Overview

Our Financial Institutions Group has issued several client alerts regarding actual or threatened website accessibility litigation — specifically, claims that a targeted entity’s public-facing website is not reasonably accessible to disabled persons and therefore violates the federal Americans with Disabilities Act (“ADA”) or a similar state anti-discrimination law. Links to our previous alerts are available here:

Pro-Plaintiff Court Decisions Increase Website Accessibility Litigation Risk

The risks associated with actual and threatened website accessibility litigation are increasing, largely because of a long string of decisions in recent years favoring plaintiffs. Among the most significant of those rulings is the recent appellate court decision in Robles v. Domino’s Pizza, LLC, 2019 WL 190134, No. 17-55504 (9th Cir (Cal.). Jan. 15, 2019). In that case, the appellate court reversed the district court’s determination that no cause of action could be maintained unless and until the U.S. Department of Justice issues a website accessibility standard to guide covered entities’ in their efforts to comply with the ADA. The appellate court ruled that Constitutional due process (fair notice) does not require the issuance of specific guidelines for compliance. According to the appellate court, the ADA’s mandate that disabled persons not be denied full and equal enjoyment of any covered entity’s goods and services is sufficient notice for due process purposes.

Pro-plaintiff rulings outside the Ninth Circuit had already prompted a flood of ADA website accessibility lawsuits around the country, and especially in New York and Florida. More than 2,200 ADA website accessibility lawsuits were filed in federal courts around the country in 2018, and we expect that number to increase significantly in 2019. Because of the Robles district court decision, California had been a relatively quiet venue for such claims. But in the wake of the Robles appellate court decision, we anticipate an explosion of ADA website accessibility lawsuits in California.

Risk Mitigation Action Items

To reduce your institution’s risk of being targeted and its potential exposure if an action is filed, we recommend the following:

  • Immediately audit your website (engaging a qualified outside vendor if necessary) to identify any “access barriers” based on the WCAG 2.0 (Web Content Advisory Guidelines) standard.
  • Immediately address any significant WCAG-based access barriers.
  • Adopt procedures to ensure WCAG-based access barriers are corrected on a going-forward basis.
  • Do not wait until you receive a demand letter to take corrective action. Plaintiffs will not always send a demand letter before filing a lawsuit.
  • Engage qualified outside counsel to help with these efforts.

If your institution has already entered into a settlement agreement relating to website accessibility claims, please note that the settlement agreement can only help insulate your institution from copycat lawsuits if (1) the settlement agreement requires your institution to upgrade its website to substantially comply with the ADA, and (2) your institution actually meets its compliance obligations under the agreement.

We Can Help You

Our Financial Institutions Group has extensive experience counseling our banking clients on ADA website accessibility compliance issues, including risk identification and mitigation, as well as defending our banking clients against actual and threatened ADA website accessibility claims. Please call us if you have any questions or we can otherwise be of assistance. In the meantime, if your institution hasn’t already done so, we encourage you to consider the risk mitigation action items listed above.

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