[Nfbmt] Lululemon Class Publication Notice

[Bruce&Joy Breslauer]

Introduction:

In April of 2015, the NFB learned of a pending class action settlement
between David New et al and Lululemon USA, Inc., which resolved claims
pertaining to inaccessible touchscreen payment systems.  The settlement
proposed to unfairly waive the rights of blind customers without due process
or compensation.  To protect the rights of blind people, the NFB objected to
the fairness of the proposed class settlement.  Our objections were heard
and the settlement has since been amended so that it does not waive our
rights without due process.  As part of the amended proposed settlement ,
the NFB has agreed to post the following class action notice.  

 

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

NOTICE OF PROPOSED CLASS SETTLEMENT 

If you are blind and purchased or attempted to purchase goods with a debit
card at a lululemon athletic store, lululemon athletica showroom, ivivva
store or ivivva showroom (the "Lululemon Stores") between January 1, 2010,
and January 14, 2015, and were unable to independently use the point of sale
equipment (the "POS Device") to conclude your purchase because the POS
Device was not tactile enabled, your rights may be affected by a proposed
class action settlement. Excluded from the Settlement Class are officers,
directors, and employees of lululemon usa, inc. and its parents and
subsidiaries (collectively, "Lululemon"), as well as judicial officers and
employees of the Court.

A federal court authorized this notice. This is not a solicitation from a
lawyer.

.         The Settlement resolves a lawsuit over Lululemon's use of a touch
screen POS Device in Lululemon Stores that impedes blind patrons' ability to
independently make a debit card purchase.

.         Lululemon has agreed to replace the POS Devices in all Lululemon
Stores with new, tactile enabled devices that will be programmed to allow
blind patrons to use the devices in the same manner as fully-sighted
patrons.

.         Your legal rights are affected whether you act or do not act.
Please read this notice carefully.


YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT


EXCLUDE YOURSELF BY NOVEMBER 6, 2015

You will not be giving up your right to sue Lululemon, but you cannot object
and you will not be a part of the Settlement.


 


OBJECT BY
NOVEMBER 6, 2015

Write to the Court about why you do not like the Settlement.


 


GO TO A HEARING ON DECEMBER 3, 2015

Ask to speak in Court about the Settlement.


 


DO NOTHING

You give up the right to sue on your own regarding any claims that are part
of the Settlement.

.                     These rights and options-and the deadlines to exercise
them-are explained below.

.                     The Court in charge of this case has preliminarily
approved the Settlement, but still must decide whether to give final
approval. The relief to be provided to settlement class members will only be
provided if the Court gives final approval to the Settlement and after any
appeals are resolved. Please be patient.

 

BACKGROUND INFORMATION

 

1.                   Why did I get this notice?

If you are blind or visually impaired and attempted to or did use a debit
card to purchase goods at a Lululemon Store between January 1, 2010, and
January 14, 2015, but could not do so independently because of the POS
Device used in the Lululemon Store, then your rights could be affected under
the proposed settlement that has been reached in a class action lawsuit
against Lululemon.

The Court directed that this Notice be posted because settlement class
members have a right to know about the proposed settlement, and about all of
their options, before the Court decides whether to approve the Settlement.
If the Court approves the Settlement, and after objections and appeals are
resolved, Lululemon will implement the benefits that the Settlement
provides.

This Notice explains the nature of the lawsuit, the general terms of the
proposed settlement, what benefits are available, who is eligible for them,
and how to get them.

The Court in charge of this case is the United States District Court for the
Southern District of Florida, and the case is known as David New and Access
Now, Inc. v. Lululemon USA, Inc., Case No. 1:14-CV-20589-DPG. The person and
entity who sued, David New and Access Now, Inc., are called "Plaintiffs" and
the company they sued, Lululemon USA, Inc., is called the "Defendant."

2.                   What is this lawsuit about?

The lawsuit claimed, among other things, that the POS Devices Defendant uses
in the Lululemon Stores are inaccessible to blind patrons of the store
because the POS Devices are not tactile enabled.  As a consequence, blind
patrons cannot independently use the POS Devices. Plaintiffs contend that
Defendant's use of the POS Devices discriminates against blind patrons.
Defendant denies any wrongdoing and any liability whatsoever, and no court
or other entity has made any judgment or other determination of any
liability.

The above description of the lawsuit is general and does not cover all of
the issues and proceedings that have occurred. In order to see the complete
file for the Action, you should visit the website of the Administrative
Office of the U.S. Courts, PACER Service Center, located at
http://www.pacer.gov/. You can also review a number of documents pertinent
to this case, including the Stipulation of Settlement at
www.accessnowsettlement.com.

