UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO.: 1:20-cv-22977-UU 

 WINDY LUCIUS, 

Plaintiff, 

v. 

CICI ENTERPRISES, LP, 

Defendant/Third-Party Plaintiff, 

v. 

PUNCHH INC. 

Third-Party Defendant. 

/ 

CICIS’S THIRD PARTY COMPLAINT 

Defendant/Third-Party Plaintiff, CICI ENTERPRISES, LP (“Cicis”), hereby files this 

Third-Party Complaint against PUNCHH INC. (“Punchh”) pursuant to Federal Rules of Civil 

Procedure 14(a)(1) and 18(a) and states as follows: 

PARTIES 

1. Cicis is a Delaware limited partnership with its principal place of business in 

Dallas County, Texas. 

2. Punchh is a Delaware corporation with its principal place of business in San 

Mateo County, California. 

JURISDICTION AND VENUE 

3. The Court has subject matter jurisdiction over Cicis’s third-party claims pursuant 

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to § 28 U.S.C. § 1332 because Cicis is diverse in citizenship to Punchh and there is more than 

$75,000 in controversy, exclusive of interest and costs. The Court also has supplemental 

jurisdiction over Cicis’s third-party claims pursuant to 28 U.S.C. § 1367. 

4. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the 

events or omissions giving rise to Cicis’s claims occurred in this judicial district. 

5. This Court has personal jurisdiction over Punchh pursuant to Florida’s long-arm 

statute, section 48.193, Florida Statutes, because Punchh (a) caused injury to persons or property 

within Florida arising out of an act or omission by Punchh outside Florida, while engaging in 

solicitation or service activities within Florida and/or while products, materials, or things 

processed, serviced, or manufactured by Punchh were used or consumed within Florida in the 

ordinary course of commerce, trade, or use; and (b) was and/or is engaged in substantial and not 

isolated activity within the state of Florida and has purposely availed itself of Florida’s laws, 

such that it could reasonably anticipate being hailed into court in the state of Florida. 

GENERAL ALLEGATIONS

6. This litigation arises from a mobile application created by Punchh for Cicis’s use 

(the “Mobile App”). 

7. Punchh created the Mobile App for Cicis pursuant to a services agreement entered 

into between Punchh and Cicis on March 31, 2015 (the “Services Agreement”). A renewal and 

extension of the Services Agreement (“Order #2”) was entered into between the parties on 

January 20, 2019. A true and correct copy of the Services Agreement and Order #2 (collectively 

hereinafter the “Punchh Agreements”) are attached hereto as Exhibit “A.” 

8. Pursuant to the Punchh Agreements, Punchh developed the Mobile App for 

Cicis’s use and distribution to Cicis’s customers, but retained ownership over the Mobile App 

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and its software. Cicis is/was a licensee of the Mobile App. 

9. By the express terms of the Punchh Agreements, Punchh represented and 

warranted that it would create the Mobile App “in compliance with all applicable laws and 

regulations.” 

10. Since the inception of the Punchh Agreements and in exchange for Punchh’s 

services, Cicis paid Punchh approximately $120,000 in setup and installation fees and over 

$25,000 per month for ongoing use of the mobile application. 

11. On July 20, 2020, Plaintiff Windy Lucius (“Lucius”) filed a Complaint against 

Cicis in the Southern District of Florida, Miami Division, alleging that Cicis’s violated Title III 

of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the “ADA”). (D.E. 1.) A true 

and correct copy of Lucius’s Complaint is attached hereto as Exhibit “B,” and the allegations 

contained within are incorporated into Cicis’s Third Party Complaint by reference. 

12. Lucius’s Complaint alleges that she is bringing a lawsuit against Cicis “for 

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

such as phones or table [sic] computers) that is not fully accessible and independently usable by 

visually impaired customers,” in violation of the ADA. 

13. The mobile application that is the subject of Lucius’s lawsuit is the same Mobile 

App created for Cicis by Punchh pursuant to the Punchh Agreements. 

14. Specifically, Lucius alleges that she is legally blind, and uses VoiceOver screen 

reader software to access mobile application content. She alleges that Cicis’s Mobile App did not 

integrate with Lucius’s screen reader software, nor was there any function within the Mobile 

App to permit access for visually impaired individuals through other means. Lucius alleges that 

she was denied the full use and enjoyment of the goods and services available on Cicis’s Mobile 

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App because of access barriers on the Mobile App. 

15. Lucius alleges that by failing to adequately design and program its Mobile App to 

accurately and sufficiently integrate with VoiceOver screen reader software, Cicis discriminated 

against her and others with visual impairments on the basis of their disability in violation of the 

ADA. 

