In this episode, we ask attorney Richard Hunt, who specializes in ADA and FHA litigation, all about digital accessibility lawsuits. This episode provides general information about legal topics and is not legal advice. Always consult your own attorney.
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Chris: Welcome to the Accessibility Craft Podcast, where we explore the art of creating accessible websites while trying out interesting craft beverages. This podcast is brought to you by the team at Equalize Digital, a WordPress accessibility company, and the proud creators of the Accessibility Checker plugin.
And now onto the show.
Amber: Hello everyone. It is Amber and I am here today with Chris.
Chris: Hey everybody.
Today’s Special Guest: Richard Hunt
Amber: And we also have a special guest today, Richard Hunt. Hi Richard.
Richard: Hi. Good to be with you guys.
Amber: We are so excited to have you here with us today. For everyone who is watching or listening, this is episode 114, so you can get show notes and a full transcript if you go to AccessibilityCraft.com/114.
Before we dive into our beverage for the day, Richard, I would love for you to introduce yourself.
Richard: Sure. Well, my name is Richard Hunt. I’m a lawyer and I have been for the last 40 some odd years. Most of my practice is devoted to matters related to accessibility. And it’s about half ADA accessibility, which is websites and businesses, and about half fair housing accessibility, which is apartment complexes basically.
But it’s something I became interested in. Oh, 15 years ago primarily because it became a topic of litigation. And litigation is my real specialty. So, I got interested in it. I found it more and more interesting as I went along. The website stuff, especially appeals to what I would have to call the geek side of my nature.
Amber: I’m curious, when did you start transitioning into the website stuff? Because I’m assuming the housing probably happened first and then the website when did that happen?
Richard: The website stuff started in about 2015. And there was a law firm in Pennsylvania that in late 2014 sent about, I don’t know, 500 demand letters to mostly major companies saying your websites aren’t accessible.
And then they sued a bunch of them. And so by January it was noticeable and there were articles about it and other lawyers said, oh, this looks like a good business. And so it kind of took off from there. But that’s when I became interested because I had a client that was not, I mean, they were just a business client of mine, but they called up and said, we just got this demand letter about our website.
What the hell? And so…
Amber: What do we do?
Richard: I don’t like it when my clients ask questions I don’t know the answer to. So I went out and started getting into it. So that’s about it. I mean, I still have some other litigation, but mostly it’s ADA and FHA and probably volume wise, mostly ADA. Because there are more smaller lawsuits.
Amber: Yeah. And you were a recent presenter at WordPress Accessibility Meetup. So I would definitely always encourage everyone to go find that presentation ’cause you’ve talked a lot about what all the different laws are.
Today’s Beverage
Amber: We are definitely gonna talk about the lawsuit angle today, but we always start every podcast episode with a beer. Chris, do you wanna tell us what we are drinking?
Chris: Yeah. So Richard, you indicated that you liked IPAs, so I tried to find something interesting with a lot of big words in the description of how they produce it.
Yes. So I was I looked this one up and I learned some new words, like I didn’t know what thiolized was prior to this, but we’ve got Hazy Cat IPA, I am gonna hold up the can here. It’s got some really eye catching art on the can here of a psychedelic illustrated cat with a starry background for our listening audience and…
Amber: All purples.
Chris: Yeah. And this is from Panther Island Brewing, so they’re sticking to their cat theme, but I learned that theorize mean it’s like an engineered yeast strain that’s been modified to release a certain precursor molecule that’s supposed to taste like tropical or citrus flavors in the beer. And I had never heard of that before until I saw thiolized New England IPA on a can. And I was like, what the heck is that? But was that a term you’d heard previously or have you seen that around?
Richard: No, in fact, I had the same reaction as you because when I looked at the can and it said thiolized, I was like, what does that mean? So I did look it up and that was it. It was interesting because it used the word mercaptan to talk about the flavors or the smells.
I always knew mercaptan as a particularly stinky chemical that’s put in natural gas so that you’ll smell leaks.
Chris: Oh, interesting.
Amber: Oh really? Is that, that, that smell?
Richard: Yeah. Yeah. I said this is some kind of slightly different mercaptan, but …
Amber: I hope so. I haven’t opened this yet. Now I’m nervous to open it.
Richard: No, it. If it’s not too soon to say it, I think it tastes great. I think it tastes, it does have a little bit of a fruity flavor and it’s pretty light. It’s not the hoppiest IPA I’ve ever had. But but a little fruity a little sweet. It seemed, and it’s oh, I realized it was made over. I’m in Dallas. It was made in the town next door, Fort Worth. So, now I have a reason to go visit their tap room.
Chris: Oh, very cool. So it’s like a hop blend. If you’ve listened to a few previous episodes or other IPA episodes, Richard, if at some point you go back and listen, we pretty much never, like the three normal hosts don’t really like IPAs. But this one I think is on the edge for me where I like, I actually feel like I could have it again because, and I think you mentioned this already.
