Kris: Okay. Today, I would like to welcome back Richard Hunt. Richard and I, we had a previous interview and I will link to that one below, but I want to reintroduce Richard. Richard is a board certified civil trial lawyer with over 35 years experience in state and federal court. He has a national ADA and FHA consulting and defense practice and he represents real estate developers, retailers, restaurants, shopping centers, banks, apartment owners, etc. And his blog is well-known. I read it. It’s called Accessibility Defense. You can find it at accessdefense.com. It’s read by hundreds of attorneys and accessibility experts. Richard, can you elaborate on that and just tell the audience more about you?
Richard: Well, I’ve done FHA and ADA work really for the last decade, almost exclusively, and it’s almost all in federal court. I have clients in Florida, Texas, California, Montana from time to time, Pennsylvania, Connecticut. It just depends on where people get sued and what their particular need is because these are federal statutes. The law is pretty much the same no matter where you go, although I think we’re going to talk about some differences as we go along.
Kris: So one reason I really like having you on the show is because you are directly experienced in this. You are talking to the plaintiff’s lawyers. You are talking to clients, people who are in this position where they received a demand letter or a complaint has filed against them. And your experience, what are people not understanding about website accessibility and litigation prevention? What is it that is because we’ve got website owners that are either unsuspecting website owners. They don’t even know that this is a possibility. And there are other website owners that are aware of it. They’re getting sued. Sometimes they’re getting sued again. And sometimes this is even despite having purchased some kind of service or product involving website accessibility. So what is it that people are not understanding?
Richard: Well, the most important thing anyone has to understand that either gets a demand letter or is sued is that the seriousness of the problem depends very much on who sent the demand or who filed the lawsuit. We’ve got people sending demand letters that you can essentially ignore because these are lawyers who just send a demand, hope for some money, and in most cases have never filed a suit at federal court. At the other end, there are sophisticated law firms that file class action lawsuits that have the resources to pursue those. And then there are different degrees of firms in between. So you’re there’s no one response to a demand or a lawsuit. It depends on who filed it and what kind of essentially what kind of threat they realize create, rather. And then the other thing that people have to understand is that there is a disconnect between website accessibility and website accessibility litigation. Because many of the plaintiff’s lawyers are only using the litigation as a way to get a quick payoff through settlement. And so although they will say that they want the website remediated, they aren’t looking at whether a website is accessible or not. They’re only looking at whether they can identify enough of a problem to justify filing a lawsuit. So a website that is for all practical purposes completely accessible to someone using a screen reader might get sued because there are a few small flaws. And on the other hand, a website that has serious accessibility problems but looks good, you know, at a short scan, might not get sued because the plaintiff’s lawyers can’t immediately see what they need to do to sue it. So you have to you have to treat accessibility as something you’re doing for your customers and for your revenue. And then you have to look at litigation risk management as a related problem but not the same problem. So…
Kris: And that you actually touched on what we’re going to get to in the second half has the level of activity continued as it was the last time we spoke?
Richard: Well, the most important development recently is that the Supreme Court granted certiorari in a case called Acheson Hotels versus Laufer. Ms. Laufer is a very prolific lawsuit filer, more than a thousand lawsuits, and she specializes in suing hotels that have websites that do not have accessibility information. If you—except for the sheer number of suits that she files, this is only a tiny fragment of ADA website litigation. It’s based on a particular Department of Justice regulation. But in the last year and a half or so, different circuit courts of appeals have reached very different conclusions about whether Ms. Laufer had standing to sue. Standing to sue is a topic that could last an entire discussion, so I won’t go into it, but the question is whether Ms. Laufer, who’s just looking for lawsuits, has a right to file lawsuits. A few years ago, the Supreme Court, in a case called TransUnion, reached out, clarified the law of standing, and I think indicated that it was really interested in limiting standing to sue in all kinds of cases. TransUnion wasn’t a website case, but it was a clear indicator that the Supreme Court was interested in this issue. So granting cert in this Laufer case indicates that we’re probably going to get a holding on standing that will be very useful. It could be very narrow. It could be so narrow that it only affects Ms. Laufer and other very similar plaintiffs. But I think it’s more likely that we’re going to get a holding that, if it’s favorable for defendants at least, will mean that many, many of the website ADA plaintiffs no longer have standing to sue. And that will take a huge dent out of the website accessibility litigation.
