SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
PROFESSIONAL PUBLICATIONS, INC.
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 202-79-341

I. BACKGROUND

  1. The Parties to this Settlement Agreement are the United States of America and Professional Publications, Inc. (PPI), located in Benton, California.
  2. In February 2018, the United States Attorney's Office for the Eastern District of Virginia ("USAO") initiated an investigation of PPI, a private entity, offering preparation classes for engineering, architecture, and interior design professional examinations.
  3. The USAO initiated an investigation in response to a complaint that PPI's online video courses are inaccessible to deaf individuals because PPI fails to provide closed captions.
  4. PPI is a private entity that offers on-line test preparation courses related to licensing examinations for professional purposes within the meaning of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309.
  5. Following its investigation, the USAO substantiated the complainant's allegations that PPI violated Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12189, because PPI fails to offer its online courses in a manner accessible to individuals with hearing disabilities. Further, the USAO learned that PPI had failed to provide auxiliary aids and services to three other individuals in the three years prior to the investigation.
  6. The USAO is authorized to investigate alleged violations of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, and to bring a civil action in federal court in any case where the Attorney General has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of discrimination or any person or group of persons has been discriminated against in violation of the Act and such discrimination raises an issue of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
  7. The United States and PPI agree that it is in the Parties' best interests, and the United States believes that it is in the public interest, to resolve this matter on mutually agreeable terms. The Parties have therefore voluntarily entered into this Agreement, as set forth below. This Agreement is neither an admission of liability by PPI nor a concession by the United States that its claims are not well founded.

II. ACTIONS TO BE TAKEN BY PPI

  1. PPI will comply with the requirements of the ADA, 42 U.S.C. § 12189 and its implementing regulation, 28 C.F.R. part 36. The ADA mandates PPI to offer its courses in a manner accessible to individuals with disabilities. 42 U.S.C. § 12189; 28 C.F.R. § 36.309. It also requires PPI to make modifications to its courses as necessary to ensure that the manner in which the courses are given are accessible to individuals with disabilities, including adaptation of the manner in which the course is conducted or course materials are distributed. The ADA requires PPI to provide appropriate auxiliary aids and services, unless PPI can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden. Also, if alternative accessible arrangements are required, PPI must provide comparable conditions to those provided for nondisabled individuals.
  2. ADA Course Modification Policies and Practices. Within thirty (30) days of the effective date of this Agreement, PPI will amend its policies and practices to reflect the requirements set forth in this Paragraph and send the full text of the revised policies and practices to the USAO for its review and approval, not to be unreasonably withheld. The USAO will review and provide comments on PPI's proposed revisions. Within fifteen (15) days of receiving the USAO's comments, PPI will incorporate those comments and submit revised written policies, practices, and procedures to the USAO. This process will continue until the USAO approves the final policies and practices. Within fifteen (15) days of the USAO's approval, PPI will implement the revised written policies and practices.
    1. PPI will adopt an ADA Course Modification Policy reflecting the requirements of Title III of the ADA and its implementing regulation. The ADA Course Modification Policy will include the following text:
      1. In accordance with the Americans with Disabilities Act (ADA), PPI is committed to ensuring that there is no discrimination against individuals with disabilities on the basis of disability in the full and equal enjoyment of PPI's goods, services, facilities, privileges, advantages, or accommodations. In furtherance of this commitment, PPI will offer courses in an accessible manner to individuals with disabilities. 42 U.S.C. § 12189; 28 C.F.R. § 36.309. PPI will make modifications as are necessary to ensure that the place and manner in which the course or service is given are accessible to individuals with disabilities. PPI will provide appropriate auxiliary aids and services for persons with impaired sensory, manual, or speaking skills, unless it can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden. PPI will administer courses in facilities that are accessible to individuals with disabilities or make alternative accessible arrangements. Alternative arrangements must provide comparable conditions to those provided for nondisabled individuals, such as, for example, the same opportunity to interact with an instructor, and ask questions and receive answers in real-time. 28 C.F.R. § 36.309(c)(4)-(5).
    2. Within fifteen (15) days, PPI will designate an ADA Course Modification Coordinator who will be responsible for overseeing, managing, and coordinating PPI's obligations set forth in this Paragraph and Paragraphs 10-12. The ADA Course Modification Coordinator is authorized to receive and review requests for modifications, auxiliary aids or services. The ADA Course Modification Coordinator's contact information will be made available on PPI's website, currently at, https://ppi2pass.com, and disseminated with materials provided to enrollees and prospective enrollees.
    3. PPI will ensure that within one (1) year, all of its online video content has captions. For the purposes of this agreement, captions are defined as the visual display of the audio portion of a video file that is consistent with the voluntary industry standard known as WCAG 2.0 AA Guideline 1.2.2 or Guideline 1.2.4 (for live video). To accomplish this, PPI, through its ADA Course Modification Coordinator, will develop Captioning Protocols, subject to approval by the United States, that specify the requirements for creating captions that conform to the WCAG 2.0 AA Guidelines 1.2.2 and 1.2.4 and that are distributed to staff responsible for publishing online videos.
    4. Information explaining how to request modifications, auxiliary aids or services will be publicized on PPI's website, currently at https://ppi2pass.com, and disseminated with any enrollment or application materials provided to enrollees and prospective enrollees. PPI will make individualized determinations based on the specific facts of each request and will not apply a general prohibition against providing particular types of modifications, auxiliary aids or services. Within one week of receiving a request, PPI, through its ADA Course Modification Coordinator, will adhere to the following procedures for considering the request:
      1. Grant the request;
      2. Make a narrowly tailored request for more information about the request and, within three (3) days of receiving the information, grant or deny the request; or
      3. Deny the request upon establishing that offering the particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden.

