plaintiff’s full and equal access in the past, and now deter the plaintiff on a regular basis from accessing the website. 29. These access barriers on Defendant’s website have deterred the plaintiff from visiting the Defendant’s physical store locations, and enjoying them equal to sighted individuals because: the plaintiff was unable to find the location and hours of operation of Defendant’s locations on its website, preventing the plaintiff from visiting the locations to view and purchase Products and/or services. The plaintiff intends to visit Defendant’s website and physical locations in the near future if the plaintiff could access Defendant’s website. 31. The plaintiff, through the plaintiff’s attempts to use the website, has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 32. Because simple compliance with WCAG 2.0 would provide the plaintiff and other visually- impaired consumers with equal access to the website, the plaintiff alleges that the Defendant engaged in acts of intentional discrimination, including, but not limited to, the following policies or practices: constructing and maintaining a website that is inaccessible to visually- impaired individuals, including the plaintiff; failing to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including the plaintiff; and failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as the plaintiff, as a member of a protected class. 33. The Defendant therefore use standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination against others, as alleged herein. 34. The ADA expressly contemplates the injunctive relief that the plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of … this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities …. Where appropriate, injunctive relief shall also include requiring the … modification of a policy …. 42 U.S.C. § 12188(a)(2). 36. If Defendant’s website were accessible, the plaintiff and similarly situated blind and visually- impaired people could independently access information about location addresses and hours, detailed information pertaining to the services it offers in stores, the Find a Studio feature, promotional Introductory Offers, and other services. 37. Although the Defendant may currently have centralized policies regarding maintaining and operating Defendant’s website, the Defendant lack a plan and policy reasonably calculated to make Defendant’s website fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 39. Without injunctive relief, the plaintiff and other visually-impaired consumers will continue to be unable to independently use Defendant’s website, violating their rights. 40. The plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 41. The plaintiff, on behalf of herself and all others similarly situated, seeks to certify a New York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 42. The plaintiff, on behalf of herself and all others similarly situated, seeks to certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s website and as a result have been denied access to the equal enjoyment of goods and services offered in Defendant’s physical locations, during the relevant statutory period. 44. The plaintiff’s claims are typical of the class. The class, similarly to the plaintiff, are severely visually impaired or otherwise blind, and claim that the Defendant violated the ADA, NYSHRL, and NYCHRL by failing to update or remove access barriers on Defendant’s website so it can be independently accessible to the class. 45. The plaintiff will fairly and adequately represent and protect the interests of the class because the plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because the plaintiff has no interests antagonistic to the class. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because the Defendant has acted or refused to act on grounds generally applicable to the class, making appropriate both declaratory and injunctive relief with respect to the plaintiff and the class as a whole. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to the class predominate over questions affecting only individual class members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 48. The plaintiff, on behalf of the plaintiff and the class, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 49. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101, et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 50. Defendant’s locations are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s website is a service, privilege, or advantage of Defendant’s locations. Defendant’s website is a service that is heavily integrated with these locations and is a gateway thereto. 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. The plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)–(2)(A). Furthermore, the plaintiff has been denied full and equal access to the website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. The Defendant failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 56. The plaintiff, on behalf of the plaintiff and the New York State sub-class, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y. Exec. Law § 296(2)(a) provides that it is an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation … because of the … disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof. 58. Defendant’s physical locations are located in State of New York and throughout the United States and constitute sales establishments and public accommodations within the definition of N.Y. Exec. Law § 292(9). Defendant’s website is a service, privilege or advantage of the Defendant. Defendant’s website is a service that is heavily integrated with these physical locations and is a gateway thereto. 59. The Defendant is subject to the NYSHRL because they own and operate their physical locations and website. The Defendant is persons within the meaning of N.Y. Exec. Law § 292(1). 61. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden. 62. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden. 63. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to the Defendant. 65. The Defendant have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 66. The Defendant discriminate, and will continue to discriminate against the plaintiff and the New York State sub-class on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s website and its physical locations under § 296(2), et seq., and/or its implementing regulations. Unless the Court enjoins the Defendant from continuing to engage in these unlawful practices, the plaintiff and the New York State sub-class will continue to suffer irreparable harm. 67. Defendant’s actions were and are in violation of NYSHRL and therefore the plaintiff and the New York State sub-class invoke their right to injunctive relief to remedy the discrimination. 68. The plaintiff and the New York State sub-class are also entitled to compensatory damages, and civil penalties and fines under N.Y. Exec. Law § 297(4)(c), et seq., for each and every offense. 69. The plaintiff and the New York State sub-class are also entitled to reasonable attorney’s fees and costs. 70. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein, the plaintiff and the New York State sub-class pray for judgment as set forth below. 72. The plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 73. N.Y. Civil Rights Law § 40 provides that all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No persons, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any such place shall directly or indirectly refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities and privileges thereof …. 74. N.Y. Civil Rights Law § 40-c(2) provides that no person because of … disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision. 75. Defendant’s New York physical locations are sales establishments and public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Defendant’s website is a service, privilege or advantage of the Defendant and Defendant’s website is a service that is heavily integrated with these establishments and is a gateway thereto. 76. The Defendant is subject to NYSCRL because it owns and operates Defendant’s physical locations and website. The Defendant is persons within the meaning of N.Y. Civil Rights Law § 40-c(2). 78. N.Y. Civil Rights Law § 41 states any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty-two … shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby. 79. Under N.Y. Civil Rights Law § 40-d, any person who shall violate any of the provisions of the foregoing section, or subdivision three of section 240.30 or section 240.31 of the penal law, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction in the county in which the defendant shall reside. 80. The Defendant have failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 81. The Defendant discriminated, and will continue to discriminate, against the plaintiff and the New York State sub-class on the basis of disability and the plaintiff and the New York State sub-class are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40, et seq., and/or its implementing regulations. 83. The plaintiff, on behalf of the plaintiff and the New York City sub-class, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 84. N.Y.C. Administrative Code § 8-107(4)(a) provides that, It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of … disability … directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof. 85. Defendant’s locations are sales establishments and public accommodations within the definition of N.Y.C. Administrative Code § 8-102(9), and their website is a service that is heavily integrated with its establishments and is a gateway thereto. 86. The Defendant is subject to NYCHRL because they own and operate its physical locations in the City of New York and their website, making them persons within the meaning of N.Y.C. Administrative Code § 8-102(1). 87. The Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to website, causing its website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that the Defendant make available to the non-disabled public. 89. Defendant’s actions constitute willful intentional discrimination against the New York sub- class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that the Defendant have: constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 90. The Defendant have failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 91. As such, the Defendant discriminated, and will continue to discriminate, against the plaintiff and the New York City subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s website and establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins the Defendant from continuing to engage in these unlawful practices, the plaintiff and the New York City subclass will continue to suffer irreparable harm. 93. The plaintiff and the New York City subclass are also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense. 94. The plaintiff and the New York City subclass are also entitled to reasonable attorney’s fees and costs. 95. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures, and rights set forth and incorporated therein the plaintiff and the New York City subclass pray for judgment as set forth below. 96. The plaintiff, on behalf of herself and the class, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 97. An actual controversy has arisen and now exists between the parties in that the plaintiff contends, and is informed and believes that the Defendant deny, that Defendant’s website contains access barriers denying blind customers the full and equal access to the goods, services, and facilities of its website and by extension its physical locations, which the Defendant own(s), operate(s) and control(s), and fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq., prohibiting discrimination against the blind. ADA DECLARATORY RELIEF Defendant’s Barriers on Its Website NYCHRL NYSCRL NYSHRL