Kris: What do you think? Do you think that, of course, that would temper litigation, but do you think plaintiffs’ lawyers would work harder around that to have a genuine claim where they’re not just saying they’re a tester, but they’re asserting that their plaintiff is genuinely going to the website and trying to avail of the products and services? Or do you think some plaintiffs’ lawyers would just stop altogether?
Richard: I think some plaintiffs’ lawyers will probably move on to greener pastures because it will take a little more work. But I will say the plaintiffs’ bar has been very flexible in its response to this kind of challenge. We saw courts several years ago with physical accessibility cases start looking into the question of whether the plaintiff had standing to sue. And the plaintiffs’ bar kind of upped their game. And so now you’ll see in many ADA physical accessibility lawsuits, the plaintiff, instead of just alleging that they went to the property, will take a picture of themselves in front of the property holding a receipt for whatever they bought at the property. So the plaintiffs have proven their ability to be flexible. I suspect they’ll do something similar with websites. They’ll try to demonstrate that their client went to the website in order to use the goods and services. For regular retail websites, that’ll be pretty easy. There are some websites where that would be much more difficult. So it’s going to kind of depend on what kind of website you’re operating and what you’re selling. But I’m sure that the plaintiffs, at least the more sophisticated ones, will simply up their game on standing by adding additional allegations. It’ll just make it a little harder for them.
Kris: What has been, has the level of activity continued as it was the last time we spoke?
And are the settlements, what is your fill for the latest settlement amounts? Where are they ranging?
Richard: Well, the level of activity overall remains high. It came up again in ’22 after a lull during COVID. Settlement amounts are, I don’t think they’re changing in general. The main thing that you have to remember about settlement amounts is it depends very much on the law firm. You may get demand letters from people you should or could ignore that $500 would take care of. There’s a, I’d call, middle range of ADA website plaintiffs’ lawyers in California and New York where you might settle for between $6,000 and $10,000. And then there’s other more sophisticated firms that are really willing to litigate these cases where you can’t settle for less than $14,000 or $15,000. So the settlement depends on the law firm and you have to know who you’re dealing with.
Kris: It’s my speculation that the lower settlement amounts typically come from Florida, maybe into, maybe in California. California is more mid-tier and this is just obvious as general. And then New York is the premium where you’re going to get the highest settlement amount demands. Is that a good rough gauge by state? That’s just me throwing it out there, but that’s the feel I’ve gotten.
Richard: That’s a good rough gauge. There are plaintiffs’ lawyers in New York who are settling for smaller amounts now, so comparable to Florida and California. I think actually the most sophisticated ADA plaintiffs’ firms right now are in Pennsylvania, filing in the Western District of Pennsylvania. Those are the firms that I think routinely command the highest settlements and have proven most willing to take on major retailers, for example, that have a lot of resources and fight them to a settlement or to some kind of conclusion.
Kris: On my next question, relatedly, so some website owners, they receive a demand letter or they learn that a complaint has been filed against them and the immediate response is to want to do something. And in fact, even if they don’t retain counsel right away, they want to immediately respond or call the plaintiffs’ lawyer to dispute the claim because there’s sometimes this impression that this can be argued or just countered, right? Not necessarily an argument, but like, no, no, this is not the case. It is accessible. Why is it so important for someone to hire an attorney to represent them in these matters?
