4812-0432-5317

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION

CASE NO. 1:20-cv-22039-JAL 

WINDY LUCIUS, 

 Plaintiff, 

v. 

SPEEDWAY, LLC 

 

 Defendant. 

___________________________________/ 

CONSENT DECREE 

1. This Consent Decree is entered into as of the Effective Date, as 

defined below in Paragraph 10, by and between the following parties: Plaintiff, 

Windy Lucius (“Plaintiff”); and Defendant, Speedway, LLC (“Defendant”). Plaintiff 

and Defendant shall hereinafter be collectively referred to as the “Parties,” or 

individually as a “Party,” for the purposes and on the terms specified herein. 

RECITALS 

2. Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 

12181-12189 (“ADA”), and its implementing regulations, 28 C.F.R. pt. 36, prohibit 

discrimination on the basis of disability in the full and equal enjoyment of the 

goods, services, facilities, privileges, advantages, or accommodations by any 

private entity that owns, leases (or leases to), or operates a place of public 

accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 1 of 16
2 

3. Plaintiff filed this lawsuit in the United States District Court for the 

Southern District of Florida (the “Action”). Plaintiff alleged that Defendant’s mobile 

application (the “Application”) is not fully accessible to individuals with visual 

impairment disabilities who use screen-reading technology in violation of the ADA. 

4. Defendant has denied and continues to deny (a) that the ADA applies 

to the mobile applications in general and to the Application in particular, (b) that 

accessibility barriers previously existed or currently exist on the Application, and 

(c) that remediation of the Application is required under the ADA. Defendant 

specifically denies Plaintiff’s allegations in the Action. By entry into this Consent 

Decree, Defendant does not admit liability for any of the allegations in the Action 

and does not admit any wrongdoing for purposes of this Action, for any other action 

or proceeding, or with respect to any barrier it has not acknowledged. 

5. This Consent Decree and the Parties’ contemporaneously-executed 

Settlement Agreement and Release (“Settlement Agreement”) are entered into as a 

compromise between the Parties and completely and fully resolve, settle, and 

compromise all issues between the Parties in the Action. 

6. This Consent Decree is entered into by the Plaintiff, individually, as 

well as Defendant. 

JURISDICTION 

7. This Court has jurisdiction over this Action under 28 U.S.C. § 1331. 

The Parties agree that, for purposes of the Action and this Consent Decree, venue 

is appropriate in this Court. 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 2 of 16
3 

AGREED RESOLUTION 

8. Plaintiff and Defendant agree that it is in the Parties’ best interest to 

resolve the Action on mutually agreeable terms without further litigation and 

without admission of any liability. Accordingly, the Parties agree to the entry of 

this Consent Decree without trial or further adjudication of any issues of fact or 

law raised in Plaintiff's Complaint. 

9. In resolution of this action, the Parties hereby AGREE to the 

following: 

DEFINITIONS 

10. “Effective Date” means the date on which this Consent Decree is 

entered on the Court’s Docket Sheet following approval by the Court. 

11. “Reasonable Efforts” shall be interpreted so as to not require 

Defendant to undertake efforts whose cost, difficulty, or impact on Defendant’s 

operations could constitute an undue burden, as defined in Title III of the ADA 

but as applied solely to the subject Application—as though Defendant’s mobile 

application-related operations is a standalone business entity—or which could 

result in a fundamental alteration in the manner in which Defendant operates the 

Application. 

TERM 

12. The term of this Consent Decree shall commence as of the Effective 

Date and remain in effect for twenty-four (24) months from the Effective Date. 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 3 of 16
4 

GENERAL NONDISCRIMINATION REQUIREMENTS 

13. Pursuant to the terms of, and as otherwise set forth in this Consent 

Decree, Defendant shall use Reasonable Efforts to provide persons with a visual 

disability (as defined under the ADA), including the Plaintiff, an equal opportunity 

to participate in or benefit from the goods, services, privileges, or advantages 

provided through the Speedway website (the “Website”), accessible through the 

www.speedway.com domain, and the Application by updating the Website and the 

Application as applicable. 