lose

30. NCWC invites third-party companies to sign-up on its website ncwcinc.com to become marketers of NCWC’s extended car warranty plans.15 31. In addition, NCWC does telemarketing using its own staff. 32. In 2010, a Twitter user named Michael Shaftel who had previously posted about vehicle protection services put up a post about being in the Dominican Republic to check out call centers: 16 34. Shaftel himself can be seen on the NCWC Philippines Facebook posing with different employees that he gave presents to, presumably for sales performance: 18 35. Based on the above, it is clear that Shaftel is directly involved in the management of the NCWC Philippines call center that places outbound sales calls to consumers. 37. Shaftel and Freiberg should be aware of the unlawful telemarketing that is being done on behalf of US DEALER SERVICES. 38. The US DEALER SERVICES Better Business Bureau (“BBB”) is filled with complaints from consumers about unsolicited calls they received. This is a small sampling of those BBB complaints, including some direct responses from US DEALER 43. For months prior to July 2020, Plaintiff received many unsolicited, unwanted calls from telemarketers regarding extended car warranties. 44. The calls were pre-recorded, featuring a message about the impending expiry of Plaintiff’s vehicle. 45. Plaintiff would press ‘2’ to stop the calls, or whichever number the pre- recorded message would indicate to stop the calls. 46. Despite these efforts that Plaintiff Gay made to stop the calls, the calls still continued. 47. On July 14, 2020 at 9:55 AM, Plaintiff received an unsolicited, pre- recorded call to his cell phone from, or on behalf of US Dealer Services using phone number 505-336-5396. 48. The call featured the exact same pre-recorded message that Plaintiff had heard in the past calls. 49. This time, to find out who was harassing him with unsolicited calls to his cell phone, Plaintiff pressed ‘1’ to speak to an agent. 50. Plaintiff acted like he was interested in getting a quote. 52. Plaintiff then asked what the company website is and was told he could visit USDealerServices.com, which is the website for Defendant US Dealer Services 53. Plaintiff visited this website and confirmed that it was functional and correct. He then put an end to the call. 54. Plaintiff Gay never consented to receiving solicitation calls from any of the Defendants. 55. Plaintiff was not looking to solicit the services of any extended car warranty companies. 56. The unauthorized telephone calls made by and on behalf of the Defendants, as alleged herein, have harmed Plaintiff Gay in the form of annoyance, nuisance, and invasion of privacy, and disturbed the use and enjoyment of his phone, in addition to the wear and tear on the phones’ hardware (including the phones’ battery) and the consumption of memory on the phone. 57. Seeking redress for these injuries, Plaintiff Gay, on behalf of himself and Classes of similarly situated individuals, bring suit under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., which prohibits unsolicited pre-recorded phone calls to cellular telephones. 59. The following individuals are excluded from the Classes: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendants, their subsidiaries, parents, successors, predecessors, and any entity in which any Defendant or its parents have a controlling interest and their current or former employees, officers and directors; (3) Plaintiff’s attorneys; (4) persons who properly execute and file a timely request for exclusion from the Classes; (5) the legal representatives, successors or assigns of any such excluded persons; and (6) persons whose claims against Defendants have been fully and finally adjudicated and/or released. Plaintiff Gay anticipates the need to amend the Class definitions following appropriate discovery. 60. Numerosity: On information and belief, there are thousands of members of the Classes such that joinder of all members is impracticable. 63. Appropriateness: This class action is also appropriate for certification because the Defendants have acted or refused to act on grounds generally applicable to the Classes as a whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible standards of conduct toward the members of the Classes and making final class-wide injunctive relief appropriate. Defendants’ business practices apply to and affect the members of the Classes uniformly, and Plaintiff’s challenge of those practices hinges on Defendants’ conduct with respect to the Classes as a whole, not on facts or law applicable only to Plaintiff. Additionally, the damages suffered by individual members of the Classes will likely be small relative to the burden and expense of individual prosecution of the complex litigation necessitated by Defendants’ actions. Thus, it would be virtually impossible for the members of the Classes to obtain effective relief from Defendants’ misconduct on an individual basis. A class action provides the benefits of single adjudication, economies of scale, and comprehensive supervision by a single court. 64. Plaintiff repeats and realleges paragraphs 1 through 63 of this Complaint and incorporates them by reference. 65. Defendants and/or their agents transmitted unwanted solicitation telephone calls to Plaintiff and the other members of the Pre-recorded No Consent Class using a pre-recorded voice message. 67. The Defendants have, therefore, violated 47 U.S.C. § 227(b)(1). As a result of Defendants’ conduct, Plaintiff and the other members of the Pre-recorded No Consent Class are each entitled to a minimum of $500 in damages, and up to $1,500 in damages, for each violation. 68. Plaintiff repeats and realleges paragraphs 1 through 63 of this Complaint and incorporates them by reference. 69. Defendants and/or their agents made unwanted solicitation telephone calls to telephone numbers belonging to Plaintiff and the other members of the Pre-recorded Stop Call Class after being told to stop calling. 70. These solicitation telephone calls were made en masse. 71. The Defendants have, therefore, violated 47 U.S.C. §§ 227(b)(1)(B). As a result of Defendants’ conduct, Plaintiff and the other members of the Pre-recorded Stop Call Class are each entitled to a minimum of $500 in damages, and up to $1,500 in damages, for each violation. Class Treatment Is Appropriate for Plaintiff’s TCPA Claim Consistent with Direction Provided by Shaftel and Freiberg, US Dealer Services’ Agents Cold Called Plaintiff’s Cell Phone Number Using a Pre-Recorded message to Solicit His Business Telephone Consumer Protection Act (Violation of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Pre-recorded Stop Class) Telephone Consumer Protection Act (Violations of 47 U.S.C. § 227) (On Behalf of Plaintiff and the Pre-recorded No Consent Class)

win

2.0 guidelines; c. Regularly test user accessibility by blind or vision-impaired persons to ensure that Defendant’s Website complies under the WCAG 2.0 guidelines; and, d. Develop an accessibility policy that is clearly disclosed on Defendant’s Websites, with contact information for users to report accessibility-related problems. 20. Defendant operates the ROYAL CARIBBEAN Cruiseline as well as the ROYAL CARIBBEAN website, offers it to the public and it offers features that should allow all consumers to access the facilities and services that Defendant offers regarding its Cruises. 21. Defendant operates ROYAL CARIBBEAN Cruises across the United States, including occasional disembarkment from its New York City Port. 22. These Cruises constitute places of public accommodation. Defendant’s Cruises provide to the public important services. Defendant’s Website provides consumers with access to an array of services including Cruise locations and hours, information about cruise line entertainment services, including its New York Resident Specials catered specifically to New York Residents, special pricing offers, privacy policies, promotional information, online reservations and other services. 24. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the facilities and services that are offered and integrated with Defendant’s Cruises. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s Cruises and the numerous facilities, services, and benefits offered to the public through its Website. 25. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 28. Due to the inaccessibility of Defendant’s Website, blind and visually-impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the facilities, goods, and services Defendant offers to the public on its Website. The access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 29. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s physical Cruise locations and enjoying them equal to sighted individuals because: Plaintiff was unable to find the location and hours of operation of Defendant’s physical Cruises on its Website and other important information about the Cruises locations and hours, information about cruise line entertainment services, including its New York Resident Specials catered specifically to New York Residents, special pricing offers, privacy policies, promotional information, online reservations and other services. 31. Through her attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired people. 32. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. 33. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 35. Because Defendant’s Website have never been equally accessible, and because Defendant lacks a corporate policy that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring Defendant to retain a qualified consultant acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply with WCAG 2.0 guidelines for Defendant’s Website. Plaintiff seeks that this permanent injunction requires Defendant to cooperate with the Agreed Upon Consultant to: a. Train Defendant’s employees and agents who develop the Website on accessibility compliance under the WCAG 2.0 guidelines; b. Regularly check the accessibility of the Website under the WCAG 37. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 38. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually impaired customers. 39. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 40. Plaintiff, on behalf of herself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of facilities and services offered in Defendant’s physical locations, during the relevant statutory period. 42. Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of facilities and services offered in Defendant’s physical locations, during the relevant statutory period. 43. Common questions of law and fact exist amongst Class, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to people with visual disabilities, violating the NYSHRL or NYCHRL. 45. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 46. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions common to Class Members predominate over questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. 47. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by people with visual disabilities throughout the United States. 48. Plaintiff, on behalf of herself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 50. Defendant’s Cruises are public accommodations within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s Cruises. The Website is a service that is integrated with these locations. 51. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 52. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 54. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 55. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. 56. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 57. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 59. Defendant is subject to New York Human Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 60. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, facilities and services that Defendant makes available to the non-disabled public. 61. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 63. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 64. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is sufficiently intuitive and/or obvious that is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 65. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 67. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 68. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 69. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 70. Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 71. Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 72. Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil Rights Law § 41. 74. N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability, as such term is defined in section two hundred ninety-two of executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision.” 75. Defendant’s New York State physical locations are sales establishments and public accommodations within the definition of N.Y. Civil Rights Law § 40-c(2). Defendant’s Website is a service, privilege or advantage of Defendant and its Website is a service that is by and integrated with these establishments. 76. Defendant is subject to New York Civil Rights Law because it owns and operates its physical locations and Website. Defendant is a person within the meaning of N.Y. Civil Law § 40-c(2). 77. Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated with Defendant’s physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, facilities and services that Defendant makes available to the non-disabled public. 78. N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of the provisions of sections forty, forty-a, forty-b or forty two . . . shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby . . .” 80. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 81. Defendant discriminates, and will continue in the future to discriminate against Plaintiff and New York State Sub-Class Members on the basis of disability are being directly or indirectly refused, withheld from, or denied the accommodations, advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing regulations. 82. Plaintiff is entitled to compensatory damages of five hundred dollars per instance, as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each and every offense. 83. Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 85. Defendant’s locations are sales establishments and public accommodations within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its establishments. 86. Defendant is subject to NYCHRL because it owns and operates its physical locations in the City of New York and its Website, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 87. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated with its physical locations to be completely inaccessible to the blind. This inaccessibility denies blind patrons full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 88. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 90. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 91. As such, Defendant discriminates, and will continue in the future to discriminate against Plaintiff and members of the proposed class and subclass on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website and its establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the class will continue to suffer irreparable harm. 92. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes her right to injunctive relief to remedy the discrimination. 93. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 94. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 96. Plaintiff, on behalf of herself and the Class and New York State and City Sub- Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 97. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the goods, services and facilities of its Website and by extension its physical locations, which Defendant owns, operations and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 98. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE NYSHRL VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq.