3.                   Why is this a class action?

In a class action, one or more individuals and or entities, called class
representatives (in this case Plaintiffs David New and Access Now, Inc.),
sue on behalf of people who have similar claims. All these people are a
class or class members. One court resolves the issues for all class members,
except those who exclude themselves from the class. U.S. District Court
Judge Darrin P. Gayles is in charge of this class action.

 

4.                   Why is there a settlement?

The Court has not decided in favor of Plaintiffs or Defendant. Instead, both
sides agreed to a settlement. That way, they avoid the cost of a trial, and
the Settlement Class Members receive relief now rather than years from now,
if at all. The Class Representatives and their attorneys believe the
settlement is in the best interest of the settlement class.

5.                   How do I know if I am part of the settlement?

You first have to decide if you are a settlement class member.

As described above, the Court decided that everyone who fits this
description is a settlement class member:

 

Each blind person in the United States and its territories who from January
1, 2010 to January 14, 2015 purchased or attempted to purchase goods at a
Lululemon Store with a debit card and was unable to independently use the
POS Device in the Lululemon Store to complete their purchase. Excluded from
the Settlement Class are officers, directors, and employees of Lululemon and
its parents and subsidiaries, as well as judicial officers and employees of
the Court.

 

THE PROPOSED SETTLEMENT 

 

6.                   What does the Settlement provide?

Lululemon has agreed to replace all POS Devices in Lululemon Stores with
new, tactile enabled devices that will be programmed to allow blind patrons
to independently use all functions of the device to the same extent as fully
sighted patrons.

To read more about the new devices, visit the website,
www.accessnowsettlement.com.

 

7. When will the class receive this benefit?

The Court will hold a hearing on December 3, 2015 to decide whether to
approve the Settlement. If Judge Gayles approves the Settlement after that,
there may be appeals. It is always uncertain whether these appeals can be
resolved, and resolving them can take time, perhaps more than a year. Please
be patient.

DISMISSAL OF ACTION AND RELEASE OF ALL CLAIMS

8. What am I giving up to receive these benefits or stay in the class?

Unless you exclude yourself, you are staying in the Settlement Class, and
that means you cannot sue, continue to sue, or be part of any other lawsuit
against Defendant about the legal issues in this case. It also means that
all of the Court's orders will apply to you and legally bind you. If you do
not exclude yourself, upon the "Effective Date," you will release all
"Released Claims" (as defined below) against the "Releasees" (as defined
below).

"Released Claims" means all claims, actions, causes of action,
administrative claims, demands, debts, damages, costs, attorney's fees,
obligations, judgments, expenses, or liabilities, in law or in equity,
whether now known or unknown, contingent or absolute, other than claims for
personal injury, that Plaintiffs or any member of the Settlement Class now
have or, absent this Stipulation, may in the future have had, against
Releasees, or any of them, by reason of any act, omission, harm, matter,
cause, or event whatsoever that has occurred at any time up to and including
the entry of the Preliminary Approval Order, that has been alleged in this
Lawsuit or could have been alleged in the Lawsuit or in another court
action, and relates (i) to any of the alleged inadequacies, misstatements,
or issues of or associated with the POS Devices alleged in this Lawsuit or
(ii) to any act, omission, damage, matter, cause, or event whatsoever
arising out of or related to the initiation, defense, or settlement of the
Lawsuit or the claims or defenses asserted or that could have been asserted
in the Lawsuit.  Claims under any state disability law are specifically
excluded from the Released Claims.

"Releasees" means (a) Lululemon, together with its respective predecessors
and successors in interest, parents, subsidiaries, affiliates, and assigns,
past, present, and future officers, directors, agents, representatives,
employees, attorneys, and insurers; and (b) all suppliers, distributors,
dealers, retailers, trade partners, licensors, licensees, franchisees,
public relations firms, advertising and production agencies, and other
entities, whether foreign or domestic, who were or are in the chain of or
played any role in, the design, testing, manufacture, assembly,
distribution, marketing, sale, lease, installation, or servicing of the POS
Devices or their component parts.

The "Effective Date" will occur when an order entered by the Court approving
the Settlement becomes final and not subject to appeal.

EXCLUDING YOURSELF FROM THE SETTLEMENT

If you do not want a payment from this settlement, but you want to keep any
right you may have to sue or continue to sue the Defendant and the other
Releasees, on your own, about the Released Claims, then you must take steps
to get out. This is called excluding yourself - or is sometimes referred to
as "opting out" of the settlement class.

