MEMORANDUM IN SUPPORT OF THE MOTION OF THE UNITED STATES OF AMERICA TO INTERVENE

The National Federation of the Blind ("NFB") on behalf of itself and all of its members, and Mika Pyyhkala ("Pyyhkala") and Lindsay Yazzolino ("Yazzolino"), on behalf of themselves and all others similarly situated, (collectively, "the Private Plaintiffs") have sued HRB Digital LLC and HRB Tax Group, Inc. (collectively, "Block"), subsidiaries of H&R Block, Inc., to remedy systemic violations of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, and the Massachusetts Equal Rights Act Mass. Gen. Laws ch. 93 § 103. Both the Private Plaintiffs and the United States allege that Block discriminates against individuals with disabilities in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, and accommodations provided through www.hrblock.com. Class Action Complaint ¶¶ 2, 43, Docket No. 1; United States' Complaint in Intervention ¶¶ 2, 32, Exhibit A; 42 U.S.C. §§ 12181-12189; 28 C.F.R. pt. 36.

Individuals with disabilities interact with computers and the Web through various assistive technologies, including screen reader software programs, refreshable Braille displays, keyboard navigation, and captioning. Class Action Complaint ¶¶ 24, 25, 33, 34, 43, Docket No. 1; United States' Complaint in Intervention ¶¶ 3, 18, Exhibit A. Such technologies have been available and widely used for decades. United States' Complaint in Intervention ¶¶ 18, Exhibit A. In order for the technologies to function properly for the users, a website must be designed to be accessible. Class Action Complaint ¶¶ 24, 25, 30, Docket No. 1; United States' Complaint in Intervention ¶ 18, Exhibit A.

Through its website at www.hrblock.com, Block offers a comprehensive range of online tax services, from tax advice to professional and do-it-yourself tax return preparation and electronic filing. Class Action Complaint ¶¶ 27-29, Docket No. 1; United States' Complaint in Intervention ¶¶ 15, 16, 24, Exhibit A. Because Block has not constructed its website to be accessible, however, these online services are not available to people with various types of disabilities.¹ Class Action Complaint ¶¶ 31, 42, Docket No. 1; United States' Complaint in Intervention ¶¶ 4, 19, 20, 22, Exhibit A. As a result, many users with disabilities, including Mr. Pyyhkala and Ms. Yazzolino who use screen reader software and refreshable Braille displays with their computers, are precluded from even registering for an online account with Block. Class Action Complaint ¶¶ 32-34, Docket No. 1; United States' Complaint in Intervention ¶¶ 25, 26, Exhibit A.

This litigation directly implicates the United States' obligation to enforce the ADA and its interest in ending disability discrimination. The Department of Justice is the federal agency charged with enforcing and promulgating regulations implementing Title III of the ADA and plays the primary role in its coordination and implementation. 42 U.S.C. § 12186(b). Congress enacted the ADA to ensure "equality of opportunity" and "full participation" for individuals with disabilities and because "the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous . . . ." 42 U.S.C. §§ 12101(a)(7), (8). The inability to access public accommodations' websites puts individuals with disabilities at a great disadvantage in today's society, which is driven by a dynamic electronic marketplace and unprecedented access to online information, goods, and services. This litigation thus reaches core principles of the ADA, and the United States' enforcement responsibility is directly implicated.

The Department of Justice also has an interest in a comprehensive resolution which will prevent discrimination against those with a variety of disabilities. Private plaintiffs represent individuals with vision disabilities. However, the disposition of this matter will also impact individuals with other disabilities, such as individuals who are deaf and individuals who have disabilities affecting manual dexterity. Accordingly, the United States seeks to intervene as of right in this case under Fed. R. Civ. P. 24(a)(2) because it has a significant interest in the enforcement of the ADA that is not fully represented or protected by the existing parties and that interest will be impaired if intervention is denied.

Alternatively, the United States requests permission to intervene under Fed. R. Civ. P. 24(b) because its claims against Block have questions of law and fact in common with the above-captioned case and because the main action involves the interpretation of a statute that the Attorney General is entrusted by Congress to administer. See Fed. R. Civ. P. 24(b)(1), (2). Notably, formal discovery has not yet begun in the above-captioned case and intervention by the United States will therefore not interfere with its efficient litigation.

I. DISCUSSION

A. The United States Should Be Allowed To Intervene As of Right

Federal Rule of Civil Procedure 24(a) provides that upon timely application anyone shall be permitted to intervene in an action who:

claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a)(2).

To intervene as of right under Fed. R. Civ. P. 24, the movant must establish:

(i) the timeliness of its motion to intervene; (ii) the existence of an interest relating to the property or transaction that forms the basis of the pending action; (iii) a realistic threat that the disposition of the action will impede its ability to protect that interest; and (iv) the lack of adequate representation of its position by any existing party.

Fed. R. Civ. P. 24(a)(2); P.R. Tel. Co. v. Sistema de Retiro de los Empleados del Gobierno y La Judicatura, 637 F.3d 10, 14 (1st Cir. 2011).

