Kris:
Okay, today, I’d like to welcome Richard Hunt to the show. Richard is a board-certified trial lawyer with over 35 years of experience in state and federal court. He has a national ADA and FHA consulting and defense practice.
He represents real estate developers, apartment owners, banks, shopping centers, restaurants, and retailers; the list goes on and on. His blog Accessibility Defense is read by hundreds of attorneys and accessibility experts.
Richard, thank you so much for being here. Can you go into a little more detail on your background and practice, specifically as it applies to website accessibility litigation?
Richard:
Sure, Kris. I’ve been doing this more or less since the current website accessibility litigation trend that began in 2015. I noticed as part of my usual background research at ADA matters that a firm then called Carlson Lynch was filing a bunch of suits, and so I started looking into it, and I fought them.
And it turned out to be true that once it became clear that plaintiffs could make money on ADA website cases, that other plaintiffs’ firms should join in, and sure enough, they have.
So we’ve gone from, I think, in 2015, maybe four website litigation cases to, depending on how you count, somewhere between 2,500 to 3,500 a year now. So there’s been a huge increase. But I started thinking that at the beginning, because I just knew that plaintiffs would see an opportunity, and of course, when plaintiffs see an opportunity, defendants’ lawyers have an opportunity as well.
Kris:
And you’ve really established yourself as one of the experts, leaders, and luminaries in the space. I know you’ve attracted a lot of clientele because of your excellent work. Can you walk us through your typical client experience when someone comes to you and says, Hey, Richard, I’ve received a demand letter or I’ve had a complaint filed against me in court. What is the typical- walk us through typical next steps?
Richard:
Sure. Well, generally, the first thing I do is try to educate the clients about the special nature of this litigation. Because even clients that have had an experience in business litigation have to understand the settlement.
The strategic considerations for these cases are different from the standard business case. So we will talk about the options for defense, and the options for settlement. I generally try to get them to choose from early on whether they’re going to defend the hell out of it or trying to get out by settlement.
And then, I would say 100% of the cases that I’ve had, my client either immediately or eventually selects settlement as their best option. And so we are- I then call up the plaintiff’s lawyer and try to make the best deal I can for my client based on the law firm, what I know about their settlement demands, and their willingness to litigate.
Based in part on what my clients can afford to pay in settlement, and then deal with remediation issues which are always part of the settlement in terms of timing and what will be required. But that’s a typical client and take as a discussion whether we’re gonna fight or settle and the risks and costs of fighting.
Kris:
What is that? What are the different settlement amounts that the different types of entities being sued can expect? Does it range based on who it is, whether it’s a small business or a law firm? Can you give us an idea of what settlement amounts are typically falling in it?
Richard:
Sure, I’d say there are. I put these in four categories. There are the absolute bottom feeders. These are law firms that will send a demand letter but don’t have the wherewithal or desire to file suit, and in many cases, these firms you can ignore them.
They won’t do anything, or they will cheerfully take $500 and sign a release because they don’t want to. They just want to get a quick buck. I haven’t seen too many of those recently, by the way.
The next tier up and these are mostly firms on the West Coast are firms that are certainly willing to file a lawsuit, but do not want to litigate it hard and we may talk about some reasons why in California in particular, the firms are less willing to invest a lot in litigation.
But these cases, I found, settled between $3,000 and $8,000 depends a little bit on the individual law firm. And then at the- you might call it, the top or the bottom, depending on how you think of this.
The top are law firms in New York and in Pennsylvania, generally speaking, that are perfectly willing to have the wherewithal to litigate a case through trial and through appeals, and because they’re willing to fight through those steps, they typically demand a much higher settlement amount.
And I’ve found with those firms someone’s costing between $10,000 and $15,000, sometimes a little more than that. These firms will take into account whether the defendant can actually afford to settle the case based on the size of the website they’ve sued. But for those cases, if you get out for $10,000, you’ve done very well.
Kris:
What are the accessibility issues that you have noticed being claimed over and over again? If there is, is there a pattern? Do you typically see one accessibility issue more than the other? I’m trying to get a feel for what did you- and your experience. What is the most- are the most commonly claimed accessibility?
