good morning thank you everyone who’s joining us right now i’m going to give it a couple of more couple more minutes i still see people filtering in but you are in the right place this webinar is the state of ada in 2020 a guide to online accessibility lawsuits amid the pandemic and we’re going to give it just a couple more minutes as i do see a lot of people still filtering in here but welcome okay we are about two minutes past so thank you everyone for joining good afternoon welcome my name is bethany servant and i am the marketing director here at usablenet our webinar today is on the state of ada in 2020 a guide to online accessibility lawsuits amid the pandemic and our presenters are jennifer russi and jason taylor before we begin a few housekeeping items all attendees are muted but if you have a question during the presentation we encourage you to please send them in via the chat box if we don’t get to your question today we will reach out to you directly i want to confirm that we are recording today’s session and you will receive an email likely early next week when it is available to watch on demand we’ll also make the slides available this week now it’s my great pleasure to introduce our speakers we have jennifer roosey and jason taylor and i’ll go ahead and hand it over to you jason thank you bethany um thank you everybody for taking some time out of their day to uh be with us i’m really pleased to have jennifer here to give us what our class is sort of legal color um to the data and statistics that we we gather um i have an agenda that we’re gonna go through just to give you an idea of what we will try to cover in the next 45 minutes before we do q a um so we’re just going to give you some sort of high level numbers around a number of cases over the period of sort of the what we might call the lock down or the covid period um whether that where do those numbers stand today um in general i think we want to give you some bullet points of trends that we’ve been seeing in both sort of ada lawsuits and state lawsuits um we’re going to talk um and jennifer primarily is going to talk about the connection of the ada websites apps the doj she’s going to give us uh some sort of hands-on and real-world examples of the types of enforcement that you potentially may have um but also how you might first approach those and defend those types of enforcements or legal actions and then we typically try to give you a a quick roadmap of what we feel you could do right now to minimize your risk of legal actions and put yourself in a better place from an accessibility point of view but also to to lower your potential risk with regard to receiving a legal action um just to give you um if we can actually start to the first slide and it would help me um bethany give some uh uh some details so i’m gonna talk through this slide for the people that uh that have visual uh and also it’s quite quite a tight slide um essentially this slide gives you numbers weekly um with regard to filings of the federal ada lawsuits that are related to web and apps so let me just give you a a clarification of what we do when we’re tracking those lawsuits in at federal and state level all the data that you’re going to hear in terms of numbers is based on the fact that we actually track every ada lawsuit um but not every ada lawsuit is related to web app or something to do with digital so we actually look at every single lawsuit um and we actually filter out the ones which are essentially more traditional ada lawsuits which are around physical spaces and we identify the ones which are related to basically digital so essentially web app and um and video content we then track those and then we look to see trends with inside those cases so everything that we talk about is very focused on on the on the digital space and not broadly across ada lawsuits you’ll also see data that we talk about that comes from federal ada cases um state cases particularly in california under the unruh um and also you’re going to have probably jennifer talk about some more regional state stuff around like the fair housing act in florida and other types of legal actions um that are taking place right now but um if i can just sort of uh describe the sort of pandemic uh effect essentially we were at around 40 um 40 to 50 filings at sort of federal ada level around webinap before uh march um there was a significant sort of drop off um during the sort of um the first month for two um and then it’s sort of rebounded back to around 50 or 60 um but what we’ve seen actually in the last couple of months is that numbers now up more around 80 at the federal level and around about 20 at the at the uh state level particularly california and unruh so um extrapolating out that number it’s probably going to be around about 3 000 federal filed web and app cases and maybe i could actually bring jennifer in here to just talk about our home our own personal experience during that period of where those cases sort of started to drop off what what was the practical implementation practical effect of the sort of pandemic for for you jennifer and what you saw i think i must have gotten all of the cases that um were filed during that time period because i stayed very busy and for those of you that don’t know my name is jennifer russi and i am a shareholder at opal tree deakins and i have been handling website accessibility and other accessibility cases all over the country primarily the eastern half of the country for the last five or six years and i’ve been deeply enmeshed in this and when the pandemic hit i had many many cases going on dozens and i did still see cases um getting filed definitely fewer than what we’ve had in the past but the biggest thing that i saw was that the attorneys were very desperate to get some money on the other side i think that they were worried that their cash cow was drying up and i was able to negotiate some very favorable settlements during this time period but we did stay busy not quite as busy and as jason has said it has ramped back up and we are seeing many many filings on a daily basis great we’ll get into a little bit more detail around different types of actions and the volume that jennifer’s been seeing um around different industries as well um but i want to stay high level and sort of take you through what what we’ve seen so far in 2020 from trends so if definitely you can move to the next slide so uh where we are today is probably lawsuits are up around the 100 a week and when i talk about lawsuits i’m actually combining federally filed ada cases and the increasing number of california-based unruly uh cases which jennifer will talk about and you know why we’re seeing maybe an increase there in a little while um i also wanted to get jennifer maybe we can combine that you could talk a little bit about unruh but also talk