This is a blog post I’ve been meaning to put together for a long time. At Converge Accessibility, we get contacted by a lot of attorneys (mostly defense but sometimes a plaintiff attorney here and there) and it’s amazing to see the costly rookie mistakes that they are making. If you’re new to this area, I’d suggest you start here. This post includes my quick thoughts on a Sunday afternoon but I hope to return to this post with other thoughts as time goes on.
Hire an Attorney
The first piece of advice is hire an attorney.
If you're not an attorney and you're getting sued, hire an attorney.
If you are an attorney and you're getting sued, hire an attorney.
If you're thinking about suing someone, hire an attorney.
Otherwise, this column is written for attorneys who are either bringing a web accessibility case or defending one. Web accessibility litigation isn't a glamorous area of law and it isn't very complicated, but it does have special nuances that you need to be aware of.
In almost every web accessibility case, it’s important to settle quickly. This goes for both plaintiffs and defendants.
From the plaintiff’s perspective, extending out a case only drives up your costs. The ADA doesn’t offer damages and even California only gives you $4,000 per claim under Unruh, This means that the only cases that get big damages are successful Unruh claims back up by a nationwide advocacy group (cough.. NFB… cough) that can quickly identify a large class. That’s rare so it almost always pays to settle quickly.
For defendants, settling quickly also makes sense. The majority of web accessibility cases are nuisance cases brought by serial plaintiffs so they should settle at a pretty low value. This means that your client is likely to get sued again. Also, in just about every case I’ve ever seen, there is always something wrong with the site and this means that if you did proceed to trial, you’re probably going to lose anyways. Better to save your client a bunch of money so they can put their money to fixing their website and avoiding trouble later.
How much should you settle for? Attorneys will differ on this point—some say they never settle for more than $5,000 while some plaintiffs say they never settle for less than $15,000. I wouldn’t let egos get in the way here because the difference ($10,000) isn’t that large and will get eaten up in fees pretty quickly if you don’t settle. I think a rough gauge is to look to what courts award in default judgments. If you’re a defendant and offer the plaintiff close to what they’d get in a default judgment anyways, that’s saving you both a lot of time and giving a win-win for both sides.
Exception 1: Structured Settlement
There are a few exceptions to this rule. The first is for larger companies that get hit regularly by web accessibility complaints (e.g. several times a year) and that are thinking about a web accessibility program anyway. If you’re confronting a lawsuit by a plaintiff attorney who seems more reputable or who has the backing of a large disability rights group, then you may want to use the settlement to gain some protection against other lawsuits while you’re fixing your website.
Don’t Count on Mootness
It’s amazing how many defense attorneys think that they can just fix a website and then move to have the case dismissed on mootness. As I’ve blogged about before, mootness rarely works unless a defendant can show that the problem has been fixed and is not likely to recur. In traditional built environment ADA cases, that’s easy to do. For instance, if the complaint was about the lack of a ramp to the front door, the complaint could get mooted by simply installing a ramp that complies with the ADA Standards for Accessible Design. Then, unless a hurricane comes along and destroys the ramp, the lack of a ramp isn’t likely to recur.
Websites, however, are completely different. First, the standards are not clear in web accessibility. While neither Congress nor the DOJ has identified clear standards for web accessibility in law or regulations, it’s pretty clear that the W3C’s Web Content Accessibility Guidelines (WCAG). But WCAG is also clear as mud to most web developers and is very dependent on context. Even the most basic web accessibility requirement-- WCAG 1.1.1, which requires alternative text for images—is violated if the text doesn’t convey the purpose of that image. By contrast, built environment standards require a ramp slope of no greater than 1:12. Second, just as you can never step into the same river twice, websites change constantly and fixing a website is no guarantee that the website won’t be made inaccessible tomorrow when your client posts a new update.
Rein in Your Consultants
Unlike a lot of consultants, Converge Accessibility is obsessed about privilege and discovery. If someone hires us to perform a website audit, the LAST thing we want is for our report to end up strengthening a plaintiff’s case. But that’s exactly what can happen if attorneys don’t take privilege seriously. Thus, we always prefer to work directly with defense counsel in such cases and to have our audit reports go to defense counsel first.
I’ve mentioned before that you should always try to settle cases quickly. This almost means settling them inexpensively. But with a competent audit costing anywhere between $10,000 and $25,000 for a decent-sized website, what’s the best way to work with a consultant?
My suggestion here is to divide up your project into two parts—one to help with the litigation and the other to conduct the full audit of the website. These can be done by the same consultant if the full audit is conducted after settling the case. Otherwise, you should use two separate consultants with a Chinese Wall separating them.
- Consultant To Assist With Litigation. This consultant should just look over the allegations in the complaint and advise you if they are valid. This consultant should look at nothing else because, if you couldn’t settle quickly and this consultant becomes your expert witness, the first thing they will be asked during a deposition is whether they saw any other violations during their review of your website. This limited review shouldn’t cost more than $1,000—typically around $500-$900 (obviously dependent on the complaint).
- Consultant to Audit Website. Ideally this full audit shouldn’t take place until after you’ve settled your lawsuit. This is the audit that you will need to shield from discovery so, ideally, it should be done at the direction of counsel.
Because auditing a website is much more labor-intensive than just validating a complaint, we obviously prefer working on the second type of project and then refer the litigation assistance to another firm if the client needs to have both tasks performed at the same time. We also do a lot of work reviewing complaints for defense attorneys and sometimes the client asks for a full audit later and sometimes they don’t.
Don’t Expect Indemnification – Contract Better the Next Time
If you’re a defense attorney, your client may be wondering why they have to pay for the mistakes of their web accessibility developer. After all, isn’t that what an indemnification clause is for?
As we’ve blogged about before, indemnification clauses tend to not work with civil rights cases. The reason is that the duty to not discriminate against people with disabilities lies squarely with the place of public accommodation and can’t be shifted onto someone else. But, as we’ve also noted, the rule seems to be different with contribution clauses.
Your client is most likely going to hire a web developer to fix their website after they have been sued. And that new contract will give you plenty of opportunity to change that indemnification clause to a contribution clause.
Note that this area of the law is shifting in California. If the reincarnation of AB 1757 passes next session, web developers will be able to sued directly for creating inaccessible websites.
Understand the Nuances of Your Jurisdiction
Courts around the country are different when it comes to web accessibility. Some permit lawsuits against purely online companies and others do not. Some take hard line on serial plaintiffs while others do not. Here’s some of my observations at a more local level.
- Southern District of New York. Of the three common places for web accessibility lawsuits (California, New York, and Florida), only the SDNY permits ADA lawsuits against online-only companies. But the court here takes a strong line against serial plaintiffs after the Second Circuit Calcano decision. At the same time, I’ve noticed that different judges treat Calcano differently, so be sure to look up the judge handling the case.
- Nexus Jurisdictions. In California, Florida, and (depending on the judge) Eastern District of New York, courts do not permit lawsuits against online-only companies. Instead they require a connection or “nexus” between the website and a physical bricks-and-mortar place of public accommodation. While the nexus requirement makes sense on an academic level, it fails in application because courts have been all over the map in defining what constitutes a nexus. The most stringent articulation of what constitutes a nexus appears to be a feature of the website that prevents access to the physical place of public accommodation. I’m beginning a see a clearer picture recently, however. Notably if the inaccessible feature in the complaint also happens to be the feature that creates the nexus, plaintiffs will have a much stronger complaint. For instance, if a plaintiff can’t order gift cards to redeem at a physical store or can’t order items for pickup at a physical store, that would go a long way to establishing a nexus. But if the complaint is limited to an inability to watch uncaptioned videos that may or may not lead that person to seek out the goods and services of a company, they will have a much harder time articulating a nexus.
- California State Court. This is becoming an increasing popular venue for both ADA and Unruh web accessibility complaints. If you find yourself here, remember that defendants usually move to have ADA claims removed to federal court. On the other hand, if you don’t rely on an underlying ADA violation and rely only on an Unruh claim, the court will likely require the plaintiff to prove intention discrimination.
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.
Want to See More Content Like This?
Want the latest blog posts, videos, white papers, and announcements? Sign up for our mailing list and stay in the loop!
We're Here to Help When You're Ready
Take a deep breath. Then feel free to reach out to our team when you're ready to discuss your accessibility needs.