I talked to a brand new client today who found out she was sued over website accessibility after a digital accessibility agency and defense attorney (from a national law firm) emailed her.
This client is a small business owner who resides in New Jersey and uses Wix as the website platform provider for her ecommerce store. She was sued in New Jersey court by a serial plaintiff’s lawyer.
Although the specifics change, this general fact pattern is one that plays out over and over again: website owner completely unaware of the concept of ADA website compliance, is sued (and completely unaware of it), and receives emails from digital accessibility companies and defense law firms saying you’ve been sued, hire us.
In fact, I wrote about this same scenario just a few weeks ago in my ‘Scammy’ Email: You’ve Been Sued Because Your Website Isn’t ADA Compliant, Hire Us.
Anyway, this client emailed me looking for advice and ended up hiring me for consulting because there were so many discussion points where she had questions:
- Should I settle or try to get my case dismissed?
- Who should I hire as a defense attorney?
- Can I just simplify my website and make it ADA compliant?
- Should I use one of those accessibility widgets?
- Will an accessibility statement help?
- What should I do next?
There were many more topics we covered, but these were really good questions so I thought I’d carry forward some of the key takeaways in this blog post.
Should I Settle My ADA Website Lawsuit?
The vast majority of cases settle, not because there isn’t a decent defense available, but because it’s expensive to make that defense. It’s also risky to continue forward because there’s a real chance the defense, at least initially, doesn’t result in a dismissal.
However, there has been increasing momentum with the defense successfully getting cases dismissed. Courts are extremely aware of the game that’s being played and they’re tired of it.
Whether or not to settle will depend on your specific situation, budget, risk tolerance, and whether a solid defense is available. And it almost always helps to have a defense attorney working through these specifics with you.
Who is a Good ADA Website Defense Attorney?
I haven’t made specific referrals to any one defense attorney for multiple reasons. One reason being I’ve never been a client so I don’t know what the client experience is like and I don’t want to endorse anyone and then have that endorsement turn out to be wrong.
What I ended up doing for this client was researching a list of defense law firms who aren’t just experienced in website accessibility litigation, but have had success in getting cases dismissed.
However, it’s crucial to note that success can also come in the form of a minimal settlement amount. Additionally, each case is different and you might not have the same favorable defense(s) available to you as other clients who have had their cases dismissed.
My recommendation with choosing a defense attorney is to call at least 3 and then go with your favorite. Traits I would look for include:
- Willingness to genuinely listen
- Asks about specifics to your case
- Explains options
- Transparency on fees and expected costs
- Talks in plain language
We have a list of 35 defense law firms (and their location) who practice in website accessibility litigation.
What About Simplifying My Website?
I really like the website simplification approach. It’s affordable. It’s easy. And it still allows you to have a website.
By going the simplified website route, you’re going to drastically pull back on dynamic elements on third-party integrations and thus make accessibility much, much easier.
In its extreme, this approach may end up with a purely informational-based website.
There are varying options of what simplifying your website looks like, but the idea is that by removing dynamic and/or complex elements from your website, there is less potential for more technically advanced accessibility issues.
What About An Accessibility Widget?
My new client already knew the answer to this because she had watched some of my YouTube videos, but she was still curious as to whether a widget had any merit because her web designer had mentioned them.
The answer is unequivocally no widgets.
Not only do widgets not make your website WCAG 2.1 AA conformant or ADA compliant, some plaintiffs’ lawyers actually target websites with widgets installed.
Should I Post An Accessibility Statement?
One persistent point of interest was around posting an accessibility statement:
- Should I write something about calling us if you have a problem using our website?
- Will posting an accessibility statement stop a lawsuit?
- Can you write an accessibility statement that will help?
I advised the client that I didn’t think an accessibility statement would make the material difference she was looking for in this instance.
While posting a conspicuous accessibility statement is a best practice for ADA compliance, it’s not like merely having an accessibility statement alone will stop a plaintiffs’ law firm from suing.
And as far as posting a phone number and inviting a visitor to call if they have any problem with checkout, it’s the same problem. Plaintiffs’ law firms simply aren’t deterred from suing by offers of help; they’re deterred by a lack of technical issues.
We’ve seen this defense play out in court and I’m unaware of any case where phone support alone was been sufficient to provide meaningful access.
I added that I could write a custom accessibility statement if she really wanted, but, again, I didn’t view it as solving any aspect of her immediate problem.
She still wanted to go forward with the statement. She said she just felt better about having something posted on her website.
Now What Should I Do?
My advice: first, call at least three defense attorneys (the more, the better) and select the one you feel the most comfortable with.
Next, I recommended signing up for my ADA Compliance Course. The course is specifically designed to tell website owners how to fix their websites to reduce risk of a lawsuit while improving website accessibility.
My new client told me she wouldn’t have time to take the course and I told her that she doesn’t have to go through the course herself – she can just purchase it and hand it off to her web designer.
The course is basically step-by-step instructions in the form of lessons that tell you exactly what to do.
Consulting
Those were several of the key points from our call.
When we initially spoke, my new client was extremely frustrated and very confused about the entire situation – the lack of a law, the fact that someone visited her website for one second and sued her, that she doesn’t even make that much money from the website anyway, that she was having to deal with this while her mom was dying – but by the end I could tell she was in better spirits.
I think one of the biggest difference makers was she was brought up to speed on what was going on, started to put everything into context, and had someone to answer all of her questions.
If you need help with your lawsuit or preventing a lawsuit, feel free to reach out to me for consulting.
Here’s a really good video to start with:
