ALBERTSONS DIGITAL ACCESSIBILITY AGREEMENT

display of bananas at grocery store

Congratulations to Albertsons Companies! Posted here is the digital accessibility settlement agreement the company reached with several blind shoppers from around the United States. The agreement is designed to ensure that the all the company’s online grocery shopping websites and mobile applications are available to people with and without disabilities.

Albertsons Cos. participated in Structured Negotiation — no lawsuit was needed or filed. The Law Office of Lainey Feingold and Linda Dardarian of the Oakland civil rights firm Goldstein, Borgen, Dardarian & Ho represented the blind shoppers.

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ALBERTSONS COMPANIES, INC. ONLINE SHOPPING DIGITAL ACCESSIBILITY SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) and the related and incorporated document entitled Confidential Addendum to Settlement Agreement (collectively referred to as the “Full Agreement”) are entered into by and between Kathy Brandt, Judith Dixon, Cindy Flerman, Thomas Foley, Darrell Hilliker, Eric Oyen, and Judy Wilkinson (“Claimants”) and Albertsons Companies, Inc. (“ACI”). Together Claimants and ACI are referred to as the Parties.

RECITALS

This Agreement is based on the following facts:

A.
ACI builds and maintains websites and mobile applications through which customers may shop for, and purchase, grocery products from ACI (“ACI Websites” and “ACI Mobile Apps”).
B.
Claimants are persons with visual impairments who reside in Arizona, California, Maryland, Nevada, Washington, and Virginia, and who use the ACI Websites and ACI Mobile Apps.
C.
In June 2018, the Parties agreed to enter into Structured Negotiations in connection with the claims Claimants raised concerning the accessibility of the ACI Websites and ACI Mobile Apps. Since that time, the Parties have worked together in good faith to resolve those claims.
D.
The Parties enter into this Agreement to resolve Claimants’ claims and to avoid the burden, expense, and risk of litigation. In entering into this Agreement, ACI does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., (“ADA”), the implementing regulations of Title III of the ADA, 24 C.F.R. Part 36, and any applicable laws of any state relating to accessibility for persons with disabilities, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither this Agreement, its Addendum, nor any of the negotiations connected with the Full Agreement, shall be construed as an admission or concession by ACI of any such violation or failure to comply with any applicable law. The Full Agreement, including its separate terms, parts, and provisions, shall not be offered or received as evidence for any purpose whatsoever against ACI in any action or proceeding, other than a proceeding to enforce the terms of the Full Agreement.

NOW, THEREFORE, the Parties agree as follows:

1. Definitions.

As used in the Full Agreement, the following terms mean:

1.1 Access Standard:
 The standard for web accessibility defined in Section 3.1 of this Agreement.
1.2 Claimants’ Counsel:
 Goldstein, Borgen, Dardarian & Ho and the Law Office of Lainey Feingold, and the attorneys practicing law in those firms.
1.3 Customer Service Telephone:
 The customer service telephone lines ACI makes available to ACI customers and the general public.
1.4 Effective Date:
 This Agreement is effective on the date last signed by any party below.
1.5 ACI Mobile Apps:
 The following mobile applications for iOS and Android smartphones and tablets published by ACI through which customers may shop for, and purchase, grocery products as of the Effective Date: Albertsons, Jewel Osco, Safeway, Vons, Pavilions, Randall’s, and Tom Thumb.
1.6 ACI Websites:
 Webpages owned and operated by ACI through which customers may shop for, and purchase, grocery products as of the Effective Date. This includes all webpages found on shop.albertsons.com,shop.jewelosco.com, shop.safeway.com, shop.tomthumb.com, shop.vons.com,shop.pavilions.com, shop.randalls.com.
1.7 Person(s) with a Visual Impairment:
 Any person who has a physical, mental or sensory impairment that substantially limits him or her in the major life activity of seeing.
1.8 Third-Party Content:
 Web content that is not operated by ACI.

2. Duration of Agreement.

The terms of the Full Agreement shall remain in effect for one year from the Effective Date.

3. Accessibility Provisions.

3.1.
ACI will use reasonable efforts to ensure that the ACI Websites and Mobile Apps substantially conform to the Web Content AccessibilityGuidelines (“WCAG”) 2.0 Conformance Level AA by December 31, 2019 (“Compliance Date”). The Parties acknowledge that some WCAG Conformance Level AA Success Criteria address features or design elements that may not be used on the ACI Websites and Mobile Apps, and in such circumstances conformance with those Success Criteria will not be required.
3.2.
ACI is reviewing the new success criteria in WCAG 2.1 AA. The Parties will discuss Albertson’s review and potential incorporation of the new WCAG 2.1 success criteria during the meetings described in Section 10.
3.3.
The Parties acknowledge that the accessibility of features used on ACI Mobile Apps may be dependent on the operating systems of third parties, over which ACI has no control.
3.4.
If ACI determines it is necessary to extend the Compliance Date for a period of thirty days or fewer, ACI shall notify Claimants of the new date as soon as ACI determines the new date. If ACI proposes to extend the date by greater than thirty days, ACI will provide Claimants with the new proposed date, and the reason for the extension, and the Parties will negotiate a new date in good faith. Disputes regarding a requested extension of greater than thirty days will be resolved pursuant to Section 8 of this Agreement.
3.5.Third-Party Content.
ACI’s only obligations under this Settlement Agreement with respect to Third-Party Content are the following:
3.5.1
ACI will notify a vendor as soon as practicable wheneverit receives a complaint regarding accessibility by Person(s) with a Visual Impairment of the vendor’s Third-Party Content. ACI will urge that the vendor adhere with the Access Standard as soon as practicable and in any event at the next contractual opportunity, or at the next contractual opportunity ACI will use reasonable efforts to select an alternative vendor, if available, who is acceptable to ACI and can meet the Access Standard. Albertson’s will notify Claimants’

Counsel of such communications with its vendors. In addition, if Claimants or Claimants’ Counsel bring to ACI’s attention that any Third-Party Content on ACI Websites or ACI Mobile Apps is not in substantial conformance with the Access Standard, ACI will provide the name of the vendor of the Third-Party Content to Claimants’ Counsel. In fulfilling its obligations under this Section 3.5.1, ACI will not be required to violate any confidentiality or non-disclosure agreements for any purpose or to terminate an existing Third-Party Content contract prior to its expiration date.

3.5.2. New Third-Party Content After the Effective Date.
If,on or after the Effective Date, ACI issues requests for proposals for development or inclusion of Third-Party Content on ACI Websites or ACI Mobile Apps, or if ACI extends contracts for Third-Party Content existing as of the Effective Date, ACI will include substantial conformance with the Access Standard as a requirement in all such requests for proposals. ACI will use reasonable efforts to select Third-Party Content vendors who can substantially conform to the Access Standard, while also meeting ACI’s business and technical requirements.
3.5.3.
Nothing in this Agreement shall preclude ACI from continuing to include Third-Party Content on the ACI Websites and ACI Mobile Apps — even if that content does not substantially conform to the Access Standard — provided that ACI complies with the terms of this Agreement
3.6. Mobile Resources.
ACI will provide to employees who design,develop, maintain, or otherwise have responsibility for ACI Mobile Appsinformation regarding the following resources: (i) BBC Mobile AccessibilityStandards and Guidelines at http://www.bbc.co.uk/guidelines/futuremedia/accessibility/mobile_access.shtml; (ii) Apple’s Accessibility for Developer resources at https://developer.apple.com/accessibility/; (iii) Android Accessibility resources at https://developer.android.com/guide/topics/ui/accessibility/index.html; and WCAG 2.1 AA at ; and (iv) WCAG 2.1 AA at http://www.w3.org/TR/WCAG21/.

4. Accessibility Policy and Statement.

4.1.
ACI will maintain a policy regarding the accessibility of ACI Websites and ACI Mobile Apps (“Accessibility Policy”) that, at a minimum, includes: (i) a statement of the Access Standard and ACI’s commitment to it; (ii) methods by which ACI customers can report accessibility bugs and the process for addressing them; and (iii) a statement of ACI’s goal that any content developed or provided by Third-Party Content vendors also meet the Access Standard.
4.2.
ACI will post its Accessibility Policy, or a separate Accessibility Statement, on a page or tab on the ACI Websites and ACI Mobile Apps. The page or tab will include: (i) information regarding ACI’s efforts to substantially conform to the Access Standard; and (ii) a web-based (or e-mail) and telephone-based method for Persons with Visual Impairments to contact ACI regarding accessibility concerns.
4.3.
ACI will provide Claimants with the Accessibility Policy and Accessibility Statement. Claimants will provide their feedback on the Policy and Statement within fifteen (15) days of receipt. ACI will consider the feedback provided by Claimants in good faith, and implement any changes to the Policy and Statement within 90 days after receipt of Claimants’ comments.

5. Testing.

5.1. Usability Testing.
5.1.1.
Throughout the Duration of this Full Agreement, ACI will consider in good faith feedback from Claimants regarding the accessibility and usability of the ACI Websites and ACI Mobile Apps.
5.1.2.
ACI will use reasonable efforts to ensure that the ACIWebsites and ACI Mobile Apps are tested periodically throughout the Duration ofthis Agreement for usability by persons with disabilities and conformance with the Access Standard.
5.1.3.
ACI will give good faith consideration to all usabilitytesting results and other feedback provided pursuant to Section 5.1 that is consistent with the terms of this Agreement.
5.2. Additional Testing.
ACI will continue, until the expiration of the Agreement, to ensure manual accessibility and user experience testing is used to help it assess the ACI Websites’ and Mobile Apps’ conformance with the Access Standard. ACI may also employ automated testing to supplement its manual accessibility and user testing. Throughout the Duration of the Agreement, ACI will confirm to Claimants’ Counsel, within 14 days of any such inquiry, that testing has been carried out.

6. Instruction of ACI Personnel.

To ensure effective implementation of this Agreement, ACI will provide instructional materials to appropriate personnel as set forth in this Section.

6.1. Customer Service Staff.
ACI maintains a call center that customers can contact to obtain information about, and possible assistance in utilizing, ACI Websites and ACI Mobile Apps, among other matters. ACI will provide appropriate instructional material to its call center staff concerning technical support and accessibility issues involving ACI Websites and ACI Mobile Apps regarding: (i) the existence and content of the Accessibility Policy and/or Statement; (ii) general information for accessing and navigating ACI Websites and ACI Mobile Apps by Persons with Visual Impairments; and (iii) how, and to whom, to escalate customer inquiries that require additional knowledge or assistance beyond that generally available to the call center staff.
6.2. Technical Support Staff.
ACI will provide the Accessibility Policy and appropriate information and instruction to employees who are involved in content generation and development of the ACI Websites and ACI Mobile Apps to enable them to take reasonable efforts to ensure that the ACI Websites and ACI Mobile Apps meet the Access Standard.
6.3.
ACI will provide refresher information as reasonably necessary and will provide appropriate information and instruction to new staff under Sections 6.1 and 6.2.

7. Customer Assistance.

ACI will use reasonable efforts throughout the Duration of the Agreement to investigate possible policy and practice revisions for ACI staff to assist customers with disabilities having difficulty using and completing transactions with the ACI Websites and ACI Mobile Apps.

8. Procedures in the Event of Disputes.

8.1. Notice of Non-Compliance.
If a Party believes that any other Party has not complied with any provision of the Full Agreement, that Party shall provide the other Party with Notice of Non-Compliance containing the following information: (i) the alleged act of non-compliance; (ii) a reference to the specific provision(s) of the Settlement Agreement or Confidential Addendum that are involved; (iii) a statement of the remedial action sought by the initiating Party; and (iv) a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating Party.
8.2. Response.
Within thirty (30) days of receipt of a Notice provided pursuant to Section 8.1, the non-initiating Party shall respond to the initiating Party in writing.
8.3. Meet and Confer.
 Within two weeks after the response described in Section 8.2, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.
8.4. Submission to Mediation.
If the matters raised in a Notice provided pursuant to 8.1 are not resolved within forty-five (45) days of the initial meet and confer required by Section 8.3, either Party may submit the unresolvedmatters to nonbinding mediation before a mutually agreed upon mediator affiliated with Judicial Arbitration & Mediation Services (“JAMS”), or such other mediator as the Parties may jointly designate.
8.5. Submission to Arbitration.
If mediation fails to resolve the matter, the Parties then will settle the matter finally by means of arbitration conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures at a mutually convenient location. The award of the arbitrator will be enforceable in a court of competent jurisdiction.

9. Notice or Communication to Parties.

Any notice or communication required or permitted to be given to the Parties shall be given in writing by e-mail and by overnight express mail or United States first class mail, addressed as
follows:

To: Claimants:

Linda M. Dardarian
c/o Goldstein, Borgen, Dardarian & Ho
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
e-mail: ldardarian@gbdhlegal.com

Lainey Feingold (by email only)
Law Office of Lainey Feingold
e-mail: LF@LFLegal.com

To: ACI:
Kristina Launey
Seyfarth Shaw LLP
400 Capitol Mall, Suite 2350
Sacramento, CA 95814
klauney@seyfarth.com

Liz Harris (by mail only)
Albertsons LLC
11555 Dublin Canyon Rd
Pleasanton, CA 94588

10. Meetings.

On either Party’s request, the Parties (through counsel) will meet no more than two times during the term of the Agreement – halfway through the Duration of the Agreement, and at the conclusion of the Duration of the Agreement – to discuss implementation and any other issues.  At least ten days before the meeting the Parties will exchange a list of issues they want to discuss.

11. Publicity Regarding This Agreement and Its Terms.

The Parties will mutually agree on a joint press release to be issued by ACI on or around the Effective Date. The Parties agree not to issue any other press release related to this Settlement Agreement, or the obligations to be undertaken by ACI under this Agreement, except as described in this Section.

12. Agreement Binding on Assigns and Successors; No Third-Party Beneficiaries.

12.1. Assigns and Successors.
This Full Agreement shall bind any assigns and successors of the Parties, who have the right to implement the actions required.
12.2. No Third-Party Beneficiaries.
This Full Agreement is for the benefit of the Parties only and no other person or entity shall be entitled to rely on it, receive any benefit from it, or enforce against any Party any provision of it. The Parties specifically intend that there be no third-party beneficiaries to this Full Agreement.

13. Force Majeure.

The performance of ACI under this Full Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, unavailability of parts, equipment or materials through normal supply sources, security threat, or any other event of force majeure. If ACI seeks to invoke this Section, it shall notify Claimants in writing as soon as reasonably practicable, specifying the particular action(s) that could not be performed and the specific reason for non-performance. Claimants’ Counsel and ACI will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 8 of this Agreement.

14. Recitals.

The terms of the Recitals are fully incorporated into this Full Agreement and are an integral part of it.

15. Multiple Originals/Execution in Counterparts.

Each Party and Claimants’ Counsel shall sign one copy of this document and each such copy shall be considered an original. This document may be executed in counterparts and facsimile and PDF signatures shall be accepted as original.

16. Non-Admission of Liability.

In entering into the Full Agreement, ACI does not admit, and specifically denies, that it has violated or failed to comply with the ADA or any other law related to accessibility.

17. Integrated Agreement.

The Full Agreement constitutes the entire agreement of the Parties relating to the subject matters addressed in it.

18. Modification Based on Change of Law or Regulations.

If, after the Effective Date, either Party believes that there is a change in any applicable law or regulation which requires a modification of this Agreement because it imposes a different obligation than provided in this Agreement, the Party shall notify the other Party in writing. The notification will include the way in which the Party contends the Agreement should be modified as a result of the change in law or regulation. The proposed modification will become effective thirty days after such notification unless the other Party objects in writing to the proposed modification.

In the event of a disagreement between the Parties over the appropriate modifications to the Agreement as contemplated by this Section, the Parties shall meet and confer and shall work together in good faith to resolve the disagreement. Failure to reach agreement during such meet and confer shall be considered a dispute to be resolved pursuant to Section 8.

ALBERTSONS COMPANIES, INC.
By:

  • Kathy Brandt
  • Judith Dixon
  • Cindy Flerman
  • Thomas Foley
  • Darrell Hilliker
  • Eric Oyen
  • Judy Wilkinson

APPROVED AS TO FORM

  • GOLDSTEIN, BORGEN, DARDARIAN & HO
    By: Linda M. Dardarian
    Attorneys for Claimants
  • LAW OFFICE OF LAINEY FEINGOLD
    By: Lainey Feingold
    Attorney for Claimants