When implementing Rule 24(a), the First Circuit has explained that the "inherent imprecision of Rule 24(a)(2)'s individual elements dictates that the rule should be applied with an eye toward the commonsense view of the overall litigation." Ungar v. Arafat, 634 F.3d 46, 51 (1st Cir. 2011) (citations and internal quotation marks omitted). "In the context of intervention as of right, the district court's discretion is somewhat more circumscribed than in the context of intervention generally." Ungar, 634 F.3d at 51 (citation and internal quotation marks omitted). Ultimately, all four criteria must be met. B. Fernandez & Hnos, Inc. v. Kellogg USA, Inc., 440 F.3d 541, 544-45 (1st Cir. 2006). The United States' Motion to Intervene satisfies each of Rule 24(a)'s four criteria for intervention as of right.

1. The United States' Motion to Intervene is Timely

As the docket reflects, this case is in the earliest stage. Importantly, neither legal nor factual issues have been litigated. Plaintiffs filed their Class Action Complaint on April 8, 2013. See Docket No. 1. Following this Court's grant of stipulated motions to extend the time to answer, Block filed an Answer on July 12, 2013. See Docket No. 17. The Initial Scheduling Conference – twice extended by the Court, permitting discussions by the parties and the United States to resolve the dispute – is presently set for November 18, 2013, at 2:30 p.m. See Docket No. 16. Based on discussions with the parties and a review of the docket, it appears that only initial disclosures have been served and that the parties have not otherwise engaged in formal discovery.

Timeliness should be determined by the totality of the circumstances. NAACP v. New York, 413 U.S. 345, 366 (1973). "In stressing the importance of timely filing of a petition to intervene, courts have repeatedly emphasized that the concept of timeliness of a petition is not measured, like a statute of limitations, in terms of specific units of time, but rather derives meaning from assessment of prejudice in the context of the particular litigation." P.R. Tel. Co., 637 F.3d at 15 (citing and quoting Fiandica v. Cunningham, 827 F.2d 825, 834 (1st Cir. 1987). "One of the core purposes of the timeliness requirement is to prevent disruptive, late-stage intervention that could have been avoided by the exercise of reasonable diligence," R&G Mrtg. Corp. v. Fed. Home Loan Mrtg. Corp., 584 F.3d 1, 9 (1st Cir. 2009). See also Liddell v. Caldwell, 546 F.2d 768, 770 (8th Cir. 1976) (identifying as a guiding factor for timeliness the stage of proceedings); Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005, 1009-10 (9th Cir. 1981) (same); Canterino v. Wilson, 538 F. Supp. 62, 64 (W.D. Ky. 1982) (allowing United States to intervene six weeks before trial).

The United States' intervention at this stage would not prejudice the Plaintiffs or Block. Accordingly, the United States' intervention would be timely.

2. The United States Has a Significant Interest in the Pending Litigation

In enacting the ADA, Congress sought "to ensure that the Federal Government plays a central role in enforcing the standards established [in the Act] on behalf of individuals with disabilities." 42 U.S.C. § 12101(b)(3). To effectuate that purpose, Congress charged the Department of Justice with primary responsibility for enforcing the ADA. See 42 U.S.C. § 12188(b) . The Attorney General is authorized to investigate allegations of disability discrimination and to file suit where, as is the case here, there is reasonable cause to believe that an entity has engaged in a pattern or practice of discrimination or that an entity's discriminatory actions raise an issue of general public importance. 42 U.S.C. § 12188(b); 28 C.F.R. §§ 36.501-504. The Attorney General is also charged with promulgating regulations to implement Title III of the ADA. See 42 U.S.C. § 12186(b); 28 C.F.R. pt. 36.

The United States has investigated the accessibility of www.hrblock.com and has determined that Block discriminates against individuals with a variety of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations offered through www.hrblock.com in violation of Title III of the ADA and its implementing regulation. Block has failed to ensure the accessibility of www.hrblock.com and its subdomains, and, as a result, individuals with disabilities, including, but not limited to, those who require assistive technologies, cannot access the information, enjoy the services, or take advantage of the benefits offered through Block's website. Block's discriminatory policies and practices persist notwithstanding the existence of readily available, well-established, consensus-based industry guidelines for delivering Web content in an accessible format. See WCAG 2.0.

The United States has a significant interest in the pending litigation because it will help define the application of the ADA to public accommodations' websites, an area in which few courts have thus far opined. See Ceres Gulf v. Cooper, 957 F.2d 1199, 1203-04 (5th Cir. 1992) (holding the interest of the director of Office Workers' Compensation Programs in the "consistent application of . . . a statutory scheme he is charged with administering" was sufficient to support intervention as of right). The United States has previously expressed a significant interest in the issue of website accessibility under Title III. See, e.g., Statement of Interest of the United States, Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) (No. 11-CV-30168-MAP) (2012 WL 1834803). Federal litigation interpreting and applying the provisions of the ADA, and its regulations, is an important enforcement tool for the United States. Nuesse v. Camp, 385 F.2d 694, 700-01 (D.C. Cir. 1967) (finding that a state government official charged with administering a banking law had an interest in advocating a particular construction of the law that was sufficient to support intervention as of right).

