Kristina Launey from Seyfarth Shaw LLP discusses how to mitigate the risk of a website accessibility lawsuit. She provides an overview of relevant statutes like the ADA and case law trends. Launey recommends prioritizing an audit of public-facing websites to identify accessibility issues. Organizations should remediate issues, test for compliance with WCAG 2.0 AA, train staff, and adopt policies to maintain an accessible website. This can help reduce litigation risks posed by inaccessible technology.

1. How to Mitigate the
Risk of an
Accessibility Lawsuit
Kristina Launey
Labor & Employment Litigation and
Counseling Partner
Seyfarth Shaw LLP
www.3playmedia.com
Twitter: @3playmedia
Live tweet: #a11y
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2. “Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership).
Seyfarth Shaw LLP
How to Mitigate the
Risk of a (Website)
Accessibility Lawsuit
Kristina Launey
Seyfarth Shaw LLP
November 8, 2018
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3. ©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 2
Kristina Launey
916-498-7034
klauney@seyfarth.com

4. “Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership).
Seyfarth Shaw LLP
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Legal Disclaimer
This presentation has been prepared by Seyfarth
Shaw LLP for informational purposes only. The
material discussed during this presentation
should not be construed as legal advice or a legal
opinion on any specific facts or
circumstances. The content is intended for
general information purposes only, and you are
urged to consult a lawyer concerning your own
situation and any specific legal questions you
may have.

5. Legal Overview: What Statutes May Require
Accessible Technology
• ADA Title III: Public Accommodations
• Section 504 Rehabilitation Act: Recipients of Federal
Funding
• Section 508 Rehabilitation Act: Technology sold to
federal agencies may need to be Section 508 compliant
under contract.
• State Non-discrimination Laws: Public Accommodations
• Air Carrier Access Act: Requires primary websites of
airline carriers to conform to WCAG 2.0 AA.
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6. Legal Overview: Remedies
5
Law Coverage Relief Available
ADA Title III Public
Accommodations
Private action: Injunctive relief;
attorneys’ fees; costs
DOJ action: Injunctive relief, civil
penalties, damages for
aggrieved persons
Section 504 Rehab
Act
Recipients of
Federal Financial
Assistance
Injunctive relief, attorneys’ fees,
costs, damages
State Non-
discrimination Laws
Public
Accommodations
Injunctive relief; attorneys’ fees;
costs; damages (CA: statutory
damages)
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7. Statutory & Regulatory Basis
• Title III requires public accommodations provide:
– Equal access to goods, benefits, and services
– Auxiliary aids & services (e.g., accessible electronic
information technology) at no extra charge to ensure
effective communication absent undue burden or
fundamental alteration
• ADA departs from other antidiscrimination statutes by
requiring affirmative steps to ensure access by persons
with disabilities.
• No ADA statute or regulation specifically mentions
websites or sets a standard for accessible websites
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8. Department of Justice Positions
2010 DOJ Advanced Notice of Proposal Rulemaking:
– “Equivalent” alternative means of accessing goods & services
on website (e.g. 24-hour phone service for all information and
services available on website) is acceptable
– Public comment requested about:
§ How much time businesses should have to comply
§ Impact of requirement to caption all videos
§ What standard should be adopted as definition of accessible
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9. Department of Justice Positions
• 2010-2016: Still no proposed regulation, but DOJ pressured public
accommodations to make websites and/or mobile apps conform to
WCAG 2.0 AA
§ Peapod (settlement agreement)
§ H&R Block (lawsuit/consent decree)
§ Hilton Worldwide (lawsuit/consent decree – Level A only)
§ Quick Trip (settlement agreement)
§ Museum of Crime & Punishment (settlement agreement)
§ edX (settlement agreement)
§ Louisiana Tech University (settlement agreement)
§ Florida State (settlement agreement)
§ Law School Admissions Council (settlement agreement)
§ Carnival Cruise Lines (settlement agreement)
§ Greyhound (consent decree)
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10. DOJ Position in Statements of Interest
• National Association of the Deaf v Harvard/MIT: video captioning
(2015)
– Accessible website is an existing requirement
– Schools’ obligation is to the public at large, not just to students
– University “online programming” (including free online videos
and audio files that are not only courses or educational
lectures but also “topics of general interest”) must be
accessible
• Winn Dixie (2016):
– Websites with no nexus to a brick and mortar location are
covered under Title III of the ADA (a position that has been
explicitly rejected by some circuits, including the Ninth Circuit).
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11. The Trump DOJ
• Officially withdrew website accessibility rulemaking in 2017
• Declined invitation to weigh in on motion to dismiss in
Robles v. Yum! Brands (Pizza Hut)
• 2018: Members of Congress asked DOJ to clarify whether
the ADA applies to websites, and to set a standard
– DOJ replied in September 2018 to Congress’ letter:
§ It is evaluating whether specific web accessibility regulations
are necessary and appropriate to ensure ADA compliance
§ ADA applies to public accommodations’ websites; absence
of a specific regulation is not reason to fail to comply with the
ADA
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12. No legally-required standard, what do we
follow?
• Web Content Accessibility Guidelines (WCAG):
– Published by private group of experts, the W3C
– Legal standard for
§ Federal agency websites (Section 508 of the Rehabilitation Act)
§ Primary website of airline carriers (Air Carrier Access Act)
– Used in DOJ & other settlements
– Not a legal standard for public accommodations websites
under Title III of the ADA
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13. WCAG
Three Levels
– Level A
– Level AA
– Level AAA
• Level AA
– Standard used by DOJ in enforcement actions
– Standard incorporated into private settlement agreements
– Considered to offer maximum accessibility while still being attainable
• The majority of companies that build for accessibility strive to conform
to Level A and Level AA
• 2.1 published June 2018: Adds criteria addressing mobile applications,
low vision, cognitive disabilities
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14. Website Accessibility Challenges
• Links to third party websites
• Third party content on your website:
– Software licensed from third parties to perform functions (Google
Maps, Recipes feature, circulars, Instagram feeds)
– Advertising by third parties
– Payment mechanism
• Third-party vendors who design/create websites but don’t
know/understand web accessibility or WCAG
• Contracts that require you to be “accessible” without defining what that
means
• Take care with indemnity & hold harmless provisions
13