16. Lucius is pursuing declaratory judgment on behalf of herself and all others 

similarly situated, seeking a declaration that Cicis was in violation of the ADA as well as a 

permanent injunction requiring Cicis to take all steps necessary to bring the Mobile App into full 

compliance with the ADA. Lucius also demands payment of all costs and reasonable attorney’s 

fees associated with pursuing her lawsuit against Cicis. 

17. Cicis notified Punchh of Lucius’s lawsuit against Cicis, and asked Punchh to 

remediate any issues with the Mobile App and to ensure its compliance with the ADA. In 

response, Punchh demanded in excess of $25,000 for ADA-related work on the Mobile App, but 

refused to provide assurances as to its compliance with the ADA. 

18. Because Punchh owns the Mobile App and its software, Cicis’s is being held 

hostage by Punchh and may be forced to pay Punchh the additional demanded funds for ADArelated work that may or may not ensure the Mobile App’s compliance with the ADA. 

Terminating the Punchh Agreements will cause Cicis to incur additional costs associated with 

retaining a new vendor to start from scratch in designing Cicis a mobile application that is 

compliant with all applicable laws and regulations. These additional costs will far exceeded the 

amounts demanded by Punchh. By asking Punchh to remediate any alleged issues with the 

Mobile App Punchh created, Cicis has made a good faith attempt to mitigate potential damages 

recoverable under this Third Party Complaint. 

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19. All conditions precedent to bringing this action have been satisfied by Cicis or 

have been waived by Punchh. 

20. The Proposed Scheduling Order Setting Civil Trial Date and Pretrial Schedule 

submitted to the Court on August 20, 2020, and agreed upon by both Plaintiff Windy Lucius 

(“Lucius”) and Cicis, expressly contemplates joining additional parties in this lawsuit until 

October 19, 2020. (D.E. 10.) 

COUNT I 

COMMON LAW INDEMNIFICATION 

21. Cicis realleges and incorporates paragraphs 1 through 20 above as if fully set 

forth herein. 

22. The Punchh Agreements between Cicis and Punchh formed a legal and special 

relationship between those two parties that existed prior to any alleged non-compliance with the 

ADA. Pursuant to this relationship, Punchh was solely responsible for creating a mobile 

application for Cicis. 

23. Because Punchh created the Mobile App that is the subject of Lucius’s lawsuit 

against Cicis, all or part of Lucius’s claimed damages resulting from alleged defects or 

deficiencies with the Mobile App are solely attributable to Punchh. 

24. Cicis neither caused nor contributed to the damages claimed by Lucius and is 

wholly without fault in causing Lucius’s alleged damages. 

25. Cicis neither knew nor should have known of any non-compliance with applicable 

laws or regulations, including the ADA, prior to Lucius’s lawsuit against Cicis. Cicis justifiably 

relied on the express representations and warranties of Punchh. 

26. Cicis’s liability, if any, to Lucius based on Punchh’s work on the Mobile App 

would be vicarious, constructive, derivative, or technical, and, if proven, could only be based on 

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the wrongful acts or omissions of Punchh. 

27. Accordingly, if it is determined that Lucius should recover damages against Cicis 

resulting from Punchh’s work on the Mobile App, then Punchh should be required to indemnify 

Cicis for all amounts for which Cicis may be liable to Lucius, including any damages, costs, 

attorney’s fees, or any other sums assessed against Cicis. 

WHEREFORE, Cicis respectfully requests that in the event judgment is entered against 

Cicis and in favor of Lucius, this Court enter judgment in favor of Cicis and against Punchh in 

the amount of any judgment entered against Cicis, and that Cicis be awarded its attorney’s fees, 

interest, the costs associated with this lawsuit, the amounts paid to Punchh pursuant to the 

Punchh Agreements, and any other relief the Court finds just and proper. 

COUNT II 

CONTRACTUAL INDEMNIFICATION 

28. Cicis realleges and incorporates paragraphs 1 through 20 above as if fully set 

forth herein. 

29. The Punchh Agreements between Cicis and Punchh formed a legal contractual 

relationship between those two parties that existed prior to any alleged non-compliance with the 

ADA. Pursuant to this relationship, Punchh was solely responsible for creating a mobile 

application for Cicis. 

30. Under the heading “Indemnification,” Section 8.1 of the Services Agreement 

states: 

Each party (an “Indemnifying Party”) shall indemnify, defend and hold the other 

party, its affiliates and each of its officers, directors, employees and agents 

harmless from any and all claims or damages incurred or suffered by such party 

arising out of, or in connection with any third party claim based upon or arising 

out of or alleging facts constituting any breach of this Agreement by the 

Indemnifying Party or the Indemnifying Party’s gross negligence or willful 

misconduct. 

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Ex. A ¶ 8.1. 

31. Pursuant to this provision, Punchh agreed to contractually indemnify, defend, and 

hold Cicis harmless against any and all claims or damages incurred by Cicis arising out of, or in 

connection with, any third party claim based upon or arising out of Punchh’s breach of the 

Punchh Agreements. 

32. In Section 7.2 of the Services Agreement, Punchh expressly agreed, warranted, 

promised, and represented to Cicis that it would create a mobile application “in compliance with 

all applicable laws and regulations.” 

33. The ADA and the regulations promulgated thereunder are laws and regulations 

that Lucius alleges apply to the mobile application Punchh created for Cicis. 

34. Lucius has alleged that she was damaged when she was unable to use the Mobile 

App, and that her damages were the result of Cicis’s Mobile App’s non-compliance with the 

ADA. 

35. Without admitting the allegations asserted by Lucius, Cicis seeks to enforce its 

contractual indemnity rights against Punchh. 

36. If Lucius’s allegations are determined to be true, Punchh breached the Services 

Agreement, specifically Section 7.2 in which Punchh expressly represented and warranted that it 

would create a mobile application “in compliance with all applicable laws and regulations.” 

Lucius’s lawsuit is based upon, or arises out of, Punchh’s breach of contract. 

37. If Lucius’s allegations are determined to be true, Punchh is required under the 

Punchh Agreements to indemnify Cicis for all amounts for which Cicis may be liable to Lucius, 

including any damages, costs, attorney’s fees, or any other sums assessed against Cicis. 

WHEREFORE, Cicis respectfully requests that in the event judgment is entered against 

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Cicis and in favor of Lucius, this Court enter judgment in favor of Cicis and against Punchh in 

the amount of any judgment entered against Cicis, and that Cicis be awarded its attorney’s fees, 

interest, the costs associated with this lawsuit, the amounts paid to Punchh pursuant to the 

Punchh Agreements, and any other relief the Court finds just and proper. 

COUNT III 

BREACH OF CONTRACT 

38. Cicis realleges and incorporates paragraphs 1 through 20 above as if fully set 

forth herein. 

39. Cicis and Punchh entered into a valid and binding written contract—the Punchh 

Agreements. 

40. In Section 7.2 of the Services Agreement, Punchh expressly “represent[ed] and 

warrant[ed] that . . . its services will be performed in a good and workmanlike manner and in 

compliance with all applicable laws and regulations . . . .” 

41. Cicis adequately performed its obligations under the Punchh Agreements and did 

not otherwise breach the Punchh Agreements. 

42. If Lucius’s allegations are determined to be true, Punchh breached the Punchh 

Agreements and its express agreement, representation, and warranty that it would create a mobile 

application for Cicis “in compliance with all applicable laws and regulations.” 

43. Cicis has suffered damages as a result of Punchh’s breach of contract, including 

(a) damages incurred as a result of Lucius’s lawsuit, including the amount of any judgment 

entered in favor of Lucius and against Cicis, as well as Cicis’s own attorney’s fees and costs, and 

(b) the amount necessary to remediate or otherwise correct any alleged defects or deficiencies 

with the Mobile App related to the application’s non-compliance with applicable laws and 

regulations. 

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WHEREFORE, Cicis demands judgment in its favor and against Punchh for damages 

incurred as a result of Lucius’s lawsuit, including the amount of any judgment entered in favor of 

Lucius and against Cicis, as well as Cicis own attorney’s fees and costs, the amount necessary to 

remediate or otherwise correct any alleged defects or deficiencies with the Mobile App related to 

the application’s non-compliance with applicable laws and regulations, the amounts paid to 

Punchh pursuant to the Punchh Agreements, and such other further relief as the Court deems just 

and proper. 

COUNT IV 

BREACH OF THE IMPLIED COVENANT OF 

GOOD FAITH AND FAIR DEALING 

44. Cicis realleges and incorporates paragraphs 1 through 20, and 38 through 43, 

above as if fully set forth herein. 

45. Section 7.2 of the Services Agreement is ambiguous about the permissibility or 

scope of Punchh’s conduct, specifically Punchh’s failure or refusal to provide Cicis a mobile 

application “in compliance with all applicable laws and regulations.” 

46. If Lucius’s allegations are determined to be true, Punchh, through a conscious and 

deliberate act, failed or refused to discharge its contractual responsibilities under the Punchh 

Agreements, which unfairly frustrated the Punchh Agreements’ purpose and disappointed Cicis’s 

expectations. 