        PPI will document each reason why additional information is needed and its reason for the denial; PPI will provide such documentation to the United States consistent with the requirements of Paragraph 12, below.

    5. Within thirty (30) days of the United States' approval of the revised ADA Course Modification Policy and Captioning Protocols, PPI will submit for approval by the United States, not to be unreasonably withheld, a proposed ADA Course Modification Training (Training). The Training will be administered annually for the term of this Agreement. Within thirty (30) days of the United States' approval of the Training, the Training will be provided to the ADA Course Modification Coordinator and any PPI staff who may receive a request by an individual with a disability for a necessary modification, auxiliary aid or service.
      1. The Training will address the requirements of Title III of the ADA, including:
        1. PPI's nondiscrimination obligations under the ADA, as well as the requirements in this Agreement; and
        2. An overview of the terms and obligations of this Agreement (PPI will provide a copy of this Agreement to each training participant).
      2. The Training will be conducted by a trainer with substantive legal knowledge of the ADA. PPI will submit the trainer's name to the USAO for approval, not to be unreasonably withheld, prior to the ADA Training. The Training will be conducted live, with an opportunity for PPI staff to pose questions to the trainer during the training.
        1. For persons who must receive Training pursuant to this Agreement, but who did not receive Training on its designated annual date required under this Agreement, PPI will provide Training to such persons within thirty (30) days after the individual's affiliation with PPI or within thirty (30) days of their return to PPI (for instance, from leave).
        2. For each session of the Training conducted under this Agreement, PPI will maintain attendance logs reflecting the date of the Training, names and titles of attendees, and the attendees' signatures. PPI will provide the United States with the attendance logs reflecting the Trainings that it has conducted pursuant to this Agreement pursuant to the reporting requirements set forth in Paragraph 12.

    III. INDIVIDUAL RELIEF

    1. Within ten (10) days after receiving the aggrieved individuals' signed releases (a blank release form is at Exhibit A), PPI will send four checks as follows: in the amount of ten thousand dollars ($10,000.00) made out to each of the four identified by the Government for whom it failed to provide appropriate auxiliary aids and services. If PPI does not receive all four of the signed releases on the same day, it shall make each individual payment with ten (10) days of receiving the respective release. These checks are compensation to the aggrieved parties pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in paragraph 2-5 above. The checks shall be mailed to:
      Financial Litigation Unit United States Attorney's Office for Eastern District of Virginia 101 W. Main Street #8000 Norfolk, VA 23510

      A copy of the checks shall be sent to:

      Steven Gordon Assistant United States Attorney 2100 Jamieson Avenue Alexandria, VA 22314

    IV. Payment of Civil Penalty to the United States

    1. Within ten (10) days of the Effective Date of this Agreement, the PPI will pay to the United States of America the sum of ten thousand ($10,000.00) dollars pursuant to 42 U.S.C. §12188(b)(2)(C). The check shall be mailed to:
      Financial Litigation Unit United States Attorney's Office for Eastern District of Virginia 101 W. Main Street #8000 Norfolk, VA 23510

      A copy of the check shall be sent to:

      Steven Gordon Assistant United States Attorney 2100 Jamieson Avenue Alexandria, VA 22314