Richard: Well, there are two reasons. First, as I’ve indicated, there are different threat levels from different plaintiffs, and if you don’t know who you’re dealing with, you’re not going to know how seriously to take it. All of the plaintiffs from the bottom to the top might ask for $15,000 to settle. You just have to know which ones really mean it. The other thing is I have never found a plaintiff in these cases or a plaintiff’s law firm, to be more accurate, that is influenced at all by the genuine accessibility of the website, efforts to remediate the website that may be underway. Honestly, they just don’t care. Their goal is to get a settlement for a larger or smaller amount, telling them that, hey, you just invested a lot of money and your consultant says your website is accessible. That may give you a little shift in the negotiating position, but it will not make them drop the lawsuit. So you have to realize that you need a lawyer because you are going to negotiate based on legal risks and the willingness of the other side to fight. Moral goodness is irrelevant.
Kris: Some of the complaints that are filed are filed as class actions. If a client declines to settle, how likely is it that a class action lawsuit will result? And also, I want to ask, what is the rationale by plaintiff’s lawyers in filing a complaint as a class action?
Richard: Sure. Well, I’ll start with the rationale. There are two reasons why plaintiff’s lawyers file class actions, and they both have to do with money. Class actions are much harder to defend and much more expensive to defend, and therefore a plaintiff’s firm that is willing to prosecute as a class action can demand a higher settlement. The other reason to file a class action is that in a class action context, you can offer something to the defendant for settlement. That is, you can offer a class settlement that would be binding on all other disabled people or at least all other people with the same disability as the plaintiff. And so if you’re afraid you’re going to get sued over and over again, entering into a class action settlement is a way to deal with that problem. The issue with class action settlements is just from a logistical and administrative standpoint, they’re expensive. So it’s never going to be the cheapest way out, even though it’s the way that’s most likely to guarantee no further litigation.
Kris: Many website owners only discover they can even be sued for having an inaccessible website after the fact. And if someone is in this situation, what is the likely outcome for them? And I have three sub-bullets I’d like to ask you about. First, what is the total cost of litigation? So counting in the defense costs, the plaintiff settlements, and then accessibility work. What happens if you ignore the demand letter? And then what happens if you ignore the complaint filed in court?
Richard: Sure. And I hate to keep coming back to this, but it depends a lot on the law firm. In terms of your first bullet point, which I’m going to try to remember here, if you—the total cost of litigation is going to depend very much on the plaintiff and their willingness to litigate, but I would say it would be surprising to get out of a lawsuit like this for less than mid-six figures if the plaintiff is determined. It’s proven very difficult to get these cases dismissed on a motion to dismiss, so you probably don’t get out at an early stage of the litigation. There’s been more success after some discovery with summary judgment motions, but the—unless you can persuade the court that the plaintiff doesn’t have standing, you’re going to have to prove that your website is accessible. And that’s going to mean, first, it’s going to have to be accessible, which may not be cheap, but you’ll also have to hire experts. And, you know, this is the point where your website that is for all practical purposes accessible but not perfect, you might be able to win a trial with the appropriate expert. But by the time you get to trial and the plaintiff’s firms that are prosecuting these cases to trial have their own experts and they have financial resources, you’re well into mid-five figures before you can get to trial. And if you lose, of course, you’ll pay the plaintiff’s lawyers, too.
Kris: And what happens if you settle right away? What would be the total cost then?
Richard: An immediate settlement, once again, depending on the law firm, the key to settlement is, frankly, for your own lawyer to make less money than the plaintiff’s lawyer. But if you approach one of these lawsuits with the attitude that this case is going to settle and start settlement negotiations before you spend a lot of time on doing the lawyer stuff, like motions to dismiss and answers and so forth, then the less your total settlement will be. Now, that total is going to depend on the law firm. It could be, frankly, it could be zero for some of the demand letters that are sent. But if it’s, you know, if you’ve got a plaintiff’s lawyer that’ll take $6,000 or $7,000, you might be able to get out for $9,000. If you’ve got a plaintiff’s lawyer that wants $15,000, you might be able to get out for $18,000 because you’re paying your own lawyer. What you want to avoid, frankly, is the lawyer who says, look, we’re going to gear up, we are going to beat them to a pulp, and then we’re going to get a better settlement. That’s very typical strategy in ordinary business litigation. You feel like you’ve got to soften up the enemy before you can make a good deal. That is not the case in website accessibility litigation. These lawsuits are filed to be settled. The plaintiffs don’t have to be persuaded to that, you know, that you’re going to beat them up before they’ll settle the case. Doing things like having an accessible website may give you a little bit of negotiating leverage. But my experience, at least, has been that if I can avoid filing and even filing an answer for my client, then I can reduce their total cost of settlement.
