Lawsuits related to alleged violations of the Americans with Disabilities Act are on the rise and a number of banks have been targeted for inadvertent, technical violations of this federal law. The ADA lawsuits relate to bank websites and mobile apps that are inaccessible to visually impaired consumers. If your website and mobile apps have not been made accessible for purposes of the ADA, your bank is vulnerable.
The threat is real. Enterprising plaintiffs lawyers have capitalized on the uncertainty surrounding the ADA by filing nearly 300 lawsuits in 2016 alone, based on the accessibility of their websites and mobile apps. When found in violation, even in the absence of intent to discriminate or violate the ADA, companies are often required to pay thousands of dollars of plaintiff attorney’s fees.
If you have not addressed the accessibility of your website and mobile apps as outlined by the ADA, it is critical to do so now to reduce, if not eliminate, your exposure. The problem is, recent developments have introduced ambiguity about which companies are required to comply with the ADA. These developments have implications for banks:
DOJ Regulations – In September of 2017, the Department of Justice announced that it was shelving its expected guidance on which business websites were required to comply with the ADA and how such compliance could be achieved. Contrary to most regulatory rollbacks, the decision by the DOJ to rescind rulemaking on the ADA was bad for banks that are potentially affected by the ADA. There is now no near-term expectation of guidance from the DOJ on who is affected by the ADA with respect to website and mobile app compliance. Furthermore, there is no guidance as to how affected businesses can comply with the ADA. Banks will have to rely on court rulings to tell them how to comply and right now the courts are split on how a business should comply. As a result, there is no hard and fast rule for banks to inoculate themselves from lawsuits. While it is too early to discern any change in the pattern of lawsuits as a result of this regulatory change, the uncertainty as to who is bound by the ADA and how they must comply has unquestionably created a fertile environment for litigious plaintiffs.
ICBA Settlement – In November 2017 the Independent Community Bankers of America reached a settlement with Access Now, an organization known for suing small community banks alleging their websites and apps were inaccessible under the ADA. As part of the settlement, Access Now agreed to release ICBA members, as well as other banks eligible for membership in the ICBA, from claims related to electronic banking services. The ICBA Settlement does not protect a bank against future lawsuits, however. This settlement was made only on behalf of Access Now. Other plaintiffs, not barred by this settlement, may bring their own suits. This settlement did not involve the ICBA admitting fault; likewise it did not involve the finding of any fact or law that would assist banks in future litigation under the ADA. As a result, caution is urged for any banks seeking to relax their approach to ADA accessibility as a result of this settlement.
Hot M&A Market – There is a recognized trend tied to M&A activity: banks up for sale are increasingly targeted for ADA compliance lawsuits. Because bank deals are public and there is a waiting period between the public announcement (via regulatory application) and consummation of the deal, plaintiffs and their lawyers have plenty of time to inject a lawsuit into the transaction in pursuit of a payout. Even if the bank, its website, and its mobile apps are merging out of existence, a selling bank in receipt of such a suit is often forced to settle for significant sums to “clean up” the file before the deal is finalized, even when a plaintiff doesn’t have a strong legal standing.
Steps to protect the bank
While there is no clear guidance as to how a bank’s website and mobile apps comply with the ADA, there are a number of guiding principles of which banks should be aware.
Diagnose your website and mobile apps looking for accessibility issues. Your first call should be to your web design vendor and/or mobile app developer to determine if your website and any mobile apps are in compliance. In spite of the uncertainty around a clear standard of compliance, the WCAG 2.0 (Web Content Accessibility Guidelines) standards are generally accepted as appropriate for ADA compliance. Update your platforms if necessary. Note that certain vendors specialize in WCAG 2.0 compliance; these vendors can sometimes be more cost effective to use than your general service web design vendor.
Request a representation and covenant from your developer that the product they deliver does and will comply with the ADA. Whether you are seeking to engage a new developer, or renegotiating your agreement with your current provider, consider asking your website or app developer to make a representation and covenant in your engagement agreement that the product they deliver to you will comply with the ADA — or more narrowly meets the WCAG 2.0 standards. You should seek to pair this representation with a provision that the creator will indemnify your bank for any damages (e.g. attorneys’ fees and settlement money from an ADA lawsuit) it may suffer as a result of a breach of their representation. This could be a tougher ask, especially with larger web development companies. Is a web developer who refuses to stand behind their work one you want to do business with?
Call your lawyer if you get sued, receive a demand letter, notice of an action, or if you have any questions. All is far from lost. Most attorneys have seen a number of plaintiffs’ attorneys scared away by a well-crafted response letter, or, failing that, a suit dismissed on legal grounds in a court of law.
ADA compliance as it relates to websites and mobile apps is a morass. Yet proactive defenses are within reach.
Erik Didrikson is a transactional attorney in the Winthrop and Weinstine community banking group where he acts as outside general counsel for community banks. Joe Windler is a shareholder in Winthrop’s litigation group who has successfully defended a number of community banks in lawsuits related to ADA compliance.