about the fair housing act and just generally where you see most actions coming from there’s also a line i’m here that will see an increase in demand letters so sort of could could you give us your sort of your feeling of on the ground activity around those different areas oh yeah we’ve seen um and for those of you that don’t know the california unruly act is basically um it’s a public accommodation act in california and unlike the ada which only provides for attorney’s fees and injunctive relief which is typically remediating the website it also provides for compensatory damages of four thousand dollars per violation typically they the court would find two violations one being the encountering a barrier and one um being deterred from returning and so that’s eight thousand dollars a pop and so it is very very attractive for these california attorneys to file a lawsuit um claiming both unruh and ada violations because there is a pretty low minimum threshold that they think that they can or a pretty high minimum threshold they think they can get so we’ve seen lots of those in coming out of california i actually this past week got some demand letters from someone in new york about a violation of the unruly act which i don’t really think is viable but everybody’s trying to get in on the unruly act and then under the fha i have not personally handled any fha cases but i’ve seen a trend of a lot of them getting filed mostly out of florida the florida does not have a state accommodation act so their compensatory damages aren’t available and so i think the fha is a way that some of these attorneys are are trying to see if they can get some additional damages there great talking about what we’re seeing actually sort of subject to these legal claims uh we’re seeing around about 20 of the filings at the federal level are around mobile apps um we’re also seeing an increase where the focus is on the mobile website now there’s there’s some you know practical reasons for this you know mobile is as important to the disability community as it is for anybody else so it makes sense um probably the the connection around apps being referenced in the domino’s case uh um three or four months back um or late last year sorry um sort of helped bring attention to basically apps being a potential place i want to combine actually another trend which actually sort of explains this a little bit and we’re also seeing lots of companies that are suit multiple times and i don’t mean a repeat law suit meaning the same plaintiff on the same website typically we might see a a firm be or a company be sued for different websites or one is a website one is an app so maybe you could talk a little bit about that uh jennifer in terms of what you’re seeing uh as being subject and and also maybe talk about i don’t see if you see much on the video front we’re seeing more on the video front as well caption yes so there is an attorney in miami who has a plaintiff that he works with and they file almost exclusively cases regarding apps and typically it’s a way that they can go after people who’ve already been hit with website accessibility cases because typically you know the last several years of cases that we’ve seen the web the lawsuits have been focused pretty much only on the website and so any remediation um activity was focused on the website and the app um has not been a focus of many people’s i.t groups but now they’re getting hit with these lawsuits we are seeing those and so i’ve seen a lot of people a lot of defendants companies who have already been sued because of their website um get sued because of their app and also i do see lots of companies who get sued multiple times you know i’ll have a case in miami then i’ll have another case in new york and the case in california or pittsburgh from this um for the same defendant and a lot of times defendants ask me is it because you know they see my name out there that we’ve been sued and i don’t really think that’s what it is i think it’s bad luck and i think that if you haven’t remediated your website that you remain the target and at the end we’re going to talk about some ways to help lessen your risk of being a target but that is one of the more frustrating aspects of these lawsuits is that it is difficult if not impossible to preclude getting hit from another plaintiff after you may have resolved one of these cases yeah we’re going to talk a little bit more detail about that i think it’s really important and and a couple of these other trends i’ll just quickly pass pass through because we’re going to maybe cover them a little bit more detail lots of companies have actually sort of taken up uh and and installed things like uh what we what we look like what we’ve seen in the sort of market things called accessibility widgets and overlays are typically very cheap um promoted to help you instantly support people with disabilities instantly make sure that you’re not gonna get sued um the reality is that there’s plenty of companies that have these uh widgets and overlays on the site and they get legal actions whether it’s lawsuits demand letters so um it’s not showing that um you know a plaintiff firm that’s using blind people to find issues are still finding issues on sites with which it’s an overlay so they don’t particularly protect people very well um but i think it’s really important the last couple of uh the last couple of trends which are sort of an ongoing trend for last two or three years you know this is a industry and i get jennifer to talk a little bit about this this is not you know i said they’re giving me 3 000 cases this year it’s not 3 000 different plaintiffs it’s not 3 000 individuals that have felt that they haven’t received you know support and feedback from companies around using their website an app and then gone found a lawyer and then sued this is a reasonably uh focused business so for example 70 of all the all the cases are actually filed in new york uh five law firms are actually responsible for about 80 of those so um this is companies that file 10 lawsuits at a time you know on a you know bi-weekly basis they have a process that jennifer and i are going to talk about and probably understand in that process how they go about that process how they go about documenting and generating content for the claim is probably going to help inform you as a company on what you should focus on first because that’s actually sort of how the claims are gener generally put together and what happens in a claim so maybe jennifer you could talk about what what you typically think the process is that um that a plaintiff firm goes around and goes about to generate it’s sort of like filing volume so i’m not sure a lot of times as you see one of those bullet points says that retail hospitality and banking received the most lawsuits and that’s absolutely true