Kris: And sometimes you’ll see someone say, just ignore it, or don’t do anything with it, or if you haven’t been served yet, throw it in the garbage. What happens if you ignore a demand letter and or a complaint filed in court?
Richard: Well, we get back to the same thing, depends on who it’s from. There are certain demand letters that you can ignore, and historically, nothing has ever happened from people who ignored them. Most plaintiffs’ lawyers that are willing to file a lawsuit are also willing to take a default judgment against you. Lawsuits are filed in California, New York, Florida, frequently against businesses that are not located in those states. So turning a default judgment into an effective judgment that gets the money takes a few more steps. And they have, you know, whether the plaintiff is willing to take those steps, which start to cost more money, is going to depend on the plaintiff’s firm. But in general, a default judgment is a very risky proposition in website cases. In California, there has been a trend toward defendants simply defaulting on physical accessibility cases because they know that there’s a limit to what it’s going to cost them. You know, they’re going to be ordered to pay some attorney’s fees, and they’re going to be ordered to fix their accessible parking, which is paint and a little concrete and a sign. You know, they can, you can look at the suit and say, well, it’s going to cost me a grand. In a website case, even a relatively simple e-commerce case may cost thousands and thousands of dollars to remediate. It may have to be a project that takes six months or a year to accomplish. So in those website cases, if you allow a default to be taken, you’re going to end up with a judgment that’s essentially a blank check. You don’t, you don’t know how much it’s going to cost you to obey that judgment. And you, the judge may very well not give you much time to obey it. And of course, as soon as the plaintiff comes back in and says you’re disobeying the court’s order, then you’re going to get in trouble and have even more fees. So I, I think in website cases, a default is probably a bad strategy, except for very small businesses that are just willing to shut down their website and, you know, and go out of business. And there, I think there are some businesses that actually do that. They just can’t afford to even remediate their website or make a deal, but any business that expects to stay in business should avoid a default.
Kris: You spoke about some of the non-money settlement terms. What are the typical non-money settlement terms in litigation? So when these cases do settle, beyond just the payment to the plaintiff, what do you see being required by plaintiff’s law firms?
Richard: Sure, plaintiff’s law firms usually ask first that the website be remediated usually to WCAG 2.1AA. That’s the, that’s the recent demand. It used to be 2.0 AA. They’ll want the website remediated to that. They’ll agree to give 18 to 24 months to accomplish that. Then they frequently want some kind of agreement that allows them to re-inspect and get additional fees for re-inspecting. Those are demands that are highly negotiable, but the fundamental demand is always going to be meet WCAG 2.1 AA and do it within 18 or 24 months. And then usually there’s an additional provision that says if DOJ enacts regulations, that you’ll comply with those regulations instead.
Kris: Have you noticed, have there been any instances where insurance has covered a website owner or is there any insurance that you recommend website owners look into?
Richard: I don’t know if insurance has played a role in settlements of these cases. Certainly not for my clients, but I believe that you can get an ADA website writer for your general liability policy. You’d have to ask your broker what that would cost and have to make sure that it’s going to give you the appropriate coverage. I think, you know, the calculation for insurance is usually the insurance company charges a premium based on risk. And the, in my view at least, the risk of any one website getting sued is pretty small. We have, I think, literally millions of websites in the United States that are operating that could be subject to the ADA, and yet we only have maybe 10,000 lawsuits a year. So the odds of getting sued are pretty small, but the cost, if you do get sued, can be very large. So I don’t know what the premiums are going to be. I think every business, small or large, should, they should ask their broker about getting coverage for this because it’s a real thing. It’s a risk that every business faces because everybody has a website now. If you’ve got a physical place, you’ve got insurance that covers slip and falls from your customer. You know, if you have employees, you’re going to have insurance that covers injuries to your employees. You might as well get ADA insurance as well if you can afford it.
Kris: And one last question before we get to the Reddit section. Last, on the last video, we never got back to automated accessibility scans. How important is it to get a clean, get clean scan results for your website?
Richard: I think it’s important, and here’s why. As I said earlier, there’s a difference between accessibility and the appearance of accessibility. I’m pretty well convinced that most plaintiffs’ law firms base the allegations in their complaints on using one of the automated scanning tools. In a few cases, I know they do because when I’ve asked them to tell me what was wrong with my client’s website, they’ve sent me a printout from one of these tools. So if you make your website look good to scanning tools, you may have a website that the plaintiff’s lawyer will look at and say they don’t want to sue. Now, that doesn’t mean you fix the website. There are all the scanning tools, even the most sophisticated ones, have limitations and are unable to detect deeper-level problems with the code behind a website. The more complex the website is, the more likely it is that those kind of problems exist. But a scan is a good way to tell what you look like to the world, and what you look like to the world is what you look like to the plaintiff’s lawyers who file these lawsuits. So it’s a great step for mitigation of litigation risk. And also, they do good, in the sense that they will tell you that there are problems that you need to fix. And frequently, having a scan done, particularly businesses that have a good developer or their own IT staff, the scan at least lets them fix some things before they hire an outside consultant. So I think scans are a good thing. You just can’t count on them to make your website accessible.
Kris: What are the scans that website owners should pay attention to?
Richard: Well, there are several different available scanning tools. Most of them offer a free version that you can scan one page of your website to get a look at it, and then they have a professional version that you’d have to pay for or that your consultant would pay for. I couldn’t choose between them in terms of their technical ability. I use the WebAIM Wave software simply because it’s free and it’s very easy to get to and use. But there are other free services as well that typically they’ll look at one web page at a time. And having found some problems, they will then explain to you why you should hire them to fix the problems. But they give you an idea of what you’re looking at. And certainly, I would say any business that has any thought at all of being concerned about this, go to one of these free websites and scan a few pages of your website and see what you’ve got, because what you’re going to see is what the plaintiffs see.
Kris: OK, so we’ve covered the questions that I wanted to get in the top half. Now I want to get your reaction to some various Reddit questions and comments that are made. Sometimes Reddit, I’ve read through many threads, and sometimes there’s really good advice. Other times, you know, they get it partially right, but not exactly. And then there’s some outright horrible advice. So let’s read through a sampling of questions and comments that I have. The first is I’ve read that those lawsuits are likely to get thrown out. It’s a lot of lawyers trying to scare small businesses into paying a fine to quote, unquote, fix the problem. And then another person wrote, you’re right, lots do get thrown out. There are law firms that are that will just try to find a way to make an extra buck these days and sue on the craziest terms. So how likely is it that website accessibility lawsuits get thrown out?
Richard: It’s unlikely. There have been a few judges around the country who, even when the plaintiff moved for default judgment, have taken a skeptical look at the standing question and dismissed a lawsuit, you know, refused to enter a default judgment. There have been some other judges who have entered default judgments that don’t really order anything. They’ll say that, you know, the plaintiff didn’t tell me exactly what they wanted, so I’m going to order you to pay a few thousand in fees, but I won’t tell you to fix your website. Those are a very small minority. In most lawsuits of this kind, the first chance for the lawsuit to be dismissed is on a motion to dismiss that’s filed at the very beginning of the lawsuit. And overall, those motions fail most of the time. You might find the right judge. In fact, just as it is important to know your law firm when you get sued, it’s important to know the judge. I’m handling some cases in the Southern District of New York, and I know that there are a couple of judges that don’t believe the ADA applies to internet-only businesses. They will dismiss a lawsuit against an internet-only business. Most of the judges of the Southern District disagree with them. So for a few judges, a motion to dismiss is a smart investment of time and money. For the rest of the judges, it’s a waste of time and money. So you have to know your judge. But I would say overall, across the country, only a very small minority of motions to dismiss succeed. A lot of judges may not like these cases, but they’re not just dismissing them without a fight.
Kris: And I will include links to all of the Reddit threads below that correspond with the comments. The next one is someone wrote, I’d recommend searching for ways to ensure ADA compliance, such as alt tags on your images, and document your attempts to be as compliant as possible. When if one of these trolls contacts you, you can show them your attempts to ensure compliance, and they’ll know you’re not the soft target they’re looking for. So how much does documenting your efforts help in terms of defending against web accessibility litigation?
Richard: I think it’s of minimal help. It helps you know whether your website’s accessible, and that could be important to your customers that have disabilities. But the use of the word troll in that question really kind of answers it. I think the story of the three billy goats gruff, having to confront the troll under the bridge, it was pretty clear the troll didn’t care what they did. The troll just wanted to eat them. And the lawyers who file these are pretty much in the same position. They are trolls in the sense that proving that you’re a good person is not going to influence their willingness to sue you.
Kris: And for anybody watching this, this is usually not about the technical merits, not about whether you could cobble the defense together and be technically correct. In practice, the plaintiff’s law firms, if they find something, it’s very unlikely that once you’re talking to if they find something, it’s very unlikely that once you’re targeted, it’s very unlikely that they decide that you’re not the person that they wanted to go after after all. And the next one, the next comment, is there a good plugin or tool for analyzing or offering solutions to bringing my WooCommerce WordPress site up to par for ADA? So basically, is there a good plugin or tool for analyzing and offering solutions is the question.
Richard: Sure. Well, as I said, the scanning tools have varying degrees of sophistication, and they’re a place to start. The plugins are a different issue. Depending on the particular software that the plugin uses, it may be more or less effective at finding and correcting some kinds of website deficiencies. There are no plugins. And I’m basing this on what consultants tell me that are reliable consultants. There are no plugins that will fix a seriously broken website. They can fix things like missing alt tags. They can fix contrast problems and other things that are amenable to being detected by software and corrected, but they can’t fix deeper structural problems in a website. And if you think about it, even the alt tags, software can’t fix an alt tag. And the reason it can’t is because the purpose of the alt tag is to describe the purpose of an image. Really good software might look at a picture of a dog and be able to put in an alt tag that says dog. But the purpose of that dog, depending on the website that it’s in, may be to sell pet food. It may be to make you feel good about your dog. It may be to sell pet training. And software is never going to figure that out. So in a real sense, the things that these plugins can fix are the same thing that the scanners detect. And I should say, by the way, that the free scanners now look for the plugins and they notify you that there’s a plugin that’s interfering with their ability to scan your website. So I’m not a fan of plugins, frankly. I think that in general, they’re a waste of money because they don’t accomplish either the goal of making your website accessible or lessening the risk that you’ll get sued.
Kris: They really don’t. In a video I recorded yesterday, I was looking at a complaint and over and over again, in this complaint, the plaintiff’s law firm recognized and acknowledged the presence of an overlay and then completely disregarded it, saying it basically did nothing. So they don’t make your website accessible. They don’t prevent litigation. And like you said, they’re really just a waste of money. But I think a lot of website owners gravitate towards them because they feel like they’re doing something, even though they’re not doing anything at all.
Richard: People want to feel like they’ve solved their problem and they look for a cheap solution, but there aren’t any cheap solutions, unfortunately.
Kris: On the next one, here’s a lengthy scenario. And we’ve touched on this previously, but I want to I just wanted to ask you on this specific scenario says today there was an attempt to serve me with a lawsuit for not being any compliant. I’m trying to decide what to do. I’ve had lawyers contact me and offer their services. Minimum retainer seems to be five thousand dollars. Then the settlement, they said, would be about five thousand dollars. I run a small business and this is not something we can afford to pay. It looks like the plaintiff was never a customer. And a friend advised me just to ignore the suit. But the doc says that failure will lead to judgment by default. This was in New York and he and the defendant is in California. They have not sued in person, but I’m guessing they will try to do substitute service next. And so do you have any reaction to this? This person is not this person, but this scenario, this type of scenario. What would be your instant reaction to this?
Richard: I guess the reaction is you need to know who the plaintiff is to see what kind of settlement you’re going to get. Most plaintiffs will settle. I’m not going to say that any lawyer’s minimum retainer is too high or too low. In my view, these cases could be settled for less than five thousand dollars in legal fees at a reasonable billing rate. But, you know, it depends on the lawyer. And frankly, not all cases settle with equal ease. It depends a lot on who the defendant is. I’ve had cases that settled very quickly because my client didn’t want to bother to negotiate a lot. They would, you know, it was a bigger company and they were perfectly willing to pay a higher settlement just to get it over with. And I’ve had other settlements that dragged on and on and on because we were bargaining over very small amounts or bargaining about details or remediation. But these cases are made to settle. You just need to know what it’s going to take to get the plaintiff to settle. And as I said earlier, allowing a default judgment creates a big risk. And it’s a bigger risk for a small business because a small business probably cannot afford to remediate their entire website in six months or even three or three months or two months or whatever a federal judge who doesn’t know anything about remediating websites thinks is a reasonable time. In fact, based on their usual experiences, most federal judges would probably think that if they gave you 60 days to do something, it was plenty of time. That’s not true in websites. So default judgments are very risky. Paying a lawyer is aggravating. Paying the settlement for a small business, also aggravating. But there’s not a good solution to that, unfortunately.
Kris: And this next comment, someone said that, sadly, that settling is the cheapest option. A part of you will want to fight back, but it will cost way more as you were talking about. And this person wrote that it happened to us last year. And they said there are people that are literally living off suing as many restaurants as possible. And they said, by the way, they sued us a second time for our website not being ADA compliant. And so the question I have for you is how rare or common is it for a business owner to be sued multiple times by the same and or different plaintiffs?
Richard: I think it’s very rare for them to be sued twice by the same plaintiff because most plaintiff’s lawyers understand that that’s bad for their strategy of settling quickly. If you sue somebody twice, they realize that the settlement didn’t buy them the piece that they wanted to buy, and they’re going to fight harder the next time. So I think that’s very rare. I think it’s pretty common for larger businesses to get sued multiple times. The last time I saw statistics on this, which was probably two years ago, one of the major consultants had had a client that was sued seven times. I’ve had a client that was sued four times and another that was sued three times. So businesses that are natural targets because they’re large and they have a significant presence on the internet probably are going to get sued more than once because there are enough lawyers out there doing it. Small businesses that are not as natural a target are probably a lot less likely to face multiple lawsuits.
Kris: And then I think two more Reddit scenarios for you. One comment was, this is going back to overlay, using overlays like accessibility can result in becoming more of a target, more likely because it’s non-compliant. It was somewhat nonsensical, but someone else followed up with, I was thinking the same thing I heard using overlays were being targeted. It’s quite sad owners were taking the right steps, but it wasn’t 100%. And so do you, do plaintiff’s lawyers consider a website using an overlay ADA compliant and are websites with overlays installed at risk of actually not only just existing as inaccessible, but actually being targeted because they have that overlay?
Richard: Sure. First, a plaintiff’s lawyers will not regard an overlay as solving accessibility problems. So it will not deter a plaintiff’s lawyer from filing lawsuits. There was a lot of discussion last year or in the last year or so about lawyers that had decided to target websites that had overlays on the theory that if they had an overlay, then you pretty much knew they weren’t accessible. But I don’t, my impression is that that’s an incidental. I don’t think, frankly, from a plaintiff’s lawyer standpoint, it doesn’t make sense to target overlays because you’ve got a million websites that aren’t accessible. Why would you spend the time to pick out some when you can just go to another website? So I think if a plaintiff happens to find a website with an overlay, they may add that to the lawsuit and point out that overlays don’t fix accessibility problems. But I don’t get the impression that there are any plaintiff’s lawyers who are saying, oh, well, we’re not going to sue you because you don’t have an overlay. I think they’re looking for websites. They’re not looking for overlays.
Kris: And then the last one is an interesting one. And I think it’s actually from an attorney because the username has ESQ in it. But I’ll go ahead and read it now. Settling these cases rather than defending them can set you up for further lawsuits. They are defendable if your attorney understands the law and the tech involved. A good defense would allow the recovery of attorney’s fees. It is a shakedown. And ironically, that’s actually good for you because if the litigation does not make financial sense, they will abandon it. What is your reaction to that? Well, okay, I think these cases are defensible, especially if you understand the tech. So I agree with that. I think the cases are winnable if they go to trial.
Richard: I don’t think any of these cases can be won for less than they can be settled for. So, yes, defensible. You can raise technical defenses. You may win on standing. You may win because you find a judge that says your website is accessible. It meets the requirements of the ADA. We don’t know what the standards of the ADA are, but, yeah, you can win. But it’s going to be much, much more expensive than settling the case. And you’re not going to be able to recover attorney’s fees as a practical matter. The ADA is regarded as a civil rights statute. And like all the other civil rights statutes, it has a provision that says the winner will get their attorney’s fees. But the courts have consistently, since the sixties, interpreted these provisions as meaning the plaintiff, if they win, always gets their fees. The defendant, if the defendant wins, only gets fees if the lawsuit was filed in bad faith. And right now, because we do not have any regulatory standard for what an accessible website is, and because most websites that get sued have at least a few problems, it’s very difficult to prove that the plaintiff filed the lawsuit in bad faith. I’m usually mad at them. You can know in your heart that they’re operating as shakedowns, if you want to call it that. But in the ADA world, anger is not a substitute for being accessible. And as long as we don’t have a regulatory standard that permits less than perfect accessibility, these lawsuits are not going to be considered as having been brought in bad faith for the most part. So you can win. And if you win, you’ll only pay your lawyer. If you lose, you’ll pay your lawyer and the other lawyer. And the cheapest way out is always going to be a settlement.
Kris: Richard, that is the last question I had for you. First of all, I just want to thank you so much for coming on. I think it’s so important for people to hear what you have to say because you are the source. You are a leading defense attorney in ADA litigation specific to website accessibility. And that is not a normal combination because there are a lot of attorneys who are practicing, but they’re not familiar with website accessibility litigation. So thank you for coming on and informing everyone and updating us on the latest in litigation. Do you have any final advice or final words for the listeners?
Richard: Thank you very much, by the way, for your very kind remarks, Kris. But my final advice is run your home page and a few pages of your website through the WAVE tool or one of the other free tools to see if you’ve got some problems. And then with or without a consultant, make a plan to fix your website. Do it now and so you can spread the cost out over what your revenues allow. But even though you know that ultimately you may get sued and even though you know that perfect accessibility is impossible, you should start now working on it because there are people that want to spend money on your website and if they’re not able to, they won’t. So that’s the best reason to get accessible. And if you start and work through it slowly, you can do it in a way that doesn’t break your budget.
Kris: And if anybody watching or listening would like to contact you, how can they reach you?
Richard: Sure. My best way is by email. My email is firstname.lastname@example.org or you can simply go to my blog, accessdefense.com. That may be easier to remember and you’ll find contact information there as well.
Perfect. I will link to everything below. All of the resources will be linked in the YouTube description. Again, thank you so much for coming on.
It was a pleasure, Kris. Thanks.