Richard:
Well, the certainly at the top of the list is missing alternative text. And that’s, that’s partly because when alternative text is required, it’s not well defined. Because you have to make a judgment call about what constitutes a decorative image. But also because commercial websites in particular, change frequently.
They’re putting up new pictures of products; they’re putting up new advertising materials, and the more often you change the images on your website. The more likely it is that you’re gonna forget to put any alternative text, so that’s, that’s the number one problem.
In terms of substantive problems. The problem I see most commonly has to do with menu navigation and the pop-ups that are essentially hidden. Menu navigation is a problem because I think developers who have in their mind that menus will always be navigated using a mouse don’t make sure that the arrow keys on a keyboard will behave as expected or that the tab key will behave as expected.
And then pop-ups are a problem because with keyboard navigation, you simply cannot find the button that says to close the pop-up, and even if you can reach it through tabbing or some other keyboard method of navigation. In a complex website.
You may have to hit tab 47 times before you get the focus to the pop-up, and for blind users, that’s just about impossible. But I think pop-ups are frequently badly designed to create this kind of problem.
Kris:
And I’m glad you brought that up because keyboard navigation is not something that’s caught from an automated scan, and so many people are- they’re looking to automated scans and understandably, so we’ll get this into it a little bit.
They’re very, very important, but keyboard navigation also has found its way into litigation. Right? It’s a common- it’s something that’s commonly claimed. So it’s not solely automated scans.
I know you have some good insight on scans, and we’ll get to that in a second. The next question I want to ask you is about the current legal landscape because it largely stays the same. But we do see some different practices, like some changes in the way things are unfolding.
So over the last three to six months, can you tell us what the current legal landscape is in regard to website accessibility litigation?
Richard:
Well, in some respects, as you said, it never changes because the lawsuits are not necessarily filed with the thought that they will be litigated. Therefore, the law doesn’t matter.
But I do think the 2nd circuit’s recent decisions in the Calcano cases concerning standing have had an influence on the second set on cases filed in the 2nd circuit.
It’s been pretty easy for website litigants to distinguish themselves from those cases. Those were gift card cases. But I think plaintiffs are being more careful about their pleadings. And I suspect that in the long run, the settlement value in New York’s gonna go down.
The 2nd circuit, on the other hand, has not yet resolved the question of whether standalone websites are covered by the ADA. And so that’s an open issue that allows litigants to continue suing website or internet-only businesses in New York or in the 2nd circuit.
In California, the first- the 9th Circuit has long said that standalone websites are not covered by the ADA. This was an open issue under California state law, and of course, the Unruh act generates a lot of litigation because of the $4,000 bonus that is available to plaintiffs.
There’s been a recent appellate decision in California that finds that the system would be ADA standalone website not covered. I think that’s already had the effect of diminishing the settlement value. Of cases filed in state court in California.
But it doesn’t. I don’t think it’s diminished the number of cases that are being filed. So those are the major developments.
Kris:
What is the current status with website accessibility litigation as it pertains to the Fair Housing Act? Are you still seeing demand letters- FHA demand letters and complaints filed?
Richard:
No, they may be filed, and I’m just not aware of them. But I have not had any clients call me that got a Fair Housing website accessibility demand letter. There was a state of those cases that seemed to have originated with one small group of lawyers in Southern Florida.
At one time, lawyers all over the nation were filing identical or sending identical demand letters. That seems to have stopped there. I only know what people call me about, but I haven’t gotten any calls about those kinds of claims at all.
Kris:
Something I read on your blog is the judge- the judge assigned to the case is affecting the case. How does the judge affect your next move?
Richard:
Sure. I’ll give an example from New York. This is a relatively like a very recent client that I took on. It’s a standalone website, sued by a serial filer about one of the larger New York plaintiffs’ firms.
I went on to PACER and Westlaw and checked to see if our judge had made any rulings on these issues, and I was able to find out pretty quickly that the judge agreed with many other district judges in the 2nd circuit that the ADA does cover standalone websites.