It is a little bit less hop forward, like the hop flavor’s more balanced. It’s not like a mallet to the face, you know, of hop.
Amber: Yeah. Some of the Southern California IPAs I feel like are very strong. Is that so you like IPAs? Is that what you’re looking for? Are you disappointed in the lightness of this beer?
Richard: I’m not disappointed in it. I like it. I do like the really hop forward bitter kind of beers as well though. So, and I’ll say my partner Jean also my wife. Had a sip and she really liked it, which means that it is not too bitter and not too hot forward and pretty light. So…
Amber: Maybe it’s an intro IPA.
Richard: There you go.
Chris: If I had, if I was introducing an IPA to someone, that’s a good, that’s an astute observation, Amber. I might start them with this one to kind of ease ’em into it, but I definitely get the tropical flavors just like you, Richard. Like, I’ve, I don’t know that I can like really suss one out.
I don’t know why, but the nose for me on this one is just passion fruit. But I would say the, for me, the taste on this one is just like general tropical, like and it’s got a good backbone to it too. Like, I’m salivated salivating after I drink, so I feel like it’s got good acidity which is really nice to see in a beer.
Some beers are very flat, like, you know, not super engaging, but, and I feel like this one would stand up to food. So I might get it again. And you can drive to their tap room, which is awesome.
Richard: Yes, exactly. That’d be even more fun.
Amber: So we, so to wrap up our drink conversation, we always have a very technical thumbs up, which is, I would definitely get it again. Thumbs in the middle, which is, I’m not sure, maybe I wouldn’t go out and buy it, but if somebody handed it to me, I would definitely drink it. Thumbs down, no way maybe I’m not even gonna finish it today. Right. So, so where do you land with this one? Are you up in the middle? Down?
Richard: Oh I’m thumbs up. I’m gonna see if my favorite local beer place will start stocking it.
Amber: Oh, awesome. So you really like it.
Richard: Yeah.
Chris: Adjusting for, you know, and this is totally a personal taste thing but adjusting for how I normally feel about IPAs. I’m giving this a thumbs in the middle, and that’s a really good IPA score for me.
Usually I’m thumbs down. So this one is pretty, this one’s pretty good for me. And I think it’s ’cause they tone down the hop. Or maybe it’s the hop blend. I don’t know. What about you Amber?
Amber: So I’m actually gonna break the mould on the IPA. Normally I’m in, in the middle or down. I’m gonna give this one a thumbs up because I’m actually, I’m kind of enjoying that it has like a light, bitter taste. And like, I’m like, I’m excited to keep drinking it and see how the taste evolves while we’re recording.
Richard: Yeah.
Amber: So I think that it’s a thumbs up. I think I would buy it again. All right, great.
How Common are Digital Accessibility Lawsuits?
Amber: So of course we invited you here today, Richard, because you did a phenomenal presentation for us about all of the laws and you know, what might happen and what the requirements are in the United States from website accessibility.
And one of the things that I felt like is a huge gap in available information on the web is what do you do if you actually get sued. So that’s today’s topic:
Help, I got sued for website accessibility. Now what?
I didn’t, but hopefully I never do. But like that’s what we’re gonna talk about today. Of course, you know, you mentioned it before that you had just a business client who got sued for accessibility.
Obviously now people come to you ’cause they know this is an area that you are an expert in. But I’m sort of curious how common are these lawsuits? Are there, is it something that happens a lot? Is it an anomaly? And are there any sort of common characteristics for websites that get sued that might be a red flag for a website owner or someone listening to this podcast where they say, oh hey, I might be at risk?
Richard: Sure. First, common Depends kind of on what you mean. The last statistics, which are gathered by a few different companies that are interested in this were that the number of website lawsuits are running about seven thousand a year. It may be higher than that because they can miss State court lawsuits, but that’s, so that sounds like a lot of lawsuits. I think it gets attention though because website owners are almost never sued. So it’s a shock, I think, in the community of pretty purely online businesses. It’s kind of a shock to get sued at all.
And so that’s six or seven thousand a year just seems like a huge number. Physical businesses, you know, fast food places and stores tend to get sued all the time by people who slipped and fell or had some minor personal injury or something like that. So they, one, one ADA lawsuit for them is kind of a drop in the bucket.
But I think for website owners, it’s a real shock to find out that they might get sued for anything at all.
Amber: Yeah. And do you notice common traits on these websites?
Richard: Yeah. They have, well they have one thing in common. On their face, they will fail a software scan for WCAG compliance.
There are lots of reasons which we don’t need to talk about probably right now, about why those kind of scans aren’t necessarily accurate, but I’m pretty well convinced that the law firms and their clients who file these lawsuits start with going to a website and plugging the URL into a program that scans the website.