um and it seems to come in waves with sort of types of industries i’ll see um a whole lot of you know i saw a lot of insurance companies get sued in the same week or see a bunch of banks or i’ll tell you in the last couple of months i’ve gotten 10 or 12 higher education lawsuits so i think they sometimes focus on a little bit of an industry and then they run scans of the websites as jason mentioned this is not many different plaintiffs who are not able to access your site and they’re having difficulty typically each attorney has a plaintiff or two that they work with and that person is what we call a tester and we’ll talk about that a little bit more but that person or their expert runs a scan of on the website typically using some free online software that’s not terribly accurate um and then they will file a lawsuit and it’s um you know a cookie cutter claim they are the same you know they just fill in the blanks with a different name and i i just saw a q a pop up and the scan that i know that some of them use is called power mapper i’ve also heard some use wave i don’t think anybody is actually using a real screen reader they might be but from what i understand is this is a very quick process and typically the people are not genuinely trying to get any products or services from the websites that they are viewing yeah i would agree um i mean just to give you uh what i feel that we could we look at you know we have a team that looks at every single docket so what we have what we have seen over the last two years is is a change away from a very cookie cutter hey uh you’ve got missing alt tags you’ve got misinformed labels you’ve got missingness you’ve got missing that to a combo so essentially what we’re seeing now is there is a specific user journey that has been identified by the plaintiff who is typically blind who will say i could not achieve a b and c on this particular task so you know they they might pick up you know a checkout path of a retail site or they might pick um you know a a on online ordering path of a of a restaurant so um we’re seeing more that you know that there’s there’s some that have got a lot of detail some that don’t have a lot of detail but it is a sort of i would say now a double act which is the plaintiff themselves are typically talked about and reference in terms of what they couldn’t achieve on the website plus a set of what our classes you know documented issues that have been identified by what jennifer talks about scanning software right and there’s typically a reference to stay but the uh that the website doesn’t have an accessibility policy bill the company doesn’t have an accessibility statement or policy in place i think it’s important to understand and we’ll get into the detail the ada is a discrimination act it’s a civil rights act so what they’re trying to establish is that you are discriminating um but i think what’s important is to understand sort of how we got here it’s there there are thousands of thousands of lawsuits and demand letters every year for the last two or three years but this is not a new subject this is not something that’s just come come up in the last three years from a business perspective so i think it’s important to look at where this comes from and jennifer can talk about the history but i’ve i’ve got a little we’ve got a slide up and i’ll explain what this slide is it’s it’s really tracking the involvement of the goj over the last 20 years in establishing what our class is sort of a benchmark of yes the ada applies to websites and apps yes uh you should make sure that your websites and apps are fully accessible yes we think the w3cg 2.0 double a is a good standard to follow and you know in the first 15 or 16 years so from 2000 to 2017 um the doj entered in uh on the you know on the plaintiff side with around uh 200 plus lawsuits um over that time most of them brought by what our classes classic advocacy right so the federation for the blind the doj would would come in on the plaintiff side and get companies such as h r block and other types of big companies um to agree in a settlement to remediate site and to do things which now you’re seeing as almost like the template of the lawsuits that are being filed after 2017.

So i’m going to get jennifer to talk about the importance of 2017 and sort of like how the doj has had a big effect on opening up uh the sort of uh market for the for the private plaintiff right so as you can see on here at the end of 2017 which we had had in 2017 a change in administration and the priorities changed and the doj decided they were not going to go forward with any of these ada investigations anymore but they had already created a blueprint for many private law firms to pick up the mantle basically and go pick up where they left off and as you can see the numbers here they exploded after that point and um it was originally the law firms uh that started doing this there was a law firm carlson lynch in pittsburgh who started doing a lot of these and also specific trial attorneys which used to be called newport law firm did a lot of those in california prior to 2018 and then i would say around late 2017 2018 is when we saw the firms in new york really start um aggressively taking up these cases um new york and then miami um that’s when i saw a huge uptick in in those firms taking over these cases because the doj wasn’t doing it why shouldn’t they go out and collect their attorney’s fees yeah so we’ll actually go in and now talk about how the doj but also how the ada has has sort of become this applied uh legal standard that people are using to sort of attach to websites and apps but i think it’s really important to understand that you know web accessibility’s been around for 20 years things like the section 508 which is which is a law that requires the federal and state government to follow wcag has been around for 20 years doj have been you know joining in on settlements across industries for 20 years there is a you know there’s an argument that a lot of companies have made it possible for plaintiffs to get to sue them because they haven’t actually implemented things that they knew were coming along so you know there is a there is a double edge to this which is websites haven’t done a great job of following um accessory guidelines they haven’t really uh taken uh you know seriously about the doj’s effort for 20 years and now they’re sort of finding that plaintiff firms um are taking advantage of that sort of com combination of situation um but maybe jennifer you could take us through what our classes are the nuts and bolts of how the ada is being applied in the sort of digital space when of course there was no such thing as a digital space when the ada was first passed 30 years ago right so when the ada was enacted the internet didn’t exist so there’s not any um you know the doj