ACCESSIBILITY EFFORTS 

14. Defendant shall ensure full and equal enjoyment of the goods, 

services, privileges, and advantages provided by and through the Website and 

Application according to the following timeline and requirements: 

a. Defendant shall maintain a “Website Accessibility Statement” on 

the Website, which provides a method for individuals to contact Defendant regarding 

accessibility questions relating to the Website and the Application. Defendant shall 

ensure the “Website Accessibility Statement” is continuously maintained on the 

Website. The Parties acknowledge and agree that Defendant’s current Website 

Accessibility Statement, located at www.speedway.com/accessibility-statement, 

complies with this provision. 

b. Defendant shall ensure the Application and Website comply 

with World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 

Level AA (“WCAG 2.0 AA”) no later than July 1, 2021. 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 4 of 16
5 

c. Defendant shall use Reasonable Efforts to ensure and continue 

to ensure that the Website, the Application, and their content substantially 

conform to policies set forth in the “Website Accessibility Statement” on the 

Website. These policies include Defendant’s commitment to facilitate the 

accessibility and usability of the Website and Application for all individuals with 

disabilities, Defendant’s implementation of the WCAG 2.0 AA as its web 

accessibility standard, Defendant’s periodic accessibility auditing and testing of 

the Website and Application with users with disabilities using assistive 

technologies, such as screen readers, and Defendant’s web development team 

receiving periodic training from an experienced accessibility consultant. 

d. The requirements set forth in subpart (c) of this Paragraph 

shall not apply if any of the following events occurs: 

i. The Supreme Court of the United States or the United 

States Court of Appeals for the Eleventh Circuit issue a decision holding that the 

ADA does not apply to websites and/or mobile software applications. 

ii. The Supreme Court of the United States, the United 

States Court of Appeals for the Eleventh Circuit, or the United States Department 

of Justice determine, at any point, that conformance with WCAG 2.0 AA is not 

required by the ADA, that requiring conformance with that standard is 

unconstitutional or unlawful, and/or that a lesser or different standard governs 

ADA-website accessibility. If any of the Supreme Court, Eleventh Circuit, or DOJ 

determines that a lesser or different standard applies, that standard shall govern 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 5 of 16
6 

ADA accessibility issues with respect to the Website and Application, and 

Defendant shall use Reasonable Efforts to ensure that the Website and Application 

conform to that standard within a reasonable period of time, not to exceed six (6) 

months. 

iii. Plaintiff or an intended Third-Party Beneficiary, as 

defined herein, of this Consent Decree establishes, through citation to appropriate 

authority, that WCAG 2.0 AA is no longer the generally-accepted industry 

standard for ADA accessibility with respect to online content and that there exists 

a new generally-accepted industry standard for ADA accessibility with respect to 

online content. In such an event, Defendant shall use Reasonable Efforts to ensure 

that the Website and Application conform to that new standard within a 

reasonable period of time, not to exceed six (6) months, after Plaintiff or an 

intended Third-Party Beneficiary has established that it is the new generallyaccepted industry standard. 

SPECIFIC RELIEF TO PARTIES 

15. Plaintiff and Defendant have agreed to settle all matters relating to 

litigation costs, attorneys’ fees, experts’ fees, and other financial matters of either 

Party relating to any alleged inaccessibility of the Website and Application 

through a separate, contemporaneously-executed Settlement Agreement, which 

shall not be part of this Consent Decree. 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 6 of 16
7 

PROCEDURES IN THE EVENT OF DISPUTES 

16. The Court shall have the continuing jurisdiction to interpret and 

enforce this Consent Decree during its term. The procedures set forth in 

Paragraphs 17 through 22 must be exhausted in the event that: (i) Plaintiff alleges 

that Defendant has failed to meet its obligations pursuant to this Consent Decree; 

(ii) an intended Third-Party Beneficiary of this Consent Decree alleges that 

Defendant has failed to meet its obligations pursuant to this Consent Decree; or 

(iii) Defendant alleges that there is a criteria of the ADA or the applicable ADA 

accessibility standard for online content with which it cannot substantially 

comply. There will be no breach of this Consent Decree by Defendant or right to 

bring a cause of action against Defendant or to seek relief from the Court in 

connection with such allegations until the following procedures have been 

exhausted. 

17. If Plaintiff or an intended Third-Party Beneficiary of this Consent 

Decree believes that: (a) Defendant has not complied in all material respects with 

any provision of the Consent Decree, or (b) any now-existing or hereafter devised 

website or mobile application controlled by Defendant and/or its affiliates does not 

comply with WCAG 2.0 AA, then, upon the occurrence of either (a) or (b), Plaintiff 

or that intended Third-Party Beneficiary shall provide Defendant with written 

notice of the alleged non-compliance. If Defendant believes there is a criteria of 

this Consent Decree with which it cannot substantially comply, Defendant shall 

provide Plaintiff with written notice of the alleged inability to substantially 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 7 of 16
8 

comply. All notifications must be prompt (within thirty (30) days of learning the 

information that forms the basis for the belief expressed in the written notice), 

include reasonable detail about the alleged non-compliance or inability to 

substantially comply, and shall be made in the manner set forth in Paragraph 23. 