And if it returns
Amber: Like WAVE.
Richard: Such, yeah, like WAVE. And it, but if it returns some results indicating that there’s a non-compliance with WCAG, then they’re a target to get sued. That’s other than that, there’s not a lot of commonality. For a while there was a law firm in New York. They sort of did one industry segment at a time. There’d be thirty lawsuits in a few days against art galleries and then a few months later, every pet store and for a while every real estate broker. So, but that, you know, those came and went.
The real commonality is your website looks like you make enough money to be worth suing and it fails a software test.
Amber: Yep. So maybe it’s better to have a janky looking website.
Chris: Yeah, well, or don’t fail software tests.
Richard: I, I never think that it’s a good idea for my clients to hurt the profits of their business or their revenue to avoid a lawsuit. That’s not a good reason, that’s not a good way to avoid litigation. It’s better to fix your website than just to look bad.
Amber: Yes, for sure, because there are gonna be other downsides for that.
So on that note, I think we should talk about the implication for web developers, but we’re gonna take a short commercial break first, and we’ll be right back.
Richard: Okay.
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Who’s Responsible for Accessibility, Legally?
Chris: All right, so Amber alluded to it before our break there. I’m I’ll admit, I’m a little nervous to ask this question mostly because I just wrote a 2000 word blog post on an adjacent subject:
Who’s Responsible for website Accessibility? You or Your Client?
So depending on your answer here, Richard, I might have to go rewrite that.
But should web developers, here’s my question, right? Should web developers be worried about accessibility lawsuits or is that really a problem for the website owner to worry about in your opinion?
Richard: I’d say it’s mostly a problem for website owners to be concerned about. There are two ways that developers can have a problem, and I think both of them are going to grow over time.
One is, I think, as website owners start to understand things better and to understand accessibility better, they are going to increasingly turn toward their developer and say, Hey, this is your fault. So the developer may not be sued directly, but their unhappy client is gonna come back and say, you need to share the expense of this.
I’ve had that happen a few times where I represented developers not in a lawsuit, but in a negotiation with their client about what was gonna happen and who was to blame for the accessibility problems. Which can get into you know, interesting problems of if the owner has a content management portal, then the owner has the capability of messing it up all by themselves.
I think that’s the first thing, and I think that as owners become more familiar with what accessibility is particularly if we have regulations. So you can say, hey, the government has said that this is bad, then developers are gonna be, are gonna become a target. I also think that as the plaintiffs who file these lawsuits move along and find that the owner targets are getting harder to find, or in some cases the owner target may be a much smaller business than the developer target.
Richard: I think developers will start getting sued as well, because in this kind of litigation the sort of the evolution of the litigation is the plaintiff’s looking for more new targets. And the next logical target is the developer. Particularly because of the footer of almost every website, the developer has proudly announced who they are.
Amber: Like, I, so we don’t, we haven’t done that on websites we’ve built for many years, mostly because we hit an enterprise level where that’s no longer considered, like they don’t want the byline.
Richard: They don’t want that. Right.
Amber: But we did do that in the early days and I know a lot of smaller agencies and freelance developers do because they think this is good marketing for me. But to your point, that could put a target on them potentially putting the footer credit.
Richard: I think it can, because after all, if if you’re a plaintiff that is goes to a website and you’re unhappy with your experience and you decide to sue. If the, if you don’t, there’s no usually no way to know who the developer is.
You know who the owner is, so you sue the owner. But you’d have to do some work to find the developer unless the developers put their name on the footer of every page. So there, if you make yourself easy to find, then you’ve created a little bit of a problem, a potential problem. I think this is one of those, again, where a small developer that’s trying to build up their business and is proud of the website they created.
I might say, okay, well, it’s a little bitty risk that I get sued, but it’s a big benefit if somebody looks at this website and says they’ll hire me, right? And that just goes back to the, you know, you know, you don’t torpedo your business just to avoid a lawsuit.
Does a Good Contract Help Agencies and Developers?
Chris: Yeah. And I can think of plenty of times where the byline credit on a website in our very early days as an agency was a reason that we got additional business, or at least some inquiries.
I have a question I want to tack onto this, which you had mentioned that, you know, website owners are probably the ones that are primarily going to be the subject of any legal action, but it could shift more to developers in the future. I’m wondering in that context, how much does the contract or the statement of work between those two parties really matter?
Like if accessibility was explicitly mentioned versus not mentioned, if limitations were imposed, does any of that really matter?
Richard: Oh, I can say with a hundred percent certainty that the contract really matters. It matters a little bit in the sense that the ADA covers owners and operators of websites. And a developer who’s very active in the post-development maintenance phase, could be a quote operator of the website. Unless they’ve disclaimed a lot of responsibility. So that’s part of it.