    V. REPORTING REQUIREMENTS

    1. PPI will provide the following information in electronic format to the USAO:
      1. Within ninety (90) days, and every six (6) months thereafter for the term of this Agreement, PPI will submit a report in electronic format to the USAO detailing PPI's compliance with this Agreement, including the requirements identified in Paragraph 9.
      2. Each report will include an account from the ADA Course Modification Coordinator detailing PPI's compliance or any lack thereof with the requirements set forth in Paragraph 9. It will include copies of any requests for modifications, auxiliary aids or services. If no action is taken or if more information is requested in response to a particular request, PPI will include relevant documentation supporting its decision, an explanation why and advise the United States of the ultimate outcome. PPI will also explain:
        1. The extent to which it has remediated its online content as set forth in Paragraph 9.c.;
        2. A description of the steps to be taken to make the content accessible; and
        3. A date by when such content will be accessible.
      3. Each report will include an explanation of any fundamental alteration or undue burden defense that PPI asserts over a specific request for a modification, auxiliary aid or service as set forth in Paragraph 9.
      4. Unless otherwise instructed by the United States, all notices and reports that PPI is required to send to the USAO United States under this Agreement, will be sent electronically to: Steven Gordon at steve.godon@usdoj.gov.

    VI. ENFORCEMENT AND MISCELLANEOUS PROVISIONS

    1. Effective Date: The Effective Date of this Agreement is the date of the last signature below. All time periods specified in this Agreement will run from the Effective Date, unless otherwise specified.
    2. Term: The duration of this Agreement will be three (3) years from the Effective Date.
    3. Consideration: In consideration for this Agreement, the United States will take no further enforcement action related to the facts in paragraphs 2-5, except as provided in Paragraphs 16-17. The Parties agree and acknowledge that this consideration is adequate and sufficient.
    4. Enforcement: The United States may review compliance with this Agreement at any time. PPI will cooperate fully with the United States' efforts to monitor compliance with this Agreement, including but not limited to, providing the United States with reasonably requested information. If the United States believes that PPI has failed to comply with any requirement of this Agreement or that any requirement has been violated, the United States will notify PPI in writing and the Parties will attempt to resolve the issue in good faith. If the Parties are unable to reach a satisfactory conclusion within thirty (30) days of the date the United States notifies PPI, the United States may file a civil action in federal district court to enforce the terms of this Agreement, and take any other action to enforce Title III of the ADA.
    5. Non-Waiver: Failure by the United States to enforce any provision of this Agreement will not be construed as a waiver of its right to enforce any provision of this Agreement.
    6. Modifications: Any modification of this Agreement requires the written consent of the Parties; provided that, the United States and PPI may agree in writing to extend the applicable deadlines specified in this Agreement. With regard to any of the deadlines specified in this Agreement, PPI will notify the United States at least ten (10) business days before any deadline of an anticipated inability to meet the deadline and the reasons why, and will request an extension of time to a specific date. The United States will not unreasonably deny requested extensions made in good faith and following PPI's due diligence to meet such a requirement.
    7. Counterparts: This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, will constitute one and the same Agreement. Facsimile or electronic signatures are acceptable.
    8. Severability: If any provision of this Agreement is determined to be invalid, unenforceable, or otherwise contrary to applicable law, such provision will be deemed restated to reflect as nearly as possible and to the fullest extent permitted by applicable law its original intent and will not, in any event, affect any other provisions, all of which will remain valid and enforceable to the fullest extent permitted by applicable law.
    9. Other Violations: This Agreement is not intended to remedy any potential violations of the ADA or any other law, other than those specifically addressed by this Agreement in Paragraphs 2-5. Nothing in this Agreement will preclude the United States from filing a separate action under the ADA for any alleged violation not covered by this Agreement.
    10. Entire Agreement: This Agreement, including Attachment A, contains the entire agreement between the United States and PPI concerning the subject matter described in Paragraphs 2-5, 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 Agreement, and concerns the subject matter described in Paragraphs 2–5, will be enforceable.
    11. Binding Nature of Agreement: This Agreement will be binding on PPI and its subsidiaries, agents, employees, officers, and contractors. In the event that PPI seeks to transfer or assign all or part of its interest in any service covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the website or online services, then as a condition of transfer or sale, PPI will obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
    12. Publicity: This Agreement is a public document.
    13. Authority: The signatories below for PPI represent that they have the authority to bind PPI to the terms of this Agreement.

      By their signatures below, the Parties respectfully consent to the execution of all aspects of this Agreement.

    FOR THE UNITED STATES:

    G. ZACHARY TERWILLIGER
    United States Attorney
    Eastern District of Virginia

    By:
    /s/ Steven Gordon
    STEVEN GORDON
    Assistant United States Attorney
    United States Attorney’s Office
    Eastern District of Virginia     
    Justin W. Williams U.S. Attorney’s Bldg.
    2100 Jamieson Avenue
    Alexandria, Virginia 22314
    Telephone: 703-299-3817
    steve.gordon@usdoj.gov

     

    DATED: 4/25/2019

     

    FOR PROFESSIONAL PUBLICATIONS, INC.


    By:

    /s/ David Adams
    David J. Adams
    Vice President, General Counsel

     

    DATED: 4/25/2019

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