Finally, the Department of Justice has a strong interest in enforcing Title III on behalf of the public to end disability discrimination. Increasingly, goods and services in today's marketplace are being accessed and delivered online. Without access to public accommodation websites such as Block's, individuals with disabilities are denied the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations offered to others. This litigation thus reaches core principles of the ADA, and the United States' enforcement responsibility is directly implicated.

3. Disposition of This Action Could Threaten the Interest of the United States

The application of Title III of the ADA and its implementing regulation to a public accommodation's website and its online services is an important and developing area of the law. How the ADA is interpreted and applied in this case could have an impact on the United States' ability to prevent discrimination against individuals with disabilities at public accommodations' online storefronts, as the United States previously has at their physical ones, even as more and more of our lives move online. See, e.g., Statement of Interest of the United States, Nat'l Ass'n of the Deaf v. Netflix, Inc., supra; See generally, Citizens for Balanced Use v. Mont. Wilderness Ass'n, 647 F.3d 893, 900 (9th Cir. 2011) (stressing that "intervention of right does not require an absolute certainty that a party's interest will be impaired or that existing parties will not adequately represent its interests").

4. The Existing Parties Do Not Fully Represent the Interest of the United States

The interest of the United States extends to individuals with all types of disabilities who have been subjected to discrimination, not just those with vision disabilities. Thus, the United States' interest includes individuals who are deaf and require captioning of audible materials on www.hrblock.com and individuals with manual dexterity disabilities who may require extra time warnings to complete time-sensitive transactions through www.hrblock.com. How the ADA is interpreted and applied in this case, and how the case is resolved, will affect not only the blind Plaintiffs, but also persons with other types of disabilities whose interests will not be represented fully unless the United States is permitted to intervene.

Further, Title III of the ADA authorizes the Attorney General to seek damages, where appropriate, for aggrieved individuals and to request that the Court assess a civil penalty; private plaintiffs have no statutory right under Title III to seek either compensatory damages or civil penalties. 42 U.S.C. § 12188(b). The United States has a significantly protectable interest in pursuing all appropriate relief in appropriate cases, such as this one.

The private plaintiffs cannot act as a surrogate for the United States in this case, as only the Attorney General and his designees can attend to the interests of the United States. 28 U.S.C. § 517; See 42 U.S.C. § 12101(b)(3) ("It is the purpose of this chapter . . . to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities."); Heaton v. Monogram Bank of Ga., 297 F.3d 416, 424 (5th Cir. 2002) ("[i]t cannot be assumed that the existing [private] parties to the litigation would protect the FDIC's and the public's interest" in the proper regulation of the federal deposit insurance system).

B. Permissive Intervention By the United States Should Be Granted

Were the Court to find that the United States was not entitled to intervene as of right, permissive intervention should still be granted. Rule 24(b)(2) permits intervention on timely motion by a governmental officer or agency where:

[A] party's claim . . . is based on: (A) a statute . . . administered by the officer or agency; or (B) any regulation [or] requirement . . . issued or made under the statute or executive order.

Fed. R. Civ. P. 24(b)(2). The Court may permit intervention by anyone who has "a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B). The same substantial interests that give the United States a right to intervene in this case under Fed. R. Civ. P. 24(a)(2), support permissive intervention under Fed. R. Civ. P. 24(b).

First, for the reasons detailed in Section I.A.1, supra, the United States' Motion to Intervene is timely. Second, if required to file a separate action to protect the interests not otherwise fully represented in this case, see discussion in Section I.A, at 2-4, supra, the United States would assert that Block's discriminatory conduct on its website and in its online services violated Title III of the ADA and the relevant implementing regulations. These assertions would require the Court to resolve both questions of fact – the nature of Block's conduct – and law – the application of the ADA to the facts – in common with the Plaintiffs' here.² See Docket No. 1 (at Count 1). Third, Plaintiffs' claim in this case is based in material part on the ADA and its implementing regulation. As discussed at length in Section I.A, supra, the Department of Justice has the central role in administering and enforcing Title III of the ADA and its regulation.

II. CONCLUSION

For all of the foregoing reasons, the United States respectfully requests that the Court grant the Motion of the United States to Intervene.

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¹The techniques for programming in an accessible manner have been widely known and readily available for some time. See, e.g., Web Content Accessibility Guidelines 2.0, World Wide Web Consortium (W3C), Web Accessibility Initiative, http://www.w3.org/TR/WCAG20/ ("WCAG 2.0").

²Additionally, the interest of judicial efficiency is best served if intervention is permitted here because an alternative to intervention is for the United States to bring a separate suit against Defendants.

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing.