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Understanding Title III Website Accessibility Litigation

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Understanding Title III Website Accessibility Litigation

This course explains the basics of lawsuits claiming that websites are not accessible by individuals with disabilities. It will explain what it means for a website to be accessible and describe the laws that require accessibility, emphasizing business websites subject to Title III of the Americans with Disabilities Act. It will outline the history of website accessibility litigation, and the important unresolved legal issues that arise in this kind of litigation, then conclude with practical information about defending and settling such lawsuits.

Transcript

Good afternoon. I'm Richard Hunt, and as the title slide tells you today we're going to talk about ADA website accessibility litigation. This is an interesting and frustrating area of law. And it's interesting and frustrating for the same reasons. And that is there's a great deal of uncertainty. So for those of you who expect to end the day knowing the law of website accessibility, I'm afraid you'll be disappointed. You're likely to end the day with a really good understanding of the issues, but not a lot of certainty about how they're going to be resolved. I'd like to start with what I call the usual, but important disclaimer. You're not my client. I'm not your lawyer. I'm going to tell you some specific things about website accessibility, but nothing I say today should be taken to apply to any particular legal matter that you may have. We're here to learn about website accessibility in general, not for the purpose of legal advice. Now here's my favorite slide because I like to talk about myself. My name is Richard Hunt. I've been practicing law for about 43 years. I have specialized in matters related to disability law for about the last 15 years. And my clients are typically businesses who get sued under the Fair Housing Act or the ADA. I do sometimes represent plaintiffs as well. But today's presentation is going to be very largely from a defense perspective, because my website clients are defendants, and it's learning how to deal with those cases from a defense standpoint that I find most interesting. Those of you who are interested in becoming plaintiff's lawyers in this area will probably also learn something about how to become a plaintiff's lawyer. But our perspective today is a defense perspective. What are we going to talk about? Well, first we're going to talk about what it means for a website to be accessible. And that's not as well understood as I would like. Or you might think. Most of my clients still, when they get sued, don't even know why they've been sued. We're going to understand about the laws that may or may not require websites to be accessible, but we will focus on title three, although we'll discuss some others. We're going to talk about the key legal issues raised by this kind of litigation. We're going to talk about the historic context of today's litigation scene, which is important for understanding the last subject, which is the practical considerations and strategies that go into defending or settling these kind of lawsuits. But you need to understand the history of this litigation to know what you're going to do today if your client gets sued. But first, let's start with just what it means for a website to be accessible, because many people don't think that those with disabilities, especially blindness, can even use the internet. To understand accessibility, you have to start with something called assistive technology. And these are technologies that help a person with a disability interact with a computer, and in particular with the internet. I've mentioned here Refreshable Braille displays these. Turn the text on a screen into Braille letters that a blind person can read. There are screen magnifiers for people who have low or poor vision. There's speech input software for people who have to speak to control their computer. There are other kinds of alternative inputs, including eye pointers and head tracking for those who are severely disabled and can't even speak. But the most common assistive technology is called screen reading software, and screen reading software takes its name from what it used to do when the internet was a simple place, and that is the software. Simply read all the words that were on the screen. Websites have become much more complicated. Screen reading software now does a lot of things that are more sophisticated than screen reading, but that is the most common assistive technology, and it's most common that's used by blind and some low vision people to get through the internet. Now, with that background, there's a practical definition, and this is my definition, I should tell you, of accessible website. And that is one that works with assistive technologies to give disabled users access to the content of the website. Now, in that definition, which I think is a solid definition based on the regulations that we'll talk about and the private industry standards, we can see a number of questions. One is which assistive technologies? Assistive technologies are, like all other aspects of the technical world, changing and advancing very rapidly and multiplying. So one question is, if your website has to work with assistive technologies, which ones must it work with? Second, what does it mean to give a disabled user access to the content of the website? We know a website includes pictures. It includes sounds when it includes material that is decorative or entertaining, but is primarily intended just to sell goods. What? What is is the content that we're talking about that an individual disabled user should have access to? We'll see. That's a legal question, and it's a legal question that has not been fully answered. However, I want to take just a second before we plunge into the legal matters to give you an example of an inaccessible website. So think I hope we'll have. So you will have, I hope, a more practical understanding of what a blind person faces when they try to use the internet. We'll talk about the visual experience versus the screen reader experience. This is from a apartment complex of renting rental website. The person, in this case me, has gone to the home item on the menu and highlighted it, and that has the effect in this website of taking you to the home page of the website. A person who is blind can't see the word home. They can't see what they've clicked on because they don't use a mouse. They know that they've gotten to that menu and what they'll hear if they use the program that comes bundled with the Macintosh, which is called VoiceOver, is a kind of a mechanical voice saying visited link, home page, home menu, navigation. You are currently on a button to click this button, press control option space so they know they're on a menu item. They know that pressing control option space will click that button, but that's all they know. They do not know that there is a menu item to the right in a horizontal line that says floorplans. They do not know whether this menu item has a pull down menu associated with it or not. All they know is that they are on the button that takes you to the home page, and they are presumably on the home page. Now. Typically those of us who use keyboards occasionally to navigate the internet. Net would think that the Tab key takes us to our next file, and so a blind user might use the tab key thinking that'll get them to the next menu item. They might use the right or left arrow buttons, thinking that the. If they hypothesize that the other menu items are to the right left, they might use the down and up arrow. Lighter items. If they hypothesize that the next menu items are above and below, because it's a vertical set of menus. I'm sorry, but in this case, in the case of this website, the tab button takes you to a later page in the website that's unrelated to the home page. The up and down arrow keys don't work at all, and the right and left arrow keys work, but you can't be sure that they'll work. Because what happens is, if you hover your mouse over the home screen, it pops up a dialog that says use the right and left arrow keys. However, of course, a blind user cannot hover the mouse pointer over a menu item because they can't see the mouse pointer and they can't use the mouse. So this is a not accessible website. It doesn't behave in a predictable way, and it doesn't respond to keyboard controls in a in what you'd ordinarily think would be the way. Now trained users and saw in this kind of software. Do remarkably well, astonishingly well navigating a website. But in this case, it took a highly trained user more than 20 minutes after he hit the tab key to figure out how to navigate back to the home page so he could start over again. Um, so that is an inaccessible website. Why do we care about this? Well, let's start with some statistics. Um, this one's a couple of years old. Webaim, which is a consulting company in this area, did a survey and found that 97% of the top million websites failed a basic test of accessibility, and that's websites in the United States, by the way, not worldwide. So, um, it's very likely that any website your client owns fails accessibility testing. This is probably true of your law firm website if you have one second. Very scary statistic. According to Forbes, um, website accessibility lawsuits are rising exponentially in 2023. Um, there is some subtlety to that. A lot of that increase is in state court filed lawsuits that we're only going to touch on briefly. Um, and we're coming off of a decrease in these website filings that was related to Covid, but still, there doesn't seem to be any doubt that the number of these lawsuits will continue to increase. So if you have clients that are in business and everybody in business has a website, then the likelihood of litigation is going up. Um, finally, we have an aging population. We'll see that most lawsuits are filed by professional plaintiffs, but as the population ages, blindness increases. It will be more important just from a business standpoint, that business websites be accessible. With that, let's turn to the laws that are related to this. We're going to talk mostly about title three of the Ada, but it's useful to look at some of the other related statutes so we know where we're coming from. Um, two other federal statutes of the most interest are section 508 of the Rehabilitation Act and the Air Carrier Access Act. These are interesting because in both cases, there are government regulations defining what it means for a website to be accessible. So these are statutes under which there is no doubt, or at least relatively little doubt about how what you need to do to have an accessible website. Section 508 applies to the federal government and to certain federal contractors. The ACA applies to airlines. Um, but there are, as you can see from this, government regulations that define accessibility. Um, there's also a title one which covers employment. Uh, title one requires that a website be accessible to an employee who needs to use the website. And we're talking about internal websites now, but only to the extent the employee needs for it to be accessible. So there are no regulations under title one, defining accessibility, because it's a matter that has to be considered on an employee by employee basis. Looking at what the website does for their job. Title two of the Ada applies to state and local governments. Um. The title, too, applies to all programs of state and local governments and requires that they be accessible. Doj has recently revived a technical regulatory standard for government for these title two websites to be accessible. It is based on wcaG 2.1 AA, which I'll get back to, but if you're a city or municipality state agency, there is a fixed technical definition of what it means for a website to be accessible. Now we get to title three. Most businesses. It covers public accommodations, and all we really have in title three is questions first. Does title three even cover websites? When the Ada was passed, the internet was not that big a deal. It was barely coming into existence. It is never mentioned in the Ada. If the title three does cover websites, why and to what extent? What does it mean for a website to be accessible? There are no regulations. We have regulations from other government agencies, but we don't have any that definitely apply to title three entities. And what about hotel websites, which turn out to play a particularly important role in one of the most important legal issues we'll talk about in a minute. Um, finally, we should look at state law issues. The Ada specifically permits the states to pass their own accessibility legislation, as long as it is not less restrictive than the Ada. California has a law, the Unruh Act, that definitely covers websites. It has not been used a lot in litigation until recently. So there's a developing area of law in California, and California is the place where the number of website accessibility lawsuits is growing the fastest. Precisely because this state law has a lot of uncertainty, which is a key part of the business model for the lawyers who filed these lawsuits. Um, if your immediate thought is, well, my client's not in California, remember that your client's website is in California. And so you can get sued in California no matter where your client is located. New York state law, the New York human rights statute is also being used for lawsuits against websites based on accessibility. It is not clear that the New York human rights law applies to websites at all. But the case law is minimal. I think maybe two district court level or superior court level decisions and lots of cases are being filed. So those are the state law issues. Um, but I mentioned the key legal issues, and I want to go through those one at a time. Um. I want to emphasize, however, that for most of these issues, we're going to be talking about questions, not answers. First question is a stand alone website. A place of public accommodation? That is, if the website simply exists on the internet to sell goods or to do anything else. For that matter. Is it a place of public accommodation? And that's the question is phrased that way because title three only applies to places of public accommodation. The third, sixth, ninth and 11th circuits have held that a public accommodation must necessarily be a physical place, so a standalone website is not covered by title three of the Ada. In those circuits. And the first, second and Seventh circuits. There are decisions that do not involve the Ada specifically, but hold that in general, a public accommodation can be any kind of business that is open to the public, whether or not it has a physical place of business. So we have a very clear split in the circuits. Case went to the Supreme Court a few years ago, filed by Domino's Pizza. The court declined to grant cert. So we did not get an answer to this question, which remains unanswered. What will the Supreme Court say? My friend Bill Goren, who writes a blog about this subject, says that he thinks the Supreme Court will hold that non-physical places are covered by title three of the Ada. I'm not so sure. South Dakota versus Wayfair is worth reading if you're particularly interested in this situation, but you have to remember that the makeup of the court has changed considerably since South Dakota versus Wayfair was decided. So what you can infer from the direction of the court from that case may be limited. I would encourage you to read more about it. Looking up Bill Gordon's blog on the internet. So we don't know if every website is covered or not. What kind of accessibility is required? As I've said, there's no regulation defining accessibility for websites, at least not in title three contexts. So all we really have is a statutory prohibition on discrimination, which is, as you can see, very broadly worded. The full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations. This definition. Means that answering the question of what does accessible means may depend on how you view the relationship of a website to title three. If every website that's publicly available is a public accommodation, then the website itself is part of the privileges, advantage or accommodations and should in theory, be completely accessible to a person with a disability. On the other hand. If a website is only covered by title three of the Ada because it is a service or facility of a physical place of business, which are possible possibilities, then it only needs to provide equal access to the two similar services, that is, two services similar to those that are available at the physical place of business. There's a decision that has been withdrawn in a case called Gill versus Winn-Dixie, which I think will, however, represent the view in the 11th Circuit. And in that case, the question was whether you had to be able to access a website where you could order refills of prescriptions online. And the court said, no, that website did not have to be accessible because it was equally convenient to order refills in the store or by phone. So the website was a service, but it was only one of three services that provided the same thing beyond Gill versus Winn-Dixie. This is not a well-developed area of law. And what how the courts will come out on websites associated with physical places of business is not very clear now. If the website itself is a public accommodation. Then we still have a question about what accessibility means in particular. Does it mean meaningful access or does it mean technical perfection? Meaningful access is a phrase that comes from article two of the title, two of the Ada, and that's the standard by which government facilities are regulated. That is, they must provide meaningful access. Technical perfection, on the other hand, would look very much like the regulations for physical accessibility. And those regulations are quite detailed, and they basically require that you meet them. If you don't meet them, then your physical facility is by definition not accessible. The technical approach is represented by wcaG, which I mentioned earlier. Wcag 2.1 AA is the most current version of a website accessibility standard that dates back to about the year 2000. It's promulgated by the W3. W3 consortium. W3 consortium is a international consortium of tech companies, academics and other interested parties that promulgates standards for everything related to the internet. The reason your web browser. Works with a web page the same way another web browser works with the same page is because those web pages meet standards set out by the W3C consortium. And the W3 consortium. Um, has for a long time had a technical standard for accessibility. It is a complicated standard. Wcag 2.1 AA has four guiding principles of accessibility. It has 13 broad guidelines for implementing those principles. It has several dozen success criteria by which the implementation is measured. Those are divided into categories A, A, A, and triple A, with A representing necessary for even basic accessibility. Triple A representing absolute state of the art. What's possible with today's technology? Double A is in the middle, and double A is used in almost every context. In addition to these dozens of success criteria, there are several thousand. There may be more than 10,000 technical guidelines and techniques for achieving success under those success criteria. So conforming to wcaG 2.1 AA can be immensely complicated and expensive for websites that do a lot of things and don't have time to talk about what websites are made of these days. But suffice it to say that an e-commerce website does a lot of things, and therefore accessibility under this technical standard is is is a problem. Um. Let's look at the meaningful access standard. The problem with meaningful access is nobody knows exactly what it means. As the case I've cited here, Liberty Resources versus Philadelphia Housing Authority says, to define meaningful access, you first have to know what's the point of the website. Is it selling goods? Is it showing movies? If you're going to talk about what it's access is meaningful. You have to know what you have to have access to. And modern websites, as they've become more complicated, tend to blur the lines about what a website is for. To give you one example, there are numerous e-commerce websites. Their primary business is selling goods, but they will include things like videos, games, and other forms of entertainment as a way of luring users into the website in the first place. Well, at what point do those games or videos become an essential part of the website so that meaningful access means you must be able to do more than buy goods. You must be able to play the game. So meaningful access leaves you with a lot with a lot of questions. The problem with technical perfection is it's expensive or it can be expensive, and many small internet businesses simply can't afford to be technically perfect. It advances are being made in cheaper perfection or cheaper technical compliance. But you're they're expensive and they're also very inflexible from a litigation standpoint. If a blind person says this website violates principles such and such. The technical perfection standard doesn't ask the question, well, does that really matter? Or are you unable to do what you wanted to do? Technical perfection simply says if you fail, you fail. So it leaves no leeway for mistakes. And in web sites, most of which are updated frequently, some of which are updated hundreds of times a day. Mistakes happen, and technical perfection means that no website will ever be accessible under a Technical professions Perfection standard. What's it going to be for title three? No one knows. Doj has used wcaG 2.0, an earlier version of the standard, as its standard for settlements of website accessibility lawsuits. A few courts have said that wcaG 2.0 is the equivalent of accessibility, so if you can prove you meet that standard, you are accessible for title three purposes. Other courts disagree and say that even if you prove wcaG 2.0 compliance, you still have to prove that the rest of your website is accessible or that the accessibility is meaningful. And then there's what I call Diaz versus Diaz. These are two cases brought by a serial filer in New York. Diaz versus Kroger company. The judge filer found that under those specific circumstances of that case, a website was accessible because it met wcaG 2.0. And it solved all the issues that the plaintiffs specifically complained about. The exact same defense failed in Diaz versus Lobel's of New York district. A different district court judge. So from court to court, you can't tell what happens. Now I have a crystal ball. I don't really, but I'm willing to make a prediction. Wcag 2.1 AA is going to be adopted by the Department of Justice as the technical standard and the definition of accessibility under title three. I think this for two reasons. One, DOJ just adopted that standard for title two entities, and two, until the Trump administration, DOJ was on the verge of adopting wcaG 2.0 AA as the technical standard for website accessibility under title three. Those regulations were killed by the Trump administration, but DOJ invested several years in developing them. And it only makes sense that having taken that step, they will simply update the regulation to the more current standard of wcaG two point, now 2.1. So next question who's liable for a website accessibility failure? Under the Ada, the owner is certainly liable. What's an operator? Well, many businesses turn the day to day operation of their websites over to third party vendors, either in whole or in part. But it isn't clear that such third party vendors are a quote operator, as that word is used in the Ada. There has been at least one case. It's a Superior court case in Alameda County County, California, where the court refused to dismiss Ada claims against a website developer because he found that they might be an operator. Is a developer always an operator? That's the question that Judge Seligman said he wasn't prepared to answer on a motion to dismiss. How about franchisors? Many franchise operations have a company based website that has variations for the individual stores. There's an entire body of law about the extent to which franchisors are responsible for franchisee failures to comply with the Ada. But don't think there's any law that goes the other way. That is, is the franchisee liable because the franchisor is website is not accessible. And then what I call plug in plugs. Most modern websites do not do all their own work. Instead, they rely on going out to third party services that provide. Things that the functions that the website doesn't want to provide or the developer doesn't want to provide, because it would be too complicated. This especially includes e-commerce platforms, of which there are a number. So if your e-commerce platform is not accessible, are you as the website owner responsible for that failure of accessibility? That's a largely unanswered question. Typically, settlements of these cases exclude any requirement that the owner of a website fix the plugins because the owner has no control over them. But we haven't had a court answer the question of whether a website owner can be accessible because the website uses one of these services. The next. And probably the most important question concerning website litigation is tester standing. Website accessibility lawsuits are almost all, certainly 99% or more brought by plaintiffs associated with law firms that troll the internet. There are differences of opinion about how these firms work. I believe that a typical firm works by having a person at the firm go through one website after another, using software tools that have been developed to detect WCG non-compliance, and then when they find one that's non-compliant, they have a plaintiff go look at it so the plaintiff can say that they looked at it. It's also equally possible that most of the plaintiffs in these cases simply sit at home going through the websites using the same tools. In any case, it is easy because so many websites will fail these wcaG tests. It is easy to find plaintiffs and easy to file lawsuits. But does the plaintiff have standing to sue under article three of the Constitution? That is, has the plaintiff suffered a concrete injury? That is a hot topic because the testers, although they sometimes allege that they wanted to buy a product, clearly in most cases have no intent to buy a product and in some cases are looking for products that are of no relevance to them at all, or say they are. But there is a body of case law that's developed that suggests that anyone who sees an Ada violation and is disabled has standing to sue. That brings us to the Laffer versus Acheson Hotels case, and it's worth spending a few minutes on. Miss Laffer is a serial plaintiff par excellence. She has sued, I think, more than a thousand hotels or hotel companies because their websites do not have on them certain information about accessibility that's required by DOJ. Now, this is not a question of is the website accessible? It's a question of whether the website has information about the physical accessibility of the hotel. And DOJ's regulations require that hotels have that information available on their websites and also on through reservation services and so forth. So Miss Laffer finds a hotel website that doesn't have the information she sues and most of the cases settled. But a few hotels have fought back and as a result, we developed over the last few years a definite split in the circuits. The Fifth Circuit and the 10th Circuit found that Miss Laffer did not have standing to sue because she never intended to visit the hotels, and therefore the accessibility of the hotel was of no relevance to her, and whether the information was there or not didn't matter. The 11th and other circuits took the opposite position. They said that Miss Laffer had suffered a dignitary injury merely by knowing that the hotel failed to include the accessibility information, even if the information was not relevant to her. This is an ideal kind of case to go to the Supreme Court, because the cases actually have the same plaintiff and exactly the same issues for the split in the circuit. All the cases are named Laffer versus somebody. So the Supreme Court granted cert in Laffer versus Atchison Hotels oral argument was in October of this year. We don't know when the Supreme Court will rule, but if you want to get an idea of how important test for standing is in the world of disability litigation, I will tell you that there were 30 amicus briefs filed or amicus briefs your preference filed, evenly split between business organizations that think testers should not have standing, and disability rights organizations that think testers should have standing. So when you generate 30 amicus briefs, you can be fairly sure it is an important topic for at least some community. Um, we don't know when the Supreme Court will rule. There is um, fortunately or unfortunately, depending on your view of these cases, a strong likelihood that the Supreme Court will decline to rule because since the lawsuit went up on cert, the hotel was sold. So the hotel website doesn't exist anymore. Um, and without a website and therefore the case actually before the court, which is the Atchison Hotel versus Lawford, is really moot. There's nothing left to decide on that case. Um, so the Supreme Court will probably find the case as moot and not issue a ruling if it does issue a ruling. What applies to Ms.. Lawford and her hotel accessibility information cases will carry over directly to the plaintiffs, who just go to one website or another to see if the website is accessible. So we may or may not get a very definitive answer on test or standing. And the right answer, in my opinion, will kill the entire website accessibility business. Because if testers like this do not have standing, we'll be left with the 1% of people who actually want to go to a website and file suit. Um, I've mentioned Mootness. How about it? Um, mootness is an important issue in all title three litigation. Because title three only grants one remedy to the plaintiff, and that is the remedy of injunctive relief. So if the plaintiff says something is broke, whether it's a handicapped parking space or a website, once that thing is fixed, there is no longer any effective relief that the court can grant. And federal courts do not entertain suits in which they cannot grant effective relief. So if the case is moot, it must be dismissed. The Federal Court doesn't have jurisdiction. Mootness is a great defense in cases involving physical access, because it's very clear whether a parking space, for example, has the right dimensions. It's much more difficult in website accessibility cases. First, because we don't know what it means for a website to be accessible. We don't have any regulations that define it. And it's very hard to prove that fixing a website is going to be permanent, because most business and commerce websites are dynamic. They are changed frequently. And of course, every time you change the website, you have the possibility of introducing some failure to meet whatever accessibility standard you're looking at. Kroger V, which I mentioned earlier, seems to be the only case in which a mootness defense succeeded. Except for one other whose name I don't recall where the case was mooted by the company, simply taking down the website entirely and rebuilding a new website from scratch. The plaintiff in that case tried to carry their lawsuit over to the new website, but the court said no, you, the website you sued about, no longer exists. And I have to determine my standing based on the state of things. When you filed the lawsuit. You'll have to file a new lawsuit against the new website. Um, so last two issues aren't really issues, but I still see them come up all the time. Um, the argument that it's a due process violation because there are no regularities. Regulatory standards for accessibility was pretty hot for a while in the early days of this litigation. It's been a complete loser and is no longer worthwhile. Primary jurisdiction also a hot defense until it failed 100% of the time. The theory was that if the courts determined what accessibility means in an individual lawsuit, that will interfere with DOJ's regulatory authority to define what accessibility means. Um, I mentioned these only because there are a group of defense lawyers, um, or there are defense lawyers. I should say they're not necessarily a group who go through the case filings and then send letters out to potential defendants or new defendants extolling the things that they can do to fight back on the defendant's behalf. And those letters still frequently mention these as defenses that they will that will be raised. Um, they're not defenses worth raising. And for reasons that I'll explain in a minute, none of the issues that I've discussed are going to turn out to be highly relevant in the settlement of, in the settlement of title three website accessibility lawsuit. Um. They can be useful in a few specific cases that I'll discuss. But as a general rule, all of these issues, which I find fascinating, are primarily of academic interest. To understand why that's true, we have to go back and take a look at the history of title three litigation. Um, the Ada was passed in the early 90s, and as early as 1996, the Department of Justice wanted Senator Harkin, who was the leading sponsor of the bill, to answer the question, to what extent does the Ada require that internet web pages be accessible? Um, Senator Harkin thought that they should be. But of course, even the lead sponsor of a statute doesn't get to decide what the statute means. That's up to the courts interpreting the words of the statute. Between 1996 and the mid 2000, there were there was no internet accessibility litigation of any kind, but there was some litigation over whether the Ada applied to non-physical businesses. And that's where we got the split in the circuits I mentioned earlier. Um. By 1995, there was a split in the circuits over the application of the title three to non-physical businesses. The most restrictive view, for example, is found in the case versus Stoutenburgh versus NFL that had to do with closed captioning of NFL games. There was a contrary case from the First Circuit called Car Parts Distribution Center versus Automobile Wholesalers Association. But in any case, there was no. Defined answer to these questions, Congress solved the question of closed captioning of TV shows by passing a special act that covers TV shows. Um, but we didn't know what the courts were going to think. In 1998, Congress passed section 508 of the Rehabilitation Act that required federal government facilities to be accessible, including federal government websites. So we got a good view of what Congress kind of thought things might go. But it wasn't until the mid 2000 that we actually had litigation in the Southwest Airlines case. A district court found that Southwest Airlines reservations website did not have to be accessible, because you could make reservations other ways. On the other hand, in the target case, which was decided by a district court in California, the court explained in some detail all the ways why a website associated with a physical business would be covered by the accessibility requirements of the Ada. So we have opposite results, although in a restricted kind of way. But we finally got the battle lines very firmly drawn in what I call Netflix versus Netflix. In Cullen versus Netflix, The Ninth Circuit held that the Ada title three does not cover internet only businesses. If you can't find a physical store that's open to the public, the website is simply not covered. On the other hand, in National Association of the deaf versus Netflix, a district court in Massachusetts found the exact opposite. So. Websites. Independent websites are or are not covered. But that was 2012 and not much happened for the next three years. Then in 2015, we started what I would call the modern era of website litigation. A law firm in Pennsylvania, Carlson's then named Carlson, launched Sweden Capella, which had been filing the physical access cases, and it then filed some title three cases based on regulations for ATM accessibility. Took the model for those kind of multiple cases with single plaintiffs and applied it to websites. They sent out, I believe, several hundred demand letters, and they filed a ton of lawsuits in the Western District of Pennsylvania, all alleging that websites were not accessible to those with disabilities. Those cases settled one after the other, as businesses realized that they didn't know what it meant to have an accessible website and litigating the issue would be very expensive. But although other lawyers and other law firms have since gotten into the same business, which has spread from the Western District of Pennsylvania to Florida, New York and California, primarily other states as well. But regardless of who files the lawsuit or where it is, just another kind of serial litigation don't mean Captain Crunch litigation, but one after the other litigation. The litigation appears to be controlled by the lawyers rather than the plaintiffs. The goal is a settlement at a profit to the lawyer, because what the settlement will call for is primarily attorney's fees. The cost of settlement is likely below the cost of even a basic defense. These cases are filed with the intent that they will be settled quickly with minimal work by the plaintiff. And so they are priced to sell, and they, 100% of the time require that the website be remediated to a standard. I call that a fig leaf, because my experience is that the settlement provisions requiring remediation are watered down to the point that they are toothless and cannot really effectively be enforced. So the cases are about money for the lawyers who filed them with a nod toward accessibility, but no more than a nod. With that background, let's talk about defending and settling these cases. The case is almost always settled. Very few go to trial. Even fewer get up to the Court of appeals. That's why it has taken so long to find out. And we still don't know whether standalone websites are covered by the Ada. Today, the range of settlements is much lower than it was when the lawsuits were first filed. And and nobody knew what was happening. But before we get into the details of settlement, let's talk about defending the cases and what your choices are. Fans of J.R.R. Tolkien and the movies based on his books will recognize the scene of the three trolls arguing over the best way to cook a hobbit. From the hobbits viewpoint, of course, the choices are all equally unattractive, and that's really the choices that a defendant faces when sued for website accessibility. You can adopt the no surrender, no retreat fight to the death. You can default, which is always an option. You can make a deal and then you can fight if you have to fight. Um, my experience has been that you never have to fight. You can always get a settlement that is cheaper than a reasonable cost of defense. But let's look at them. No surrender, no retreat. Advantage makes the lawyers rich. Um. Disadvantage. The website still has to be remediated because it's going to be a target for future lawsuits if it's not. So you if you win a case, don't know a case where that's happened. But if you were to actually win a lawsuit at trial on website accessibility and got a determination that you never had to remediate your website, you would still have to remediate it because a different judge and a different circuit might disagree. And of course, if you litigate one of these cases as far as it can go and the plaintiff is receives the statutorily required award of attorney's fees, then you're going to spend even more money. You're going to double your money on attorneys. And for those of you unfamiliar with civil civil rights litigation, although the statute says that the prevailing party can recover attorney's fees, plaintiffs recover attorney's fees if they win. Defendants only recover attorney's fees if they can prove the lawsuit was brought in bad faith. So in most cases, even a defense win means you're still out your own attorney's fees. When does it make sense to fight? Well, it may make sense if you have the right judge. There are specific judges in the Second Circuit, for example, in New York, that have decided that an internet only website is not covered by title three. If you have an internet only website and you're assigned to one of those judges in New York, you've got a very good defense. But you have to look at the individual judge, because the Second Circuit hasn't weighed in on this yet. No personal jurisdiction can be a good defense. If your client's website doesn't do any business in the forum state. Then you have a reasonable international shoe violation of due process defense to long arm jurisdiction, and that's a reasonably good way to get out early. If you can prove that the website is, in fact accessible, well, then you might be able to get out early. That's what happened in Kroeger versus Diaz or Diaz versus Kroeger, rather, um, although I strongly suspect that the defendant in that case spent more on legal fees than it would have cost them to settle the case. And finally, mootness, that is you've the website was broken, but you fixed it. Also a possible defense. But ordinarily, the cost of the expert testimony and analysis necessary to prove that the website is accessible because it conforms to wcaG 2.1 AA and it meets every complaint that the plaintiff has advanced is going to cost more than a settlement. So yeah, it really only makes sense to fight if you happen to know that the judge you're in front of. Um, dislike um either. Doesn't think that the Ada applies to your client's website or dislikes testers. There are few judges who clearly dislike testers don't believe they have standing. If you get one of those judges, you're in luck. If you don't, you're not in luck. You can default. The advantage of defaulting is it's very cheap from the upfront cost standpoint. The disadvantage is you will probably be ordered by the court to remediate your website, and instead of a toothless settlement agreement, you will have a very toothy possibility of being held in contempt. And a court who doesn't understand the complexity of website remediation may order you to do it in 30 days. So, um, you lose control of the remediation process because you have a hard deadline set by a district judge who doesn't like to be disobeyed. Um, default has been a good strategy in physical accessibility cases where it was cheap to fix the problem, usually parking. Um, and so the defendant could simply default, fix the parking, and know that they weren't going to be held in contempt in website cases. It's almost always going to be too risky. You can make a rule 68 offer of judgment. This has also been effective in physical access cases, because you can make an offer that the plaintiff can't beat at trial. If you know what's wrong with your place of business, it's almost impossible to do this effectively in a website case, because once again, what you have to promise to do is make the website accessible and nobody knows what it means to make the website accessible until we get some DOJ regulations. So it's a possibility. I often use it as a negotiation tool because I think it creates a little leverage, but it's not going to stop a plaintiff from pursuing their case. Or you make a deal. Now, to make a deal, it's important to understand who the people are that you're making a deal with. So no, your opponent is first in the website accessibility litigation business. There are what I think of as four tiers of lawyers. There are law firms that are a serious threat. Uh, these are law firms that have filed suits and have pursued suits, sometimes through trial. They clearly have the wherewithal to hire the experts. They need to prove that a website is not accessible and the wherewithal to prosecute the case through trial, if they have to. So the serious threat law firms clearly demand the highest settlements because you can't ignore them. There's a second tier of firms that are willing to litigate if it's absolutely necessary, but they would rather settle and they will take less money than the serious threat law firms to settle. Uh, third tier or bottom feeders? These people don't typically file lawsuits. They send out demand letters. In a few cases, they have a demonstrated record of never filing lawsuits. Um, so when you get those and they and they want to settle, well, they want a lot of money to settle, but they'll settle for $500 or $1000 if pushed. Um, and in some cases with the bottom feeders, you can simply ignore them. But you have to know when your client gets a demand letter, whether you're talking to a bottom feeder or a serious threat. And then finally, the fourth tier is only recently appeared, and it is one lawyer in California who is filing, uh, Ada website accessibility lawsuits in small claims court in California under California's Unruh Act. I assume he's hoping to get default judgments and an award of fees that he can then enforce somehow. Um, and he's avoiding the superior courts because it would take more work and higher filing fees. But in any case, there is this possibility of a small claims court lawsuit in California. Um, I've only seen a few files, so maybe he's not the greatest threat in the world. But you have to be aware that him, or maybe others like him are out there. So, you know, you have to know what kind of lawyer you're dealing with to decide what you're willing to pay to settle the case. Um, you have to think about whether you want a consent degree or a confidential settlement, a properly drafted consent decree. And it does have to be properly drafted. It requires a lot of care, but it can make it impossible for other plaintiffs to sue you. So in theory, using a consent decree to settle your case will cut off future lawsuits by other disgruntled or by other testers more likely. Now, the disadvantage, of course, is the consent decree is a public document. Um, and it's likely to have more burdensome provisions with respect to remediation than a private settlement, because, of course, the plaintiffs law firm is, in its own mind at least, doing the disability rights community a favor, um, or supporting the rights of the disability rights community, and therefore, it will want its public agreements, like consent decrees, to be much stronger and more enforceable than a private settlement might be. You need to clearly define the standard of performance and any settlement. Is it going to be wcaG 2.1 AA, or are they going to be any exceptions? How are you going to deal with the problems that come up when 2.2.1 actually has subjective elements, which it does. It's it's meant to be a purely technical standard of accessibility, but some of the standards are subjective. What are you going to agree to in terms of having the plaintiff inspect your website? The answer is you're not going to agree to it, but you are going to agree to notice and an opportunity to cure. Um. And then what can you do about future lawsuits? Many of my clients want a settlement in which the lawyer on the other side agrees not to sue them. Unfortunately, the ethics rules in every state prohibit lawyers from agreeing in advance not to take a case for a different client. So you aren't going to get that deal, even though clients frequently want it because they see it as the way to avoid future litigation. In fact, the protection for our clients is the business model. The plaintiffs firms in this area know that if they sue you for one plaintiff and sue you again for a second plaintiff the second time around, you are not going to settle with them on a quick and cheap basis. And their profit model is that they invest minimal time, file a lawsuit, get a settlement that may be ten times 15 times 20 times an hourly rate. So they make a huge profit on a small amount of work. Why would they want to sue somebody that's just going to be angry and fight back when they can go find a website that they haven't sued before and make a quick deal for good money. So it's been an hour. I'll take just a minute to review what we've learned or what I hope you've learned. First, we've got a definition of accessibility. This is my definition, but I think it is a good one. A website is accessible if it interacts correctly with assistive technology to give disabled users access to the content of the website. We don't know what exactly the content is, and there's some questions about what do you do when assistive technology keeps changing? But at least we understand that a website is accessible if somebody can use it. It has a disability. And I've shown you an example of how that can fail. Um, we've learned that for most businesses, the relevant federal law is title three of the Americans with Disabilities Act. There may be a possibility of coverage under California's Unruh Act as well. But if you focus on title three, you will be where most of these lawsuits were filed. We've learned that the key legal issues are whether title three applies to standalone websites. What does accessibility mean in legal terms? Who besides the website owner, may be liable for their testers have standing to sue, and how and whether a business can moot a website accessibility claim. So those are the main issues. The answers to all of them is standalone websites. We know depending on the circuit. Excessively. In legal terms, we don't know. Who may be liable besides the owner? Not sure. Do testers have standing to sue? The Supreme Court may be on the verge of answering that question, but in the Fifth and 10th Circuits they don't. And in the 11th and Second and Third Circuits, they do. And how can you move a website remediation lawsuit? Lawsuit? Nobody really knows any certain way to do that. We've talked about the fact that website accessibility lawsuits are a kind of serial litigation, and that means they follow the serial litigation model, which is they are priced to settle at the cost or a little below the cost of any reasonable defense. And because of that, the best way out is almost always settlement. Uh, the last thing is, I've now told you about all the issues that aren't resolved. I am here to help you. Notice the parenthetical for a fee. I do like to talk about these issues from time to time, so I'm happy to chat with any lawyer who has a case, but won't chat a long time before I ask for some money. Um, one last item. This is totally my fault. The address on this slide is completely wrong. It reflects an address that I had before Covid. Um, but Hunt Huey dot com and access defense dot com are perfectly good, um, website addresses. And if you go to either one, you'll be able to track me down in person. I want to thank anyone who's on live for your attention. I also want to thank those of you who watch this as a recording for your attention. Um, I think this is a fascinating area of law. It's got a lot of unanswered questions, which means it will probably continue to be fascinating for some time. And thank you very much.

Presenter(s)

RH
Richard Hunt
Shareholder
Hunt Huey PLLC

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