didn’t enact any types of standards regarding website accessibility they enacted some very very specific guidelines the standards for accessible design in 1991 and you know how wide a doorway must be the slope of a ramp where exactly hand drills must be it’s very detailed very specific and it provides a very nice blueprint for a place of public accommodation to follow along and know that they are compliant or not the doj updated these in 2010 and even though the internet was very very big at that point um there still was no no move to do anything with um standards for websites and uh we can go the next slide please they actually did doesn’t even go the next slide they went to the um the rule-making process actually and tried to start working on implementing some website accessibility standards under the obama administration um but then we had the change in administration um all of that just faded away um and so what’s really been going on since we don’t have any official governmental action on this is that the law has been developed in the courts and the way that has happened is courts have decided to say that you know the ada says that no individual should be discriminated against on the basis of disability the full and equal enjoyment of the goods services whatever of a place of public accommodation so the way they first decided that websites could be held accountable um for being accessible under the ada was to say that the website was a good or service of a physical place of public accommodation and they call this the nexus theory there’s a list of 12 you know types of categories of what a place of public accommodation is which is generally you know somewhere someone of the public would go in and spend money or or get a service you know perhaps it’s a library or a museum a retailer i lost somebody but um i think we’re just going to wait for bethany to come back i think she’s uh okay i’ll just tell you that it’s that it was different in different jurisdictions which and it still is different in different jurisdictions um right now um the 11th circuit in the ninth circuit surprisingly um subscribed to this nexus theory but some other circuits like the seventh circuit the first circuit the second circuit they have started saying that it doesn’t matter if there’s no nexus to a physical place in an online only operation um you know netflix something like that could be held liable under the ada so the law is different in different places um unfortunately the internet is everywhere and so it doesn’t matter if your company is based in one of the jurisdictions that has a stricter standard what matters is where the plaintiff is and so that’s one reason why i think we see a lot of these cases in new york because they can sue online only outfits are you back and can you can you go one more slide all right and so we got a couple of different um so what that’s like i said there’s no actual official guidelines however um courts and have landed basically on these industry standards the web content accessibility guidelines from the world wide web consortium w3c um and the latest version is we keck 2.

1 it was 2.0 for a very long time and you’ll still see a lot of cases and settlement agreements consent decrees that that go with 2.1 or 2.0 but 2.1 is is the the latest and greatest version and then there’s three what we call the priority levels a double a and aaa double a is the most standard a is pretty basic and i have never ever seen anyone request that something be compliant with aaa i’ve never seen anyone complain that something’s not compliant with aaa this is probably more of a jason comment because i am not a tech person but um triple a to me seems like it may as well not exist because i’ve never seen anyone um meeting that standard or demanding that they don’t meet that standard but like i said this isn’t an official governmental standard but it’s fairly widely recognized that if you meet the weak tag 2.

0 or 2.1 double a standard your website is compliant with the ada the doj a couple of years ago actually said in a letter that just because you don’t meet this standard that doesn’t mean that you aren’t compliant with title iii of the ada so it’s you know this letter that the doj had written was meant to clear some things up but it actually muddied the waters just a little bit because we still really don’t know what the standard is but you’re probably pretty safe if your website meets the week 2.1 double a standard and we also have the pending letter there are some introduced legislation called the online accessibility act it was just introduced about three weeks ago and i don’t think it’s going to go a whole lot of places congress has a lot of other stuff going on right now but it is um as you can see applicable to consumer-facing websites and apps which would be sort of uh comparable to a place of public accommodation uh there’d be a whole separate title of the ada to apply to these physical or digital spaces and the standards that they would apply have been proposed weakag 2.0 a and double a and the big things are with this is that we know one that we have a standard and so a company can know for certain if they meet or don’t meet the standard and a really big thing here is that before a company could be sued under the ada there needs to be a notice and cure period um which we don’t have right now and um we think actually i think this is the element of it that is probably going to make it uh very difficult to pass in congress because uh the disability advocacy community really does not like um this part of um legislation that has been introduced in the past yeah jennifer i think that you’re sort of bringing up the sort of like the what our classes sort of the cases out there and the and the uh the different types of standards that people have tried to establish that there’s a real practical understanding here but most people aren’t going anywhere near a court when they get a demand letter or a lawsuit most companies in a practical sense probably get a lawsuit that you know from a company which really this is what this is what these plaintiffs firms do so they really know how to generate a feeling of well is this worth going to court they’ll generate they will generate a whole list of issues um on a website based on w3ac because most websites haven’t really done a good job so if you you know the the first the first conversation that typically happens in a in a practical world is you know the the web the web teams asked you know uh are we following wcag 2.0 are we sure that we’re we’re conforming to that standard the web team’s probably going to say you know probably not we haven’t really given it that much attention we we know we’ve got issues well you know an in-house council on exxon’s council that doesn’t give them a lot of negotiation space so um essentially the practical