But more important I think is if you don’t talk about accessibility in the contract, the website owner is going to assume, at least as soon as they get sued, they’re going to assume that you are gonna build them an accessible website and they’ll blame you for it.
So I, the a contract should make sure everybody understands what is and is not being done. What can be done and what cannot be done. Either just to avoid misunderstanding, but also from a developer standpoint, I think to avoid liability. And I’m I don’t think this is something that’s been litigated much, if at all, but…
There’s a general obligation. It varies a little by state, but most, in most contracts the law would be that whoever’s performing a service should do so in a old fashioned phrase, good and workmanlike manner. That basically means up to the standard of the business. So if you’re a developer, your websites should be up to the general standard of website developers, and it’s gonna be harder and harder to say that does not include accessibility.
Amber: It’s more and more getting emphasized just as a general need and by laws and that sort of thing. So you can’t really, it’s like mobile responsive, right? We used to in the beginning, charge extra for mobile.
Richard: Right, right.
Amber: And now if you told somebody, we’re not gonna build you a mobile responsive website, or we’re not gonna do it unless XYZ, they’d be like, what? No. So you’re kind of saying the same thing. Accessibility is becoming the standard of a good website.
Richard: Right, that’s exactly right. And we’ve, we had this in the fair housing with architects who designed inaccessible apartments five years after the Fair Housing Act passed, an architect might say, Hey, I didn’t know.
It’s now been thirty five years almost. And an architect who says, I didn’t know I had to build it to be accessible is just gonna be laughed at, you know, so, and I, it’s gonna go that way with the developers as well.
Hypothetical Scenario: XYZ Beer Co Gets Sued for an Inaccessible Website
Amber: So that’s a really good point. All right, so obviously you are an attorney, but you are giving no one on this podcast legal advice because you are not our attorneys or our listeners’ attorneys. But I’d like to kind of like workshop a scenario a little bit.
Richard: Sure.
Amber: So I own XYZ Beer Co. And someone has a complaint about my website and they want to sue me. How am I going to find out that I’m getting sued?
Richard: Well, in most cases you will find out you’re getting sued because you’ll get in the mail a notice that you’ve been sued.
Amber: So just like a letter?
Richard: It’s a it’s an official letter. There, there are two ways that a lawsuit like this can start. It’s one way is you hire a process server. A person who physically goes to the place of business and hands the papers to somebody there that’s responsible, that’s well…
Amber: Is it like in the movies they say, you’ve been served.
Richard: Just like in the movie, just like in the movies and also just like in the movies, it’s frequently a kind of a paunchy, overweight guy with a blazer that doesn’t fit right.
So, but more likely is these suits are mostly filed in Federal court. And in Federal court you can serve someone with a lawsuit by sending them a notice by mail or by certified mail that says you’ve been sued. You can do one of two things. Either you can sign this paper and return it, in which case you admit you’ve been served with the papers, and you have 30 days to file an answer.
Or you can do nothing. And a guy that’s a little paunchy with an ill-fitting blazer will show up at your place of business and you’ll have to pay for him as well as whatever else you’re gonna have to pay for. So, mostly people will find out because they got a letter. The second way they’ll find out is they will get an email from a lawyer who’s busy looking at all the case filings that say ADA on them and it will say, Hey, I happen to know you just got sued. You need to hire me to help you out.
Amber: Lawyers do cold sales too, huh?
Richard: Some of them do. Yeah, that, yeah. There are a few law firms that do that on that for ADA defense. We could have, we could spend an hour discussing why I don’t think that’s appropriate, but that is one way people find out they got sued.
Chris: So say in this scenario, as the owner of XYZ Beer Co I get notice of a lawsuit. Maybe it’s a letter, maybe a guy in an ill-fitting suit hands it to me in person. What is the very first thing I should do?
Richard: The very first thing you should do is call a lawyer. And to be more…
Amber: Before you even mail the thing back, should you call a lawyer?
Richard: Yes. You shouldn’t do any yeah, you shouldn’t do anything until you call a lawyer. A business that has its own lawyer already or a law firm should call them but because they should be helpful, at least in finding a lawyer that’s got some expertise in the area. But I do think any business, that calls, you know, they call their law firm and they say, I need a lawyer for an ADA lawsuit.
And the next question, they, or next thing they say to their firm should be, and by the way, do you have expertise in this? Because if not, I’d like for you to find me someone who has expertise.
And I, you know, people can watch the presentation I did for you guys. This isn’t an ordinary lawsuit. The best standard business litigator at the biggest law firm in the world will not know how to handle this kinda lawsuit. And so, you need someone who specializes in them, or at least has lot, had a lot of experience in them.
