Banks that wish to protect themselves from potentially complicated and costly litigation should consider taking the necessary steps to ensure they have an accessible website.
In the past year, Carlson Lynch Sweet Kilpela & Carpenter LLP, which was responsible for filing hundreds of Americans with Disabilities Act (ADA) ATM class action lawsuits nationwide, has filed dozens of ADA website lawsuits in federal district court in Pittsburgh and sent out hundreds of demand letters to retailers and other types of businesses. The lawsuits filed in federal district court in Pittsburgh all contend that “[b]lind and visually impaired consumers must use screen reading software or other assistive technologies in order to access website content” and that the defendants’ websites contain “digital barriers which limit the ability of blind and visually impaired consumers to access the site.” Each lawsuit then describes the specific access barriers that the visually impaired plaintiffs allegedly encountered. The demand letters make essentially the same claims as the lawsuits, but offer the business an opportunity to avoid litigation by engaging in settlement discussions prior to suit. A draft proposed-settlement agreement is usually included with the demand letter, and typically, the demand letters also include a report prepared by a third-party “expert” vendor, which provides specific, technical examples of the alleged inaccessible areas of the business’ website.
Until very recently, we had not seen or heard of many—if any—banks being the targets of these demand letters or lawsuits. However, in the past week, we have been made aware of a number of demand letters directed to banks. This may be just the start of a new wave of demand letters directed at banks and financial institutions.
Currently, no specific ADA website standards exist, and the U.S. Department of Justice (DOJ) has now delayed issuing regulations on website accessibility until 2018. Despite the absence of standards, however, the DOJ has emphasized that businesses should make websites accessible to the disabled, and it has been aggressive in enforcing website accessibility. While no specific ADA guidelines exist yet, the DOJ has relied on a set of guidelines, known as the Web Content Accessibility Guidelines (WCAG), which were developed by a private industry group.
At this point, banks that wish to protect themselves from potentially complicated and costly litigation should consider taking the necessary steps to ensure they have an accessible website. It may be prudent to start this process before a demand letter is received or a lawsuit is filed.