15. Litigation Trends: Website Accessibility by the
Numbers
“The internet is the first thing that humanity has built that
humanity doesn't understand, the largest experiment in
anarchy we've ever had.”
– Eric Schmidt (Former CEO, Google), “Google Chief: My Fears for Generation Facebook,” The
Independent (UK) (Aug. 17, 2010)
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16. ADA Title III Lawsuits in Federal Court:
2013-2018
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8%
increase
over 2014
37%
increase
over
2015
16%
increase
over 2016

17. Top 10 States for ADA Title III Federal Lawsuits
January – June 2018
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18. Federal Website Accessibility Lawsuits:
2015-2017
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57*
262*
814*
0
100
200
300
400
500
600
700
800
900
1000
2015 2016 2017
*There are at least this many lawsuits

19. Federal Website Accessibility Lawsuits:
2017 v. 2018 (First Six Months)
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20. Federal Website Access Lawsuits:
January – June 2018
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21. Litigation Trends: Website Accessibility by the
Numbers
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22. Litigation Trends: Website Accessibility by the
Numbers
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23. Litigation Trends: 2018 Observations
• Banking/Financial (credit unions fighting back)
• Higher Education
–U.S. Department Office of Civil Rights (OCR)
investigations since approximately 2015
–Private plaintiff actions against colleges and universities
(2017)
• Closed Captioning: 2018 cases alleging non-captioned
video content
• Online Employment Applications Demand Letters &
Lawsuits
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24. Fighting Website Accessibility Lawsuits:
Examples of Arguments for Defendants
• WCAG is not a legal standard and the DOJ has not issued
regulations on website accessibility
• Patrons can access all the same information on the website
through a telephone line
• There is no nexus between the website and a physical location
• The business has already settled a website accessibility lawsuit
• The business has already hired a vendor to make its website
more accessible
• The plaintiff lacks standing to sue
• The plaintiff did not suffer an injury
• The plaintiff will not come back to defendant’s business
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25. Litigation: Older cases
• NAD v. Netflix (DMA 2012): Motion to dismiss denied; website with no nexus
to a physical place is a place of public accommodation (settled)
• Cullen v. Netflix (9th Cir. 2015): Motion to dismiss granted and upheld;
website with no nexus to a physical place is not a public accommodation under
the ADA (settled)
• NFB V. Scribd (DVT 2015): Motion to dismiss denied; Website with no nexus
to a physical place is a place of public accommodation (settled)
• MIT & Harvard (DMA 2015): Motion to dismiss case about videos with
no/inadequate closed captioning on websites denied; case can proceed to
discovery (Feb. 2016) (pending)
• Huntington Bank (WDPA 2016): Motion to Dismiss case about inaccessible
website denied; case can proceed to discovery (Nov. 2015) (settled)
• Davis v. BMI/BND Travelware (CA State court 2016): (summary judgment
against retailer granted because inaccessible website discriminates against
blind customer and violates CA law).
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26. Litigation: 2017-18 Key Decisions
• Motions to dismiss granted:
– Due process/primary jurisdiction grounds
– Inaccessibility of website did not impede access to a physical
location as required by 11th Cir. precedent
