Since September 2016, we have been receiving about 10 notices a month from insured banks that have received letters from law firms alleging that bank websites and internet-based banking services violate the Americans with Disabilities Act (ADA) because the sites are not accessible to the visually impaired. The demand letters typically seek a settlement payment and an agreement to work with the law firm to modify the website in accordance with proposed regulations. Most letters are from Carlson Lynch Sweet & Kilpela LLP (Pittsburgh) on behalf of Access Now, Inc., a nonprofit organization that advocates for the visually impaired. More recently, banks located in California have received letters from Pacific Trial Attorneys.
In addition to monetary settlements, the letters tend to demand costly modifications to bank websites to comply with proposed ADA standards. Even though the Department of Justice (DOJ) has not yet enacted the regulations, some federal courts have held that current ADA accessibility provisions apply to websites (as they do to traditional brick and mortar businesses); therefore, plaintiffs’ firms have targeted retailers and now community banks, alleging that the websites violate the ADA because they are inaccessible to the visually impaired. Recent developments reveal that companies and industries are pushing back against these serial demands by law firms (but not against reforming websites to be ADA compliant):
- April 2017: a federal judge in California dismissed a case filed against Domino’s Pizza, alleging that its website violated the ADA on the basis that the proposed rules have not yet been enacted by the DOJ. The plaintiff has filed an appeal.
- February 2017: Texas Bankers Association (TBA) and Independent Bankers Association of Texas (IBAT) sued Carlson Lynch for unlawful solicitation of business. The firm backed down in response to suit. The parties reached a settlement in which the disability rights group released TBA and IBAT member banks from all ADA claims related to the provision of electronic banking services in exchange for an agreement by the member banks to reaffirm their commitment to accessibility for visually impaired persons through a nonbinding Restatement of Voluntary Access Principles. The associations’ lawsuit cited Texas barratry laws intended to protect Texas businesses and citizens from improper conduct by lawyers in soliciting new clients. It was alleged that the demand letters had offered to settle purported ADA claims if recipient banks hired the firms as ADA compliance counsel.
- March 2017: Attorneys for Washington Bankers Association and Community Bankers Association of Washington sent a letter to Carlson Lynch, resulting in the firm withdrawing its claims against banks in Washington. We understand that bankers associations in Colorado and Arizona are assessing action against the firm as well.
Despite the pushback to the demand letters and lawsuits, keep in mind that banks and retailers generally express a desire to remove accessibility barriers. The disagreements center on the law firms’ approach and the uncertainty of the proposed standards. There is even more confusion with the new administration in Washington. A recent Executive order from the White House suggests that the proposed regulations concerning website accessibility may not be enacted, leaving banks and retailers without guidance on what accessibility rules and standards apply to website and Internet-based services.
Of course, this does not mean that the needs of the visually impaired or other disabilities should be ignored when it comes to website accessibility. In fact, we have generally found that banks are working with appropriate vendors to make their websites more user friendly to visitors across the disability spectrum, not just the visually impaired or blind.
WHAT TO DO?
Even though it is unclear whether the proposed regulations will be enacted in 2018 as originally intended, courts can still find that a website violates ADA accessibility requirements. We recommend that your bank seek legal counsel who is familiar with these issues, including appropriate modifications and local lobbying efforts. We do not recommend responding to a demand letter in the absence of experienced counsel.
Most, if not all, of the state bankers associations are familiar with these demand letters and the efforts to respond. Even if your bank has legal or IT advisers to help guide you through the ADA accessibility process, it may be helpful to check with your state bankers association to see how other banks are responding. Also, be sure to take advantage of the resources, such as webinars, addressing this issues as provided by your state or national association.