The recent wave of ADA class actions submitted by serial plaintiff attorneys to enforce the WCAG 2.0 standard showed initial signs of abating due in part to the successful efforts from a number of banker associations and state attorneys general. One state bankers association successfully reached an agreement with a disability rights group to release member banks from ADA claims related to electronic banking services. In Nevada, the attorney general is intervening on a number of ADA lawsuits filed in the state by asking the judge to set aside and dismiss the cases. Other state banker associations and AGs are following suit to help mitigate frivolous lawsuits.
The SBA and AG interventions largely rely on the state barratry laws which prohibit frivolous lawsuits. Business advocates argue the lawsuits are formulaic, follow the same template, and designed to harass and intimidate defendants. In a nutshell, they argue these lawsuits are nothing more than a shakedown to extract attorney fees.
These shakedowns often work, as we saw back in 2012 with the ATM lawsuits, where many banks paid the ransom rather than fight a court battle. While fighting is an option, it is expensive and doesn’t always work. A recent case in the Southern District of Florid, Gil v. Winn-Dixie stores, inc., is one such example.
The plaintiff claimed that Winn-Dixie, a chain of grocery stores, did not have an ADA accessible website. In particular, the plaintiff alleged the JAWS and NVDA software programs (the two most common software programs used by disabled persons) used by the plaintiff did not function with Winn-Dixie’s website and therefore inaccessible to disabled persons. The case hinged on two issues: 1) whether a website is a “place of public accommodation” and therefore subject to the ADA and 2) if applicable, what standards apply to the website.
The 11th Circuit, the jurisdiction of the Florida District Court, has yet to decided on the first issue of whether the ADA applies to websites. Other circuits are split on this issue. Generally, however, courts consider websites subject to the ADA when there are goods or services available through that company’s website and the company has a brick and mortar storefront. The Florida court found that since the website served as an entry point for its physical stores that the ADA would apply.
More than just an entry point, a companies online presence is often more important than their physical location to the point where if you are not online, you may as well not exist to a large portion of the population. This point is what the court seems to key in on, that the physical and virtual space a company occupies is indistinguishable from each other.
The second issue is a bit more nuanced, but in the end, the court falls short of ruling that the WCAG 2.0 is the definitive standard or provides any specific ruling on what the standards should be. The terms of the ruling, however, do compel Winn-Dixie to comply with the WCAG 2.0 standards for their website. The unpublished decision is not binding to any company outside the Southern District of Florida, but it does provide some persuasive authority for other lawsuits that may spring up in different states.
The Central District of California chimed in on the subject not long after the Florida decision. The plaintiff in the California case sued Hobby Lobby for lack of website accessibility using the JAWS software program. Hobby Lobby moved to dismiss the case based on the fact that no standard had yet been set in regards to website accessibility. The court rejected the motion to dismiss and allowed the case to move forward. The court argued that the lack of definitive standards does not exempt Hobby Lobby from complying with the ADA.
One point that both the Florida and California court noted was the relative ease and low cost of complying with the WCAG 2.0 standards. The plaintiff in the Winn case argued, to which the court agreed, that the cost of compliance with the WCAG 2.0 standard was a drop in the bucket compared to the overall budget spent on the website. The plaintiff argued that the website could easily be upgraded for under $40,000, compared to the $7 million they recently spent on upgrading the cite without giving any thought to accessibility. The California court also pointed out the relatively low cost of compliance.
The Department of Justice did not do us any favors by failing to address ADA website standards in their upcoming regulatory agenda. The DOJ had previously indicated that guidance would be forthcoming in 2018. It doesn’t appear to be the case anymore. The proposed rule issued back in 2010 (75 FR 43460) remains just that – proposed.
While normally banks would applaud restraint from agencies issuing any more guidance, this is an area for which banks, and other companies would actually benefit from some clarity. Uncertainty will continue along with lawsuits until we have clear guidance.
Notwithstanding the DOJ’s inaction, the slow pace of litigation seems to be pushing common law towards the WCAG 2.0 standard.