Amber: That’s good to know. Is there anything I shouldn’t do? Any mistakes you’ve seen people make or people think they’re doing something good and it actually gets them in even worse trouble?
Richard: I would say you probably you probably shouldn’t call up the plaintiff’s lawyer and scream at them about how unfair it is.
Amber: Good advice.
Richard: Which can be a real temptation, you know? Be just because it won’t do any good. And ultimately you’re probably gonna make a deal with that lawyer, so you might as well not get off on a excessively hostile foot footing. The second thing you should not do is you should not precipitously hire or precipitously buy, I should say a plugin that claims that it will fix your website. I know that y’all’s product identifies problems and maybe you fix some of them but a product that claims that if you pay them a monthly fee, your website will be accessible, is not the first thing you should do. In fact, it’s something you should never do.
Amber: Yeah, and we had a recent podcast episode we can link in the show notes for folks where we talked about AccessiBe getting fined by the FTC for this exact thing. They promised, and people bought it because they got sued or thought they, it would not get sued and then they didn’t. So…
Richard: Yeah, and you, I don’t know that you’d ever wanna do this, but if you, someone who buys a product that claims to fix websites should actually drill down into the Terms and Conditions of the product where they find the part that says, No, we don’t actually promise to do anything. It’ll be there in the fine print, for sure.
But but the, you know, if you’ve got a website that’s not accessible as soon, the second thing after talking to your lawyer is talk to your developer about their expertise, and whether they need to bring additional expertise on to determine what the problems with the website are and how you can fix them.
So, lawyer first, developer second, and never just go buy something off the shelf that claims to fix the problem.
Chris: Okay. So I’ve been served notice through one of a couple mechanisms. I’ve contacted my attorney or found an attorney with expertise. I have not called and screamed at the guy that’s suing me. I’ve also spoken to my web developer and my web developer says, Good news, I can have, there’ll be a rush fee, but I can get all this fixed for you in 48 hours. And we can get your lawsuit dismissed. Is that actually possible or is it unlikely? Like, can I just rush all the fixes and wash my hands with it?
Richard: I think it’s unlikely. First it’s unlikely that you’re gonna get the website completely fixed within that time if there were serious problems.
Chris: Sure.
Richard: And second, it’s unlikely that it will stay fixed for very long if it’s a dynamic website that’s constantly being updated now…
Amber: And you haven’t implemented any sort of training for your content team or yourself if you’re the one who does it. Right? Like…
Richard: Exactly, unless you’ve got those processes in place, it won’t stay accessible for long. The other problem is the cost. It is true that in theory, if a website is fixed and completely accessible, that the lawsuit is what they, what we call moot. It’s a peculiarity of the Americans with Disabilities Act that a plaintiff can only get one thing if they win the lawsuit, they can get an order that the website be fixed.
And so Federal courts have said for, and not in just this kind of case, but for 200 years, if the judge can’t enter an order that means something, then he doesn’t have jurisdiction over the case at all, because judges don’t do pointless stuff. And therefore, if the website’s already been fixed, it’s pointless to order it to be fixed and the case disappears.
The problem with that is the mootness defense is gonna cost you more to assert and win than it will to settle the lawsuit.
Amber: Oh. Because if you fix, if I fix my website, it’s not like I just tell the other, have my lawyer tell the other lawyer, oh, it’s fixed now. We’d still have to go to court, go through all these things, present evidence, prove it’s fixed.
Richard: Exactly.
Amber: And that’s what’s gonna cost money.
Richard: That’s exactly right. That’s going to it, that’s gonna cost you money even if you win. And of course, if the other side can show there’s one thing that’s still wrong with the website, you are not gonna win. Because, and it’s even what it means for a website to be fixed is not absolutely certain.
So it’s a theory that you could do it, but you’re probably gonna spend a lot of money and not be sure you’re gonna win. What is useful is to, is actually, is useful for your lawyer to call the other lawyer and say, Hey, we have fixed the website so you’ve got a problem because we could do this, therefore we will give you less money than otherwise because we’ve made your lawsuit more difficult.
Amber: Okay. So it’s still good to try and fix problems as fast as you can.
Richard: You should fix them as fast as you can, and you should talk to your lawyer about how fast is it necessary to fix it. In a lawsuit, a lot of things happen between the time when you appear in the lawsuit by filing an answer to the lawsuit and you start spending real money on legal fees.
Just procedurally there’s a pause, it could be 60 days. It could be longer. And so you know, you don’t want to say, well, I’m gonna have to fix it all in a week. Because what you wanna do is you want to fix it early enough that you haven’t spent a lot of legal fees before. You pull out the card of I fixed it, settle cheap.
But you know, there’s no point in paying for an expedited fix if you’ve really got 60 days to do it, or 90 days.
