Editor’s Note: This feature was originally published in the January issue of DS News, out now.
When George HW Bush signed into law the Americans with Disabilities Act in 1990 (ADA), it was intended to provide equal access for people with disabilities. Back then, the Internet as we know it today did not exist. As a result, no one could have predicted how the ADA would interact with online services. According to a November 2018 Los Angeles Times article (“Lawsuits Target Access to Website”), nearly 5,000 lawsuits against the ADA were filed in federal court for alleged website violations in the first half of the year alone. 2018. At this point, the number is expected to increase by nearly 10,000 for the calendar year, a 30% increase over the number of similar lawsuits in 2017. As more providers tout their web access, these numbers can be expected to continue to increase in the future.
While many ADA complaints about website access have been directed at retailers, restaurants and universities, a number of our service provider and lender customers have recently been hit by a wave of demand letters and, in some cases of lawsuits under the ADA alleging that public accommodations’ websites are not accessible to blind people. Plaintiffs claim that they visited our client’s website and were denied full and equal access to the client’s services, as well as the opportunity to enjoy the services available to the public through the website. The demand letters and lawsuits allege various violations of federal law and state law. Typically, these claims and lawsuits aim for a quick settlement provided the customer fixes their website. A brief overview of the law in this area, as well as potential customer exposure, is provided below.
There is no longer any significant dispute that corporate websites are places of public accommodation under the ADA. The Department of Justice (DOJ), responsible for implementing ADA mandate compliance regulations, has said so many times, and courts across the country have rejected arguments that websites do not fall under of the ADA. Additionally, California courts have held that a website’s non-compliance with the ADA is, by itself, sufficient to trigger an ADA violation without requiring the plaintiff to first establish that he or she has genuinely searched for company goods or services. Such a violation calls for a $4,000 statutory fine and, more importantly, potentially triggers the plaintiff’s right to recover attorneys’ fees under the ADA and various corollaries of state law. To complicate matters further, there are no specific guidelines for exactly how a website should be formatted or implemented to comply with current ADA mandates against non-discrimination and disclosure.
The DOJ has yet to issue formal guidelines for website compliance under the ADA and, based on its most recent public statements, does not intend to do so and has instead adopted the position that these guidelines are the responsibility of the legislature or the attorney general. Courts have generally accepted that compliance with the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 technical standards is sufficient to satisfy current ADA mandates, but the DOJ announced in October 2018 that Public accommodations have some flexibility in how to comply with general ADA requirements. non-discrimination and effective communication. Accordingly, non-compliance with a voluntary technical standard for website accessibility does not necessarily indicate non-compliance with the ADA,” indicating, at the very least, that non-compliance with WCAG 2.0 is not in itself a violation of the ADA, but again refusing to establish firm guidelines for private companies to follow.
Based on the state of the law and the right to recover attorneys’ fees under the ADA and its corollaries of state law, plaintiffs’ attorneys scour websites for potential offenders. Most lawyers first send letters of demand, but if their demands are not met, quickly file lawsuits against companies and service providers. These claims and lawsuits pose significant risk in terms of statutory damages, repair costs and possible attorneys’ fees. As the law in this area changes almost daily, there are several defenses that loan originators, managers or other providers can assert.
However, the best defense is to take preventative action now to avoid these claims and lawsuits in the future. Olivier J. Labarre was called to the California Bar in 2009 and has worked at Wright, Finlay & Zak since 2014. While in law school, Labarre served as an editor for Western State University Law Review and vice president of the Moot Court team. Prior to joining Wright, Finlay & Zak, he worked at Hershorin & Henry, LLP, specializing in title insurance matters. Labarre primarily focuses on mortgage banking litigation, including the defense of loan servicers and trustees, title insurance litigation, bankruptcy and evictions. T. Robert Finlay is one of the three founding partners of Wright, Finlay & Zak.
Since 1994, Finlay has focused his legal career on consumer credit, commercial and real estate litigation and has extensive experience in trials, mediations, arbitrations and appeals. Finlay is at the forefront of the mortgage banking industry, handling all aspects of the ever-evolving arena of mortgage banking default and dispute servicing, including compliance issues for managers, lenders, investors, title companies and foreclosure trustees.