Most Popular Ad Law Access Posts of 2017

As reported in our Ad Law News and Views newsletter, Kelley Drye’s Advertising Law practice posted 106 updates on consumer protection trends, issues, and developments to this blog in 2017. Here are some of the most popular:

Ad Law News and Views is produced every two weeks to help you stay current on advertising law and privacy matters. You can subscribe to it and other Kelley Drye Publications here and the Ad Law Access blog by email or RSS feed.

2018 Advertising and Privacy Law Webinar Series 

Please join Kelley Drye in 2018 as we continue our well attended Advertising and Privacy Law Webinar Series. Like our in-person events, this series gives key updates and provides practical tips to address issues faced by counsel as well as CLE credit. This webinar series will start again in February 2018. Please revisit the 2017 webinars here.

As we noted earlier this week, a handful of law firms have filed hundreds of lawsuits – and sent many hundreds of letters threatening lawsuits – over website accessibility issues. This has been a lucrative business for these firms. Many of these suits and letters are essentially cut-and-paste jobs, and the recipients often decide to quickly settle, rather than face the uncertainties and costs of litigation. But a new decision in Florida may give defendants something to think about.

A plaintiff filed a lawsuit against Bang and Olufsen in Florida, alleging that the retailer violated the ADA because its website is not compatible with screen reader software. The sole issue before the court was whether the website was a place of public accommodation, subject to the ADA.

The court concluded that “a website that is wholly unconnected to a physical location is generally not a place of public ADA Keyboardaccommodation under the ADA.” In order to survive a motion to dismiss, a plaintiff must generally establish that there is some nexus between a website and a physical location, and demonstrate that the website’s inaccessibility impedes his access to that location.

Importantly, the court held that the “ADA does not require places of public accommodations to create full-service websites for disabled persons. In fact, the ADA does not require a place of public accommodation to have a website at all. All the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.”

As we noted in our previous post, it’s too early to predict how this decision will affect the wave of lawsuits in this area. Other courts have come to different conclusions on this issue, so a company’s chances of winning with this type of argument may depend on where the suit is filed. But this case may still be welcome precedent for companies thinking about litigating one of these cases.

For more information, you can attend our webinar on March 30.

Over the past few years, a handful of law firms have filed hundreds of lawsuits – and sent many hundreds of letters threatening lawsuits – over website accessibility issues. This has been a lucrative business for these firms. Many of these suits and letters are essentially cut-and-paste jobs, and the recipients often decide to quickly settle, rather than face the uncertainties and costs of litigation. But a new decision in California may give defendants something to think about.

Last year, a plaintiff filed a lawsuit against Domino’s complaining that he could not order pizza from the ADA Keyboardcompany’s website using his screen reader. Domino’s argued that websites are not places of public accommodation under the ADA, but the court didn’t agree. Nevertheless, Domino’s argued that the court should dismiss or stay the action because the Department of Justice has not promulgated concrete guidance regarding the accessibility standards.

As we’ve noted before, the DOJ issued a Notice of Proposed Rulemaking in 2010 regarding regulations on website accessibility. In the Notice, the DOJ acknowledged that “clear guidance on what is required under the ADA does not exist.” Dominos argued that, in the absence of clear guidance, the plaintiff’s “request to impose liability under the ADA for Defendant’s alleged failure to abide by certain accessibility standards would violate Defendant’s constitutional right to due process.” The court agreed, and dismissed the action without prejudice.

Although the DOJ has issued several “Statements of Interest” and has entered into settlements obligating companies to abide by certain standards, the court held that those statements and settlements still do not provide companies with concrete guidance regarding their requirements. Moreover, the Statements of Interest “even suggest that Domino’s provision of a telephone number for disabled customers satisfies its obligations under the ADA.”

It’s too early to predict how this decision will affect the wave of lawsuits in this area, but the decision does suggest at least two things. First, if your company’s site isn’t fully compatible with a screen reader, you should at least consider an alternate method – such as a toll-free telephone number – through which you can enable people with visual impairments to enjoy the benefits of what is on your website. Second, if you are considering fighting a threatened lawsuit, you may want to consider a due process argument.

For more information, you can attend our webinar on March 30.

web accessibilityWebsite accessibility seems to be the Wild, Wild, West of the World Wide Web, and it is not going to get tamer anytime soon. Since July 2010, the DOJ has sought to issue a proposed rulemaking setting standards for website accessibility under the Americans with Disabilities Act (“ADA”).  After numerous delays, we thought we had an end in sight late last year when the DOJ announced it would issue web accessibility regulations applicable to State and local government entities under Title II – as a precursor to Title III regulations that would apply to businesses.

But on April 28th, the DOJ took a step back when it withdrew the Notice of Proposed Rulemaking under Title II, which had been sitting with OMB since July 2014.  Yesterday, the DOJ followed up with a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) soliciting additional public comment on various website accessibility issues and asking for related cost information for preparing a regulatory impact analysis.

