So Your Website Has Been Hit With a Disability Access Claim, Now What?February 2, 2021 – Article
If your business has a website (and whose doesn’t?) you may be a target for a claim under the Americans with Disabilities Act and similar state laws. These cases typically allege that the website is not accessible to the visually impaired. If you get hit with one of these claims, a quick and effective response increases the likelihood that the case can be resolved before it metastasizes into expensive litigation. If you are served with one of these lawsuits, or get a demand letter threatening one, here are the three key points to keep in mind.
1. First, stay calm, size up the problem, and call experienced counsel.
Web access claims are proliferating across the country. Some law firms will use the same plaintiff and file case after case against the owner of any website they contend is not fully compatible with a screen reader. This is not to discount legitimate claims of disability discrimination, but to note that from a litigation perspective, these are often assembly line cases.
A small number of law firms file a disproportionate share of these cases. This places a premium on experience, because attorneys that defend a lot of these cases routinely encounter the same firms. When the lawyers on both sides are experienced, repeat-players, negotiations are more efficient, and both sides have an interest in being reasonable and maintaining their credibility going forward.
And because the firms that specialize in these cases often file many per year, they are typically open to an early resolution. Again, experienced counsel, who knows the typical structure of settlements, the technical issues involved in settling a case involving technical web design requirements, and the historical settlement range for these cases makes the process smoother, more efficient, and more likely to result in a settlement than protracted litigation.
At the outset of a case, the most important materials to gather for your attorney are any accessibility compliance audits that have been recently performed, and any additional information you have from your web developer. Specifically, ask for information about compatibility with the “Web Content Accessibility Guidelines,” known as WCAG. WCAG is the predominant standard for determining accessibility. There most recent version of WCAG is 2.1, but WCAG 2.0 is still widely in use. Within these two overarching standards, there are varying levels of compliance, ranging from “A,” the lowest, to “AAA,” the highest (with “AA” in the middle). A good rule of thumb is that if your website is compliant with WCAG 2.0 AA or higher, you are already in a strong position to respond to any complaint.
2. Responding to the complaint or demand.
Because so many web access cases settle early, most attorneys will send a letter to the plaintiff before filing a formal response to the complaint. This letter will set out your position in response to the demand. For example, the letter may include or reference evidence that the website is already compliant, make legal arguments, and, if appropriate, open the door to a settlement discussion.
This opening letter is very important because it sets the tone of whether your attorney understands this area of law and can credibly challenge the claims. For example, many claims are filed under both the federal Americans with Disabilities Act, but also state and local laws, such as California’s Unruh Civil Rights Act and the New York State Human Rights Law. These state laws invariably have little quirks and nuances that can be used to challenge a claim. Raising these challenges is an important way to set the tone and the boundaries of settlement discussions.
Most importantly, this letter may include your opening settlement proposal, anchoring all settlement talks going forward.
3. What to expect when you’re expecting to settle.
Most web access cases settle early. The specifics of web access settlements will vary in their details, and are almost always confidential. But generally, web access settlements have three components.
First, a release and strong confidentiality provision. This provision ensures that your business is released from all claims by the named plaintiff and that the plaintiff will also not tip off any other claimants to assert the same claim.
Second, a website remediation requirement. Because the lawsuit is nominally filed because the website is supposedly not accessible to the visually impaired, the settlement will usually include a provision for the remediation of the website. These provisions will typically require compliance with certain technical standards by a specific date, to ensure that the owner of the website has a concrete obligation and deadline. A settlement might, for example, require that the website maintain or achieve compliance with WCAG 2.0 AA within 24 months. If a website is compliant, the remediation provision may not require any further work at all. However, if the website has genuine compliance problems, it is often helpful to bring on an accessibility consultant that can work with web developers to make the “under the hood” modifications to achieve the level of compliance needed under the settlement.
Third, (surprise, surprise) is a monetary payment to the plaintiff. For an early settlement the amount of the settlement payment usually depends on three factors. First, whether the website is verifiably compliant (or non-compliant). This is, ostensibly, what the case is about, and an important factor in settlement discussions. Second, is the claim plausible? Is this a product the named Plaintiff might actually buy? It is important to be sensitive on this subject, especially when the business sells gender specific-items, but this is a crucial point. In many states it is a requirement that a plaintiff be a genuine customer, and if the plaintiff is not, that could be important. Third, whether the business can credibly plead a COVID induced hardship or present another credible reason it simply cannot pay a settlement in the range the plaintiff is demanding. For example, while companies in the food and beverage industry are frequent targets of these claims, many can credibly claim COVID-induced hardship and reduce their settlements accordingly.
Melding these factors to come up with a settlement is as much art as science. That is why it is best to bring in experienced counsel early.
A web site access claim does not necessarily mean years of expensive litigation. With experienced counsel and the right strategic approach, these matters can be settled early and for a fraction of the cost of litigation.