John Di Giacomo: Hey everyone, this is John Di Giacomo. I’m an attorney with Revision Legal, and I want to talk today a little bit about what is going on with these ADA accessibility lawsuits. A lot of our friends in the eCommerce world are complaining of letters that they have received from companies purporting to represent individuals with disabilities, claiming that their websites, their eCommerce stores, or their software as a service, is not ADA accessible. A lot of the times these letters are coming from firms such as Pacific Trial Attorneys and others like them. So why are these popping up? What do you do about them? Those are the types of questions that we want to answer today.
John Di Giacomo: So let’s start with why are these popping up? Well, under the Obama administration, the Department of Justice stated that websites can be places of public accommodation and that means that they may be subject to the Americans with Disabilities Act. And the Obama administration had set a calendar date for a rulemaking to explain to the public what exactly that means, what steps have to be taken in order to ensure that your website is ADA compliant? Well, when the Trump administration took office, the administration took that calendar item off of the calendar and never put it back on.
John Di Giacomo: So we’re sitting kind of in this limbo where we know that the ADA applies to websites, but we aren’t quite sure what exactly that means. And what we’re telling clients is you need to look at some compliance related tools to try to comply with what we believe are the right set of standards to ensure accessibility is for people with disabilities. So that’s the first point, is if you get hit with one of these letters or even if you haven’t and you’re thinking about this idea and you’re concerned that you might get hit by one of these letters, the first step is to assess your own compliance.
John Di Giacomo: And what does that look like? Well there is a set of standards called the WCAG standards. The current one is 2.1, the old standard was 2.0. And because of case law, we know that meeting the 2.0 standard may be sufficient to create a defense to an ADA claim. So what we’re telling clients is start with trying to get compliant with the 2.1 standard, and from there you can create a reasonable defense that you’ve attempted to make your website easily accessible by individuals disabilities. So that’s step one.
John Di Giacomo: Step two is a step that I always tell clients they should take seriously and no one ever does and I’m quite sure, after all these years of me spouting it again and again, always have an attorney drafted terms of use agreement. Why? Why is that important in this case? It’s very simple. Because a attorney drafted terms of use agreement contains certain provisions such as an ADA disclaimer, an alternate route for compliance, and an arbitration provision with a choice of law clause, that creates significant impediments and hurdles to any type of law firm that wants to file one of these cases on a contingent fee basis.
John Di Giacomo: So what do I mean by all of that? Well, let’s start with the choice of law clause. I’m in Michigan and my website has a choice of law clause that says that suits can only be brought in Michigan, Michigan rules and law apply and you are agreeing when you use the website to be subject to personal jurisdiction within the state of Michigan. Being subject to personal jurisdiction within a state in which you are not located creates a massive disincentive for a contingent fee lawyer to take the case or to push the case even further. They don’t want to have to fight a case in a completely different state and undertake all of the travel costs associated with doing so. They want to file it within their own home jurisdiction without any defenses so they can get a little bit of money out of you.
John Di Giacomo: And having a choice of law clause that has an arbitration provision in it makes it even worse. The average filing fee for federal court is significantly lower than an arbitration fee. The arbitration fee typically ranges somewhere around $1,200. So if you have to force a contingent fee lawyer and a contingent fee plaintiff into arbitration at a high fee rate, the return on investment from filing a lawsuit that they may not win, that they have to fight in a foreign jurisdiction and that may be subject to arbitration, reduces the likelihood that they will file a lawsuit against you.
John Di Giacomo: So what we’re doing through this process is just creating lots of disincentives for a contingent fee firm and a contingent fee plaintiff to take this type of case. And then creating a decent ADA policy also adds to those defenses. It allows a company to say, look, we have another process by which you can make an order, you can call our phone number, it’s ADA accessible. We have operators standing by who can order for you. And meeting those requirements through alternative means just adds to your ability, or your attorney’s ability, to make the factual argument that you are trying as much as possible to be ADA compliant.
John Di Giacomo: And that’s what we’re telling clients right now. We’re telling them adopt defensive measures and try to get compliant to the extent that you possibly can. Because as of right now, we’re still waiting and when we find out how these rules are going to be applied in the internet context, we will certainly talk about it more and let you know. And if you like what you’re seeing, feel free to subscribe. Go to our website, send us an email. We’d love to hear from you. Again, I’m John de Giacomo. I’m an attorney with Revision Legal and thank you for your time.
If you have been subject to an ADA accessibility lawsuit, contact the Internet lawyers at Revision Legal at 231-714-0100.