UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.:

WINDY LUCIUS,

Plaintiff,

v.

INSOMNIA COOKIES, LLC,

Defendant.

__________________________________/

COMPLAINT FOR INJUNCTIVE RELIEF

Windy Lucius, (“Plaintiff”) by and through her undersigned counsel, hereby files this 

complaint and sues Defendant, INSOMNIA COOKIES, LLC, a foreign limited liability company

doing business in Florida, and alleges as follows:

INTRODUCTION

1. Plaintiff Windy Lucius brings this action individually against INSOMNIA 

COOKIES, LLC, (“Defendant”), alleging violations of Title III of the Americans with Disabilities 

Act, 42 U.S.C. § 12101 et seq., (hereinafter, “ADA”).

2. Plaintiff is blind.. She uses the internet to help her navigate a world of goods, 

products and services like the sighted. The internet, websites and mobile applications provide her 

a window into the world that she would not otherwise have. She brings this action against 

Defendant for offering and maintaining a mobile application (software that is intended to run on 

mobile devises such as phones or table computers) that is not fully accessible and independently 

usable by visually impaired consumers. The mobile application (“app”) at issue is available 

through the Apple “app store” for download and installation on Apple devices. Defendant 

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developed the app and made it available to millions of phone and tablet users in the Apple app 

store.

3. Plaintiff is also an advocate of the rights of similarly situated disabled persons and 

is a “tester” for the purpose of asserting her civil rights and monitoring, ensuring, and determining 

whether places of public accommodation and/or their websites are in compliance with the ADA.

4. Defendant offers its app to the general public from which it sells food; provides a 

menu of items served in the restaurant; restaurant location(s) and amenities at the restaurant. 

Defendant’s app allows mobile device users to shop on a mobile platform through a connection to 

Wi-Fi or cellular data so that users can make purchases, locate stores, and explore product offerings 

on the go. As such, it has subjected itself to the ADA because Defendant’s app is offered as a tool 

to promote, advertise and sell its food from its brick and mortar locations, which are places of 

public accommodation. As a result, the app must interact with Defendant’s stores and the public, 

and in doing so must comply with the ADA, which means it must not discriminate against 

individuals with disabilities and may not deny full and equal enjoyment of the goods and services 

afforded to the general public.

5. Blind and visually impaired consumers must use the assistive technology on the 

iPhone to access app content. The app must be designed and programmed to work with the assistive 

technology available on the iPhone. Defendant’s app, however, contains digital barriers which 

limit the ability of blind and visually impaired consumers to access it, even with Apple’s assistive 

technology.

6. Defendant’s app does not properly interact with Apple’s assistive technology in a 

manner that will allow the blind and visually impaired to enjoy the app, nor does it provide other 

means to accommodate the blind and visually impaired.

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7. Plaintiff has also downloaded and attempted to patronize Defendant’s app in the 

past and intends to continue to make further attempts to patronize Defendant’s app. She would 

like to be able to learn about Defendant’s menu items online, explore nutritional information as 

well as be able to learn about and take advantage of, any specials or discounts offered by 

Defendant. However, unless Defendant is required to eliminate the access barriers at issue and is 

required to change its policies so that access barriers do not reoccur on Defendant’s app, Plaintiff 

will continue to be denied full and equal access to the app as described and will be deterred from 

fully using Defendant’s app or making purchases at the physical locations.

8. Plaintiff continues to attempt to utilize the app and/or plans to continue to attempt 

to utilize the app in the near future. In the alternative, Plaintiff intends to monitor the app in the 

near future, as a tester, to ascertain whether it has been updated to interact properly with screen 

reader software.

9. Plaintiff is continuously aware of the violations at Defendant’s app and is aware 

that it would be a futile gesture to attempt to utilize the app as long as those violations exist unless 

she is willing to suffer additional discrimination.