9. How do I get out of the Settlement?

To exclude yourself from the Settlement Class, you must send a letter or
postcard stating: (a) the name of the Action, David New and Access Now, Inc.
v. Lululemon USA, Inc., Case No. 1:14-CV-20589-DPG; (b) your full name,
address, telephone number, and signature; and (c) a statement that you want
to be excluded from the Settlement, postmarked no later than November 6,
2015 to the Claims Administrator at:

Lululemon POS Device Class Settlement
Claims Administrator

P.O. Box 40007
College Station, TX  77842-4007

You cannot exclude yourself on the phone or by e-mail. If you ask to be
excluded, you cannot object to the Settlement. However, you will not be
legally bound by anything that happens in this lawsuit.

10. If I do not exclude myself, can I sue the Defendant and the other
Releasees for the same thing later?

No. Unless you exclude yourself, you give up the right to sue Defendant for
the claims that the Settlement resolves. If you have a pending lawsuit,
speak to your lawyer in that pending lawsuit immediately. You must exclude
yourself from this Settlement Class to continue your own lawsuit. Remember,
the exclusion deadline is         November 6, 2015.

 

THE LAWYERS REPRESENTING THE CLASS

11. Do I have a lawyer in this case?

The Court ordered that the law firm of Leon Cosgrove, LLP in Coral Gables,
FL will represent the Settlement Class.  Those lawyers are called Class
Counsel. You will not be charged for these lawyers. If you want to be
represented by your own lawyer, you may hire one at your own expense.

12. How will the lawyers be paid?

Class Counsel will ask the Court for up to $37,000.00 to cover all of their
attorneys' fees and costs and for payment of up to $7,000.00 face value in
Lululemon gift cards to the Plaintiffs David New and Access Now, Inc.
jointly for their services as class representatives. The Court may award
less than these amounts. Defendant will separately pay the attorneys' fees
and expenses and plaintiff payments that the Court awards and no additional
payments will be required from the Settlement Class Members. Defendant has
agreed not to oppose these attorneys' fees and expenses and plaintiff
payment. Defendant will also separately pay the costs to administer the
Settlement.

Copies of Class Counsel's applications for attorneys' fees, expenses, and
plaintiff award will be available on the settlement website,
www.accessnowsettlement.com.

OBJECTING TO THE SETTLEMENT

You can tell the Court that you do not agree with the settlement or some
part of it.

13.  How do I tell the Court that I do not like the settlement?

If you are a settlement class member, you can object to the settlement if
you do not like any part of it. You can give reasons why you think the Court
should not approve it. The Court will consider your views.

 

To object, you must send a signed letter stating that you object to the
proposed settlement in David New and Access Now, Inc. v. Lululemon USA,
Inc., Case No. 1:14-CV-20589-DPG. Your written objection must include: (i)
your name, address, and telephone number; (ii) the full case name and number
(David New and Access Now, Inc. v. Lululemon USA, Inc., Case No.
1:14-CV-20589-DPG); (iii) a statement that you are a Settlement class
member; (iv) a statement of each objection asserted; (v) a detailed
description of the facts underlying each objection; (vi) a detailed
description of the legal authorities supporting each objection; (vii) a
statement of whether you intend to appear and speak at the Fairness Hearing
and, if so, how much time you anticipate needing to present the objection;
(viii) a list of the exhibits that you may offer during the Fairness
Hearing, along with copies of such exhibits; and (ix) your signature. In
addition, if applicable, please include: (i) the identity of all counsel who
represent you, including any former or current counsel who may be entitled
to compensation for any reason related to your objection; (ii) the number of
times in which you, your counsel (if any), or your counsel's law firm (if
any) has objected to a class action settlement within the three years
preceding the date that the objector files the objection and the caption of
each case in which such objection was made; and (iii) a statement disclosing
any consideration that you, your counsel (if any), or your counsel's law
firm (if any) has received in connection with the resolution or dismissal of
an objection to a class action settlement within the three years preceding
the date that the objector files the objection. The deadline to file your
objection is November 6, 2015. The objection must be filed with the Court by
that date. The address to file your written objection with the United States
District Court is:

Clerk of the Court
U.S. District Court for the Southern District of Florida
Wilkie D. Ferguson, Jr. United States Courthouse
400 North Miami Avenue
Miami, FL 33128

You must also send a copy of your written objection to counsel for both
parties at the addresses below:


CLASS COUNSEL:

DEFENDANT'S COUNSEL:


Andrew Boese, Esq.