win

17. Dutch Express is a contractor of Amazon which provides courier services for Amazon Prime Now. 18. Amazon Prime Now is a website and mobile application where customers can place orders for fast same-day delivery. 19. Plaintiff was hired by Dutch Express as a foot messenger on December 6, 2019, and currently is still being employed by the latter. 20. Plaintiff’s job duties include performing delivery work for Amazon Prime Now. 21. Plaintiff was informed by Defendants that he would be paid $15/hour. 22. Plaintiff worked 5 days a week. 23. Plaintiff was paid on a weekly basis. 25. The work schedule given to Plaintiff was either 5:30 am – 1:30 pm, or 6:30 am – 2:30 pm, for 8 hours. 26. Plaintiff would report to work pursuant to the work schedule provided to him ahead of time. 27. The workers, including Plaintiff, were required to punch in when they reported to work, and punch out when they left for the day. 28. Upon arrival, the workers, including Plaintiff, were required to wait for the packages given to them for delivery. 29. However, pursuant to their company-wide policy, Defendants have not paid the workers, including Plaintiff, for their waiting time. 30. When the first package was given to a worker, the worker would scan it with a phone application Amazon Flex, which would create a time entry. 31. Defendants calculated the workers’ pay based on this time entry, and failed to pay for their substantial waiting time. 32. The price paid by customers through Amazon Prime Now, by default, includes a tip. 33. However, Defendants retained the tips, in whole or in part, and failed to provide to the tips to the workers, including Plaintiff. 34. The workers, including Plaintiff, use subway on a daily basis to perform delivery work in the City of New York. 35. However, Defendants have failed to pay for the workers’ MetroCard expenses. 36. In fact, Defendants directly deducted MetroCard costs from the workers’ paychecks. 38. Defendants Hoed, Azogui, and Siso are owners of the corporate defendants. They each excised operation control as it relates to all employees and former employees, including Plaintiff, FLSA Collective Plaintiffs and the Rule 23 Class. 39. Defendants exploited the powerless delivery workers, including many immigrants and homeless people who are afraid of speaking out, for profits. 40. Plaintiff brings FLSA claims on behalf of himself and all similarly situated persons who work or have worked for the defendants who elect to opt in to this action (the “FLSA Collective”). 41. The defendants are liable under the FLSA for, inter alia, failing to properly compensate Plaintiff, and as such, notice should be sent to the FLSA Collective. There are many similarly situated current and former employees of Defendants who have been underpaid in violation of the FLSA who would benefit from the issuance of a court-supervised notice of the present lawsuit and the opportunity to join in the present lawsuit. Those similarly situated employees are known to Defendants, are readily identifiable, and can be located through Defendants’ records. 42. Plaintiff also brings this action on behalf of himself and a class of persons under Rule 23 of the Federal Rules of Civil Procedures. 43. The persons in the Rule 23 Class identified above are so numerous that joinder of all members is impracticable. Although the precise number of such persons is unknown, the facts on which the calculation of that number can be based are presently within the sole control of Defendants. 44. The claims of Plaintiff are typical of the claims of the Rule 23 Class. 46. There are questions of law and fact common to the Rule 23 Class that predominate over any questions solely affecting individual members of the Rule 23 Class, including but not limited to: (a) Whether Defendants have failed to keep true and accurate time records for all hours worked by Plaintiffs and the Rule 23 Class; (b) What proof of hours worked is sufficient where employer fails in its duty to maintain true and accurate time records; (c) Whether Defendants have failed to compensate Plaintiffs and the Rule 23 Class for work performed in excess of 40 hours per workweek with proper wages as required by law; (d) Whether Defendants have failed to make spread of hours payments pursuant to the NYLL; (e) Whether Defendants have violated the statement and notice requirements under the WTPA; (f) The nature and extent of Rule 23 Class-wide injury and the appropriate measure of damages for the class; and 47. The claims of Plaintiff are typical of the claims of the Rule 23 Class they seek to represent. Plaintiff and the Rule 23 Class work or have worked for Defendants in its wholesale business and have not been paid proper wages for the hours that they have worked. Defendants have acted and refused to act on grounds generally applicable to the Rule 23 Class, thereby making declaratory relief with respect to the Rule 23 Class appropriate. 49. A class action is superior to other available methods for the fair and efficient adjudication of this litigation – particularly in the context of a wage and hour litigation like the present action, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against a company. The members of the Rule 23 Class have been damaged and are entitled to recovery as a result of Defendants’ common and uniform policies, practices, and procedures. Although the relative damages suffered by individual Rule 23 Class Members are not de minimis, such damages are small compared to expense and burden of individual prosecution of this litigation. In addition, class treatment is superior because it will obviate the need for unduly duplicative litigation that might result in inconsistent judgment against Defendants’ practices. 50. It has been Defendants’ persistent policy, pattern and practice to fail to pay its workers wages they are entitled. 52. Defendants’ unlawful conduct has been widespread, repeated and consistent. 53. Plaintiffs realleges and incorporates by reference all allegations in the preceding paragraphs as if fully set forth herein. 54. Plaintiff and other similarly situated employees/former employees worked more hours than those paid for by Defendants. 55. Defendants illegally withheld wages already earned by Plaintiff and other similarly situated employees/former employees. 56. Defendants willfully failed to pay Plaintiff and other similarly situated workers wages for hours worked in violation of 29 U.S.C. 206(a). 57. Plaintiff realleges and incorporates by reference all allegations in the preceding paragraphs as if fully set forth herein. 58. At all times relevant to this action, Plaintiff and other similarly situated employees/former employees were employed by Defendants within the meaning of New York Labor Law §§2 and 651. 60. Defendants illegally withheld wages already earned by Plaintiff and other similarly situated workers. 61. Defendants failed to pay Plaintiff and other similarly situated workers wages for hours worked in violation of New York Labor Law Article 6. 62. Plaintiff realleges and incorporates by reference all allegations in the preceding paragraphs as if fully set forth herein. 63. Defendants failed to pay minimum wages to Plaintiff and other similarly situated workers, in violation of the FLSA. 64. As a result, Plaintiff and other similarly situated workers suffered damages. 65. Plaintiffs realleges and incorporates by reference all allegations in the preceding paragraphs as if fully set forth herein. 66. Defendants failed to pay minimum wages to Plaintiff and other similarly situated workers, in violation of the NYLL. 67. As a result, Plaintiffs and other similarly situated workers suffered damages. 68. Plaintiff realleges and incorporates by reference all allegations in the preceding paragraphs as if fully set forth herein. 69. Defendants willfully violated Plaintiff’s rights by failing to provide him with proper wage notices and wage statements as required by the Wage Theft Prevention Act. The wage notices and wage statements provided to Plaintiff were incorrect and misleading. 70. Defendants’ such illegal practices also applied to other similarly situated workers. 71. Plaintiff realleges and incorporates by reference all allegations in the preceding paragraphs as if fully set forth herein. 72. Defendants unlawfully retained tips paid by customers to Plaintiff and other similarly situated workers, in violation of the N.Y. Lab. Law §196-d. 73. Plaintiff realleges and incorporates by reference all allegations in the preceding paragraphs as if fully set forth herein. 74. Defendants failed to reimburse expenses for the MetroCards used by Plaintiff and other similarly situated workers, in violation of 29 U.S.C. §206(a) and 29 C.F.R. §531.35. 75. Plaintiff realleges and incorporates by reference all allegations in the preceding paragraphs as if fully set forth herein. 76. Defendants failed to reimburse expenses for the MetroCards used by Plaintiff and other similarly situated workers, in violation of N.Y. Lab. Law §§193 and 198-(b)(2). Failure to Reimburse Expenses under the FLSA Minimum Wage Under the FLSA Minimum Wage Under the NYLL Unlawful Retained Gratuities Under the NYLL Unpaid Wages Under the FLSA Unpaid Wages Under the NYLL

