Consent Decree Binds Food52 to Make Its Website ADA-Compliant in 18 Months

Defendant kitchenware company Food52 agreed to use “reasonable efforts” within 18 months to make its website accessible to the blind and visually impaired, in compliance with Title III of the Americans With Disabilities Act. It signed a consent decree March 2 with plaintiff Ramon Fontanez, as posted Monday (docket 1:22-cv-09584) in U.S. District Court for Southern New York.

Fontanez and Food52 told the court Feb. 16 they had reached a settlement on allegations in a Nov. 9 class action that improper coding at Food52.com thwarted Fontanez, who's legally blind, from buying a spatula as a gift for his wife (see 2302170003). Court records show the Food52 class action was the 37th Fontanez filed through the same Manhattan law firm, Mizrahi Kroub, between June and November (see 2211100054). Of the various lawsuits he settled, including one with his largest defendant, L’Oreal, the Food52 class action was the only one known to have resulted in a published consent decree. Fontanez’s lawyer, Edward Kroub, didn’t respond to an email Tuesday seeking comment.

Food52 “expressly denies” its website violates any federal, state or local law, including the ADA and the New York City Human Rights Law, said the consent decree. The agreement “resolves, settles, and compromises all issues” between the parties, it said. The SDNY will maintain jurisdiction over the consent decree for a term of 36 months, or on the date when DOJ “adopts regulations for websites under Title III of the ADA,” it said. DOJ didn’t respond to an email Tuesday seeking comment on the regulations.

Food52 agrees, “to the extent not already done,” to modify its website “as needed to substantially conform” to the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 or WCAG 2.1 Level A Success Criteria, said the consent decree. Food52's WCAG compliance will be “to the extent determined to be applicable,” so the website “will be accessible to persons with vision disabilities,” it said.

The parties acknowledge Food52's obligations don’t include “substantial conformance” with WCAG standards for user-generated content, or other content it doesn’t own, said the consent decree. They also agree if DOJ or a court with jurisdiction over the matter decides the WCAG standards or any “successor standard” that Food52 may have used aren't required by applicable law, Food52 will have discretion to cease its “remediation efforts,” it said.

Food52 won't have breached the agreement unless an “independent accessibility consultant” decides a visually disabled person with “average screen reader competency” can’t access its website due to accessibility barriers, said the consent decree. The agreement obligates Food52 “to remedy the issue,” using reasonable efforts “within a reasonable period of time,” but is vague on when that clock runs out or what happens next.

The agreement defines reasonable efforts as not requiring Food52 to endure “an undue burden” in modifying its website for the visually impaired, said the consent decree. The agreement protects Food 52 against website modifications that risk “a loss of revenue or traffic,” it said. The parties agree it’s in their best interest to resolve the action “on mutually agreeable terms without further litigation,” it said. They agree to the entry of the consent decree “without trial or further adjudication of any issues of fact or law” as raised in the Nov. 9 complaint, it said.