Chris: So kind of to tag onto that question, what about instead of fixing it, I just decide, you know what, I don’t need a website anyway, I’m just gonna take my website down. Would that make the lawsuit go away or would this same kind of situation with moot, you know, judicial orders still apply?
Richard: Turning off the website is an easier way to make it moot because there’s no question that it’s not there anymore. There’s still a little risk that the court will say, no, we don’t think you’ve really turned it off, or we don’t think you’ve permanently turned it off. You know, you’re just waiting until the case is over and then you’re gonna turn it back on again. So you’d have to find a way to persuasively show you really had simply shut down the website.
If you abandon the URL, that’s a good indication that you no longer intend to put a website up there. So it’s a, it is easier, but it’s not a sure thing.
Amber: So, so it sounds like you’re saying fighting it could be very expensive, even if you think the website’s fixed, or maybe in the very beginning you think that it wasn’t really that inaccessible to begin with.
Richard: Yeah.
Amber: So I’ve heard that a lot of times it’s better to settle lawsuits like this rather than try and fight them. And I’m curious, in your opinion, is that true?
Richard: Yes. This, for this kind of lawsuit, it is. And that’s because the lawsuit was filed to be settled with rare exceptions. If you’re an owner that gets sued by the National Federation for the Blind, they are suing you because they want to make a point and they will not.
Amber: So like they wanna go to the Supreme Court with dominoes.
Richard: That’s exactly right. And there are a few private law firms that are the same way, but most of these cases are filed by a lawyer who wants to do as little work as possible and still get paid a significant amount of money, which would be in the thousands of dollars, at the very least.
So the lawsuit was filed to be settled. And if you, knowing that you know that you can settle it early in the lawsuit and because the other side wants to settle and that you can do it relatively cheaply. This is one of the big differences. Usually in, in a typical business type lawsuit, the parties are actually pretty far apart.
They just disagree on everything and they have to beat each other up in court for a while before they start to converge on having the same opinion about what’s likely to happen. And then when they, converge on the same opinion that’s about what’s gonna happen. They can start settling it.
In these lawsuits, you don’t have to beat each other up in court. If you’re the developer or not the developer, let’s say the owner optimistically not the developer. If you’re the owner, you already know your website’s probably not accessible, so you don’t have a great defense. If you’re the plaintiff, you know that you don’t care if it’s accessible anyway, you just wanted to make some money. So everybody’s got the same opinion.
Amber: Well, the part of me like wishes that it was all like coming, like they really do want it to be accessible. But you just don’t think that’s the case?
Richard: I it’s my opinion that’s not usually the case. I am sure that there are disability advocates out there who passionately believe in website accessibility. I just don’t know that I’ve met any of them that are suing people.
There’s a reason why you see the same plaintiff named a hundred times. That’s because they’re in the business of filing lawsuits. So that’s but everybody in the deal would like to make a deal as soon as possible.
And if you’re the person who got sued, the best deal for you is the one that gets you out of the lawsuit paying your lawyer the least amount of money. Because the last thing you wanna do is pay your lawyer a fortune and then find out that you got the same deal you could have gotten without paying your lawyer a fortune.
I’m sorry to say that. If any of your listeners are very rich and extremely angry about this situation, I would like to talk to them. But but other than rich and irrationally angry, most people just want to get out.
Chris: So yeah, both parties wanna settle for some middle ground where the plaintiff gets to make money with minimal effort and the other side gets to feel like they escaped a situation with as little pain as possible. Financial pain, I guess.
Richard: Yeah, that’s right.
Chris: And so we’re settling, let’s say we’re settling and we’re XYZ Beer Co, we’re gonna settle. What does settling usually entail in terms of payment? And are there things besides payments that are usually part of a settlement?
Richard: Sure. A as a very a typical settlement’s gonna be a payment of money. The money usually goes directly to the law firm and they will split it up with their client in some way that they will never tell you. But it’s gonna be one payment to the law firm and plus an agreement to bring the website into conformance with WCAG 2.1 AA, maybe 2.2 AA. It kind of evolves as the new WCAG standards come out within eighteen months maybe, or twenty four months.
Amber: Does that agreement have any sort of teeth or enforcement mechanism?
Richard: In theory, yes. You would, what, the agreement that the plaintiff’s lawyer sends over to start with is gonna have something like, We can inspect the website every month, and if we find that you’ve failed to conform, we can rush back to court for breaching our settlement agreement and we can make it expensive for you to fight a second time.
A law the kind of settlement agreement that I think most lawyers, including myself, will insist on, has the obligation to remediate, but it doesn’t have any mechanism for the plaintiff to do anything about it other than filing a brand new lawsuit. And the plaintiff doesn’t want to file a brand new lawsuit because well first you want notice, like ninety days notice if they claim there’s something wrong with the website, and you want that notice to be very specific so you can actually find the problem and fix it.