The DOJ indicated that it is particularly interested in receiving comments from all those who have a stake in ensuring that websites of public entities are accessible to people with disabilities or “who would otherwise be affected by a regulation requiring that websites be accessible” (*hint…hint…it’s asking for public comment from all businesses with websites out there that could potentially be considered public accommodations under Title III*).

The SANPRM poses more than 120 questions for public comment.  Here are some of the highlights:

  • Are there any issues or concerns the DOJ should consider before proposing WCAG 2.0 Level AA as the accessibility standard?
  • Are there any existing designs, products, or technologies that would result in accessibility and usability that is either substantially equivalent to or greater than WCAG 2.0 Level AA?
  • Should the DOJ address the accessibility of mobile apps and, if so, what standard it should consider adopting?
  • Should a lower compliance standard or longer timeline be applied to smaller entities?
  • Should the DOJ consider exempting archived content from the accessibility standards and, if so, how should “archived content” be defined?
  • To what extent should covered entities be responsible for ensuring that third-party web content (either linked from the site or posted to the site) is accessible?
  • Does an effective date of two years after the publication of a final rule strike an appropriate balance of stakeholder interests, or should the DOJ consider different approaches for phasing in compliance?
  • Is there technology available now that would allow public entities to efficiently and effectively provide captioning of live-audio content in synchronized media in compliance with WCAG 2.0 Level AA conformance?  What are the costs and availability of doing so?

This rulemaking is particularly important for businesses subject to Title III as “public accommodations” as the Title II rulemaking will inform the agency of how it should move forward with its Title III website accessibility rule.  Comments on the SANPRM must be submitted by August 8, 2016.

So what does this “step back” mean for the DOJ in issuing a proposed rule to provide Title III businesses with the much needed clarity on website accessibility?  Most likely another delay.  The DOJ most recently stated that the Title III rule would be released in 2018, but… we’re not going to hold our breath in the meantime.

As we’ve noted in previous posts, there has been an increase in lawsuits alleging companies have violated the Americans with Disabilities Act because their websites aren’t accessible to the blind. This week, a California court granted summary judgement in one of these suits.

Last year, a plaintiff filed a suit against Colorado Bag’N Baggage, arguing that he was not able to use the retailer’s website because it wasn’t accessible to the ADA Blogblind. In its order, the court noted that the plaintiff had “presented sufficient evidence and legal argument to conclude Title III of the ADA applies to plaintiff’s use of a website where plaintiff has demonstrated he sought goods and services from a place of public accommodation because he demonstrated a sufficient nexus exists between defendant’s retail store and its website that directly affects plaintiff’s ability to access goods and services.” Further, the plaintiff had “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by [the retailer] because of his disability.”

The court ordered the retailer to pay the plaintiff $4,000 and to take the necessary steps to make its website “readily accessible to and usable by visually impaired individuals or to terminate the website.” Because the law allows the plaintiff to recover attorney’s fees and costs, the price tag is likely to be much higher.

As we’ve predicted before, these types of cases are likely to continue. If you aren’t sure whether the ADA applies to your site or whether it’s accessible to the blind, now may be the time to find out. Getting a sense of whether your site can be navigated using a screen reader will provide a better sense of whether the site could be considered a “low hanging fruit” for plaintiffs to find.

Since July 2010, the DOJ has sought to issue a proposed rulemaking addressing the applicability of the Americans with Disabilities Act (“ADA”) to private retailers offering goods and services to the public online.  The rulemaking has been delayed several times, and was most recently scheduled for a Spring 2016 publication.

However, on November 19, 2015, the federal government released its Fall 2015 Semiannual Unified Agenda and Regulatory Plan, identifying regulatory priorities and significant regulatory actions that agencies expect to take in the coming year.  The Fall 2015 Unified Agenda indicates that the DOJ is further delaying this much-anticipated proposed rule, and has moved the rulemaking to its “long term action” list.

Concurrently, the DOJ announced that it expects to publish its proposed rule for website accessibility applicable to State and local governments under Title II in January 2016.  In the accompanying Statements of Regulatory Priorities, the DOJ explains that it believes the Title II rulemaking “will facilitate the creation of an important infrastructure for web accessibility” and inform the agency of how it should move forward with its Title III website accessibility rule.  Accordingly, the DOJ indicates that it now expects to publish the Title III proposed rule during fiscal year 2018.

Despite significant delays in rulemaking by the DOJ, plaintiffs are resorting to filing lawsuits, sending demand letters, or entering into settlements with companies whose websites and/or mobile applications are not readily accessible to, or usable by, blind individuals.  For those businesses who have not yet been the target of such action, precautionary measures can be taken and businesses need look no further than recent settlements with plaintiffs or the DOJ to determine compliance obligations.

If you are unsure whether your site is accessible to the blind, there are ways to find out – either through the use of third-party experts or other free tools that provide a general sense of whether the website can be read by a screen reader.  Once you figure out where you stand, it often makes sense to come up with a plan to address any deficiencies.  You may not be able to get everything done overnight, but every step in the right direction can help.

Last month, Reebok was hit with a proposed class action alleging that the company’s website violates the Americans with Disabilities Act because it is not accessible to the blind. The plaintiffs argue that Reebok.com contains “thousands of access barriers” that make it difficult —if not impossible — for blind customers to use the site. Because of this, the plaintiff is asking the court to require Reebok to fix its site and pay damages.

Although these types of cases have been on the rise in recent years, they still come as a surprise to many people who think of the ADA only in terms of physical barriers, like wheel chair ramps and handicapped parking spaces.  In many instances, potential plaintiffs are reaching out to companies directly in lieu of filing a class action to effectuate a confidential settlement and revisions to the website to provide for ADA accessibility.

Read our article in Retailing Today for more information.

The DOJ recently announced a settlement to remedy allegations that the website, www.peapod.com, and corresponding mobile app are inaccessible to those with disabilities in violation of Title III of the Americans with Disabilities Act (“ADA”).  Consumers use the Peapod website and app for online grocery shopping and delivery services.  Peapod does not have any physical place of public accommodation and its services are available solely through the internet.

Specifically, the DOJ alleged that individuals who are blind or have low vision and use screen reader software may not be able to properly use the website or app for various reasons.  For example, the images, buttons, and form fields were unlabeled or had inaccurate alternative text; pop-ups were not being reported to screen readers; tables contained missing header information and proper mark-ups; and boldface type was used to show which fields are required.  The DOJ also alleged that individuals who are deaf or hard of hearing could not understand videos presented on the website because the captioning is inaccurate; and individuals who had physical disabilities affecting manual dexterity faced barriers on the website because Java script throughout the website was not available to users who are unable to use a mouse.

The settlement with Ahold U.S.A., Inc. and Peapod, LLC, the owners and operators of www.peapod.com, requires the companies to ensure that the website and mobile app conform to the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”).  The settlement also requires the companies to ensure that any new content added to the site or app is also in conformance with the requirements of the WCAG 2.0 AA.   In addition, the companies must ensure that any vendors providing third-party content on the site or app provide content in a format that conforms to WCAG 2.0 AA or can be made to conform to WCAG 2.0 AA by Peapod.

The DOJ continues to aggressively pursue its enforcement agenda when it comes to ensuring that websites are accessible to persons with disabilities under the ADA.  The Agency intends to issue a Notice of Proposed Rulemaking in June 2015 to provide guidance on website accessibility to private parties covered under Title III.  Although the DOJ has yet to issue proposed regulations, it is clear from its enforcement efforts that the DOJ views the ADA to apply to both online and in-store places of public accommodations.   

The Department of Justice continues to aggressively pursue its enforcement agenda when it comes to ensuring that websites are accessible to persons with disabilities under the Americans with Disabilities Act (“ADA”).  Last week, the DOJ settled its first enforcement action requiring the settling party to make its mobile app ADA-compliant.  

Specifically, the DOJ initiated an investigation against Florida State University alleging that the FSU Police Department’s online application form asked questions about a past or present disability and other medical conditions in violation of the ADA.  As part of the settlement agreement, FSU must ensure that the FSU Police Department website, including its employment opportunities website and its mobile apps, conform, at a minimum, to the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0”).  The WCAG 2.0 contain a set of recommendations for making websites more accessible, which can also be adapted for mobile apps.

The settlement is the first of its kind, considering that the DOJ has yet to issue proposed regulations defining the standard for what constitutes an “accessible” website.  The DOJ was supposed to issue proposed regulations in March 2014 setting forth the scope and extent to which the ADA applies to websites of private parties under Title III, including private retailers offering goods and services to the public online.  As we previously noted, there has already been an increase in class actions relating to ADA-compliance in the digital age.  

If you operate a retail website or mobile app, you should pay close attention to these developments and ensure that your site and app are in compliance.

When companies think about their obligations under the Americans with Disabilities Act, most think about low-tech solutions like wheelchair ramps, elevators and handicapped parking spaces. New developments involving higher-tech devices, however, may soon require companies to rethink their online and in-store experiences for customers. For example, a slew of recent class actions allege that card readers used by many retailers to process debit card transactions violate the ADA.

In addition, other lawsuits allege that various consumer-facing websites violate the ADA, and the DOJ will likely publish a proposed rule in April to determine the extent to which such websites should be ADA-accessible. In light of these recent actions, companies trying to determine whether they comply with the ADA must look beyond mere physical accommodations for the full picture.

Our new article in Law360 discusses what companies need to know.