lose

(Alternative Violation - Compulsory Opt-Out Requirements Violate the First Amendment) (Compulsory Opt-Out Requirements Violate the Railway Labor Act) (Compulsory Opt-Out Requirements Breach the Duty of Fair Representation) 11. Yet unions spend large sums of money on politics and “‘advocate political ideas, support political candidates, and advance national economic concepts which may or may not be of an employee’s choice.’” Machinists v. Street, 367 U.S. 740, 747 (1961) (quoting Hanson v. Union Pac. R. Co., 71 N.W.2d 526, 546 (Neb. 1955), rev’d on other grounds by Ry. Emps.’ Dep't v. Hanson, 351 U.S. 225 (1956)). They also spend money on organizing, which is money “spent on employees outside” a nonmember’s immediate craft/class of employees, and other ideological activities. Ellis v. Ry. Clerks, 466 U.S. 435, 452 (1984). 12. As a result, the U.S. Supreme Court has repeatedly recognized that forced fees threaten individuals’ freedom of speech, association, and thought because it forces them to fund private organizations (unions) “with political aspects.” Street, 367 U.S. at 747. And ultimately “political causes” which they may oppose. Ellis, 466 U.S. at 447 (quoting Street, 367 U.S. at 768). 13. To protect individual autonomy, the U.S. Supreme Court interprets the RLA and First Amendment as only allowing unions to compel nonmembers to pay union fees relating to collectively bargaining with their employer. Thus, a union may not charge nonmembers for its spending on nonchargeable activities. Street, 367 U.S. at 764. 14. IAM has a forced fees agreement with United Airlines, which requires all employees, including its nonmembers, like Baisley, to pay union dues-equivalent fees just to keep their job. If not preempted by the RLA, the Texas Right to Work law would void IAM’s forced fees agreement in its entirety. Tex. Labor Code Ann. §101.051 et seq. 15. On information and belief, IAM spends millions of dollars a year on nonchargeable activities, including lobbying. 17. According to IAM’s forced fees policy, each nonmember must do the following to opt- out, and thereby, maintain their political and ideological autonomy, and not subsidize nonchargeable spending: i. Research and decipher IAM’s opt-out requirements; ii. Plan and draft a written notice of objection; iii. Reveal to IAM in the objection notice the employee’s full name and home address; iv. Include in the objection notice the employee’s local union number, if known; v. Sign the objection notice; vi. Buy at least one envelope; vii. Pay for sufficient postage to send the objection notice to IAM; viii. Postmark the objection notice during the month of November; ix. Specifically state in the objection notice that the objection is “continuing in nature” or face having to file new objections every year; x. If the employee is currently a member of IAM, the IAM imposes the additional obligation of resigning from membership, and then submitting the objection notice within 30 days of resigning; if newly hired, a nonmember must submit an objection notice within 30 days of being subject to IAM’s forced fees agreement. 19. But to avoid paying the same rate as full union members and supporting and subsidizing IAM’s nonchargeable spending, Baisley mailed a letter to IAM on or around November 23, 2018, which objected to paying for union fees unrelated to collective bargaining activities. Baisley paid $3.95 in postage to mail this objection letter. 20. Baisley received a letter from IAM dated November 28, 2018, which acknowledged his objection and promised to reduce his fees by the amounts that are not legally chargeable to nonmembers. But IAM’s letter stated that he must send a new letter in November 2019 renewing his objection if he wishes to receive a reduction in the year 2020. 21. This is brought as a class action according to Federal Rule of Civil Procedure 23(b)(1)(A) and (b)(2), and alternatively, 23(b)(3), by Plaintiff for himself and for all others similarly situated. 22. The class for all counts consists of all former (employed at some time since November 16, 2018), current, and future nonmember employees within the meaning of RLA, 45 U.S.C. §§151, 181 who are, have been, or will be represented by IAM and are, have been, or will be subject to IAM’s opt-out requirements. 23. Upon information and belief, the numbers of persons in the classes are so numerous and scattered throughout the United States that joinder is impractical. 25. Plaintiff’s claims are typical of the claims of other class members, who are subject to the same deprivations of their rights by IAM’s opt-out requirements. IAM owes an identical duty with regard to these claims to Plaintiff and all other class members. 26. Plaintiff can adequately represent the interests of the class and has no conflict with other class members who are nonmembers of IAM. 27. Because IAM’s compulsory fee practices and procedures apply equally to all in the class, the prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications which would establish incompatible standards of conduct for IAM. 28. The IAM has acted, and continues to act, to deprive Plaintiff and each class member of their statutory and constitutional rights on grounds generally applicable to all, making appropriate declaratory, injunctive, and other equitable relief appropriate for all class members. 29. Alternatively, the questions of law or fact raised in this complaint about the statutory and constitutional rights of nonmembers of IAM are common to the class members and predominate over any questions affecting only individual class members. 30. A class action is superior to other available methods for the fair and efficient adjudication of the controversy, in that individual class members are deprived of the same statutory and constitutional rights by IAM’s opt-out requirements, differing only in immaterial aspects of their factual situations. The limited amount of money at stake for each individual employee makes it burdensome for class members to maintain separate actions. 32. The facts alleged above are incorporated here by reference. 33. The Railway Labor Act protects the rights of railway and airline employees to refuse to join a union and to otherwise disassociate from a union. These rights are in RLA, Section 2, Third, 45 U.S.C. § 152, which prohibits interfering, influencing or coercing employees in their choice of bargaining representatives, and RLA Section 2, Fourth, 45 U.S.C. § 152, which protects the right of employees to “join, organize, or assist in organizing” a union of their choice as well as the right to refrain from any of those activities. 35. The RLA prohibits union rules that burden employees’ exercise of their RLA rights or that otherwise add requirements to the exercise of a RLA right that are “over and above” what the RLA requires. Felter v. S. Pac. Co., 359 U.S. 326, 335 (1959). 36. Nothing in the RLA’s text permits unions to require that employees affirmatively opt-out of paying forced fees that are unrelated to union spending on collective bargaining. 37. Opt-out requirements put a “burden” on employees’ right to refrain from paying union fees that are unrelated to a union’s spending on collective bargaining activities, including its spending on politics. Knox v. SEIU, Local 1000, 567 U.S. 298, 312 (2012). As the U.S. Supreme Court explained in Knox, a union’s opt-out requirements create a risk that nonmembers’ fees will go to “political and ideological ends with which they do not agree.” Id. at 312. And these opt-out requirements irrationally conflict with the “probable preferences of most nonmembers,” which is to refrain from paying fees they have no legal obligation to pay. Id. 38. In Janus v. AFSCME, Council 31, the Court held that nonmembers only pay for non- chargeable spending by waiving their rights not to pay those amounts and that a waiver of rights “cannot be presumed.” _ U.S. __, 138 S. Ct. 2448, 2465, 2486 (2018) (citing Johnson v. Zerbst, 44. The facts alleged above are incorporated here by reference. 45. The First Amendment to the U.S. Constitution protects the associational and free speech rights of individuals. 46. The First Amendment constrains a union’s actions when it enforces a forced fees agreement that receives immunization from state right to work laws due to the RLA’s preemption of those laws. Shea v. Machinists, 154 F.3d 508, 513 n.2 (5th Cir. 1998) (“The [U.S. Supreme] Court has found that there is sufficient state action to implicate the First Amendment in RLA cases because the RLA expressly states that it supersedes state law, and hence federal law is the authority through which private rights are lost.”) (citing Railway Employees’ Dep't v. Hanson, 351 U.S. 225 (1956)). 47. Unions subject to constitutional constraints violate the First Amendment when they require employees to opt-out of paying union fees that they have no legal obligation to pay. The only choice structure consistent with the First Amendment is one where unions seek employees’ affirmative consent to paying fees they otherwise have no legal obligation to pay—i.e., an “opt- in” system. Janus, 138 S. Ct. 2448, 2486. 49. Thus, if the RLA, 45 U.S.C. § 152, Eleventh, is construed to allow unions to impose opt- out requirements, then the statute as construed violates employees’ First Amendment free speech and association rights. 50. Defendant IAM’s forced fees agreement with United Airlines was made based on the RLA authorizing unions and employers to enter those types of agreements. Thus, the First Amendment constrains any requirements that IAM imposes on employees when it maintains and enforces a forced fees agreement. 51. Defendant IAM violated the First Amendment free speech and associational rights of Plaintiff Baisley and the class when it forced them to affirmatively opt-out of paying union fees unrelated to its spending on collective bargaining. Janus, 138 S. Ct. at 2448, 2486. 52. Defendant IAM caused Plaintiff Baisley and the class to suffer monetary and non- monetary harms when it violated the First Amendment by imposing the opt-out requirements on them. 53. The facts alleged above are incorporated here by reference. 54. Under the RLA, a union acting as the exclusive representative of a craft/class of employees owes a fiduciary duty of fair representation to all the employees that it represents, members and nonmembers alike. Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65 (1991). That duty is “akin to the duty owed by other fiduciaries to their beneficiaries,” such as the “duty a trustee owes to trust beneficiaries,” or the duty an “attorney” owes to a “client.” Id. at 74. 56. Unions breach the duty of fair representation when they impose burdensome and arbitrary requirements for employees to exercise their statutory or constitutional rights. Shea v. Machinists, 154 F.3d 508, 515 (1998). 57. IAM owed a duty of fair representation to Plaintiff Baisley and the class. 58. IAM breached that duty when it acted arbitrarily by requiring Plaintiff Baisley and the class to affirmatively object (“opt-out”) to paying union fees that they had no legal obligation to pay. These opt-out requirements arbitrarily burden the opportunity of Plaintiff Baisley and the class to freely exercise their right not to pay union fees unrelated to collective bargaining. See Knox v. SEIU, Local 1000, 567 U.S. 298, 312 (2012). 59. Although in Machinists v. Street, the U.S. Supreme Court suggested that the First Amendment permits unions to impose opt-out requirements on nonmembers, 367 U.S. 740, 750, 774 (1961), the Court clarified in Knox v. SEIU, Local 1000, 567 U.S. 298, 312-13 (2012), and confirmed in Janus that Street is dicta and no longer, if it ever was, good law. Janus, 138 S. Ct. at 2448, 2486. 60. IAM’s opt-out requirements caused Plaintiff Baisley and the class to suffer monetary and non-monetary harms. 8. Defendant IAM is a labor union that exclusively represents a nation-wide craft/class of “fleet service employees” that work for United Airlines. Plaintiff Arthur Baisley falls within this craft/class because he works for United Airlines as a “Ramp Service Employee.” 9. Under the Railway Labor Act, IAM’s status as the fleet service employees’ exclusive representative means IAM has a legal right to demand that United Airlines negotiate only with it for their terms and conditions of employment, including their wages. 45 U.S.C. § 152; Virginian. Ry. Co. v. System Fed’n No. 40, 300 U.S. 515, 548 (1937). IAM’s exclusive representative status forecloses United’s ability to negotiate with IAM’s nonmembers, i.e., employees who fall within the “craft/class” that IAM represents but who chose not to sign up for union membership. Id. As a result, the RLA forces nonmembers to accept IAM’s representation and extinguishes their individual right to deal directly with their employer. Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 202 (1944); c.f. N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967) (“The employee may disagree with many of the union decisions but is bound by them.”).