So I knew immediately that’s a defense it’s not worth raising. On the other hand, you know, in the most recent opinion, the judge expressed a lot of skepticism about standing to sue for serial website blindness.
And that told me that even if my client decided not to spend the money raising a defense, that we had a better settlement position than we would in, say, another judge down the hall that was not so skeptical of standing
So that it affects your settlement negotiations because it affects what defenses might be available on a motion to dismiss. In fact, this particular judge has her own pretrial standards for ADA cases that require an early pre-trial conference and pre-mediation. Those are all things that drive down the cost of settlement.
So that’s a typical analysis. What does the judge think about these as yet unresolved issues?
Kris:
And you’ve already got to my next question, which is the recent changes- the recent decisions in California, in New York. And so I do want to clarify, though, that the effect that you’re seeing is not necessarily a decrease in litigation.
But it’s a- there are lower settlement amounts because defendants now have- the leverage has tipped more in favor of the defendant. Is that accurate?
Richard:
Yes, I think that’s true. I think settlements are probably going to go down except for the very largest firms. The firms that are most willing to litigate these things might for example, even with a judge who believes that the ADA doesn’t cover standalone websites they might, choose to litigate it because they’d like to get a decision in their favor from the Circuit Court.
Because that would enhance their thing, but I think for more ordinary plaintiffs’ firms, the settlement prices are going to go down because there are better defenses that you can assert early enough in the case for to make economic sense.
Kris:
And we know that New York and California have been the hubs for litigation, and Florida has always been heard in activity. Have you noticed any uptick or any continued litigation that’s worth mentioning in other states?
Richard:
You know, here in Texas, there’s been a little bit of an increase in physical accessibility cases, driven entirely by the fact that a couple of new lawyers have taken up the mantle, and I’ve seen a number of cases coming out of the 8th circuit but also driven by a single lawyer or law firm.
So I don’t think there’s a real trend. These cases, you know, you can get a large volume of cases in some geographic area because a law firm has decided to do it for a while, but, in terms of trends, I think it’s still gonna be California, New York, and Florida.
Kris:
I’ve been slightly surprised that we have seen a core group of law firms be so relentless in this litigation, and yet, it’s mostly that, like, we don’t see too many new entrants into this space. So do you think that at some point, there will be additional law firms that do become as aggressive as the most common- the most active plaintiffs’ law firms?
Richard:
I think it’s inevitable that somebody will think that they can do it better and make more money so that those sorts of people will come along.
I do think that the recent decision you talked about out of California in the 2nd circuit that probably discouraged new law firms from deciding this is the business they want to get into. And the same thing with physical accessibility in California.
We’ve had headline cases where one law firm had a civil suit filed against it by the local district attorneys, and that kind of pushback, even though in that case the law firm ultimately prevailed, but things that make it expensive and grab headlines, I think will deter plaintiffs’ lawyers from just saying, Oh, hey, here’s a new business I can go into.
So I wouldn’t discount another law firm coming in, but I think we’re likely to see the same group now rather than have a flood of new entrance.
Kris:
And, of course, the plaintiffs’ law firms love the technical standards that are the Web Content Accessibility Guidelines or WCAG. Because they get so many ways that the website could potentially have an accessibility issue that can be, you know, they can make it a sort of claim that okay, this issue makes the website inaccessible.
But what a lot of people don’t realize or don’t pay attention to is that these are technical standards. They’re not the law. What is the current legal standard under Title Three of the Americans with Disabilities Act?
Richard:
Well, there isn’t one. That’s the simple answer. The Department of Justice tried to adopt the regulatory technical standard into a process that would have ended up a few years ago.
During the Trump administration, that regulatory process was simply halted a few months before the regulations were supposed to take effect. Recently DOJ has issued or started the regulatory process, or website accessibility for title two entities which are Cities and Municipal Governments.
I imagine that if those regulations seem to work, DOJ will adopt identical regulations for Title Three entities, which is what we’re talking about- businesses. But we are a few years off from that just because the regulatory process is slow.
So right now, we don’t have anything. There’s also a bipartisan effort in Congress to pass a new title that would create a special website accessibility title in the ADA.
