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National Association of Deaf v. Harvard University

United States District Court, D. Massachusetts

December 9, 2019



          KATHERINE A. ROBERTSON United States Magistrate Judge

         I. Introduction

         Plaintiffs National Association of the Deaf (“NAD”), C. Wayne Dore, Christy Smith, and Lee Nettles (collectively, “Plaintiffs”) commenced this putative class action in February 2015. On behalf of a proposed class of deaf and hard of hearing individuals, Plaintiffs asserted that the defendants, Harvard University and the President and Fellows of Harvard College (collectively, “Harvard”) were in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, because of an alleged lack of close captioning or unintelligible captioning of videos and audio tracks made publicly available by Harvard. Following lengthy negotiations, the parties have reached a settlement and executed a proposed consent decree. Before the court is the Plaintiffs' Assented-to Motion to Certify the Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement (“Plaintiffs' Motion”). For the reasons set forth below, the court GRANTS Plaintiffs' Motion.

         II. Class Certification and Preliminary Approval of Consent Decree

         Before certifying a class for purposes of settlement and preliminarily approving a class settlement agreement, the court must be satisfied that: (A) the proposed class should be certified for the purpose of settlement; (B) the settlement is fair, reasonable, and adequate; and (C) the proposed notice and notice plan satisfy due process requirements. See Fed. R. Civ. P. 23(e).

         A. The Proposed Class Should be Certified

         i. The Requirements of Rule 23(a)

         Plaintiffs propose to certify the following class:

[A]ll persons (other than students of Harvard University) who, at any time between February 11, 2013 and the date of preliminary approval of this settlement, have claimed or could have claimed to assert a right under Title III of the ADA, Section 504 of the Rehabilitation Act, and/or other federal, state or local statutes or regulations that set forth standards or obligations coterminous with or equivalent to Title III of the Americans with Disabilities Act or any of the rules or regulations promulgated thereunder, alleging that they are deaf or hard of hearing and that Harvard has failed to make accessible to persons who are deaf or hard of hearing online content posted and available for the general public that is produced, created, hosted, linked to, or embedded by Harvard

(Dkt. No. 201-1 at 4).

         First, the court finds, as Plaintiffs contend, that the class is sufficiently large that joinder is impracticable. See New Eng. Carpenters Health Benefits Fund v. First Databank, Inc., Civil Action No. 05-cv-11148-PBS, Civil Action No. 07-10988-PBS, 2009 WL 10703302, at *2 (D. Mass. Mar. 30, 2009). The threshold for numerosity is not high. See Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 292 (D. Mass. 2011). The online content at issue in this case is publicly available and of interest to a wide range of individuals. There is a substantial population of individuals in this country who are deaf or hard of hearing, any one of whom may have sought access during the relevant period to audio or audiovideo content that Harvard makes available to the general public on one of Harvard's websites or on an official channel hosted by a third party platform such as YouTube. Moreover, Plaintiffs represent that discovery established that dozens of NAD members sought access to Harvard's online web materials before and during the course of this litigation.[1] This information is a sufficient basis for finding that the numerosity requirement is satisfied, and the court so finds.

         The court also finds that the commonality and typicality requirements are satisfied. See Connor B., 272 F.R.D. at 292-93 (stating that the commonality and typicality requirements tend to merge) (citing Gen'l Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Commonality is, again, not a high bar. See Id. at 293. Here, all members of the proposed class are in the same position legally vis-à-vis the accessibility of Harvard's online content. As the proposed class is defined, all of its members are deaf or hard of hearing and have been unable to access Harvard's online content because it was not captioned or it was captioned unintelligibly. “The third requirement of Rule 23(a) requires that the named Plaintiffs' claims be typical of the absent class members. The claims of the entire class need not be identical, but the class representatives must generally ‘possess the same interests and suffer the same injury' as the unnamed class members.” Id. at 296 (quoting Falcon, 457 U.S. at 156). Plaintiffs allege that each named class representative and each member of the proposed class has been denied access to the same uncaptioned material pursuant to the same general practices of Harvard, thus satisfying the requirements of a common interest and a common injury.

         Fourth, the requirement for fair and adequate representation of the proposed class is satisfied. “[A] named plaintiff is adequate if his ‘interests … will not conflict with the interests of any of the class members, '” Brito v. Barr, 395 F.Supp.3d 135, 147 (D. Mass. 2019) (quoting Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985)) (alteration in original), if common legal questions apply to the claims of the named plaintiffs and members of the proposed class, id. at 148, and if the attorneys representing the class are qualified and competent. Connor B., 272 F.R.D. at 297 (citing Andrews, 780 F.2d at 130). As noted above, the interests of the named plaintiffs and those of members of the proposed class are the same, as are the legal questions raised by their claims. Counsel for all parties in this case have provided representation of the very highest caliber, vigorously and thoughtfully advocating for their clients. For their part, Plaintiffs have ensured that they are represented by experienced advocates who specialize in litigating disability rights class actions. Plaintiffs are represented by Joseph Sellers and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC; Thomas P. Murphy, Tatum A. Pritchard, and Caitlin Parton of the Disability Law Center, Inc.; Amy Farr Robertson of the Civil Rights Education and Enforcement Center; Arlene Mayerson and Namita Gupta of the Disability Rights Education and Defense Fund, Inc.; and Howard Rosenblum of the National Association of the Deaf. Plaintiffs' counsel report that they have invested substantial time and ...

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