18. Within fifteen (15) days of receiving written notice as described in 

Paragraph 17, the receiving Party shall respond in writing to the notice. Within 

fifteen (15) days of receipt of the written response, there shall be a meeting by 

telephone, or in person, in an attempt to informally resolve the issue described in 

the written notice. 

19. If the issue described in the written notice remains unresolved more 

than fifteen (15) days after the meeting referenced in Paragraph 18, the parties 

that sent and responded to the written notice will each have an additional thirty 

(30) days to select an expert and the two experts will mutually select an 

independent accessibility expert (with substantial experience applicable to the 

specific alleged barrier). The independent accessibility expert will evaluate the 

issue described in the written notice, including consideration of the written notice 

and response thereto and any other information supplied by the Parties or their 

experts, and provide the Parties with a written determination concerning 

Defendant’s compliance and/or ability to comply. Each Party involved in the 

process described in this Paragraph shall be responsible for (a) his/her/its own 

expert costs and fees and (b) half of the reasonable costs and fees of the 

independent accessibility expert, such costs and fees to be paid by each party prior 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 8 of 16
9 

to the commencement of such independent experts’ work, with any failure to pay 

constituting a waiver of such claim. 

20. Defendant shall not be in breach of this Consent Decree unless: (a) 

the independent accessibility expert determines, as a result of the issue described 

in the written notice, that Defendant is able to substantially comply but is 

nevertheless not in material compliance with the Consent Decree; and (b) 

Defendant fails to remedy the issue using Reasonable Efforts within a reasonable 

period of time of not less than sixty (60) days after receiving the independent 

accessibility expert’s determination of non-compliance. If the independent 

accessibility expert believes that a reasonable time using Reasonable Efforts to 

remedy the issue is longer than sixty (60) days, then the Parties may agree on a 

longer time period for Defendant’s remediation without leave of Court (so long as 

the extension is documented in writing and executed by the Parties to this 

Agreement or their respective counsel). If the independent accessibility expert 

determines that an issue cannot be remedied using Reasonable Efforts, Defendant 

shall not be obligated to remedy that issue. 

21. Plaintiff or an intended Third-Party Beneficiary may seek relief from 

the Court concerning alleged non-compliance with this Consent Decree only if 

Defendant fails to timely remedy an issue that the independent accessibility 

expert determines Defendant is able to remedy and should remedy within an 

established timeframe. There shall be no finding of breach of this Consent Decree 

unless the Court determines that the Website or Application is not accessible by a 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 9 of 16
10 

person with a visual disability who has average screen reader competency using a 

prominent commercially available screen reader (such as JAWS, Voiceover, or 

NDVA) in combination with one of the following browsers (in currently-supported 

versions): Internet Explorer; Firefox; Safari; and Chrome. 

22. Any of the time periods set forth in Paragraphs 17 through 20 may be 

reasonably extended by mutual agreement of the Parties for a period of up to thirty 

(30) days. 

23. Any notice or communication required or permitted to be given to the 

Parties hereunder shall be given in writing by certified United States first class 

mail or a recognized overnight courier service, with a copy sent by email, addressed 

as follows: 

For Plaintiff: J. Courtney Cunningham, Esq. 

J. COURTNEY CUNNINGHAM, PLLC. 

8950 SW 74th Court, Suite 2201 

Miami, FL 33156 

E-mail: cc@cunninghampllc.com 

For Defendant: Eric S. Boos, Esq. 

SHOOK, HARDY & BACON LLP 

201 South Biscayne Blvd., Suite 3200 

Miami, FL 33131 

Email: eboos@shb.com

MODIFICATION 

24. Except as expressly provided herein, no modification of this Consent 

Decree shall be effective unless in writing, signed by authorized representatives 

of all Parties, and approved by the Court. 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 10 of 16
11 

ENFORCEMENT AND OTHER PROVISIONS 

25. The interpretation and enforcement of this Consent Decree shall be 

governed by the laws of the State of Florida without reference to its conflicts of 

laws principles. 

26. This Consent Decree contains the entire agreement of the Plaintiff 

and Defendant concerning the subject matter described in Paragraph 3, other than 

the terms of the Settlement Agreement, and no other statement, promise, or 

agreement, either written or oral, made by any Party or agent of any Party, that 

is not contained in this Consent Decree, and concerns the subject matter described 

in Paragraph 3, shall be enforceable, other than the Settlement Agreement. 

27. If any provision of this Consent Decree is determined to be invalid, 

unenforceable, or otherwise contrary to applicable law, such provision shall be 

deemed restated to reflect as nearly as possible and to the fullest extent permitted 

by applicable law its original intent and shall not, in any event, affect any other 

provisions, all of which shall remain valid and enforceable to the fullest extent 

permitted by applicable law. 

