Everyone at Converge Accessibility hopes you and your family are having a safe and wonderful Fourth of July! So why am I not having a beer and tofu hot dog right now? Well, even though I just posted my monthly legal update blog yesterday, there is some late-breaking news that is important to companies and web developers that I needed to share: California has made AB 1757 even stronger in some significant ways. This change may have a big impact on companies and web developers and may further expose them to liability.
At the end of May, I may have inadvertently kicked the hornet's nest when I described California's recently introduced Assembly Bill 950. This bill, which was introduced back in February, started out innocently enough by trying to clarify when businesses in California could be sued under Unruh. In the next few months, however, it metastasized to make just about any business (and their web developers) potentially liable.
Since then, I blogged again about AB 950 (now identified as Assembly Bill 1757 as it made its way to the California's Senate) because the newly amended version of the bill was expanded to make it clear that web developers could be sued for their inaccessible creations. This kicked off some activity in the defense bar. Two days after my post, Seyfarth Shaw warned about dire predicaments and a potential tsunami of web accessibility lawsuits. Then a few days later, Richard Hunt blogged about the impact of the bill on interstate Commerce and how AB 1757 likely violates the Dormant Commerce Clause. While I share the concerns of my colleagues, I don't reach the same level of concern that they express. First, while California has always been the hotbed for built environment accessibility litigation, New York is the most favored venue for web accessibility lawsuits. I don't see this changing in the near future because the Southern District has dropped the nexus requirement in web accessibility lawsuits. Second, while AB 1757 will affect interstate commerce, the Supreme Court's decision just last month in National Pork Producers Council v. Ross, 143 S. Ct. 1142 (U.S. May 11, 2023), explained that, while "many (maybe most) state laws have the practical effect of controlling extraterritorial behavior," id., at 1155, holding a state law unconstitutional under the Dormant Commerce Clause required plaintiffs to prove that a state law put out-of-state company at a competitive disadvantage compared to in-state companies. Id. California's AB 1757, however, creates equal burdens for both in-state and out-of-companies.
What's the Latest Change in AB 1757?
I still maintain that the biggest impact of AB 1757 is on web developers and not companies operating web sites. This is because web developers are almost impossible to reach under the ADA-- even though they are largely responsible for the websites that get their clients into trouble. The latest amendment (dated July 3, 2023) to AB 1757 takes this potential liability to another level by introducing two subtle but very important changes.
First, the new amendment makes it impossible for web developers to just plead ignorance. Before the July 3 amendment, web developers or other "resource service provider" could only be sued for knowingly or intentionally building a website for hire that was inaccessible or falsely representing that a site was accessible. That's a really high standard. In effect, a plaintiff would have to show that the web developer either knew that the website was inaccessible or built it with the intent that it would be inaccessible. The July 3 amendment reduces this threshold to also include negligently engaging in the same conduct. While that may just seem like legal gobbledygook to most people, it makes all the difference to attorneys. Negligence basically means failing to do what a reasonable person would do. Unless they have been hiding under a rock for the last ten years, web developers have definitely heard about companies getting sued everyday for their inaccessible websites. It isn't hard for the plaintiff's attorney to prove that a reasonable web developer would take active steps to ensure that their website was accessible. And if they said that it was accessible, web developers had better make sure that they know what that means and actually tested to ensure it fully met the accessibility requirements.
A second subtle change to the bill comes in the waiver of liability provision. Before the July 3 amendment, the bill stated,
A provision within a contract between a person or entity and a resource service provider that seeks to waive liability under this section is subject to subdivision (c) of Section 51.7.
Section 51.7 of California's Civil Code (also known as the Ralph Act) is a fairly complicated provision that holds certain waivers of liability void because they violate California's public policy. The new July 3 amendment is much broader and explicit,
A provision within a contract between a person or entity and a resource service provider that seeks to waive liability under this section, or otherwise shift the liability to a person or entity that pays, compensates, or contracts with the resource service provider, as described under paragraph (2) of subdivision (b), is void as a matter of public policy and subject to subdivision (c) of Section 51.7.
This provision web means developers (or any "resource service provider") can't shift any portion of their liability to the company that hired them. And remember that "resource service provider" here means "a person or entity that, in exchange for money or any other form of remuneration, constructs, licenses, distributes, or maintains for online use any internet website or resource to be used within or in conjunction with an internet website."
Why This All Matters
These changes may have a big impact on website owners but obviously an enormous impact on web developers or any company that makes products or tools to be used on a website. If AB 1757 passes, it will open up web developers and companies that make such products or tools to liability for the first time. And, with yesterday's July 3 amendment, it will be a lot easier to sue them and a lot harder for them to avoid liability in their contracts.
All of this may be a moot discussion if AB 1757 doesn't become a law. I'm sure that there are a lot of web developers and website owners who are hoping for its demise. Like it or not, however, AB 1757 looks like it will eventually make it to the governor's desk for signature. While anything can happen in the coming months, my spies suggest that the bill has good support, both from industry and the disability community. And, based on what I mentioned before about the Supreme Court's decision in National Pork Producers Council, it looks like it will be very hard to challenge once it becomes law in California. This is very big new to anyone with customers in California.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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