It does have bipartisan support, but at present, it doesn’t appear that Congress is functional enough that there’s any chance of passing that kind of litigation so our legislation, I should say.
So I think right now we’re stuck with the technical standard is non-existent. There have been judges that said WCAG 2.0 or 2.1 is good enough.
Most comprehensive approach, and the one that I recommend to my clients, is there’s been one case dismissed where the judge found the website both complies with WCAG 2.1 success level AA and that every specific complaint of the plaintiff had been addressed.
And that was good enough to get the case dismissed. But that was also one judge out of dozens. For the most part, you will find out what it means for your website to be accessible when you have a trial, and the judge tells you.
Kris:
Something I came across as I was going through the deeper- the older blog was in on accessdefense.com, and your blog is the Standard of Meaningful Access. Can you talk more about meaningful access in light of website accessibility litigation?
Richard:
Sure, absolutely. I think this is the standard that should matter. But meaningful access is simply that a person who has a disability. And it’s- we’re mostly talking about people who are blind is able to use the website for what is therefore, if it’s a commercial website that sells products, then a person who’s blind should be able to find the products they want to buy and purchase them.
If it’s a website that simply provides information of some sort, then the person who’s blind should be able to find the information. And, of course, downloading it, they should be able to download it.
But that’s meaningful access. meaningful access is whatever an ordinary person without a disability could do that’s functional on the website, which a person with a disability should also be able to do. And I think that then cuts out the notion of perfect accessibility.
That is, if there are flaws in the website, that means that you know you guys unrelated to the fundamental purpose of the website. That shouldn’t really matter. This, I think, is particularly true of images and decision of whether the images are decorative or just because every image doesn’t have alt text doesn’t mean that a person with a disability can’t use the website.
On the other hand, if there are products being sold, then certainly the pictures of the products need to have good descriptions. And so that’s the Meaningful Access where you can use the website for what it’s there for.
Kris:
The fact that it’s unclear like we can’t- we don’t have anything that we can explicitly point to and say this is exactly what needs to happen.
It really explains why this has opened up and why this is an ongoing problem for website owners is because it’s unclear, even at meaningful access, at what point has a website been made accessible, and that is up for debate on it on a case-by-case basis.
So that is exactly why it’s always best if you can make your website fully conformant, but as you’ve discussed, it does take a significant effort to get to full conformance.
So plaintiffs’ lawyers have had, they really have so much of an advantage in terms of this technical issue exists. You know, now, our argument is that it does create an inaccessible website or that access has been denied.
And then we’re back to the point where we have to settle because it’s not worth litigating in most circumstances.
Richard:
That’s right. I tell my clients this all the time, the reason to fix your website is not to avoid litigation. That’s it. That’s a good reason. But even in 2022, depending on which statistics you look at, there was something, like I said, between 2,500 to 3,500 lawsuits filed.
There are more than a million business websites in the United States. So for any business, the chance of getting sued is very small.
But the chance that you will lose customers because they can’t buy your products is much larger, and so this is why the function- the focus should be on making the website functional for people who have disabilities, because whether or not you get sued, the last thing you want is for a person who is blind to find themselves trapped in a pop-up box, so they can’t buy whatever it is you want to sell them.
That’s the main reason to make it accessible. And that’s the main reason to function- to focus on functional accessibility rather than trying to get perfect conformance to WCAG 2.1.
Because you want your customers to buy stuff. Now, if you want to avoid litigation, then the thing to do is to use the software tools that scan for WCAG compliance and make your website look good to that kind of software. That might not mean that the website is functional.
A lot of the fundamental problems that blind people- Americans with Disabilities face are levels in the software that the scanning software can’t find. But it will mean that the plaintiffs will think that your website’s good.
So you know, make the website functional for your customers. If you want to make it pretty by correcting the most visible problems, then do that to avoid litigation.
Kris:
What changes or developments in the legal landscape? Do you anticipate going forward?
Richard:
I think notwithstanding, the some of the standing decisions that are favorable to plaintiffs. I think the trend is going to be to make it harder for plaintiffs who filed lots of lawsuits to prove that they have standing.
It was not a website case. But the Supreme Court’s decision and TransUnion versus Ramirez has made it pretty clear that the Supreme Court has a very narrow view of standing. And that is bound to eventually trickle down to the circuit courts and to the district courts, as they realize that serial litigation is probably not consistent with Article Three standing.
And I think that decision may embolden some defendants to decide that they will invest the money it takes to bring one of these cases to the Supreme Court on the standing issue. So I think that’s- standing is the most likely development. I should mention Laufer cases too out of the 5th circuit and the 10th circuit.
Other circuits haven’t agreed with these decisions, but I think that the standing analysis of those cases is gonna have an effect on district courts. Then in terms of whether standalone websites were recovered or not. I don’t see any resolution.
Soon for the split in the circuits. It’s ideal for cases to go to the Supreme Court but you have to have a defendant who wants to spend a lot of money to do that. And the last defendant that did that Domino’s took the case up, but it was really the wrong case in terms of the legal background, and predictably the Supreme Court wasn’t interested in it.
So when somebody has enough money, and they have a case that squarely presents the issue, we might get a Supreme Court ruling. But otherwise, the next thing that could happen to change the legal landscape would be regulations from the DOJ, or the passage of this new title, the ADA.
Kris:
There are supposed to instant fix options that are in the marketplace and they’re commonly termed accessibility overly widgets. They market themselves as a solution as a way to make your website ADA compliant, as a way to make your website WCAG conformant. What is your take on accessibility overlay widgets?
Richard:
My take is that they don’t do what they’re supposed to do. They can certainly improve accessibility because they can find problems and they can even correct those problems.
But for the same reasons that software that scans for problems can’t find all the problems. Widgets that work to find and fix problems can’t find and fix all the problems, so there they are not going to be a solution.
There are, and they can be- they can also create problems. I’ve talked to at least one of blind tester, not a litigation tester but a guy who professionally tests websites, and the software that is supposed to fix a broken website can create its own blocks to a blind user who expects the website to behave a certain way. So, I don’t think there’s a solution. I see them all the time.
And my feeling is that they probably- somebody’s making money off of them. But I doubt that they are really doing any significant good for people with disabilities.
Kris:
When in your experience, when a plaintiff’s law firm comes across an overlay widget. Does the plaintiff’s law firm stop and think well, this website is accessible we can just move on. How do plaintiffs’ lawyers view overlay widgets?
Richard:
I don’t think they regard them as an impediment. There’s been a firm that seems to be looking for accessibility widgets to file suit against. But I think for a typical plaintiff’s firm using scanning software. Scanning software will show that a widget has been installed.
Some of the overlay software, actually the text scanning software and tries to interfere with it. But from a plaintiff’s standpoint, even if we accepted their concern is with accessibility rather than money. They’re going to recognize that the widget has not likely made the website accessible, so I don’t think it’s going to deter litigation in any way.
Kris:
Let’s say I’m a small business and I receive a complaint, or a complaint was filed against me, or I receive a demand letter. What are my next steps?
Richard:
The first step is to hire a lawyer. Although the discussion of early settlements suggests that maybe a businessman can make his own deal, there are plenty of pitfalls in settling the kind of basis that would indicate that you need a lawyer.
I’d say that you should look for a lawyer that has experience with these kinds of cases because the settlement parameters depend on knowing the law firm and what’s done in the past.
Now, there are also important provisions in a typical settlement agreement that you want to make sure are adjusted, and the plaintiff’s settlement that you might expect is going to be heavily important.
So the first step is to hire a lawyer. And I think the next step is to make sure that you and the lawyer agree on your strategy.
My clients frequently come to me because they’ve gotten a letter from a law firm that outlines 10 or 12 great defenses that they’re going to raise and the aggressive attitude they’re going to take.
And I can look at the letters and say, well, these defenses aren’t going to work. This is- if you buy into this, you’re gonna pay this lawyer a lot of money, then you’re gonna settle the case. So look for a lawyer that understands the give and take on the effectiveness of these defenses, and how they affect the settlement strategy.
And has the same goals as the business in terms of getting out of litigation and getting the website to be accessible, with accessibility being the main goal. Getting out of the litigation at minimum cost being the second goal.