– Blind plaintiff not qualified to join credit union, thus could not
be injured by inaccessible credit union website
– Defendant was already working to make its website
accessible, pursuant to a settlement agreement – overturned
on appeal
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27. Litigation: 2017-18 Key Decisions
• Gil v. Winn Dixie (SDFL 2017) (appeal heard Oct 2018)
– First website accessibility case to go to trial
– Trial verdict for plaintiff
– Judge ordered 3-year injunction requiring:
§ Accessible website by 12/1/17 (following WCAG 2.0 AA)
§ Annual training for employees on website accessibility
§ Require third party content to be accessible
§ Adopt web accessibility policy by 12/1/17
– Fees/costs totaling $105,271 awarded to plaintiff
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 26

28. Litigation: 2017-18 Key Decisions
• Andrews v. Blick Art (EDNY 2017)
– Motion to dismiss denied
– Website does not need a nexus to a physical establishment
– Lack of website regulations not an impediment to court ruling on
issue (primary jurisdiction not applicable & due process rejected)
– NY and NYC Human Rights Laws also cover websites
• Markett v. Five Guys (SDNY 2017)
– Motion to dismiss denied; grounds similar to Blick Art
– Being in the process of improving accessibility of website does not
moot case. (Note that Five Guys had no settlement agreement in
place requiring the work.)
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 27

29. Litigation: 2017-18 Key Decisions
• Thurston v. Midvale Corp., et al. (LA Sup. Ct., CA 2018)
– May 21, 2018 summary judgment ruling
– Whisper Lounge restaurant violated California’s Unruh Act by
having a website that could not be used by a blind person with
a screen reader
– Ordered restaurant to make website comply with WCAG 2.0
AA & pay $4,000 damages
– Provision of a phone number and email does not provide
“equal enjoyment of the website”, as the ADA requires
§ Instead imposes a burden on the visually impaired to wait for
a response via email or call during business hours rather
than have immediate access like sighted customers.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 28

30. Risk Mitigation
• Inventory public-facing websites and mobile apps
• Prioritize review
- High visibility/high traffic
- Core functionality
- No accessible alternative
• Audit
• Remediate
• Retest
• Train
• Maintain
• Adopt Policies/Procedures
29

31. Risk Mitigation
• Engage reputable digital accessibility expert to audit website/mobile
app, preferably through counsel
• Make accessibility improvements to website
– Goal is WCAG 2.0 / 2.1 AA conformance
– Prioritize interim goals for maximum access early
– Re-test to ensure done properly
• Periodically re-audit website for conformance with WCAG 2.0 / 2.1 AA
• Require accessibility (conformance with WCAG 2.0/2.1 AA) in new
contracts with vendors that provide software, development services, or
content for website
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32. Risk Mitigation
• Train:
– Website team on how to make website accessible and maintain it (and/or
ensure your outside vendor has expertise)
– Employees who interact with Customers/members of the public
– Staff who create and post content to website/mobile apps
– Company-wide for cultural adoption/support
– Create/appoint Accessibility Team/Lead
• Post Accessibility Statement to website
– For members of the public to provide feedback/seek help
– Include web/phone contact information
– Ensure trained employees monitor & promptly respond
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33. Thank you!
KLauney@Seyfarth.com
www.adatitleiii.com
32©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential