Here we go…still!
Last week I posted about The "ABC" of Accessibility Services. The gist of that post was to highlight that, with the increase in awareness around creating and maintaining accessible digital content and the number of newcomers now offering accessibility services, we should be sure to Always Be Cautious.
Shortly after that post, my colleague, Ken Nakata, texted me a link to a Digital Journal article titled "265,000 Website Accessibility Demand Letters Drives New Program from Accessus.ai". This article was published on October 19, 2021, but it is the first time we have seen it.
The Digital Journal article says that Accessus.ai provides their clients "100% WCAG compliance in less than 48 hours" as part of their Accessibility Litigation Support Suite. Right away this triggered a red flag for me because anyone who is familiar with WCAG and website accessibility will know that 100% compliance rarely ever happens unless the site is super basic and static.
Based on my advice from last week’s post, I wanted to look at the Accessus.ai website to see if they have made the effort to ensure their website is compliant with WCAG. Let’s look together!
Wow! That video walkthrough of the Accessus.ai demonstrates how their own website is tragically inaccessible and non-compliant with WCAG in so many ways. And we did not even dig that deep. It was also interesting to discover that Accessus.ai appears to just be an attempt of AccessiBe to present themselves as a different solution provider that is targeting those who are facing an accessibility demand letter or lawsuit! Now I do not know for sure that Accessus.ai is owned by AccessiBe in anyway, but it is obvious they are using the AccessiBe plugin as part of their service offering. As the title of this blog post states, “this is getting doggone ridiculous!”
265,000 Demand Letters or Fear Mongering?
Another aspect of the article in the Digital Journal that raised a red flag was the fear mongering approach taken to market their product. This was the original reason Ken texted me the article, the first part of the title of that article seems a bit extreme, “265,000 Website Accessibility Demand Letters…”. Why do I say that?
This year, Jason Taylor from UsableNet analyzed the number of web accessibility lawsuits by mid-2021 and extrapolated that there will be just around 4,200 lawsuits filed in Federal Court this year over web accessibility. Accessus.ai claims “recent industry estimates” indicate that there are 265,000 demand letters annually. That’s over sixty-three times as many demand letters! Now granted there will always be far more demand letters than lawsuits (the latter actually cost money to file and serve), but that number seems a bit inflated.
The reality is, unless we talk to every plaintiff attorney or every business in this country, we’ll never know the true number of demand letters. It would have been nice if the article provided a link to the “recent industry estimates” that Accessui.ai is referring. This way we could see how they came up with that number. This “estimate” is questionable because there are only about 1.8 million online retailers in the United States and my guess (and it’s only a guess) is that the vast majority of these are individual micro-sites on services like Etsy, Shopify, etc. To claim that more than one-sixth of these sites nationwide are being hit by demand letters each year seems a bit absurd. 265,000 demand letters is a bold claim to make—and certainly not the kind of assertion that I would push as a headline without a reference to back it up.
In the same article, CEO and General Counsel Gerard Wittstaft goes on to claim that the “average financial settlement for an ADA accessibility demand letter is $25,000 and includes attorney’s fees on both sides along with the compliance remediation to satisfy the demand for injunctive relief.” In our opinion, this claim seems a little larger than it should be. Why do we say that?
At Converge Accessibility, we offer litigation services to help defend against these professional plaintiff legal complaints and our experience has been a bit different. The clients we have worked with rarely pay more than $10,000 to $15,000 in settlements—and often less than that. Even our multinational brand clients (who obviously have a ton of exposure and very very deep pockets) rarely pay more than that. If a plaintiff attorney could just send out 100 random demand letters and pocket $2.5 million in settlements, then clearly the entire bar is in the wrong line of business. If your attorney is even momentarily contemplating paying over $15,000 to settle a web accessibility demand letter, they should contact us or read resources such as our Expert Witness in Web Accessibility Cases blog series. The likely reality is that Acceessus.ai’s claim that web accessibility demand letters are “typically” settled for $25,000 is just another figure pulled out of thin air to support their fearmongering marketing effort.
Yes, there are too many demand letters and American businesses are often facing extortion by professional plaintiffs. But let’s keep things in perspective; for most companies, web accessibility litigation is not going to be the main factor driving them out of business. Instead, these lawsuits are just an incredibly aggravating annoyance.
As we can see from the video walkthrough of Accessus.ai’s own website, the solution they are pushing does not make their site 100% complaint. In fact, the AI used to attached alternate text to the images alone shows that AI doesn’t always get it right. In this case, it likely just causes more confusion to those who are relying on accurate alt text for those images.
What is the Alternative?
The reality is that there is no quick fix add on that will make your site 100% compliant with WCAG. Just like most everything else, you have put in the work to achieve an accessible experience with your online content. It should not be approached as an afterthought. Yes, WCAG can be confusing, but it doesn’t have to be. And it doesn’t have to be a chore. Creating accessible web content requires a structured, comprehensive, and clear approach for all involved. While WCAG itself doesn’t provide that in an of itself, our conformance resource, WebAlign, does just that!
If you are ready to incorporate accessibility into your web content development lifecycle, please give us a chance to introduce you to WebAlign. The one-of-a-kind accessibility compliance resource on the market today that is flexible enough to fit into your process with minimal effort.
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