lose

10. Notice is of enormous importance. The COBRA notification requirement exists because employees are not presumed to know they have a federally protected right to continue healthcare coverage subsequent to a qualifying event. 11. COBRA further requires the administrator of such a group health plan to provide notice to any qualified beneficiary of their continuation of coverage rights under COBRA upon the occurrence of a qualifying event. 29 U.S.C. § 1166(a)(4). This notice 4 must be “[i]n accordance with the regulations prescribed by the Secretary” of Labor. 29 U.S.C. § 1166(a). 12. The relevant regulations prescribed by the Secretary of Labor concerning notice of continuation of coverage rights are set forth in 29 C.F.R. § 2590.606-4 as follows: (4) The notice required by this paragraph (b) shall be written in a manner calculated to be understood by the average plan participant and shall contain the following information: (i) The name of the plan under which continuation coverage is available; and the name, address and telephone number of the party responsible under the plan for the administration of continuation coverage benefits; (ii) Identification of the qualifying event; (iii) Identification, by status or name, of the qualified beneficiaries who are recognized by the plan as being entitled to elect continuation coverage with respect to the qualifying event, and the date on which coverage under the plan will terminate (or has terminated) unless continuation coverage is elected; (iv) A statement that each individual who is a qualified beneficiary with respect to the qualifying event has an independent right to elect continuation coverage, that a covered employee or a qualified beneficiary who is the spouse of the covered employee (or was the spouse of the covered employee on the day before the qualifying event occurred) may elect continuation coverage on behalf of all other qualified beneficiaries with respect to the qualifying event, and that a parent or legal guardian may elect continuation coverage on behalf of a minor child; (v) An explanation of the plan's procedures for electing continuation coverage, including an explanation of the time period during which the election must be made, and the date by which the election must be made; (vi) An explanation of the consequences of failing to elect or waiving continuation coverage, including an explanation 5 that a qualified beneficiary's decision whether to elect continuation coverage will affect the future rights of qualified beneficiaries to portability of group health coverage, guaranteed access to individual health coverage, and special enrollment under part 7 of title I of the Act, with a reference to where a qualified beneficiary may obtain additional information about such rights; and a description of the plan's procedures for revoking a waiver of the right to continuation coverage before the date by which the election must be made; (vii) A description of the continuation coverage that will be made available under the plan, if elected, including the date on which such coverage will commence, either by providing a description of the coverage or by reference to the plan's summary plan description; (viii) An explanation of the maximum period for which continuation coverage will be available under the plan, if elected; an explanation of the continuation coverage termination date; and an explanation of any events that might cause continuation coverage to be terminated earlier than the end of the maximum period; (ix) A description of the circumstances (if any) under which the maximum period of continuation coverage may be extended due either to the occurrence of a second qualifying event or a determination by the Social Security Administration, under title II or XVI of the Social Security Act (42 U.S.C. 401 et seq. or 1381 et seq.) (SSA), that the qualified beneficiary is disabled, and the length of any such extension; (x) In the case of a notice that offers continuation coverage with a maximum duration of less than 36 months, a description of the plan's requirements regarding the responsibility of qualified beneficiaries to provide notice of a second qualifying event and notice of a disability determination under the SSA, along with a description of the plan's procedures for providing such notices, including the times within which such notices must be provided and the consequences of failing to provide such notices. The notice shall also explain the responsibility of qualified beneficiaries to provide notice that a disabled qualified 6 beneficiary has subsequently been determined to no longer be disabled; (xi) A description of the amount, if any, that each qualified beneficiary will be required to pay for continuation coverage; (xii) A description of the due dates for payments, the qualified beneficiaries' right to pay on a monthly basis, the grace periods for payment, the address to which payments should be sent, and the consequences of delayed payment and non-payment; (xiii) An explanation of the importance of keeping the administrator informed of the current addresses of all participants or beneficiaries under the plan who are or may become qualified beneficiaries; and (xiv) A statement that the notice does not fully describe continuation coverage or other rights under the plan, and that more complete information regarding such rights is available in the plan's summary plan description or from the plan administrator. 13. To facilitate compliance with these notice obligations, the United States Department of Labor (“DOL”) has issued a Model COBRA Continuation Coverage Election Notice (“Model Notice”), which is included in the Appendix to 29 C.F.R. § 2590.606-4. A copy of this Model Notice is attached hereto as Exhibit “B.” The DOL website states that the DOL “will consider use of the model election notice, appropriately completed, good faith compliance with the election notice content requirements of 59. Plaintiff brings this action as a class action pursuant to Rule 23 Fed.R.Civ.P. on behalf of the following persons: All participants and beneficiaries in the Defendant’s Health Plan who were sent a COBRA notice by Defendant during the applicable statute of limitations period as a result of a qualifying event, as determined by Defendant, who did not elect COBRA. 60. No administrative remedies exist as a prerequisite to Plaintiff’s claim on behalf of the Putative Class. As such, any efforts related to exhausting such non-existent 15 remedies would be futile. 61. Numerosity: The Class is so numerous that joinder of all Class members is impracticable. On information and belief, hundreds or thousands of individuals satisfy the definition of the Class. 62. Typicality: Plaintiff’s claims are typical of the Class. The COBRA notice that Defendant sent to Plaintiff was a form notice that was uniformly provided to all Class members. As such, the COBRA notice that Plaintiff received was typical of the COBRA notices that other Class Members received, and suffered from the same deficiencies. 63. Adequacy: Plaintiff will fairly and adequately protect the interests of the Class members; he has no interests antagonistic to the class, and has retained counsel experienced in complex class action litigation. 64. Commonality: Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class, including but not limited to: a. Whether the Plan is a group health plan within the meaning of 29 8. The COBRA amendments to ERISA included certain provisions relating to continuation of health coverage upon termination of employment or another “qualifying event” as defined by the statute. 9. Among other things, COBRA requires the plan sponsor of each group health plan normally employing more than 20 employees on a typical business day during the preceding year to provide “each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event … to elect, within the election period, continuation coverage under the plan.” 29 U.S.C. § 1161. (Emphasis added). COBRA Notice Requirements

win

132. Plaintiffs bring the Second, Third, Fourth, and Fifth Causes of Action on their own behalf and as a class action, pursuant to Fed R. Civ. P. 23(a) and (b), on behalf of the following class of persons: All cell phone repair technicians who are currently, or have been employed by Defendants, in the State of New York at any time during the prior 6 years, to the entry of the judgment in the case (hereinafter, the “New York Class”). 133. The persons in the New York Class are so numerous that joinder of all members is impracticable. Although, the precise number of such persons is unknown, and facts on which the calculation of that number can be based are presently within the sole control of Defendants. 134. Upon information and belief, the size of the New York Class is at least 40 individuals. 135. The Second, Third, Fourth, and Fifth Causes of Action are properly maintainable as a class action under Fed. R. Civ. Pro. 23(b)(3). There are questions of law and fact common to the New York Class that predominate over any questions solely affecting individual members of the New York Class, including but not limited to: 18 a. whether Defendants failed to keep accurate time records for all hours worked by the New York Class Representatives and the New York Class; b. whether Defendants failed to pay proper compensation to New York Class Representatives and the New York Class for all work-hours in excess of 40 per workweek in violation of and within the meaning of the N.Y. Lab. Law § 190; c. whether Defendants failed to pay proper compensation to New York Class Representatives and the New York Class for all hours worked in violation of N.Y. Lab. Law §191; d. whether Defendants unlawful deducted wages from the New York Class Representatives and the New York class in violation of N.Y. Lab. Law § 193; e. whether Defendants failed to furnish the New York Class Representatives and New York Class with an accurate statement of, inter alia, wages, hours worked, and rates paid as required by N.Y. Lab. Law § 195; f. the nature and extent of New York Class-wide injury and the appropriate measure of damages sustained by the New York Class Representatives and the New York Class; g. whether Defendants acted willfully or with reckless disregarding in its failure to pay the New York Class Representatives and the New York Class; and h. the nature and extent of class-wide injury and the measure of damages for those injuries. 136. The New York Class Representatives fairly and adequately protect the interests of the New York Class and have no interests antagonistic to the class. The named Plaintiffs are represented by attorneys who are experienced and competent in both class litigation and employment litigation. 137. Further, the New York Class Representatives and the New York Class have been equally affected by Defendants’ failure to pay proper wages. Moreover, members of the New York Class still employed by Defendants may be reluctant to raise individual claims for fear of retaliation. 19 138. Defendants have acted or refused to act on grounds generally applicable to the New York Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 139. Plaintiffs’ claims are typical of those of the New York Class. Plaintiffs and the other New York Class members were subjected to Defendants’ policies, practices, programs, procedures, protocols and plans alleged herein concerning the failure to pay proper wages and the failure to keep adequate records. Plaintiffs’ job duties are typical of those of the class members. 140. A class action is superior to other available methods for the fair and efficient adjudication of this litigation – particularly in the context of wage litigation like the present action, where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court against a corporate defendant. The members of the New York Class have been damaged and are entitled to recovery as a result of Defendants’ common and uniform policies, practices, and procedures. Although the relative damages suffered by individual members of the New York Class are not de minimis, such damages are small compared to the expense and burden of individual prosecution of this litigation. In addition, class treatment is superior because it will obviate the need for unduly duplicative litigation that might result in inconsistent judgments about Defendants’ practices. 141. Plaintiffs and the members of the FLSA Collective and New York Class (collectively, “Class Members”) are victims of Defendants’ common policy and plan that violated their rights under the FLSA and the NYLL by failing to pay proper compensation for all hours worked including mandatory meetings and trainings; failing to properly compensate at the proper overtime rate for all hours over forty worked per workweek; and unlawfully deducting 20 wages from employees as for disciplinary infractions. At all times relevant, Defendants’ unlawful policy and pattern or practice has been willful. 142. Plaintiffs and class members worked at Defendants’ kiosks and stores repairing cell phones for the company’s customers in New York. 143. When cell phone repair technicians are hired by Defendants they are required to complete a few days of training. 144. Upon information and belief, employee training consisted of employees are working full shifts at a store or kiosk without any payment of wages. 145. Defendants hold mandatory business meetings that all employees are required to attend even if they are not scheduled to work. 146. These mandatory meetings are held several times a month and typically last anywhere from an hour to three hours. 147. Employees from many different locations of I Fix Screen stores and kiosks are required to attend these meetings. 148. Upon information and belief, Plaintiffs and class members were not paid for time traveling to and attending the mandatory meetings. 149. Upon information and belief, Defendants’ had a company policy of deducting from Plaintiffs and class members’ wages when they violated a company policy or a manager felt that his or she needed to be disciplined. 150. Upon information and belief, Plaintiffs and class members’ wages were deducted for infractions such as: having a dusty booth, having their feet up, failing to lock the cash drawer, and having earphones in their ears. 21 151. Defendants also failed to compensate Plaintiffs and class members for all hours they worked over forty hours per workweek. 152. Upon information and belief, Defendants regularly paid their employees on personal checks. 153. As part of its regular business practice, Defendants intentionally, willfully, and repeatedly engaged in a pattern, practice, and/or policy that violates the FLSA and/or NYLL. Defendants’ policy and pattern or practice includes, but is not limited to: a. Willfully failing to record all of the time that its employees, including Plaintiffs and class members, worked for the benefit of Defendant; b. Willfully failing to keep payroll records as required by the FLSA and NYLL; c. Willfully requiring Plaintiffs and class members to attend mandatory meetings and trainings off-the-clock; d. Willfully failing to pay its employees, including Plaintiffs and class members, wages for all of the hours that they worked; e. Willfully failing to pay its employees, including Plaintiffs and class members, overtime wages for all of the hours that they worked in excess of 40 per workweek; and f. Willfully deducting wages from employees for disciplinary infractions. 154. Defendants were or should have been aware that the FLSA and NYLL required it to pay its cell phone repair technicians overtime pay for all hours worked in excess of 40 per week. 155. Defendants’ failure to pay Plaintiffs and class members overtime wages for their work in excess of 40 hours per week was willful, intentional, and in bad faith. 156. Defendants were or should have been aware that the NYLL required it to pay its cell phone repair technicians for all hours worked in up to and including 40 per week. 22 157. Defendants’ failure to pay Plaintiffs and class members wages for all of their work up to and including 40 hours per week was willful, intentional, and in bad faith. 158. Defendants’ deduction of Plaintiffs and class members wages was willful, intentional, and in bad faith. 159. Defendants’ unlawful conduct has been widespread, repeated, and consistent. Eric Meindl 160. Plaintiff Eric Meindl was an employee of Defendants, working under their direct supervision. 161. Eric Meindl was employed by Defendants from in or about January 2016 to in or about March 2016 as a cell phone repair technician. 162. While employed by Defendants, Eric Meindl’s regular hourly rate was $9.00 per hour plus a small bonus for achieving certain goals such as a certain number of “likes” on social media. 163. At all times hereinafter mentioned, Eric Meindl was required to be paid overtime pay at the statutory rate of 1 and ½ his regular rate of pay after he had worked 40 hours in a workweek. 164. On several occasions from January 2016 to March 2016, Eric Meindl worked over 40 hour in a workweek. 165. Defendants failed to compensate Eric Meindl for all hours worked in excess of 40 hours per week at a rate of at least 1 and ½ times his regular rate, for all hours he worked in excess of 40 hours per work during his employment with Defendant. 23 166. Defendants failed to compensate Eric Meindl at a rate of at least his regular hourly rate for the time spent performing off-the-clock work that was not in excess of 40 hours in a workweek. 167. Specifically, Defendants failed to compensate Eric Meindl for time spent traveling to and attending mandatory meetings and trainings. 168. On one occasion, Eric Meindl clocked-in for a mandatory meeting, but Defendants clocked him out, shaving time off of his pay. 169. Eric Meindl complained about not being paid for training, and a manager named “Izzy” informed him that it was the company practice not to pay for training. 170. Defendants threatened to and deducted from Eric Meindl’s wages as a means of discipline. 171. On or about March 16, 2016, Eric Meindl complained to a manager named Khaled (last name unknown) that Defendants’ practice of deducting from employees’ wages for disciplinary violations was illegal. 172. Immediately after this complaint, another manager named “Tito” terminated Eric Meindl and informed him that they would not pay him his last check. 173. Defendants failed to furnish Eric Meindl with an accurate statement of wages listing hours worked, rates paid, gross wages, allowances and deductions taken, and net wages paid. 174. Upon information and belief, Defendants did not keep accurate records of hours worked by Eric Meindl. 24 Anthony Negron 175. Plaintiff Anthony Negron was an employee of Defendants, working under its direct supervision. 176. Anthony Negron has been employed by Defendants from in or about June 2015 to in or about May 2016 as a cell phone repair technician. 177. While employed by Defendants, Anthony Negron’s regular hourly rate was around $9 or $10 an hour. 178. At all times hereinafter mentioned, Anthony Negron was required to be paid overtime pay at the statutory rate of 1 and ½ his regular rate of pay after he had worked 40 hours in a workweek. 179. From in or about June 2015 to in or about May 2016, Anthony Negron consistently worked over forty hours per workweek. 180. Defendants failed to compensate Anthony Negron for all hours worked in excess of 40 hours per week at a rate of at least 1 and ½ times his regular rate, throughout the entire term of his employment with Defendants. 181. Defendants failed to compensate Anthony Negron at a rate of at least his regular hourly rate for the time spent performing off-the-clock work that was not in excess of 40 hours in a workweek. 182. Specifically, Defendants failed to compensate Anthony Negron for time spent traveling to and attending mandatory meetings. 183. Defendants threatened to and deducted from Anthony Negron’s wages as a means of discipline. 25 184. Specifically, Defendants deducted from Anthony Negron’s wages for infractions such as having his feet propped up on the kiosk, having a dusty booth, and not locking the money drawer. 185. Defendants failed to furnish Anthony Negron with an accurate statement of wages listing hours worked, rates paid, gross wages, allowances and deductions taken, and net wages paid. 186. Upon information and belief, Defendant did not keep accurate records of hours worked by Anthony Negron. FLSA – Overtime Wages (Brought on behalf of Plaintiffs and the FLSA Collective) 187. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 188. Plaintiffs and members of the FLSA Collective are non-exempt employees entitled to be paid overtime compensation for all overtime hours worked. 189. Defendants employed Plaintiffs and members of the FLSA Collective for workweeks longer than 40 hours and willfully failed to compensate Plaintiffs for all of the time worked in excess of 40 hours per week, at a rate of at least 1 and ½ times their regular hourly rate, in violation of the requirements of Section 7 of the FLSA, 29 U.S.C. § 207(a)(1). 190. Plaintiffs have expressed their consent to make these claims against Defendant by filing a written consent form, pursuant to 29 U.S.C. § 216(b). 191. Defendants failed to make a good faith effort to comply with the FLSA with respect to its compensation to Plaintiffs and the FLSA Collective. 192. Because Defendants’ violations of the FLSA were willful, a 3 year statute of limitations applies, pursuant to 29 U.S.C. § 255. 26 193. As a consequence of the willful underpayment of wages, alleged above, Plaintiffs and members of the FLSA Collective incurred damages thereby and Defendants are indebted to them in the amount of the unpaid overtime compensation, together with interest, liquidated damages, attorneys’ fees, and costs in an amount to be determined at trial. FLSA – Unlawful Retaliation (Brought on behalf of Plaintiff Eric Meindl) 220. Plaintiff realleges and incorporate by reference all allegations in all preceding paragraphs. 221. Defendants unlawfully terminated Plaintiff Eric Meindl for asserting his rights under the Fair Labor Standards Act. 222. Due to Defendant’s violations of 29 U.S.C. § 215(a)(3) Plaintiff Eric Meindl is entitled to back pay, front pay, liquidated damages, interest, and attorneys’ fees. NYLL – Unpaid Overtime (Brought on behalf of Plaintiffs and the members of the New York Class) 194. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 195. Defendants employed Plaintiffs and members of the New York Class for workweeks longer than 40 hours and willfully failed to compensate Plaintiffs and the New York Class for all of the time worked in excess of 40 hours per week, at a rate of at least 1 and ½ times their regular hourly rate, in violation of the requirements of NYLL. 196. By the course of conduct set forth above, Defendants have violated N.Y. Lab. Law § 650, et seq.; 12 N.Y.C.R.R. Part 142-2.2. 197. Defendants failed to keep, make, preserve, maintain and furnish accurate records of time worked by Plaintiffs and members of the New York Class. 198. Defendants have a policy and practice of refusing to pay overtime compensation for all hours worked to Plaintiffs and the New York Class. 199. Defendants’ failure to pay overtime compensation to Plaintiffs and the New York Class was willful within the meaning of N.Y. Lab. Law § 663. 200. As a consequence of the willful underpayment of wages, alleged above, Plaintiffs and members of the New York Class incurred damages thereby and Defendants are indebted to them in the amount of the unpaid overtime compensation and such other legal and equitable relief due to Defendants’ unlawful and willful conduct, as the Court deems just and proper. 27 201. Plaintiffs, on behalf of themselves and the New York Class, seek recovery of liquidated damages, attorneys’ fees, and costs to be paid by Defendant as provided by the NYLL. NYLL – Unlawful Wage Deductions (Brought on behalf of Plaintiffs and the members of the New York Class) 212. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 213. Defendants knowingly, willfully, and intentionally violated N.Y. Lab. Law § 193 when Defendants deducted from employees’ wages for disciplinary reasons. 214. As a consequence of the willful underpayment of wages, alleged above, Plaintiffs and members of the New York Class incurred damages thereby and Defendants are indebted to them in the amount of the unpaid wages and such other legal and equitable relief due to Defendants’ unlawful and willful conduct, as the Court deems just and proper. 215. Plaintiffs, on behalf of themselves and the New York Class, seek recovery of liquidated damages, interest, attorneys’ fees, and costs to be paid by Defendants as provided by the NYLL. 29 NYLL – Notice and Record-Keeping Requirement Violation (Brought on behalf of Plaintiffs and the members of the New York Class) 216. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 217. Defendants failed to supply Plaintiffs and members of the New York Class with an accurate statement of wages as required by N.Y. Lab. Law § 195, containing the dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; hourly rate or rates of pay and overtime rate or rates of pay if applicable; the number of hours worked, including overtime hours worked if applicable; deductions; and net wages. 218. Due to Defendants’ violations of N.Y. Lab. Law § 195, for each workweek that Defendants failed to provide a proper wage statement from April 9, 2011 through February 26, 2015, Plaintiffs and members of the New York Class are each entitled to damages of $100, or a total of $2,500 per class member, as provided for by N.Y. Lab. Law § 198, reasonable attorneys’ fees, costs, and injunctive and declaratory relief. 219. Due to Defendants’ violations of N.Y. Lab. Law § 195, for each workweek that Defendants failed to provide a proper wage statement from February 2, 2015, through the present Plaintiffs and members of the New York Class are each entitled to damages of $250, or a total of $5,000 per class member, as provided for by N.Y. Lab. Law § 198, reasonable attorneys’ fees, costs, and injunctive and declaratory relief. 30 NYLL – Unpaid Non-Overtime Wages (Brought on behalf of Plaintiffs and the members of the New York Class) 202. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 203. Plaintiff was entitled to his regular hourly wage for each hour he worked for Defendants up to and including 40 per week. 204. Defendants employed Plaintiffs and members of the New York Class and willfully failed to compensate Plaintiffs and members of the New York Class at the regular hourly rate for the time spent performing off-the-clock work up to and including 40 hours per week, in violation of the requirements of the NYLL, specifically N.Y. Lab. Law § 661(3). 205. The complete records concerning the number of hours worked by Plaintiffs and members of the New York Class as well as the compensation Plaintiffs and members of the New York Class received in workweeks in which unpaid hours were worked are in the exclusive possession and control of Defendants, and as such, Plaintiff is unable to state at this time the exact amount due and owing to him. 206. By the course of conduct set forth above, Defendants violated N.Y. Lab. Law § 650, et seq. 207. Defendants failed to keep, make, preserve, maintain, and furnish accurate records of time worked by Plaintiffs and members of the New York Class. 208. Defendants have a policy and practice of refusing to pay overtime compensation for all hours worked to Plaintiffs and members of the New York Class. 28 209. Defendants’ failure to pay compensation to Plaintiffs and members of the New York Class was willful within the meaning of N.Y. Lab. Law § 663. 210. As a consequence of the willful underpayment of wages, alleged above, Plaintiffs and members of the New York Class incurred damages thereby and Defendants are indebted to them in the amount of the unpaid wages and such other legal and equitable relief due to Defendants’ unlawful and willful conduct, as the Court deems just and proper. 211. Plaintiffs, on behalf of themselves and the New York Class, seek recovery of liquidated damages, interest, attorneys’ fees, and costs to be paid by Defendant as provided by the NYLL. NYLL– Unlawful Retaliation (Brought on behalf of Plaintiff Eric Meindl) 223. Plaintiff realleges and incorporate by reference all allegations in all preceding paragraphs. 224. Defendants unlawfully terminated Plaintiff Meindl for asserting his rights under the New York Labor Law. 225. Due to Defendant’s violations of N.Y. Lab. Law § 215, Plaintiff Eric Meindl is entitled to back pay, front pay, liquidated damages, interest, and attorneys’ fees.

win

152. Defendant avers that the alleged actions of Defendant were proper and did not violate any provision of 15 U.S.C. § 1692 et. seq. 14 153. Plaintiff’s claims are or may be subject to an arbitration agreement requiring him to submit his claims to mandatory and binding arbitration. If so, Defendant will exercise its right to arbitration under the agreement, which is specifically enforceable pursuant to the Federal Arbitration Act, 9 U.S.C. Section 1, et. Seq. 154. Defendant is shielded from any TCPA liability due to reasonable practices and procedures it instituted to avoid any alleged violations of the TCPA. 47 U.S.C. § 227(c)(5)(C). AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 155. Defendant cannot be found liable for the alleged TCPA violations as debt collectors are exempt from liability under the alleged circumstances. See 47 C.F.R. § 64.1200(a)(2)(iv); 7 FCC Rcd. 8752, 8771-8772.

lose

27. Defendant offers the commercial website, https://cangshancuttlery.com/en, to the public. The website offers features which should allow all consumers to access the goods and services offered by the Defendant and which Defendant ensures delivery of such goods throughout the United States including New York State. The goods and services offered by Defendant include, but are not limited to, the following, which allow consumers to purchase professional kitchen knives, knife sets, knife accessories, and other products available online for purchase, and to ascertain information relating to pricing, shipping, ordering merchandise and return and privacy policies. 28. It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along with other blind or visually-impaired users, access to Defendant’s website, and to therefore specifically deny the goods and services that are offered thereby. Due to Defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually-impaired persons have been and are still being denied equal access to Defendant’s numerous goods, services and benefits offered to the public through the Website. 29. Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. 30. During Plaintiff’s visits to the Website, the last occurring in November, 2020, in an attempt to purchase a product from the Defendant, the Plaintiff encountered multiple access barriers that denied Plaintiff a shopping experience similar to that of a -11- sighted person and full and equal access to the goods and services offered to the public and made available to the public; and that denied Plaintiff the full enjoyment of the goods, and services of the Website by being unable to purchase professional kitchen knives, knife sets, knife accessories, and other products available online for purchase, and to ascertain information relating to pricing, shipping, ordering merchandise and return and privacy policies. 31. While attempting to navigate the Website, Plaintiff encountered multiple accessibility barriers for blind or visually-impaired persons that include, but are not limited to, the following: a. Lack of Alternative Text (“alt-text”), or a text equivalent. Alt-text is an invisible code embedded beneath a graphical image on a website. Web accessibility requires that alt-text be coded with each picture so that screen-reading software can speak the alt-text where a sighted user sees pictures, which includes captcha prompts. Alt-text does not change the visual presentation, but instead a text box shows when the keyboard moves over the picture. The lack of alt-text on these graphics prevents screen readers from accurately vocalizing a description of the graphics. As a result, Defendant’s visually- impaired customers are unable to determine what is on the website, browse, or make any purchases; b. Empty Links That Contain No Text causing the function or purpose of the link to not be presented to the user. They can introduce confusion for keyboard and screen-reader users; -12- c. Redundant Links where adjacent links go to the same URL address which results in additional navigation and repetition for keyboard and screen-reader users; and d. Linked Images Missing Alt-text, which causes problems if an image within a link contains no text and that image does not provide alt-text. A screen reader then has no content to present the user as to the function of the link, including information contained in PDFs. 32. Many pages on the Website also contain the same title elements. This is a problem for the visually-impaired because the screen reader fails to distinguish one page from another. In order to fix this problem, Defendant must change the title elements for each page. 33. The Website also contained a host of broken links, which is a hyperlink to a non-existent or empty webpage. For the visually-impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. For example, upon coming across a link of interest, Plaintiff was redirected to an error page. However, the screen-reader failed to communicate that the link was broken. As a result, Plaintiff could not get back to his original search. Defendant Must Remove Barriers To Its Website 34. Due to the inaccessibility of Defendant’s Website, blind and visually- impaired customers such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the goods, and services Defendant offers to the public on its Website. The -13- access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular basis from accessing the Website. 35. These access barriers on Defendant’s Website have deterred Plaintiff from visiting Defendant’s Website and enjoying it equal to sighted individuals because: Plaintiff was unable to use and enjoy the Website in the same manner as sighted individuals do, preventing Plaintiff from using the Website to purchase items and to view the items. 36. If the Website was equally accessible to all, Plaintiff could independently navigate the Website and complete a desired transaction as sighted individuals do. 37. Through his attempts to use the Website, Plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually-impaired persons. 38. Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, including but not limited to the following policies or practices: a. Constructing and maintaining a website that is inaccessible to visually-impaired individuals, including Plaintiff; b. Failure to construct and maintain a website that is not sufficiently intuitive so as to be equally accessible to visually-impaired individuals, including Plaintiff; and, c. Failing to take actions to correct these access barriers in the face of substantial harm and discrimination to blind and visually-impaired consumers, such as Plaintiff, as a member of a protected class. -14- 39. Defendant therefore uses standards, criteria or methods of administration that have the effect of discriminating or perpetuating the discrimination of others, as alleged herein. 40. The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In relevant part, the ADA requires: In the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy . . . 42 U.S.C. § 12188(a)(2). 41. Because Defendant’s Website is not and has never been fully accessible, and because, upon information and belief, Defendant does not have, and has never had, adequate corporate policies that are reasonably calculated to cause its Website to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seek a permanent injunction requiring Defendant to: a) Retain a qualified consultant acceptable to Plaintiff (“Web Accessibility Consultant”) who shall assist in improving the accessibility of its Website, including all third-party content and plug-ins, so the goods and services on the Website may be equally accessed and enjoyed by visually-impaired persons; b) Work with the Web Accessibility Consultant to ensure all employees involved in Website and content development be given web accessibility training on a biennial basis, including onsite training to create accessible content at the design and development stages; c) Work with the Web Accessibility Consultant to perform an automated accessibility audit on a periodic basis to evaluate whether Defendant’s Website may be equally accessed and enjoyed by visually-impaired persons on an ongoing basis; d) Work with the Web Accessibility Consultant to perform end-user accessibility/usability testing on at least a quarterly basis with said testing to be performed by humans who are blind or have low vision, or who have training and experience in the manner in which persons who are blind use a screen reader to -15- navigate, browse, and conduct business on websites, in addition to the testing, if applicable, that is performed using semi-automated tools; e) Incorporate all of the Web Accessibility Consultant’s recommendations within sixty (60) days of receiving the recommendations; f) Work with the Web Accessibility Consultant to create a Web Accessibility Policy that will be posted on its Website, along with an e-mail address, instant messenger, and toll-free phone number to report accessibility-related problems; g) Directly link from the footer on each page of its Website, a statement that indicates that Defendant is making efforts to maintain and increase the accessibility of its Website to ensure that visually-impaired persons have full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the Defendant’s Website; h) Accompany the public policy statement with an accessible means of submitting accessibility questions and problems, including an accessible form to submit feedback or an email address to contact representatives knowledgeable about the Web Accessibility Policy; i) Provide a notice, prominently and directly linked from the footer on each page of its Website, soliciting feedback from visitors to the Website on how the accessibility of the Website can be improved. The link shall provide a method to provide feedback, including an accessible form to submit feedback or an email address to contact representatives knowledgeable about the Web Accessibility Policy; j) Provide a copy of the Web Accessibility Policy to all web content personnel, contractors responsible for web content, and Client Service Operations call center agents (“CSO Personnel”) for the Website; k) Train no fewer than three of its CSO Personnel to automatically escalate calls from users with disabilities who encounter difficulties using the Website. Defendant shall have trained no fewer than 3 of its CSO personnel to timely assist such users with disabilities within CSO published hours of operation. Defendant shall establish procedures for promptly directing requests for assistance to such personnel including notifying the public that customer assistance is available to users with disabilities and describing the process to obtain that assistance; l) Modify existing bug fix policies, practices, and procedures to include the elimination of bugs that cause the Website to be inaccessible to users of screen reader technology; and m) Plaintiff, his counsel, and their experts monitor the Website for up to two years after the Mutually Agreed Upon Consultant validates the Website are free of -16- accessibility errors/violations to ensure Defendant has adopted and implemented adequate accessibility policies. To this end, Plaintiff, through his counsel and their experts, shall be entitled to consult with the Web Accessibility Consultant at their discretion, and to review any written material, including but not limited to any recommendations the Website Accessibility Consultant provides Defendant. 42. Web-based technologies have features and content that are modified on a daily, and in some instances an hourly, basis, and a one time “fix” to an inaccessible website will not cause the website to remain accessible without a corresponding change in corporate policies related to those web-based technologies. To evaluate whether an inaccessible website has been rendered accessible, and whether corporate policies related to web-based technologies have been changed in a meaningful manner that will cause the website to remain accessible, the website must be reviewed on a periodic basis using both automated accessibility screening tools and end user testing by visually-impaired persons. 43. If the Website was accessible, Plaintiff and similarly situated blind and visually-impaired persons could independently shop for and otherwise research the Defendant’s products via the Website. 44. Although Defendant may currently have centralized policies regarding maintaining and operating its Website, Defendant lacks a plan and policy reasonably calculated to make them fully and equally accessible to, and independently usable by, blind and other visually-impaired consumers. 45. Defendant has, upon information and belief, invested substantial sums in developing and maintaining their Website and has generated significant revenue from the Website. These amounts are far greater than the associated cost of making their Website equally accessible to visually-impaired consumers. -17- 46. Without injunctive relief, Plaintiff and other visually-impaired consumers will continue to be unable to independently use the Website, violating their rights. 47. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered by Defendant’s Website, during the relevant statutory period. 48. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York State Sub-Class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the State of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered by Defendant’s Website, during the relevant statutory period. 49. Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a New York City Sub-Class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the City of New York who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services offered by Defendant’s Website, during the relevant statutory period. 50. Common questions of law and fact exist amongst the Class and Sub- Classes, including: a. Whether Defendant’s Website is a “public accommodation” under the ADA; -18- b. Whether Defendant’s Website is a “place or provider of public accommodation” under the NYSHRL or NYCHRL; c. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to visually- impaired persons, violating the ADA; and d. Whether Defendant’s Website denies the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations to visually- impaired persons, violating the NYSHRL or NYCHRL. 51. Plaintiff’s claims are typical of the Class and Sub-Classes. The Class, and Sub-Classes, similarly to the Plaintiff, are severely visually-impaired or otherwise blind persons, and claim that Defendant has violated the ADA, NYSHRL or NYCHRL by failing to update or remove access barriers on its Website so it can be independently accessible to the Class and/or the Sub-Classes. 52. Plaintiff will fairly and adequately represent and protect the interests of the Class Members because Plaintiff has retained and is represented by counsel competent and experienced in complex class action litigation, including ADA litigation and because Plaintiff has no interests antagonistic to the Class Members. Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole. 53. Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact and legal questions are common to Class Members predominate over -19- questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of their litigation. 54. Judicial economy will be served by maintaining this lawsuit as a class action in that it is likely to avoid the burden that would be otherwise placed upon the judicial system by the filing of numerous similar suits by visually-impaired persons throughout the United States. 55. Plaintiff, on behalf of himself and the Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 56. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). 57. Defendant’s online retail store is a place of public accommodation within the definition of Title III of the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, or advantage of Defendant’s online retail store 58. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). 59. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or -20- benefit from the goods, services, facilities, privileges, advantages, or accommodation, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii). 60. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes, among other things: [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; and a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). 61. The acts alleged herein constitute violations of Title III of the ADA, and the regulations promulgated thereunder. Plaintiff, who is a member of a protected class of persons under the ADA, has a physical disability that substantially limits the major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been denied full and equal access to the Website, has not been provided services that are provided to other patrons who are not disabled, and has been provided services that are inferior to the services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct. These violations are ongoing. 62. Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and incorporated therein, Plaintiff, requests relief as set forth below. -21- 63. Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 64. N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . disability of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 65. Defendant’s Website operates in the State of New York and constitutes an online sales establishment and a place of public accommodation within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service, privilege or advantage of Defendant’s online retail establishment. 66. Defendant is subject to New York Human Rights Law because it owns and/or operates its Website in the State of New York. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1). 67. Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove access barriers to its Website, causing its Website and the services integrated therewith to be completely inaccessible to the blind. Their inaccessibility denies blind patrons full and equal access to the facilities, goods and services that Defendant makes available to the non-disabled public. 68. Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes, among other things, “a refusal to make reasonable modifications in policies, -22- practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations being offered or would result in an undue burden". 69. Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also includes, “a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden.” 70. Readily available, well-established guidelines exist on the Internet for making websites accessible to the blind and visually-impaired. These guidelines have been followed by other large business entities and government agencies in making their website accessible, including but not limited to: adding alt-text to graphics and ensuring that all functions can be performed using a keyboard. Incorporating the basic components to make its Website accessible would neither fundamentally alter the nature of Defendant’s business nor result in an undue burden to Defendant. 71. Defendant’s actions constitute willful intentional discrimination against the class on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or -23- b. constructed and maintained a website that is not sufficiently intuitive and/or obvious that it is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 72. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 73. Defendant discriminates, and will continue in the future to discriminate, against Plaintiff and New York State Sub-Class Members on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of Defendant’s Website under § 296(2) et seq. and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and the Sub-Class Members will continue to suffer irreparable harm. 74. Defendant’s actions were and are in violation of New York State Human Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 75. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense. 76. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 77. Under N.Y. Exec. Law § 297 and the remedies, procedures and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. -24- 78. Plaintiff, on behalf of himself and the New York City Sub-Class Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 79. N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of . . . disability . . . directly or indirectly, to refuse, withhold from or deny to such person, any of the accommodations, advantages, facilities or privileges thereof.” 80. Defendant’s website is an online sales establishment and a place of public accommodation within the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service that is integrated with its online sales establishment. 81. Defendant is subject to NYCHRL because it owns and/or operates its Website in the City of New York, making it a person within the meaning of N.Y.C. Admin. Code § 8-102(1). 82. Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to update or remove access barriers to Website, causing its Website and the services integrated therewith to be completely inaccessible to the blind. The inaccessibility denies blind consumers full and equal access to the facilities, goods, and services that Defendant makes available to the non-disabled public. 83. Defendant is required to “make reasonable accommodation to the needs of persons with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.] -25- from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” N.Y.C. Admin. Code § 8-107(15)(a). 84. Defendant’s actions constitute willful intentional discrimination against the Sub-Class on the basis of a disability in violation of the N.Y.C. Administrative Code § 8- 107(4)(a) and § 8-107(15)(a) in that Defendant has: a. constructed and maintained a website that is inaccessible to blind class members with knowledge of the discrimination; and/or b. constructed and maintained a website that is not sufficiently intuitive and/or obvious that it is inaccessible to blind class members; and/or c. failed to take actions to correct these access barriers in the face of substantial harm and discrimination to blind class members. 85. Defendant has failed to take any prompt and equitable steps to remedy their discriminatory conduct. These violations are ongoing. 86. As such, Defendant discriminates, and will continue in the future to discriminate, against Plaintiff and members of the proposed class and Sub-Class on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations and/or opportunities of its Website under § 8- 107(4)(a) and/or its implementing regulations. Unless the Court enjoins Defendant from continuing to engage in these unlawful practices, Plaintiff and members of the Sub-Class will continue to suffer irreparable harm. -26- 87. Defendant’s actions were and are in violation of the NYCHRL and therefore Plaintiff invokes his right to injunctive relief to remedy the discrimination. 88. Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense as well as punitive damages pursuant to § 8-502. 89. Plaintiff is also entitled to reasonable attorneys’ fees and costs. 90. Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies, procedures and rights set forth and incorporated therein Plaintiff prays for judgment as set forth below. 91. Plaintiff, on behalf of himself and the Class and New York State and City Sub-Classes Members, repeats and realleges every allegation of the preceding paragraphs as if fully set forth herein. 92. An actual controversy has arisen and now exists between the parties in that Plaintiff contends, and is informed and believes that Defendant denies, that its Website contains access barriers denying blind customers the full and equal access to the goods and services of its Website, which Defendant owns, operates and controls, fails to comply with applicable laws including, but not limited to, Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind. 93. A judicial declaration is necessary and appropriate at this time in order that each of the parties may know their respective rights and duties and act accordingly. -27- DECLARATORY RELIEF Defendant’s Barriers on Its Website VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq. VIOLATIONS OF THE NYCHRL VIOLATIONS OF THE NYSHRL

lose