Kris:
You have a- there’s a selection for your website that I want to read now and I want to get- I want to ask you to expound upon this is that you said, Businesses of all kinds are under attack by plaintiffs exploiting the American with Disabilities Act, the Fair Housing Act and other disability rights laws as a means to enrich attorneys while doing little or nothing for the disabled.
Can you talk about that?
Richard:
Sure. First, as far as doing good for the disabled, I think the statistics speak for themselves. Website litigation of this kind has been going on for the last seven or eight years in significant numbers. And yet we’re not seeing any slowdown in the number of cases filed if you’re- if it’s a public policy strategy is to litigate.
Then you would expect that after 7 years, you’ll start to see a slowdown, you start to see websites being more accessible, there being fewer litigation targets, but that hasn’t happened. So litigation is a public policy strategy that doesn’t seem to be working.
And also, the statistic I mentioned earlier million business websites, 2,500-3,000 lawsuits a year. Most websites will never get sued. And if litigation is the way you’re going to websites accessible, it’s not going to succeed because 99.5% of the websites out there will never see a lawsuit.
So I think it’s a failed strategy for helping people with disabilities from a statistical standpoint.
And then I know from an individual case standpoint that every plaintiff that I’ve negotiated a settlement with, they will require some kind of agreement that the website be made accessible, but they will not require that that agreement have any teeth in it that it’d be enforceable.
To me, just a fig leaf to cover up the fact that the second paragraph of the settlement says how much money they get is the only paragraph they really care about.
So when the plaintiff will allow the defendant to make a meaningless promise of accessibility in exchange for money, then I don’t think that’s doing people with disabilities any good either.
Kris:
Will the plaintiffs ever give you a break if you’re working on accessibility, or if you’ve started or even if you’ve made your website WCAG conformant after the fact?
Are there any sort of breaks that plaintiffs’ lawyers will give?
Richard:
I haven’t found that to be the case. I think that if you can produce a report from a respectable third-party service that says your website is accessible, that will improve your settlement position.
I’ve never seen a plaintiff’s law firm that said, Oh, well, your report says it’s accessible. We’ll just dismiss our lawsuit. I’ve never seen that happen.
It might improve your settlement position. But, once the law firms invest in the case, they’re not gonna let it go just because you’ve complied with the ADA.
Kris:
What is one thing that businesses should know about website accessibility litigation that most do not?
Richard:
The most important thing to remember is the cases or files to be settled. And if your goal is accessibility, work on that goal, and I would say it’s distressing it is for me as a lawyer to say it, spend your money on your website, not on your lawyer, and figure out how to get out of a lawsuit with no legal fees so that you can make your website more accessible to disabled individuals who want to use it.
Kris:
That gets to something that I bring up is that preventing litigation- there are no plaques for preventing litigation. Nobody knows about the lawsuit that never happened or never materialized.
But that’s what really needs to happen because you don’t want to get into a technical argument or a legal argument over whether your website is accessible or even needs to be accessible, and so rather avoid that altogether.
Wrapping up. Are there any last notes or information you’d like to pass along?
Richard:
I think the most important thing I’ve said a few times this week is the reason to make a website accessible is for your customers. And that’s that is the place where you spend money to make money, which is what businesses generally want to do.
Making your website accessible to avoid legation may not work in the first place. And it won’t necessarily change the outcome of litigation because I’ve remained firmly convinced that most plaintiffs do not care about accessibility. But make your website accessible for your customers. That’s the reason to do it.
Kris:
Richard, I want to thank you so much for coming on today. This is amazing content. I know it’s been a lot of people.
Can you tell us quickly where people can contact you?
Richard:
Sure. It’s my email. It’s the best way. It’s rhunt@hunthuey.com. You can go to my website at hunthuey.com or you can go to my blog, which I really encourage you to do if you’re experiencing some of these issues. It’s accessdefense.com all lowercase.
Kris:
Thank you so much. This is Richard.
Hi, my name is Kris Rivenburgh. The law firm is Hunthuey. The blog is Access Defense.