So you want that so that they can’t just sue you. After all, most defendants have just been sued without even getting a demand letter first. So you, ninety days notice, you can fix it. And you want them to have to file a new lawsuit, which means they have to incur an expense for filing fee and more time and effort.
And your hope is that this’ll be enough to persuade them the plaintiff that is, that they’re better off looking for a different website to sue than taking the time and trouble to send you a notice. See if you can meet the notice or not file a new lawsuit if you don’t meet the new notice and that sort of thing.
So there’s no lawyer who’s gonna admit that they are doing this just to make money. There’s no plaintiff that will admit that. So to hold their head high, they’re gonna have to have something where you promise to fix the website. From the owner standpoint, you do wanna fix the website, by the way. You’re not trying to escape that obligation, but what you would like is you would like this plaintiff not to sue you again.
To Settle, or Not to Settle
Chris: And just a follow up question to that do you see settle like variation in settlement amounts or like payment structure of a settlement depending on particular regions of the US or industry of the person being sued?
Amber: Business size maybe?
Richard: Business size can make a difference. If you can demonstrate to the plaintiff’s lawyer that your client’s got a hobby website. You know, I represented a guy I shouldn’t even mention their product. He sold a specialist hobbyist product that he had stacked up in his garage.
If he broke even, that was a good year for him. And we persuaded the plaintiff in that case to take $500 because he realized that he was never gonna get his money, you know? Yeah. On the other hand, if you represent Target, you will not be able to say that you can’t afford it. But the other thing, the more important thing is what law firm filed the lawsuit.
There are some law firms that have gotten into this business with the very clear goal of just getting in and out as quick as they can. And so, a law firm like that might think that $5,000 is a good payday. There are other law firms, particularly those that have been doing it for a while. That are prepared, if they’re forced to take a case all the way to trial and hire an expert and do all that stuff to prove their point, those law firms will not settle that cheaply.
I’d say that today it would be very rare to ever pay more than fifteen or sixteen thousand dollars to settle a lawsuit, but there are some law firms that won’t take less than that.
Amber: But it’s not like a hundred thousand dollars or something.
Richard: No, that’ll, that will be the initial demand. But I don’t think any of these plaintiff’s firms now are expecting to get that kind of money to settle the case. You know, their calculation is if the defendant can pay their lawyer twenty thousand dollars and have a pretty good chance of success, they’re not gonna pay me a hundred thousand dollars. On the other hand , if it costs twenty thousand dollars for the defendant to have a pretty good chance of success, they will definitely pay me fifteen thousand dollars. Because it’s the cheapest.
Amber: Because it’s less than…
Chris: So there’s less sweet spot that they’re trying to hit.
Richard: That right. They’re trying to, they’re trying to find the amount of money that is just a little bit less than any defense that’s likely to work. So you’re not tempted to defend the case. You’d rather pay them.
Amber: Wow.
Richard: I don’t want to just blame website accessibility cases. This is a fact of life in business disputes of all kinds. One of the things that you take into account, it matters who’s right and it matters who’s wrong, and it matters what the law is, but it also matters how much it costs. And in all kinds of litigation including complicated racketeering cases that I’ve handled over my career, at some point everybody said, hold it. How much are we paying the lawyers?
And that is a factor. And right or wrong, when the legal fees are too high, people will stop paying the lawyers and just pay the other side instead. It’s a tragedy for lawyers. But…
Amber: We’ve had conversations about that just in some of the web agency groups I’m in when someone’s like, my client didn’t pay me. And it’s like $800 and everyone’s like, just write it off because you are never going to get that money. And the effort to try and get that money is so expensive. It is not worth it.
Richard: No, that’s totally right.
Amber: So what you’re saying makes sense to me.
Richard: Yeah, and you have to, I mean, this is another business fact of life. I don’t know if you guys face this, but I’ve had clients that would not give up on $800 because they felt like if they gave up on this $800, they’d have to give up on every $800 and then nobody would pay them.
Amber: It’s a principle thing
Richard: They have to prove to all of their customers that they won’t put up with it. And on the other hand, I’ve also had clients who would’ve said, looked at the $800 and said, too bad. We’ll write it off because we’re never gonna collect the money.
Chris: Yeah. I mean, speaking from experience and being the ops guy in our business who has at times in our very long years of history, had to have conversations with lawyers and with customers refusing to pay.
It’s been very rare for us. We’ve been fortunate, but there is a number in my head that I’m not going to disclose publicly ever where you will get away with it if you don’t pay it. You know, if you’re below that number. Right, ’cause I know from experience what it costs.
Amber: We’ll just send it to collections. Yeah. Forget about it. Let it be collections fault.
Richard: You can find a, you know, there, there are attorneys who are set up to harass people until they pay their $800 and they’ll, and they’ll do it for 50% of the money they collect. So that’s, you know, you find one of those people
Chris: Totally. So, Amber, I think you had next question maybe.
