Our Financial Institutions Group has issued several Client Alerts regarding actual or threatened website accessibility litigation — specifically, claims that a targeted entity’s public-facing website is not reasonably accessible to disabled persons and therefore violates the federal Americans with Disabilities Act (“ADA”) or similar state anti-discrimination laws. Links to our previous alerts are available here:

U.S. Supreme Court Declines To Clarify Accessibility Standard

As we discussed in our February 2019 Client Alert, litigation risks associated with ADA accessibility have increased because of recent cases favoring plaintiffs. We noted the decision of the court in Robles v. Domino's Pizza, LLC, 913 F. 3d 898 (9th Cir. Jan. 15, 2019), in which the Ninth Circuit Court of Appeals reversed a federal district court's determination that no cause of action under the ADA could be brought unless and until the U.S. Department of Justice issues a website accessibility standard to guide companies in their effort to comply with the ADA. The Ninth Circuit ruled Constitutional Due Process (fair notice) does not require the issuance of specific guidelines for compliance.

Domino's Pizza, LLC asked the U.S. Supreme Court to hear its appeal of the decision by the Ninth Circuit. Domino's argued that the U.S. Supreme Court should clarify the website accessibility standard. By order dated October 7, 2019, the U.S. Supreme Court declined to hear Domino's appeal, foregoing a chance to establish a national standard for website accessibility under the ADA. 2019 WL 4921438 (Mem). As a result of the U.S. Supreme Court's refusal to hear the Domino's case, plaintiffs will use the lack of clarity of a standard for compliance and continue to file suits.

Risk Mitigation Action Items

To reduce your institution’s risk of being targeted and its potential exposure if an action is filed, we recommend the following:

  • Immediately audit your website (engaging a qualified outside vendor if necessary) to identify any “access barriers” based on the WCAG 2.0 (Web Content Advisory Guidelines) standard.
  • Immediately address any significant WCAG-based access barriers.
  • Adopt procedures to ensure access barriers are corrected on a going-forward basis.
  • Do not wait until you receive a demand letter to take corrective action. Plaintiffs will not always send a demand letter before filing a lawsuit.
  • Engage qualified outside counsel to help with these efforts.

Cautionary Note: If your institution has already entered into a settlement agreement relating to website accessibility claims, please be aware that the settlement agreement can only help insulate your institution from copycat lawsuits if (1) the settlement agreement requires your institution to upgrade its website to substantially comply with the ADA, and (2) your institution actually meets its compliance obligations under the agreement.

We Can Help You

Our Financial Institutions Group has extensive experience counseling our banking clients on ADA website accessibility compliance issues, including risk identification and mitigation, and in defending our banking clients against actual and threatened ADA website accessibility claims. Scott Porterfield, one of our litigation partners, leads our efforts in this area. Please call us if you have any questions or we can otherwise be of assistance. In the meantime, if your institution hasn’t already done so, we encourage you to consider taking the website accessibility risk mitigation steps listed above.

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