10. Plaintiff has suffered, and continues to suffer, frustration and humiliation as the 

result of the discriminatory conditions present at Defendant’s app. By continuing to operate its app 

with discriminatory conditions, Defendant contributes to Plaintiff’s sense of isolation and 

segregation and deprives Plaintiff the full and equal enjoyment of the goods, services, facilities, 

privileges and/or accommodations available to the general public. By encountering the 

discriminatory conditions at Defendant’s app, and knowing that it would be a futile gesture to 

attempt to utilize the app unless she is willing to endure additional discrimination, Plaintiff is 

deprived of the meaningful choice of freely visiting and utilizing the same accommodations readily 

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available to the general public and is deterred and discouraged from doing so. By maintaining an 

app with violations, Defendant deprives Plaintiff the equality of opportunity offered to the general 

public.

11. Plaintiff has suffered and will continue to suffer direct and indirect injury as a result 

of the Defendant’s discrimination until the Defendant is compelled to comply with the 

requirements of the ADA.

12. Plaintiff has a realistic, credible, existing and continuing threat of discrimination 

from the Defendant’s non-compliance with the ADA with respect to this app as described above. 

Plaintiff has reasonable grounds to believe that she will continue to be subjected to discrimination 

in violation of the ADA by the Defendant. Plaintiff desires to access the app to avail herself of the 

benefits, advantages, goods and services therein, and/or to assure herself that this app is in 

compliance with the ADA so that she and others similarly situated will have full and equal 

enjoyment of the app without fear of discrimination.

13. The ADA expressly contemplates the type of injunctive relief that Plaintiffseeks in 

this action. The ADA provides, in part:

[i]n 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).

14. Therefore, Plaintiff seeks a declaration that Defendant’s app violates federal law 

as described and an injunction requiring Defendant to modify its app so that it is fully accessible 

to, and independently usable by, blind or visually impaired individuals. Plaintiff further requests 

that the Court retain jurisdiction of this matter for a period to be determined to ensure that 

Defendant comes into compliance with the requirements of the ADA and to ensure that 

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Defendant has adopted and is following an institutional policy that will, in fact, cause 

Defendant’s app to remain in compliance with the law.

JURISDICTION AND VENUE

15. This Court has federal question jurisdiction pursuant to 28 U.S.C. §1331 and 42 

U.S.C. § 12188.

16. Plaintiff’s claims asserted herein arose in this judicial district and Defendant does 

substantial business in this judicial district where it has multiple physical locations.

17. Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(1) and (2) in that 

this is the judicial district in which Defendant resides, and in which a substantial part of the acts 

and omissions giving rise to the claims occurred.

18. This Court has personal jurisdiction over INSOMNIA COOKIES, LLC pursuant 

to, inter alia, Florida’s long arm statute F.S. § 48.193, in that Defendant: (a) operates, conducts, 

engages in, and/or carries on a business or business ventures (s) in Florida and/or has an office or 

agency in Florida; (b) has committed one or more tortious acts within Florida; (c) was and/or is 

engaged in substantial and not isolated activity within Florida; and/or (d) has purposely availed 

itself of Florida’s laws, services and/or benefits and therefore should reasonably anticipate being 

hailed into one or more of the courts within the State of Florida.

PARTIES

19. Plaintiff, Windy Lucius, is and, at all times relevant hereto, was a resident of the 

State of Florida, Miami-Dade County. Plaintiff is and, at all times relevant hereto, has been legally 

blind and is therefore a member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the 

regulations implementing the ADA set forth at 28 CFR §§ 36.101 et seq.

20. Defendant INSOMNIA COOKIES, LLC owns, operates and maintains a restaurant 

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called INSOMNIA COOKIES, in Miami-Dade County, Florida either through franchisees, 

affiliates, partners or other entities. Defendant’s restaurant sells food and other goods to the public. 

Defendant also offers those items to the public through its app. Defendant’s store and 

accompanying app work collectively and are public accommodations pursuant to 42 U.S.C. § 

12181(7)(E).

FACTS

21. Defendant owns, operates and controls an app from which it sells food and other 

goods. The app allows customers to order ahead and take advantage of certain specials only 

available through the app. The Plaintiff must go to corresponding brick and mortar restaurants to 

pick up the food she can pre-order from the app. Defendant’s app also helps users locate stores,

view pricing and specials, shop for food, and a variety of other functions. Plaintiff has dined with 

Defendant and enjoys the food it sells.

22. Defendant’s app is a nexus to a place of public accommodation pursuant to 42 

U.S.C. § 12181(7)(E). Therefore, under the ADA, Defendant must ensure that individuals with 

disabilities have access to full and equal enjoyment of the goods and services offered on its app.

23. Blind and visually impaired individuals may access apps by using accessibility 

features in conjunction with screen reader software that converts text to audio. Screen reader 

software provides the primary method by which a visually impaired person may independently use 

the internet. Unless the app is designed to be accessed with screen reader software, visually 

impaired individuals are unable to fully access app and the information, products, and services 

available through the app.

24. The international app standards organization, W3C, has published WCAG 2.1 A 

(Version 2.0 of the Web Content Accessibility Guidelines). WCAG 2.1 A provides widely 

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accepted guidelines for making apps accessible to individuals with disabilities and compatible with 

screen reader software. These guidelines have been endorsed by the United States Department of 

Justice and numerous U.S. District Courts.

25. Plaintiff is legally blind and uses VoiceOver screen reader software (hereinafter, 

“Plaintiff’s software”) in order to access app content. Plaintiff’s software is themost popular screen 

reader software utilized worldwide by visually impaired individuals for Apple tablets and phones.

26. Despite several attempts, Defendant’s app did not integrate with Plaintiff’s 

software, nor was there any function within the app to permit access for visually impaired 

individuals through other means. Her dining attempts were rendered futile because the app was 

inaccessible. Therefore, Plaintiff was denied the full use and enjoyment of the goods and services 

available on Defendant’s app as a result of access barriers on the app. For example, blind users 

cannot add products to the cart because the icons used to add items are not announced so they 

cannot place an online order.

27. Defendant’s app does not meet the WCAG 2.1 A level of accessibility. As to 

WCAG guideline 1.1.1 – Non-Text Content, text alternatives for non-text content should be 

provided. Here, there are multiple unlabeled icons present in this app. The Account icon is 

announced as "unproduceable possibly person." The location pin, underneath this is also not 

labeled and is announced as "unpronounceable button." As to WCAG guideline 1.3.1 – Info and 

Relationships, information, structure, and relationships conveyed through presentation should be 

programmatically determined or be available in text. Here, blind users cannot add products to the 

cart because the ">" and "+" buttons are not labeled. Users just hear "unpronounceable" and are 

not aware this is used to add the item to the cart. As to WCAG guideline 2.4.3 – Focus Order, the 

app should provide focus in a logical order that preserves meaning and operability. Here, the 

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Loyalty page content is skipped by a screen reader. The unlabeled menu icon and the footer was 

announced, but the content (points, reward amount, etc.) was not announced. As to WCAG 

guideline 2.5.3 – Label in Name, any component that has text or images of text must have an 

accessible name shown in visible text. Here, the date and time fields, which are required for a 

delivery order, are not labeled. User hear "unpronounceable pop-up button double click to activate 

the picker" followed by "unpronounceable" for the date field icon. As to WCAG guideline 3.3.1 –

Error Identification, input errors should be clearly identified. Here, a pop-up is displayed when a 

user makes an error. In this case, we left the time field blank but the pop-up or its content were not 

announced. As to WCAG guideline 4.1.2 – Name, Role, Value, all elements should be built for 

accessibility. Here, when placing an order for delivery, a pop-up is shown to confirm you address. 

This is not announced. Instead, focus continues down the page and a blind user will not be aware 

that the pop-up has been shown so they cannot proceed with an order.

28. Defendant’s app does not meet the WCAG 2.1 AA level of accessibility. As to 

WCAG guideline 2.4.7 – Focus Visible, the app should ensure that keyboard focus is visible and 

clear. Here, the cart icon opens into a new window that is not announced to users. Instead, focus 

moves behind the new cart window and announces elements that are not in the cart. Users could 

see the cart window but only the merchandise items behind the cart window were read.

29. By failing to adequately design and program its app to accurately and sufficiently 

integrate with VoiceOver, Defendant has discriminated against Plaintiff and others with visual 

impairments on the basis of a disability by denying them full and equal enjoyment of the app, in 

violation of 42 U.S.C. § 12182(a) and C.F.R. § 36.201.

30. As a result of Defendant’s discrimination, Plaintiff was unable to use Defendant’s 

app and suffered an injury in fact including loss of dignity, mental anguish and other tangible 

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injuries.

31. The barriers on the app have caused a denial of Plaintiff’s full and equal access in 

the past, and now deter Plaintiff from attempting to use Defendant’s app.

32. If Defendant’s app were accessible, Plaintiff could independently navigate, review 

and purchase food and other products from Defendant’s stores online, as well as utilize the other

functions on the app.

33. Plaintiff believes that although Defendant may have centralized policies regarding 

the maintenance and operation of its app, Defendant has never had a plan or policy that is 

reasonably calculated to make its app fully accessible to, and independently usable by, people with 

visual impairments.

34. Without injunctive relief, Plaintiff and other visually impaired individuals will 

continue to be unable to independently use Defendant’s app in violation of their rights under the

ADA.

SUBSTANTIVE VIOLATION

(Title III of the ADA, 42 U.S.C. § 12181 et seq.)

35. The allegations contained in the previous paragraphs are incorporated by reference.

36. 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 a disability in the full and equal enjoyment 

the goods, 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).

37. Defendant’s stores and accompanying app are public accommodations within the 

definition of Title III of the ADA, 42 U.S.C. § 12181(7)(E).

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38. Under Section 302(b)(2) 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).

39. Under Section 302(b)(2) 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, which is equal to the opportunities 

afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii).

40. 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 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); see also 28 C.F.R. § 36.303(a).

41. Title III requires that “[a] public accommodation shall furnish appropriate auxiliary 

aids and services where necessary to ensure effective communication with individuals with 

disabilities.” 28 C.F.R. § 36.303(c)(1). The regulations set forth numerous examples of “auxiliary 

aids and services,” including “...accessible electronic and information technology; or other 

effective methods of making visually delivered materials available to individuals who are blind or 

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have low vision.” 28 C.F.R. § 36.303(b).

42. The acts alleged herein constitute violations of Title III of the ADA, and the 

regulations promulgated thereunder. Plaintiff, who is legally blind and has a disability that 

substantially limits the major life activity of seeing within the meaning of 42 U.S.C. §§ 

12102(1)(A) and (2)(A), has been denied full and equal access to Defendant’s app. Plaintiff has 

not been afforded the goods, services, privileges and advantages that are provided to other patrons 

who are not disabled, and/or has been provided goods, services, privileges and advantages that are 

inferior to those provided to non-disabled persons. These violations are ongoing as Defendant has 

failed to make any prompt and equitable changes to its app and policies in order to remedy its 

discriminatory conduct.

43. Pursuant to 42 U.S.C. 12188 and the remedies, procedures and rights set forth and 

incorporated therein, Plaintiff, on behalf of herself and on behalf of others similarly situated 

requests relief as set forth below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of herself and others similarly situated prays for:

a. A Declaratory Judgment that at the commencement of this action Defendant was in 

violation of the specific requirements of Title III of the ADA described above, and 

the relevant implementing regulations of the ADA, in that Defendant took no action 

that was reasonably calculated to ensure that its app is fully accessible to, and 

independently usable by, blind individuals;

b. A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR § 36.504 

(a) which directs Defendant to take all steps necessary to brings its app into full 

compliance with the requirements set forth in the ADA, and its implementing 

regulations, so that its app is fully accessible to, and independently usable by, blind 

individuals, and which further directs that the Court shall retain jurisdiction for a 

period to be determined to ensure that Defendant has adopted and is following an 

institutional policy that will in fact cause Defendant to remain fully in compliance 

with the law;

c. Payment of costs of suit;

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d. Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR 

§ 36.505; and,

e. The provision of whatever other relief the Court deems just, equitable and 

appropriate.

Dated: May 4, 2020

Respectfully submitted,

/s/ J. Courtney Cunningham

J. Courtney Cunningham, Esq.

J. COURTNEY CUNNINGHAM, PLLC

FBN: 628166

8950 SW 74th Court, Suite 2201

Miami, FL 33156

T: 305-351-2014

cc@cunninghampllc.com

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