47. If Lucius’s allegations are determined to be true, Punchh’s breach of the Punchh 

Agreements deprived Cicis of the Punchh Agreements’ benefits, specifically a mobile 

application that complied with all applicable laws and regulations. 

48. Cicis has suffered damages as a result of Punchh’s breach, including (a) damages 

incurred as a result of Lucius’s lawsuit, including the amount of any judgment entered in favor of 

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Lucius and against Cicis, as well as Cicis’s own attorney’s fees and costs, and (b) the amount 

necessary to remediate or otherwise correct any alleged defects or deficiencies with the Mobile 

App related to the application’s non-compliance with applicable laws and regulations. 

WHEREFORE, Cicis demands judgment in its favor and against Punchh for damages 

incurred as a result of Lucius’s lawsuit, including the amount of any judgment entered in favor of 

Lucius and against Cicis, as well as Cicis’s own attorney’s fees and costs, the amount necessary 

to remediate or otherwise correct any alleged defects or deficiencies with the Mobile App related 

to the application’s non-compliance with applicable laws and regulations, the amounts paid to 

Punchh pursuant to the Punchh Agreements, and such other further relief as the Court deems just 

and proper. 

COUNT V 

NEGLIGENT MISREPRESENTATION 

49. Cicis realleges and incorporates paragraphs 1 through 20 above as if fully set 

forth herein. 

50. Punchh induced Cicis to enter into the Punchh Agreements by expressly 

representing and warranting to Cicis within the Punchh Agreements that the mobile application 

Punchh would create for Cicis would be compliant with all applicable laws and regulations. 

51. Punchh made the foregoing representations to Cicis on March 31, 2015, and again 

on January 7, 2019, by way of the Punchh Agreements. 

52. Cicis would not have entered into the Punchh Agreements with Punchh, or made 

payments to Punchh pursuant to the Punchh Agreements, but for Punchh’s express 

representations and warranties to Cicis that the mobile application Punchh would create for Cicis 

would be compliant with all applicable laws and regulations. 

53. If Lucius’s allegations are determined to be true, Punchh’s representations to 

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Cicis was false. 

54. If Punchh’s representations were false, as alleged by Lucius, Punchh made the 

foregoing representations without knowledge as to the truth or falsity of the representations or 

under circumstances in which Punchh should have known of the representations’ falsity 

(considering Punchh was the sole creator of the Mobile App). 

55. Punchh made the foregoing representations intending for Cicis to rely on the 

representations and to induce Cicis to act on the representations, specifically, to induce Cicis to 

enter into the Punchh Agreements, and to make payments to Punchh pursuant to the Punchh 

Agreements. 

56. Cicis justifiably relied on the foregoing representations, and the representations 

induced Cicis to enter into the Punchh Agreements, and to make payments to Punchh pursuant to 

the Punchh Agreements. 

57. Cicis has suffered damages as a result of Punchh’s negligent misrepresentation, 

including (a) damages incurred as a result of Lucius’s lawsuit, including the amount of any 

judgment entered in favor of Lucius and against Cicis, as well as Cicis’s own attorney’s fees and 

costs, (b) the amount necessary to remediate or otherwise correct any alleged defects or 

deficiencies with the Mobile App related to the application’s non-compliance with applicable 

laws and regulations, and (c) the amounts paid to Punchh pursuant to the Punchh Agreements. 

WHEREFORE, Cicis demands judgment in its favor and against Punchh for damages 

incurred as a result of Lucius’s lawsuit, including the amount of any judgment entered in favor of 

Lucius and against Cicis, as well as Cicis’s own attorney’s fees and costs, the amount necessary 

to remediate or otherwise correct any alleged defects or deficiencies with the Mobile App related 

to the application’s non-compliance with applicable laws and regulations, the amounts paid to 

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Punchh pursuant to the Punchh Agreements, and such other further relief as the Court deems just 

and proper.

DEMAND FOR JURY TRIAL 

Defendant/Third-Party Plaintiff, CICI ENTERPRISES, LP, demands a trial by jury on all 

issues so triable. 

DATED this 1st day of October, 2020. 

Respectfully submitted, 

/s/ William J. Judge, Jr. 

William J. Judge, Jr. (FBN 426296) 

Ryan J. Leuthauser (FBN 99517) 

HILL WARD HENDERSON 

3700 Bank of America Plaza 

101 E. Kennedy Blvd. 

Tampa, FL 33602 

Phone: (813) 221-3900 

Fax: (813) 221-2900 

william.judge@hwhlaw.com 

ryan.leuthauser@hwhlaw.com 

debra.whitworth@hwhlaw.com 

Attorneys for Defendant CiCi Enterprises, LP 

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