The Wall Street Journal ran a major story on November 1, 2016, describing the growing trend of lawsuits brought by a handful of plaintiff law firms representing blind individuals against hundreds of website operators including well-known names such as Foot Locker, Toys ‘R’ Us, Brooks Brothers and the NBA. The most active plaintiff firms include: Carlson Lynch, Lee Litigation Group and Scott Dinn.

Key Article Takeaways

  • In addition to the 240 lawsuits, hundreds and perhaps thousands of website operators have received demand letters, with more demands and lawsuits expected.
  • The U.S. Department of Justice and multiple courts have agreed with the position of the plaintiffs. Because of the legal grey area and conflicting court decisions, lawsuits are not easily dismissed and the costs of lawsuit defense may be substantial, driving settlements.
  • Settlements typically include a financial payment and a requirement to improve the accessibility of the website to disabled users using electronic screen readers and other technology.

Top 4 Mistakes Not Mentioned in Article

The Wall Street Journal article, although very well done, does not tell the full story. Based upon my personal experience representing website and business owners that have been sued or received a demand, below are the most common business and legal mistakes and failures.

1. Do Not Throw Away the Demand Letter. You miss out on an opportunity to take prompt corrective action, and continued failure to reply to a demand letter meaningfully increases the risk that you will be sued.

2. Destruction of Evidence. If your IT department or web developer simply starts changing/improving your website to improve accessibility after receiving a demand letter you may have already improperly destroyed evidence by modifying the website. Talk with legal counsel about your duty to preserve evidence.

3. Do Not Assume You Violate the ADA Based Upon a “Report Card” Scan – Get a Real Human Audit. Most demand letters include some sort of “report” that claims that your website has been “scanned” and that it “fails” to meet various requirements of the ADA, Rehabilitation Act Section 508, and/or the Web Content Accessibility Guidelines (WCAG2.0AA). The truth is that a scanning tool is imperfect at best; I have seen highly accessible websites receive demand letters and supposedly failing grades from scanning tools. Consider engaging an experienced website accessibility consulting/testing firm to discover the reality before you react.

4. Is Your Website Developer, Platform Provider or Agency at Fault? If your existing website was provided by a contracted website developer, web platform provider or advertising/media agency, they may share responsibility and liability. The answer is typically in the details of your contract with the provider. Failure to promptly notify the provider or carefully follow contract procedures may void your otherwise-valid breach of contract, warranty or indemnity claim.