sense is you know and jennifer can talk about this but you know the conversation really comes about as how quickly can we get this to go away because the only the only fees are going to be legal fees so the shorter the time the short the smaller the settlement um and the fee so as that’s why that we see today that 95 percent of claims are settled and they’re settled very quickly um because most companies haven’t done the work but we’re going to talk i think a little bit later and jennifer i just wanted you to clarify that for us but i also think you’re going to talk a little bit later about well what if you are a company that has done lots around web accessibility and you feel like it is a false claim meaning it’s a claim that doesn’t really have a lot of validity um what are the options so i think we’re going to talk a little bit about that like what are your options in when you get a demand letter what are your options with regard to uh if you get a a lawsuit if you feel that you’re actually in a good place how do you set yourself up to be uh to to defend yourself all right let’s see what the next slide is don’t talk about that um well i guess that’s not that one but um so unfortunately even if your website is you think perfect as jason said most of these cases are settled because what’s at stake in this matter are attorney’s fees this whole thing is a shakedown for attorney’s fees for the most part there are some genuine disability advocacy groups out there that are suing but most of the cases that i see i would say 99 of the ones i have had have been filed by a very seasoned plaintiff’s attorney who is looking for a cash payout and and that’s the problem is that even if you have a great website um you have the options of a quick settlement if you have a really good website i think that that is really good leverage to get a lower settlement amount i think that if you want to litigate the problem if your website is 100 you are going to have potentially an issue of fact as to whether or not the website is in fact compliant and you might have a hurdle in getting past summary judgment and then you’re gonna you’ll be faced with the trial which again is just why so many people settle because it is just so much cheaper to pay a small amount up front than be faced with the the prospect of a you know 250 000 trial so because experts will be involved and and everything but i do think there have been cases where we can get you know expert testimony in um upfront at the beginning and some of your case you’re i have seen a case where the judge granted a motion to dismiss even though there was some testimony that was outside the pleadings at that stage and said look it looks like it’s fixed so this claim is moot and we don’t need this website lawsuit to get these people um to get their website in shape because it already is so you know you could try to do that it’s just the risk um most times is just a little bit too great for most companies um to do yeah that way to that point to that point jennifer this this slide sort of gives people an understanding of what’s the characteristics that make a uh company a great target because what jennifer’s talking about is a plaintiff firm wants to you know do the least amount of work to find a firm that probably is not you know not in great shape um has the money to settle don’t particularly want to busy themselves uh defending um and essentially sort of tick the boxes of a great target um and that’s why you know this slide sort of just explains that as we said uh jennifer talks about you know easy to visit 20 sites which are the same have your user do the same user journey on the 20 sites you know document the issues that they’ve got scan the 20 sites produce the documentation um you know uh you know we see it focused mainly on what our class is sort of complicated sites that have interactions more likely that they’re going to have a hard time keeping up with the wcag more likely that they do changes which generate more issues um so these are all sort of compound compounding items that make people make them attractive i think jennifer’s point is correct which is that the best thing you can do is try not to actually get legal action um that’s actually where i where we typically start to look at you know how do how do you and we’re going to talk about that sort of how do you do the things which are going to be actually if a plaintiff comes you know tries to use your site uh you know actually they can achieve using your site um try to do a scan what that scan produces is a is a reasonably good scan um you’ve got a great accessibility statement these are things which will allow you to probably go down on the list of potential risks because there’s other sites that they can go and generate um you know more activity on and easier settlements for so i mean actually what i want i think the next section is to talk about those actions how do they come and maybe just jennifer what you think what you think that the the the best first action you can do offer for example demand and legal and you know what what your general advice to a company is or your general questions for a company is to think about when they get those legal actions right okay let’s we i feel like we’ve already covered this slide about what’s available under title three and um just the injunctive relief and not damages and it’s what’s driving these cases are as is attorney’s fees um for the most part let’s see the next one so that we can um show who is suing so as we noted um this is where we see most of the cases but again it doesn’t matter if you’re not on one of these places or if you don’t even have a physical space in these places what matters is where the plaintiff lives so typically we’re not going to be able to have a jurisdictional argument um so let’s go next and then we can see what our defenses are or oh sorry we also we get a lot of demand letters and that is something that some pacific trial attorneys and carlson lynch these are two firms that typically will send a demand letter prior to filing a lawsuit these two firms are very good about following up on the demand letters they have sent out and then filing a lawsuit if they do not hear a response back not always you know sometimes things slip through the cracks but these these guys are a little better than most um there are some firms that will send out lots and lots of demand letters and i have never seen them file a single lawsuit um so you know it’s it’s sort of up to you as to whether or not you want to raise your hand and respond to them because obviously it’s possible that if you don’t respond then you’ll never hear from them again um there’s this one guy jay brodsky who lives in great neck new york and he files lots and lots and lots of or sends lots of demand letters and he will he’s pro se and he will threaten to file a human rights complaint because he doesn’t even want to file deal with filing filing fee or the informa paupers to file an actual lawsuit and he will demand a very very low settlement but he files he’s very prolific i have clients he really likes to go after hotels and particularly restaurants at hotels so you know i’ll have clients that get three a day from him um he’s a repeat player and and like i said he’s he’s just one of the people that’s out there that you have to look out for um we’ll go to the next slide but so typically what i would say if you get a demand letter is you want to evaluate whether or not you want to respond to it um which is a little different than if you get an actual lawsuit if you get a lawsuit so just to that point jennifer sorry what what we tend to have an experience of is if you get a demand letter it’s actually probably important right that a consult outside counsel but knows this space like a gen oh yeah who can tell you well if that demand that it came from this firm it’s probably better to respond to it if you’ve or actually if it came from this firm it’s better not to respond to it that that’s the value of external counsel at that stage is is this landscape is not complicated it’s 10 20 firms and understanding how those firms work the plaintiff firms is very beneficial i think in terms of what to do next in a in a particular situation i just wanted to make that point oh no i’m so glad you did because that’s absolutely true um a lot of these cases are it’s about sort of the relationship that um you know that i have with these plaintiffs council i deal with them multiple times every day and you know i know i have a really good idea what they’re going to do with them with the matter so if you can reach out to outside counsel who works in this space can probably help you decide whether or not to respond and if you are going to respond how to respond or if you have a great defense um you know whether or not you should just reach out to them and say hey this is a mistake because perhaps look at this the website’s not even owned by us if you have sued the wrong company um you know this is all owned and operated through this other um platform that we contract out to like you’re barking up the wrong tree so that’s a defense you could have um again like if you happen to have an online only business and you’re in a nexus jurisdiction such as you know florida that could be failure to stay acclaimed so that’s a great defense like i said california is currently strangely the ninth circuit is a nexus jurisdiction but pacific trial attorneys as we mentioned before they are really really actively trying to change the law so um you know they may keep trying to fight and they are one of the few firms out there that really can litigate one of these cases um as we noted before most of these settle i think there have only been two trials in the whole country on website accessibility and one of them was in california pacific trial attorneys um handled it and then another was in miami and that’s gill versus winn-dixie and a lot of people have heard about that one and it is currently on appeal to the 11th circuit so we don’t know what’s going to really shake out about that um some other defenses like we said if you have your websites in great shape you can i think leverage that for a good settlement or if you’ve got a great expert report you could potentially get a court to dismiss it but sometimes you’re going to run into the issue of oh well you know that’s a question of fact and you’re going to need to get into expert battles and whatnot vagueness and lack of specificity for failure to stay to claim there were a few motions to dismiss on that basis a year or so ago and courts granted them and i think that’s one of the reasons as jason said people have gotten a little more specific there’s still some filers out there that are still wildly vague and people who receive these lawsuits don’t even have any idea of what is wrong with their website um the problem with this defense is that all the plaintiff has to do is amend the complaint standing is a good defense sometimes because the plaintiff hasn’t alleged any specific harm or any intent to return to the website or the actual business they have you know if you have a plaintiff that has filed 30 cases in a week you can throw out a standing argument again they can just amend and as we’ve mentioned a couple times there our testers are allowed and they don’t have to necessarily even have a real intent to use your products to have standing to stay to claim yeah jennifer maybe i guess i’ll go back to that sort of also you know especially when we talk to a uh to a company that’s in in a good state so let’s say a company’s uh you know done great work around accessibility our first question is going to be do you have documentation of that um if we if we support a client and you know they get on the they get on a call with a with a an ada defense lawyer the first thing that defense law is going to say is well where do you stand with regard to web accessibility and you might say we’re in a good shape and they’re gonna say well can you prove it so documentation is key that’s why i say like if you are doing good jobs if you are testing if you are if you’re using people from the disability community which is also you know it’s a counter evidence of saying hey we’ve got we’ve got blind people who can use our site you say you’ve got a blind person you can’t use your site right um it’s important that you’re sort of if you’re doing this work make sure that it’s there’s well documented and as soon as you know legal counsel uh want access to those documents it’s in it’s an it’s in a really powerful format that gives them the sort of documents that are gonna you know make someone think twice about going from demand letter to lawsuit or make someone think actually yeah we are still in the wrong company here there are there are there are law firms and there are advocates but you know potentially you know they they want they are advocates they they want the company to be doing the right things and if the company’s doing the right things and you’ve documented it make sure it’s there for for legal counsel to have you you solve absolutely in fact i mentioned jay brodsky i had him walk away from my case just the other day um because i said look at this here’s the the work that my client has done on the website and they’re in great shape and he’s he wrote back and he’s like you know what you’re right just i’m going to withdraw this complaint so it is possible sometimes they make mistakes and they will admit it and it is it is very helpful if you’ve got some good documentation to show the other side all right let’s see what we’ve got next and here we are this is the question i get the most is how can we make sure this doesn’t happen