PERSONS BOUND AND INTENDED THIRD-PARTY BENEFICIARIES 

28. The Parties to this Consent Decree expressly intend and agree that 

this Consent Decree shall inure to the benefit of Defendant (as defined above), the 

Releasees in the Settlement Agreement (as defined therein), as well as all persons, 

including Plaintiff, who establish that they have a visual disability, as defined by 

the ADA, that makes them unable to access information on the Website or 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 11 of 16
12 

Application without commercially-available assistive technologies, which disabled 

persons shall constitute “Third-Party Beneficiaries” to this Consent Decree. Such 

Third-Party Beneficiaries shall follow the dispute resolution provisions herein 

should they seek to enforce any provision of this Consent Decree. 

29. Plaintiff and Defendant agree that, as of the Effective Date, further 

litigation is not “reasonably foreseeable” concerning the matters described in 

Paragraph 3. To the extent that any of the Parties previously implemented a 

litigation hold to preserve documents, electronically stored information, or things 

related to the matters described in Paragraph 3, the Party is no longer required to 

maintain such a litigation hold. Nothing in this Paragraph relieves any Party of 

any other obligations imposed by this Consent Decree. 

30. The signatories represent that they have the authority to bind the 

respective parties, Plaintiff and Defendant, to this Consent Decree. 

31. In the event Defendant no longer has any ownership, leasehold, or 

property interest in the Website or Application, or if either the Website or Application 

is closed by Defendant or no longer operates, all obligations and responsibilities of 

Defendant, as set forth herein, shall cease upon the sale, transfer, closure, or cease 

in operation of the Website or Application, respectively. 

CONSENT DECREE HAS BEEN READ 

32. This Consent Decree has been carefully read by each of the Parties, 

and its contents are known and understood by each of the Parties. This Consent 

Decree is signed freely by each Party executing it. The Parties each had an 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 12 of 16
13 

opportunity to consult with their counsel, and did in fact consult with their 

counsel, prior to executing the Consent Decree. 

 WINDY LUCIUS 

Dated: 

 (signature) 

 SPEEDWAY, LLC 

Dated: 

 (signature) 

 By: 

 Its: 

 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 13 of 16
14 

APPROVED AS TO FORM AND CONTENT: 

 PLAINTIFF’S COUNSEL 

Dated: By: 

 J. Courtney Cunningham, Esq. 

J. COURTNEY CUNNINGHAM, PLLC. 

8950 SW 74th Court, Suite 2201 

Miami, FL 33156 

E-mail: cc@cunninghampllc.com

 DEFENDANT’S COUNSEL 

Dated: By: 

 Eric S. Boos, Esq. 

SHOOK, HARDY & BACON LLP 

201 South Biscayne Blvd., Suite 3200 

Miami, FL 33131 

Email: eboos@shb.com 

 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 14 of 16
15 

COURT APPROVAL, ADOPTION, AND ENTRY OF THE CONSENT 

DECREE 

THE COURT, HAVING CONSIDERED the pleadings, law, and 

underlying facts and having reviewed this proposed Consent Decree, finds as 

follows: 

1) This Court has personal jurisdiction over Plaintiff and Defendant for 

the purposes of this lawsuit pursuant to 28 U.S.C. § 1331; 

2) The provisions of this Consent Decree shall be binding upon the 

Parties; 

3) Entry of this Consent Decree is in the public interest; 

4) This Consent Decree is for settlement purposes only and does not 

constitute an admission by Defendant of any of the allegations contained in the 

Complaint or any other pleading in this lawsuit, nor does it constitute any finding 

of liability against Defendant; and 

5) This Consent Decree shall be deemed as adjudicating, once and for 

all, the merits of each and every claim, matter, and issue that was alleged, or could 

have been alleged, by Plaintiff based on, or arising out of, or in connection with, 

the allegations in the Complaint. Res judicata and collateral estoppel shall apply 

to each and every such claim, matter, and issue so that the Plaintiff is barred from 

again litigating such claims, matters, and issues. 

NOW THEREFORE, the Court approves the Consent Decree and, in doing 

so, specifically adopts it and makes it an Order of the Court. 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 15 of 16
16 

DONE AND ORDERED in Chambers at ____________ this ____ day of 

___________, 2020. 

 ________________________________ 

JOAN A. LENARD 

UNITED STATES DISTRICT JUDGE 

Cc: Counsel of record via CM/ECF 

 

Case 1:20-cv-22039-JAL Document 12-1 Entered on FLSD Docket 07/31/2020 Page 16 of 16