When it comes to website accessibility litigation, something that both clients and defense attorneys need to pay close attention to are the non-money terms of the settlement.
So the focus is usually on the settlement amount and of course the clients and the defense attorneys are trying to get this down as much as possible.
But what could become an even greater cost are the terms and stipulations agreed to.
So let’s start off with WCAG conformance.
If I was a defense attorney, I would seek for WCAG 2.0 conformance rather than 2.1.
And that’s not because I wouldn’t even want to be 2.2 conformant.
But when it comes to a settlement you don’t want to agree to terms any more than you have to- that are, that go any further than you have to.
Also, timeline and deadlines are very important.
So some of these timelines are extremely fast and what happens is they can be agreed to before you fully understand what is necessary to meet those timelines.
So let’s say you agree to make your entire website WCAG 2.1 conformance level AA conformant.
Well if you do that and you agree to have that done within three months then you have oversold your capabilities because it’s going to be very difficult to make your website conformant that quickly.
Also, mandatory reporting – you really don’t want to be reporting into a plaintiff’s law firm so you want to curtail reporting as much as possible.
You will also commonly see the requirement that you have a consultant and the consultant is your accessibility consultant on an ongoing basis for however long.
You really don’t want to agree to this.
While I recommend it, you don’t want- you don’t want to have a consultant and be subject to paying that amount because again if you’re concerned with money then hiring a consultant is is going to add to that.
Another term I’ve seen more often than I’d like is having an accessibility link.
So the plaintiffs’ law firm will require that you change your website to have a link to your accessibility statement or some something about accessibility the first thing that- and it will be the first thing that I screen reader user comes across.
Well with accessibility, someone that has a disability – so maybe a screen reader user – they don’t- that’s not what they want.
They don’t want to come across an accessibility statement every time they’re on the homepage.
They just want your website to be accessible.
So to me this is more of- something in the virtue signaling realm that plaintiffs law firms really don’t understand what they’re doing.
And they think that they’re doing something and they’re requiring all of these accessibility measures to be taken into into place, but, practically, if you’re going to a website, do you want to have to go to some terms and conditions page every time you go to that website?
Or do you want to have to go through a link or know about a link every time you go to a website?
No, you just want to use the website.
So I would try to negotiate this term out.
If somebody wants- if you have an accessibility statement and it’s in- it’s linked conspicuously in your footer, anybody will be able to find it.
It’s not something that’s difficult.
So I I think this is just comes from a place of virtue signaling.
You also have to be concerned with the work that you agree to be done.
So biannual audits, for example.
That’s great if you can have any audits conducted on a biannual basis but that’s- that’s a heavy cost and maybe more than you need.
Also might maybe though they might see a term like quarterly user testing or user testing on whatever basis.
User testing is very expensive, keep that in mind.
The frequency at which sometimes these terms come into play it’s just it’s too often, right.
Like if we had like let’s think about quarterly user testing.
If we have quarterly user testing, have we even remediated have even taken in the suggestions from the last user testing and implemented them into our website by the time there’s another user testing coming up.
So this can be quite frequent depending on your website.
And it’s just an overly burdensome term that I wouldn’t agree to.
It’s not that this wouldn’t be great to have.
But sometimes these settlements they agree to way, way more than they should and the cost ends up being much more than the money ever is.
So what I recommend is you start with your own terms.
So if you are familiar with accessibility and what needs to be done, you can start off with your own terms to initiate the negotiations on the terms of the settlement.
And this way it’s not the plaintiff’s law firm coming up with all of these burdensome terms.
You want to have less specifics and less frequency.
This is this is because it’s not to your advantage.
Even if you want to go above and beyond accessibility and have this rigorous program that does all of these things and has these regular audits and has user testing performed at frequent intervals.
You don’t want to have that be mandatory and when you slip up then someone can penalize you for it.
You also want to have an end date to this.
Make sure there is a specified date where your obligations are completed.
So ideally something sooner rather than later.
Maybe in a year, maybe in two years, but beyond two years you’re really agreeing to more than you should.
Also research the plaintiff’s law firm.
Sometimes you can get the terms down to next to nothing because the plaintiff’s law firm is much more concerned with the money they are receiving than the terms that you are agreeing to.