Amber: Yeah, I mean, I think we’re sort of nearing the end of our time for the podcast. I really appreciate you humoring us in kind of walking through a scenario from start to finish. I’m sort of curious if you have any closing thoughts either on, like the post lawsuit settled the website, you did mention you should make your website accessible anyway. Any sort of closing thoughts for people or anything else if somebody is in this situation?
Richard: Sure. Two, I have two things really that I think are important. One is the way this kind of litigation is developed will tend to make people cynical about website accessibility. And so I don’t think that web owners and web developers should be cynical about the need for website accessibility.
It turns out that the people who were trying to enforce the law aren’t very admirable, in my opinion. But that doesn’t mean that the law doesn’t serve a valuable purpose. So I think , website accessibility, the importance of it shouldn’t get swallowed up with the annoyance of the fact that these lawsuits are kind of stupid and kind of for profit only.
Richard: And, you know, are an they’re, well, there’s something between an annoyance and a catastrophe depending on how much you have to spend. But that shouldn’t wash out the fact that websites need to be accessible.
Amber: I, you know, it makes me think of in the beginning when you’re talking about the statistics and you’re like, sounds like a lot, but statistically, like the likelihood of getting sued is very tiny.
Richard: Right.
Amber: And so I think, yeah, the lawsuits aren’t great, but they’re not super common. But what is a lot more common is the need for your customers to have, to be able to access and use your website in order to patronize your business.
Richard: That’s right.
Amber: And so that’s where the positive of website accessibility comes in.
Richard: No, I think that’s right. And I think my, I mean, my own experience, ’cause I frequently look at websites with accessibility in mind, even though I don’t have any disabilities really. But I think maybe you guys would disagree, your professionals. I think that accessible websites are easier to use for people who are not disabled.
Chris: 100% agree.
Richard: You know, when you, when the website page structure and menu structure and stuff is logical and works the way anybody thinks it should work, it’s easier for everybody. And, I have had the chance to raise as a defense in a website lawsuit that, that it was equally hard for everyone. There was no discrimination against the disabled because nobody could use the website and, which is, you’d hate to be the website that…
Chris: Yeah, that poor designer and developer who had to endure that…
Richard: Don’t worry, we’re not discriminating against the blind. Nobody can use it. So, but the and then the second thing is because these lawsuits frequently focus on the stuff that is discoverable using a software tool of some kind. They and I’m not I’m sure your tool’s very good, but there’s more to accessibility than a software tool can detect.
Amber: Oh, 100%. We talk about that all the time. You can use Accessibility Checker to get started. But it, I mean, every report and accessibility checker has a little thing that’s like, you need to do manual testing too.
100% here, does not mean 100% accessible.
Richard: Exactly. That’s, I think that’s right. And you have to think about then I mean, from my standpoint, there’s some items that an accessibility checker will find, which may be buttons that aren’t adequately labeled or, you know, images without alt texts that actually they don’t need the alt text anyway.
But the problems they won’t find may be much more serious in terms of can a person with a disability do what you want them to do, which is usually find what they want to buy and buy it. And so I think website developers and owners, their first accessibility question should be, can a person with a disability, especially probably someone who’s blind, can they actually find what they want to buy and buy it?
I mean, if a can they go to my website and do that? Because if they can’t do that, it doesn’t matter, if everything else meets WCAG two point whatever. You know, if there’s one failure in the sales process, then the rest of the accessibility of the website doesn’t matter if you’re an owner trying to sell stuff.
Chris: Totally. Well, this has been amazing. I would be remiss, we would be remiss if we didn’t ask you just to share how people can find you online if they wanna follow up or if maybe they got some questionable mail and need to ask a professional some questions.
Follow Richard’s Work at HuntHuey.com and AccessDefense.com
Richard: Sure. My, well, my website is HuntHuey.com.
So that’s the easiest way to find me. My email is rhunt (at) hunthuey.com. And I have a blog. It’s at AccessDefense.com, where I blog about this and other accessibility related issues. I I’d love to have more people read the blog. I think people will find it useful and reasonably fun.
I’m pretty opinionated, so it’s not gonna be boring. I would love to, I would love to have some more subscribers. So those are the ways to get me HuntHuey.com is the best way.
Amber: Okay. Yep. Well, thank you so much and I want to say cheers and I hope you enjoy your beer and the rest of your afternoon. And everyone, we will be back in two weeks.
Chris: Thanks for listening to Accessibility Craft.
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Accessibility Craft is produced by Equalize Digital and hosted by Amber Hinds, Chris Hinds and Steve Jones. Steve Jones composed our theme music. Learn How We Help Make thousands of WordPress websites more accessible at EqualizeDigital.com.