again and we really just cannot guarantee that it won’t which is the most frustrating element of these cases because um you’ve got one plaintiff and you’re really just resolving encased with that one plaintiff um generally the plaintiff’s firm will not sue you again but that’s more of an unwritten rule um potentially you could certify a class under title iii so that you could preclude other people from bringing a lawsuit regarding your website however typically doing that is going to cost a lot more money in terms of settlement you still have to get the court to approve the settlement potentially an advocacy group could object to the settlement and then you still could be open to getting hit with a stake or claim in another state like for example if you certified a class under title iii um out of florida um you could still get a plaintiff to file something under andrew so you’re not necessarily 100 safe and i have actually never had a client opt to go the class certification route um it’s typically most of them it’s it’s better to get a good quick settlement agree to remediate really start working on that website and documenting what you’re doing um and then if you have already been down this path that is a deterrent for some plaintiff’s council they’ve told me you know if they will search pacer before they file a lawsuit and if your company has already been sued and they’ve got stipulation on the record that they are going to remediate the website they will leave you alone also some people say that if they see a website accessibility statement on your website they will not see you and i believe that might be our next slide we have some um one it’s not but we um accessibility statements um which you can put on there and go ahead jason yeah can we just go back one slide bethany and this is gonna sound like i’m repeating myself but jennifer’s point is you know you can’t probably avoid a second lawsuit but you can actually really lower your risk of getting the first one and the second one by you know i’ll go back to it which is is made also even if you haven’t been sued yet do these things that’s the best thing i love when i get calls from people being proactive uh i mean it’s really practical about how these lawsuits are put together they they literally are put together in a certain way so if you if you follow the same way that they try to put together a lawsuit you will end up with a better more accessible website and significantly reduced risk meaning first thing you need to do is like well how many websites do we have how many apps do we have like what’s all of our exposure you know how many publicly facing things do we have that are exposing us right so that’s the first thing you want to list the second thing is you go you know this is something that we do for clients but you can you can find people who are blind you can hire them you can go to advocacy groups like the you know the the miami uh the miami lighthouse for the blind san francisco lighthouse for the blind there’s many organizations like nobility in in austin um there’s the the american federation for the blind um you can get your own blind user get them to test your site can they do the things that you expect them to do they will tell you whether they can or can’t um you document that that gives you some that gives you sort of like you know your expert witness if you’re if you’re ever sued hey we we’ve actually got a blind we’ve got blind testing and we have documentation for it um the bad news and the good news about scanning your top pages it’s very easy to scan pages so that’s the bad news because plaintiff firms can scan your pages and find lots and lots of issues the good news is it’s easy for you to do and most of the things that it finds are easy to fix so you have your web team prioritize what i class high visibility issues based on the wc cags and the ability of these uh these these tools to scan and find these issues and then the final final item which is what jennifer’s going to talk about with it is accessibility statement even if you’re in the process and there is no there’s no penalty for knowing that you’re you’re you’re actively remediating you don’t suddenly there’s no damages so you know it’s not about you know but it’s about communicating we’re already on the path we understand we believe in accessibility we’re not discriminating um and you know here’s our statement of what we’re trying to do and and how we’re trying to do it and maybe you can just finish that jennifer with like your your example of accessibility statement i’ll go to that next page so here’s some sample statements and typically um we recommend they are placed down in the footer of the page and i’ve seen some samples sometimes that say hey we know we’re not accessible yet but we’re trying i don’t recommend that you say go ahead and admit that you’re not accessible just say hey look we are working on it and i wouldn’t put this on there if you’re not working on it but um definitely give somebody an opportunity a way to respond to you if they can’t access some page this is a win-win because then it is going to actually help some people who might not be able to access your website it’s going to also inform you of some areas where you could potentially improve so i think these are great things to do i would recommend that you have if you have a hotline that it is operated as close to 24 7 as possible if you have an email i would recommend that you check that very regularly and respond to people and one thing i wanted to just touch on we said a lot about is we’ve been really focusing on uh blind issues but um i wanted to make sure that everybody was checking their um videos if you have videos on content you want to make sure that is captioned as well um and that um you’re checking um to make sure that people with all different kinds of disabilities can access your content and then you have these statements on there so that if they can’t they can let you know and one other thing that i have one attorney that i am opposite quite a bit and he likes um he always demands that the defendant put an invisible link in the header to the website accessibility statement so that a screen reader comes across it very quickly so that they are they know how to get in touch if they’re having problems um and so that is just another thought it doesn’t mess with the presentation of the page because it’s invisible and only visible to the screen reader but if you’re going to do that i would certainly also have the one that is down in the footer because like we said not all of the disabilities are related to screen reading some of them might have captioning issues as well so i think we’re very close to one hour yeah and to apologize i do want to make sure one thing very clear every question that we get we do respond to so even if we don’t get to q a get much q a right now we do respond to every question because we can pull them from put some zoom and we’ll respond back individually to any questions that you put in so uh by so i do encourage you to ask questions because we will respond to them um bethany do you want to take over and just pull out any that you feel like have come up uh multiple times um yeah let me take a look here um i do apologize about i had some technical issues during the presentation um so we have a question we have a couple questions we have a few questions actually on widgets and overlays um are plaintiffs accepting the use of these tools for purposes of requiring wcag compliance with a settlement does that make sense yeah i mean you yeah i think the question and i’m going to paraphrase it for you jennifer which is um you know typically you have a settlement right in maybe you sell with a plaintiff firm and they outline what what is expected of them uh have any of them uh accepted that a widget and overlay is an acceptable remediation like in a settlement letter because i i i never talk yeah i’ve never included that in a settlement agreement typically the language we have in settlement agreements is you know that we will use good-faith efforts to make the parts of the website that are subject to title three as accessible to individuals with disabilities as individuals without disabilities so the language is fairly vague that we use so it’s it’s still a question as to whether or not that would satisfy that plaintiff i guess um and as as jason said a lot of times that still potentially would not necessarily make it as accessible so maybe not as a practical matter most of these plaintiffs do not ever go back to check the website again i’ve not seen that happen i’ve never had a case where someone has said hey you agreed to remediate and you haven’t i don’t think that means that you shouldn’t remediate i think you absolutely should want to comply with your obligations under the settlement agreement and number two to keep you from getting sued again but i have never actually specifically said hey is it okay if my client installs this overlay or this widget um to comply with um title three so i’m not just up in the air oh yeah i’ll go back i’ll go back to the i’ll go back to the original sort of list of what could you do to stop getting lawsuits and stop getting the second one because actually jennifer’s right that the most the most powerful reason that you should make your stuff accessible is to make sure people can use your website who have got disabilities second is to potentially make sure you can get these legal actions to go away in the future or you don’t get legal actions in the future if i scan a website before i put a widget on it and i scan it afterwards uh the number of issues that a scanning tool comes up with is uh is is reduced by a very small number so i still have lots of issues that i can sue you for um but primarily like we we actually now see lawsuits which really you know specifically called out how the widget is actually added more in more accessible issues um than it solved so um there is actual cases even this week where you know it’s it’s uh you know two or three pages of uh focus on the website is actually on the widget itself and how the widget is actually making the website uh less accessible um than without it so you know not only do the widgets stop not stop you getting a lawsuit but they’re actually being listed as components of the claim of inaccessibility inside of lawsuits today um and some of the questions around widgets and overlays um we can answer with a blog post so in the follow-up email uh with the recording and the slides i’ll send a couple of relevant um blog posts that we’ve written about that more detail um and do you guys want to do one more question we’re two minutes over yes do one more if you if you pick one out early and then and then of course with our answer directly the ones which we couldn’t get to okay we’re getting um we have a few questions i think so i think it’s worth like revisiting about third-party links or content on your site that you don’t control and liability issues around that so typically that’s one thing i always include in a settlement agreement is that we are not responsible for any third-party content that is linked from or to the website um we can’t control it we are not viable for it um however that’s not going to prevent someone from suing you and then you have to sometimes go in and tell the other side hey look we don’t control this another server has it a lot of times i’ve seen a website might have a general you know web address but then if you start to go in to try to shop that is owned and operated by someone they’ve contracted it out to and and the um the defendant the main party um doesn’t have control over it however they can still be sued and then you know you have to go the route of you know trying to get indemnified from that third party um which is just sort of um a difficult um issue but it is something that we see sometimes i’ve had cases where i have said look this isn’t my client you need to sue you know this isn’t owned or operated by us we can’t in fact effectuate the injunctive belief that you want us to um because we don’t have any access to it um unfortunately you can still be sued for it and then you just have to go over the after the other party to make sure that they make the website compliant yeah i mean our our is that the plaintiff firms don’t care meaning right they’ll sue you uh you then spend money defending yourself and trying to defend the fact it’s not you and they still don’t care um so your your your absolute best path right now is to know exactly every third party application and feature you have on the site and make sure that you contact those suppliers and you make sure that they’re aware that they should be responsible for making sure it’s accessible and you should be adding it to your clauses and your contract right absolutely okay great um so we are a little past i want to thank everyone who stayed with us and who um you know joined today i have up on the screen my contact information jennifer and jason so if you have some questions that you think of later you know send those in and i will forward them to our presenters i’ll also be sending some follow-up materials the slides in the next couple of days and then uh the recording next week i did have a technical hiccup so i’m hoping that we have a good reporting from this webinar and i think we can go ahead and jason jennifer do you have any final thoughts before we drop her no just thank everyone for being um for spending time with us and obviously jennifer for your uh for your legal color today yes absolutely thank you all so much great okay thank you everyone for joining and with that we’re going to end the webinar

As found on YouTube