Leon Cosgrove, LLP

255 Alhambra Circle, Suite 424

Coral Gables, FL  33134

 

Fredrick McClure, Esq. DLA Piper LLP (US)

100 North Tampa Street, Suite 2200

Tampa, FL 33602-5809

 

If you do not timely make your objection, you will be deemed to have waived
all objections and will not be entitled to speak at the fairness hearing.

14. What is the difference between objecting and excluding?

Objecting is simply telling the Court that you do not like something about
the Settlement. You can object only if you remain a settlement class member.
Excluding yourself is telling the Court that you do not want to be a part of
the case and wish to forgo the relief provided by the Settlement. If you
exclude yourself, you have no basis to object because the case no longer
affects you.

THE COURT'S FAIRNESS HEARING

The Court has preliminarily approved the Settlement Agreement and will hold
a hearing on December 3, 2015 to decide whether to give final approval to
the proposed settlement. You may attend and you may ask to speak, but you do
not have to.

 

15. When and where will the Court decide whether to approve the proposed
settlement?

The Court will hold the Fairness Hearing at 9:30 a.m. on December 3, 2015 at
the Wilkie D. Ferguson, Jr. United States Courthouse, 400 North Miami
Avenue, Miami, Florida 33128 in Room 11-2. At this hearing, the Court will
consider whether the Settlement is fair, reasonable, and adequate.

If there are objections, the Court will consider them. Judge Gayles will
listen to people who have asked to speak at the hearing. See question 17 for
more information about speaking at the hearing. After the Fairness Hearing,
the Court will decide whether to approve the Settlement and whether to award
any attorneys' fees and expenses and awards to Plaintiffs David New and
Access Now, Inc. We do not know how long these decisions will take.

16. Do I have to come to the hearing?

No. Class Counsel will answer questions Judge Gayles may have. But, you are
welcome to come at your own expense. If you send an objection, you do not
have to come to the Court to talk about it. As long as you filed your
written objection on time, the Court will consider it. You may also pay your
own lawyer to attend, but it is not necessary. Settlement class members do
not need to appear at the hearing or take any other action to indicate their
approval.

17. May I speak at the hearing?

You may ask the Court for permission to speak at the Fairness Hearing. To do
so, you must send a letter saying that it is your "Notice of Intention to
Appear in David New and Access Now, Inc. v. Lululemon USA, Inc., Case No.
1:14-CV-20589-DPG." Be sure to include your name, address, telephone number,
and your signature. Your Notice of Intention to Appear must be postmarked no
later than November 6, 2015, and be sent to the Clerk of the Court, Class
Counsel, and Defense Counsel, at the three addresses in question 13. Unless
otherwise ordered by the Court, you cannot speak at the Fairness Hearing if
you excluded yourself from the Settlement Class or if you have not provided
written notice of your intention to speak at the Fairness Hearing by the
deadline identified, and in accordance with the procedures described in this
section and question 13 above.

 

 

IF YOU DO NOTHING

18. What happens if I do nothing at all?

If you do nothing, you will not be able to start a lawsuit, continue with a
lawsuit, or be a party to any other lawsuit against Defendant and the other
Releasees about the legal issues in this case, ever again.

GETTING MORE INFORMATION

19. Are there more details about the Settlement?

This notice summarizes the proposed settlement. More detailed terms are in
the signed Stipulation. You can get a copy of the Stipulation by writing to
Class Counsel at the address above or by visiting
www.accessnowsettlement.com, where you will also find answers to common
questions about the Settlement, Class Counsel's papers in support of the
Settlement and their applications for attorneys' fees, expenses, and
plaintiff awards (after they are filed), and other documents. All other
papers that have been filed in the Action may be inspected at the Office of
the Clerk of the Court of the United States District Court for the Southern
District of Florida, Wilkie D. Ferguson, Jr. United States Courthouse, 400
North Miami Avenue, Miami, FL 33128, during regular business hours.

PLEASE DO NOT CALL THE COURT OR THE CLERK OF COURT FOR ADDITIONAL
INFORMATION ABOUT THE SETTLEMENT.

 

 

 

Regards,

 

Timothy Elder 
Attorney 
TRE Legal Practice 
4226 Castanos Street 
Fremont, CA 94536 
Phone: (410) 415-3493 
Fax: (888) 718-0617 
E-mail:  <mailto:telder at trelegal.com> telder at trelegal.com 
 <http://www.trelegal.com/> www.trelegal.com 



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