Digital Accessibility Legal Update - axe-con 2021
hi everyone thank you for having me today and thank you for coming i am thrilled to be here to present the 2020 uh look back 2021 legal update and uh thanks to dq for having me so since we do have a relatively um you know quick time frame we'll dive right in i will start with our legal disclaimer because that's what we have to do i am a lawyer uh but this is not legal advice this is purely an informational presentation if you have any specific legal questions you should contact uh whichever lawyer with whom you normally work so what are we going to talk about today uh if you've been to any of my presentations before it's it's the kind of the standard routine we're going to talk about first just the legal background it's always nice to have a refresher and level set as to what the laws are that we are talking about and provide the framework here then we're just going to level set i know you all probably know this but it helps just to talk briefly about what is an accessible website anyway and then we'll go to the ada title 3 lawsuit data we don't have our data yet for 2020. we're still working on that but we can you know talk about the data generally and then the key lawsuits and key settlements that we've seen not a whole lot of action last year but you know a couple of updates and then we can go through the themes again and then strategies for avoiding and defending legal actions and what the typical road map to accessibility looks like uh the picture we have on this slide is just of a scales of justice and some legal books and a gavel one of them saying accessibility law or like i always like to say or lack thereof because this area of the law is just developing going into our legal overview what statutes may require accessible technology what are the laws on the books that may even require different technologies to be accessible to individuals with disabilities well we have title ii of the americans with disabilities act that applies to state and local governmental entities we have title three of the americans with disabilities act and that applies to places of public accommodation which essentially are you know any business any entity that provides goods or services to the public we have the rehabilitation act section 504 section 503 which apply to recipients of federal funding and federal contractors and then section 508 which actually sets out the guidelines for accessibility for the rehabilitation act and goes specifically also to technology sold to federal agencies and you know most of you know that that 508 has had accessibility requirements for quite some time and specific accessibility requirements unlike many other laws that we're going to talk about today then we also have our state non-discrimination laws and again those usually apply to places of public accommodation or whatever the term of art is in the specific state some may have different uh damages or remedies that are that are available from what the ada provides which is quite significant in some of the litigation that we've seen and we've seen more and more state laws and even some local laws that are specifically addressing accessibility as well mostly with respect to entities that contract with the state or with those entities uh so any businesses that you know or state contractors um you know and state agencies as well are having more accessibility requirements with which they need to comply and very specific requirements again in contrast to what we are seeing on the federal level still under title three of the ada and then we have moving into laws that actually do have specific uh website accessibility requirements we have the air carrier access act which requires the primary websites of airline carriers to conform to the wcag 2.0 aaa criteria and then we have the affordable care act section 1557 and the medicare regulations which also both essentially require conformance to wcag 2.0 double a i always mention those because even though they only apply to specific types of entities to healthcare entities to airlines they are contrast to the ada which does not set a specific standard uh which websites must must meet which mobile apps must meet to be considered in compliance with those laws and that's largely what's led to the proliferation of litigation that we have seen of lawsuits that we've seen as we'll talk about in a little bit so we're going to focus on the americans with disabilities act today as we usually do because that is a law of most general applicability to most businesses that provide websites via or provide goods or services to the general public and you know provide those goods and services uh via websites or mobile ass sometimes these days the americans with disabilities act it's a federal civil rights law it prohibits discrimination against individuals with disabilities it was signed into law in 1990 you know far before we were all living the lives we are now uh using the internet for much of our you know daily activities and you know just for your background there are five different areas that that the ada covers we're talking about title three today title one applies to employment title two as we mentioned a minute ago um to state and local governmental activities and public transportation we're talking about title three which essentially applies to private businesses the fundamental principles of title iii of the ada are few that businesses must have facilities that are accessible to individuals with disabilities such as again members of the public that the place of public accommodation must make reasonable modifications to its policies practices and procedures when necessary to ensure that individuals with disabilities have equal access to the goods services facilities privileges advantages and accommodations that the place of public accommodation provides and as we're going to be talking about mostly here today that the public accommodation ensure effective communication with individuals with disabilities by providing them with auxiliary aids and services including accessible electronic information technology at no extra charge so that effective communication provision is the provision upon which most of the lawsuits most of the plaintiffs most of the advocates are hanging their hat because there is no other provision in title iii of the ada either in the statute or in the regulations that says that a website needs to be accessible or that addresses the accessibility of a website um or or mobile apps so it is this effective communication provision and then just the general principle underlying the ada that um the ada is intended to provide equal access to the goods and services of a public accommodation uh to individuals with with disabilities those are the principles we rely upon that we're talking about when we're talking about accessible websites and accessible mobile apps now what are the remedies if you were to get sued for a violation of title three of the ada what would the plaintiff be entitled to potentially recover from the business in that case if it is a private plaintiff that is suing the business they could recover attorneys fees and costs um you know what they have to pay their attorney what the costs are in bringing the lawsuit and they could also get a court order requiring the business to bring the website into compliance with uh you know whatever it is that uh we should look at for as the measure for accessibility for a website now i hesitated there because i said come into compliance right what does that mean the ada statute the ada regulations do not say what that means so we would be relying upon experts we would be relying upon entities like dq considered you know the leaders in the field of digital accessibility to provide their professional opinion as to whether a website is accessible or not what would they be looking at we'll talk about that in a minute and then uh what else could happen if a business is sued for or subject of an enforcement action for violation of title iii of the ada well the department of justice could bring an enforcement action against the entity and it could if it finds that the business did in fact violate the ada it could impose penalties up to 96 384 for a first violation and 192 768 dollars for a subsequent violation it also can require that the business bring the website into conformance with you know prevailing accessibility principles i mentioned before the state laws under the state laws such as in new york such as in california in addition to injunctive relief attorneys fees and costs there are also damages and or penalties depending on the state that could be available to someone who's bringing a lawsuit and that's what you know it's in large part driving the majority of the lawsuits that we see happening in those states as opposed to why they're not happening in other states this slide is up there simply because one of the things that we've been seeing lately is some lawsuits expanding from just your traditional places of public accommodation the places that you typically think of as subject to title three of the ada like you know restaurants and retailers and hotels to other entities where they arguably don't fall within the categories that are set forth in title iii of the ada as subject title to title three of the ada as a place of public accommodation so i always think it's helpful to list uh the 12 categories of entities that are places of public accommodation under title iii i'm not going to read them for you now but they're on the slide in case you want to refer to them later they're pulled directly from the regulation the other thing to note here as i have at the bottom of the slide is must it be a physical place to be considered a place of public accommodation and subject to title three of the ada we're going to talk about that a little bit later but that has been one of the things that has been a subject of dispute that that businesses have raised if they do not have a physical place of business if it is a web only business is it a place of public accommodation subject to title three the answer to that question depends on what court is deciding the issue and different courts have come down different ways on that issue all right the next slide here as i get my runny nose with california spring that's already here what is an accessible website well it's one that essentially can be used by people with various types of disabilities and so we talk here on this screen and on this slide and the slide has a picture of uh two computer screens one that has a check mark next to it showing that it is accessible one um that has a faded um person showing that it's not so you know people who are blind we want to make sure that they can use the website with their screen readers alternative text being you know properly there for images that's one of the most common things we see in lawsuits is lack of alternative text properly labeled form fields properties of headings keyboard only access and audio descriptions potentially that was obviously a tougher one but you know form fields headings alternative text those are some of the most common barriers we see raised in the website accessibility litigation brought by blind people and the vast majority of the lawsuits we see are brought by people whose disability is blindness or some sort of vision related disability low vision you know you want to make sure your color contrast and your text resizing is appropriate deaf or hard of hearing captions you know need to be provided for audio content we don't see nearly as many lawsuits abroad regarding lack of captioning but there are some uh so that also is something that we see um you know in lawsuit filings um you know not not infrequently but not nearly as much as we're seeing um it for people who are blind or the lawsuits brought by people who are blind uh people you know with limited mobility again keyboard only access ability to slow down or turn off timeouts epilepsy and colorblindness as well people who have epilepsy you want to make sure that for them that there isn't any flashing content and then color not being used as a sole method of conveying information very important to remember for people who are colorblind essential principles there i'm sure everyone attending here knows those uh but again it's a good reminder especially when we're looking at the context of the lawsuits that that we're seeing the wcag the web content accessibility guidelines again we all know what they are right we all know who's published them the world wide web consortium and they the the main point here is that this is not a set standard in title three of the ada it is a standard that some courts have looked to the very few courts that have actually said you know to to make your website accessible you need to conform it to the wcag 2.0 is what they did at the time double a guidelines but that's only been a few courts it's also the standard that we have thought if regulations had ever been approved that would have been adopted in the title ii and title iii regulations you know similar to the air carrier access act but as it stands right now it is not a legally binding standard for the websites of places of public accommodation we saw wcag 2.0
aaa incorporated into most settlement agreements that the doj entered into when it was doing that we'll talk about that in a minute um in settlement agreements now you know 2.1 2.0 even some companies are saying well what about 2.2 now what do we what do we need to be looking at in making our website accessible and you know typically these days 2.0 is still a
prevailing standard for web accessibility you know in part because that's the standard that we've seen incorporated into the other laws that actually have a standard incorporated but obviously you know moving toward whatever the latest criteria is the latest best practices to ensure maximum accessibility is certainly a best practice and absolutely you know 2.1 if possible and 2.1 uh with respect to mobile apps uh certainly as well so reviewing history i know we've done this before and you know it's it's why do we even rehash it again i think it's it's becoming relevant again and it's so it's important to look at where we've been to look at where we might go in the coming years so 2010 to 2016 we had the obama department of justice under his administration under the department of justice then they had um they had begun the rule making process there was an advanced notice of proposed rulemaking and then they put out a supplemental advance notice of proposed rulemaking that would have if gone through the process fully would have probably set a standard for website accessibility um it also probably would have given other uh guidance and potentially even time for businesses to bring their websites their mobile apps into compliance with whatever standard was set in the regulations um and then answered a whole bunch of other questions that everybody you know is wondering about so we have a lot of hope when that supplemental advance notice of proposed rulemaking issued and the comments uh period started again near the end of the obama administration we thought we might finally see regulations and then you know we didn't and then the next administration came in and completely withdrew the rule making effort what's gonna happen now um i should pause briefly and you know leave some suspense here because i have a couple of other slides related to this so while the rule making process was going on in snail's face the obama doj's enforcement arm was uh you know going along saying well we're gonna you know enforce actions or pursue enforcement actions against entities that don't have accessible websites or mobile apps um so even though there was no regulation they were still saying well you know we think that the law already requires uh that websites be accessible and in those settlement agreements like we talked about a minute ago this is just a sampling of the settlement agreements that were entered into under the obama doj the settlement agreement injunctive provision what the businesses needed to do to the websites was to make them conform to the wcag 2.0
double a so then the trump doj comes in and we're going to talk about this quickly because that's all this is old news uh i'll leave this slide for you there it essentially withdrew the rule-making effort it also didn't participate in a whole lot of anything with respect to website accessibility um other than to say which was significant under trump that the ada does cover websites and you know at the same time though there can be flexibility in how to comply uh with you know providing accessibility making sure that websites are accessible or you're providing effective communication so quick teaser before we go to the the data uh biden administration coming in you know as as was very much talked about you know day one uh of the biden administration there was a new white house website there was accessibility built in you know oh my gosh um you know but the biden administration clearly is much more in tuned to uh the rights of individuals with disabilities and so we would expect you know not only picking up where the administration under which you know biden was vice president picking that up again and possibly pursuing that agenda again we you know expect that you know we will see some sort of movement um under the biden doj whether it be increasing enforcement actions again similar to under the obama doj or whether it be beginning the regulatory process again or perhaps both you know even if it does begin the regulatory process again for better or for worse you know it's a process so we don't expect it to to move quickly but businesses i think certainly should be ready for increased potential enforcement actions again so the data this slide here shows the increase over the years of the numbers of lawsuits filed on all bases under title three of the ada not just on website accessibility but we're also talking about you know physical physical accessibility reasonable modifications you know all sorts of of lawsuits that were filed under title three of the ada it went down in 2020. for the first year uh you know ever since we've been tracking there was a decrease in the number of lawsuits filed now there's a couple of potential reasons for that one the obvious one is covett the courts were shut down for a while um everybody sort of you know paused because they didn't know what to do we didn't know what the courts were going to do i think even some of the plaintiffs attorneys said we all just need to pause and you know let everybody adjust to what the world is going through right now and you know i think there is potentially you know another reason and that people weren't out and about so you know we saw deercase and physical accessibility lawsuits with with people not visiting businesses uh but then we we did see those lawsuits start to pick up again near the end of the year and near the very end of the year really start to increase in in pace such that what we've seen so far in 2021 is some of the highest numbers we've ever seen in the number of lawsuit filings um so while there was a decrease you also see it was a small decrease the uh number in 2019 was 11 000 total lawsuits and we have 10 982 uh lawsuits so a one percent decrease it uh from 2019 and 2020 which given what we went through in 2020 you know actually doesn't seem like that many fewer lawsuits this uh this slide and and i should say as well um for the graphs on here i'm obviously you know not going through all of the uh numbers for all of the states in the interest of time or all the years on the prior slide but we do have these charts on our ada title 3 blog with all of the numbers and you know i do believe that you know the materials are available as well um with all of the numbers uh very clearly detailed here but to highlight on this slide this slide shows the numbers of ada title three accessibility lawsuits filed again on all bases not just websites not just mobile apps by state in 2020 and california had 5869 lawsuits almost double the next state which was new york with 2238 followed by florida at 1 208. um so california huge numbers largely driven um by the fact that we just have you know a lot of website accessibility lawsuits and a lot of physical accessibility lawsuits that are filed here um in large part because of the statutory damages that are available like i said before similarly in new york again um you know some damages and penalties available under the state law versus just the injunctive relief under the ada the website accessibility numbers my apologies these are not brand new uh in in large part because it's been a very busy beginning of the year for us and it takes us a lot more time to cull through the lawsuits that have been filed regarding website accessibility to make sure that our numbers are accurate um you know for example in the past three months there have been a lot a lot a lot of lawsuits filed in california state and federal courts especially regarding the compliance with hotel reservation websites with the ada regulations that require those websites have certain information about the accessibility features of the hotel our searches that we run when we pull the data would pull those in because they talk about the website but they wouldn't we wouldn't want to include them in our data regarding the number of actual website or mobile app accessibility lawsuits so stay tuned to our ada title 3 blog we will be publishing those numbers and those data that data hopefully soon just not yet in the meantime this slide here shows that in 2019 there were about 2 200 uh website accessibility lawsuits filed in federal court remember this doesn't include demand letters this does not include uh state law or state lawsuits followed on state courts so the number is much greater than this this is just those fallen federal courts we do expect and that was about the same number as the year before um we do expect probably that the 2020 numbers will be in the same ballpark even despite the decrease in overall lawsuits last year and then here by state um in these are the 2019 numbers as well new york uh far and above all else led the pack with 1354 website accessibility lawsuits in 2019 followed by florida with 526 and then followed by california with 120. california is fewer here because we see a lot of lawsuits in california filed in state court rather than federal court all right jumping into the key litigation and themes most of these are cases we have talked about before i'm talking about them again today uh because there wasn't a whole lot that happened last year again because of covid and slowing litigation down but also because um and this is something that i was i was talking about um i think with with laney who tried to decide well why didn't we see many more decisions before and her theory which i think is probably very accurate is a lot of the theories that upon which motions were filed motions to dismiss early dispositive motions over the past couple years by defendants have been rejected by a lot of courts now so we had been seeing in the first couple years of website accessibility litigation that uh you know some of the defenses some of the arguments that defendants were making were that we needed to wait for the department of justice to issue regulations the theory of primary jurisdiction that the administrative agency charged with enforcing the ada needs to adopt regulations before a court can decide um a lawsuit on that issue similarly due process that it's a violation of a businesses due process rights to require it to have an accessible website and potentially require it to meet some standard for an accessible website without that being in a regulation first and this first uh case here we have on this first slide demonstrates how that's those arguments you know really aren't viable anymore they've been struck down by so many cases um so many courts but this was a ninth circuit case so you know there are multiple uh district court appeals courts throughout the country but those courts are the next court before the supreme court so this is one of those decisions that is presidential we have very few presidential decisions only in the ninth circuit of course but it's informative to other courts as well and the ninth circuit in the robust versus domino's case said um you know no we we're not buying your due process and primary jurisdiction grounds because it is our job as courts to interpret ambiguous provisions of the law all the time or to help fill the gaps that's not in a statute and there is enough in title iii of the ada statutory and regulatory language like the effective communication like the equal access provisions for us to be able to decide a website accessibility lawsuit the court also held uh significantly that the ada applies to websites and that it applies to mobile apps that have a nexus to the physical place remember we talked about the the division between courts as to whether the website has to be connected to a physical place of business to be subject to title iii in the ninth circuit that is the law of the land it's not the law of the land and some other courts and some other courts they say a web-only business can be subject to title three but it really depends again on what court you're in and uh another significant piece of the domino's holding was that it left open the possibility that telephone service as an all could be an adequate alternative means of effective communication but that that is a very fact specific inquiry so it wasn't something that could be decided on a motion to dismiss an early motion where there hadn't been any fact gathering yet which is what the status of uh things were when the case was appealed to the ninth circuit and then appealed up to the supreme court um everyone i thought oh well maybe if the supreme court takes this case up we'll get some clarity on what it means to have an accessible website what businesses need to do to be in compliance with the ada with respect to their websites and the supreme court said no we're not going to decide that case so went back down to the uh ninth circuit in the court below to progress with the case uh the next slide here talks about some of the very few cases that we have that um actually have given us guidance on the merits it is important to note that again the cases that we have that have decisions on the merits versus just some procedural issue that doesn't really relate to the substantive subject matter are very very few and they also are very court specific none of these are from the supreme court or a state supreme court and um and even you know a federal court of appeals like the domino's case we just saw but they are informative and sometimes courts look to what other courts have done even though they don't necessarily have to follow those prior decisions so these two cases here i mean look it's 2017 2018. we're hoping that we'll get a
decision on the appeal and the gill versus win dixie case this year but we've been waiting since 2017 for a decision on the appeal uh the gill vs winn-dixie case was super uh super significant for the fact that it was really one of the very first decisions we saw it was out of a federal court it was actually a trial verdict even though it was just a bench trial um not a jury trial and because of the remedies that the court ordered uh this is far beyond what any other court has ordered in a website accessibility case and the remedies were that the website be made accessible that um it'd be made accessible in accordance with the wcag 2.0 aaa criteria training for employees on website accessibility requiring third-party content to be accessible from the theory that well you know winn-dixie grocery store you're you know bringing third-party content onto your website you should be able to tell that third-party content provider you have to provide accessible content or we're not going to use you um that is a topic that really hadn't been addressed before by any court and it was something we were hoping the doj would address in regulations so for now this case is really the only thing we have to look to with respect to any authority on third-party content um a web accessibility policy the court ordered that when dixie would have to adopt one and then the fees and costs that when dixie needed to play pay the plaintiff a hundred thousand dollars here which is actually quite low for a case being litigated to trial um it went to trial pretty quickly gomez versus gnc uh was from the southern district of florida from 2018 in that one summary judgment was granted for the plaintiff on the merits and summary judgment is when the parties submit briefs uh to the court and the court decides the issues based on the undisputed facts that are set forth in the in the briefs where people are where the parties are saying there's you know they're saying court you can decide this case without going all the way to a trial because we can present these papers to you with these undisputed facts and based on them you know one or the other parties wins the plaintiff one in this case the papers included expert reports and the court held that a website that is not accessible violates the ada it didn't issue an injunction but the parties agreed to stay the case pending the appeal in the winn-dixie case we just talked about the um i'm sorry the recent development isn't so recent anymore but gnc declared bankruptcy which has some had some impact on this case as well the lesson learned from this case though is to be very careful about who you use as your expert in a case because it can make or break the case for you in california we've had a couple of substantive decisions here as well the most significant one here is the thurston versus midvale case in part because um it was actually appealed on it was affirmed on appeal so with a decision from a higher court not just a trial court and here uh it was in favor of the plaintiff and the appeals court affirmed that and said that an inaccessible website uh can violate the california unreact and that is the act that affords a plaintiff either actual damages or statutory damages in the amount of four thousand dollars per per occurrence and that's what the court uh ordered the defendant to order or to pay was four thousand dollars in statutory damages plus obviously fees and costs as well to the plaintiff's attorney plus you know the the defendant would have to pay their own attorney's fees as well they also ordered the the restaurant to conform the website to wcag 2.0 double a and the court found that that standard is not over broad or uncertain which is something that a lot of defendants had argued in cases the court also held that websites with the physical nexus are subject to title three of the ada that's consistent with the ninth circuit rule that we talked about some plaintiffs argue that no really the law in california state courts is that web only businesses can be subject to title to not title three to the under act uh under the white versus square case which is not a website accessibility case but they do cite to that for that principle this case talked about third-party content also so we talked about with dixie being really the only case on third-party content um but this is a state case so it'd be limited to california and really limited to the district in which this case uh came from uh the effective human alternate effective communication argument whether telephone is sufficient uh like we talked about in the domino's case here the court said that it would not be an effective alternative form of communication because the telephone and email were only available during the restaurant hours of operation whereas the website is available all the time and there were also some other california cases like the davis versus uh bmi bd travel where case um in which summary judgment was also granted against the defendant retailer for not having an accessible website so that's about the you know the totality of these substantive decisions we have the rest i'm going to go through right now are either some of the procedural arguments um or just other um informative points and we do have a couple of cases from this year last year so this one is from the southern district of indiana we do not see many cases come out of there at all in the way of website accessibility it's and it just issued in january this year uh in that case it was a motion for default judgment so that means that the defendant didn't appear in the case and the plaintiff said hey the defendant's not coming to defend itself so judge you get to enter judgment in favor of me the plaintiff so it's important to remember that context because it means that the defendant had done nothing to try to defend itself in that context the court found the allegations of the complaint since that's all there was at issue there were sufficient to state a claim against a web only business and it um followed the seventh circuit guidance that web only businesses can be subject to title iii it ordered the defendant to bring the website into compliance with the ada and its implementing regulations within 90 days and said that failure to achieve that would result in a permanent shutdown of the offending website which seems real i mean it's more extreme than anything else we've seen um and then the other thing that was interesting was and this is something that we have seen in some complaints the plaintiff requesting a whole lot of stuff be done um and here the court said no i'm not going to order any of that other stuff i'm not going to order that the defendant conformed to the wcag i'm not going to allow the plaintiff to monitor defendant's compliance and get paid for it i'm not going to mandate the defendant retain a specific consultant or the defendant adopt any policies or practices that go beyond compliance with the ada so that was something i'm running out of time here so i'm going to speed up a little bit we have talked about dot versus scandinavian airline system case multiple times i i i find this case fascinating it's not under title 3 of the 88 under the air carrier access act but i always bring it up because it addressed two principles number one the secondary accessible website which is expressly prohibited under air carrier access act not addressed under the ada obviously but it is a separate but equal point that plaintiffs and advocates make very often i have not heard companies saying well can we just have a separate accessible website very often anymore i used to hear it sometimes but you know it's an important point to make that it's it's definitely not a good idea um and then also you know taking care with widget or overlay products and that's all i'm going to say about that right now physical nexus cases i have them here on the slide i think you all have the materials available to you so i'm not going to go through them we've already talked about the point anyway that um you know do you have to have a connection to a physical place of business to be subject to title three of the ada it depends on what court you are in um there there were two cases at least last year that came out on this point and i have one here out of california the martinez versus san diego credit union case um where the court of appeals so this is a second california court of appeals to have this holding in addition to the thirsting case we talked about before that websites with a nexus to a physical place of business where customers go are subject to title three um and some subject to the unreact this one was significant also though because it overturned the trial court which um had had held the opposite uh okay so mutinous cases these are important because people always ask well if we fix the website will that make the lawsuit go away and again this depends on the court you're in and it also and sometimes even the judge you have and it also depends on um what the status of the website is and what the status of your compliance program is so in some cases like in the hooters case mentioned here the defendant was only in the process of making the website accessible so the court there said that it was not moot in other words the there's you know the mootness argument goes that under the ada you can only recover injunctive relief so um if the website is fixed if it's fully accessible there's nothing for the court to order so the court should dismiss the case um in the diaz versus krueger case the court held a different court held the opposite that all barriers raised in the complaint were fixed and no additional barriers existed so the the case was dismissed as moot in the walters versus simply skinny ties case that came out last year the defendant had filed a motion to dismiss on mutinous grounds and the court denied it because it found there was an ongoing factual dispute as to whether um the defendant had already made all reasonable modifications to the website and remedied all the existing ada violations to ensure that and ensure that no additional barriers existed in the hilton versus rizzy case the court found that the a blind person could use a screen reader to find a hotel and to make a reservation on the website in other words you know he could use the website it was accessible and there was a declaration submitted supporting this from a reputable digital accessibility consultant that made all the difference in addition to this on on one of the prior cases we just talked about the definite had an accessibility program that is also very significant to show that you have a method and means to ensuring the website remains accessible in the future standing cases we've talked about before um this is another defense that is often raised i think it's important to to point out though because we still get asked well you know were the plaintiffs in new york but were based in california how can they sue us and you know essentially if you're reaching into other states and as long there's personal jurisdiction arguments that apply as well potentially but if a plaintiff can access your goods and services in a different state then they you know they might have be able to uh have standing to bring suit where courts have found that there is no standing to bring suit is where there is no way that the plaintiff could be a legitimate patron of the goods and services like with these cases where the the plaintiff could not be a member of the credit union whose website um he or she was trying to use because he wasn't a member of the military or didn't live in the proper area things like that captioning cases we know about the harvard and mit cases i included this slide purely because we do see some captioning cases lawsuits still filed none as high profile or as significant as as these cases were in just in terms of magnitude and how long they went on but it's important to remember that that is a basis on which we see lawsuits often as well strategies for avoiding a defending litigation again this is something that i know you all know of and i know it can be really hard for some companies to do but it's always good to have the reminder create and maintain uh websites and mobile apps all digital technologies that are accessible uh potentially have a 24 7 telephone line available have an accessibility statement that is external facing have an accessibility policy that's internal as well as internal procedure for how you're going to maintain all your digital assets so they're accessible train anyone who has responsibility for content on the website um and anybody who might be interacting with members of the public regarding your digital assets vendor contracts remember that third-party content we were talking about with some of the cases make sure you have language in there regarding accessibility and third-party content as well make sure that that is accessible if you are pulling it into your site and using it to provide your goods or services consent decrees we have a question mark here because that's a tool that some uh some defendants have used some parties have used in resolving lawsuits and it's something to think about um if you're curious we could talk about that later some challenges uh links to third-party websites third-party content on your websites um advertising by third parties payment mechanisms and content that you might be placing on social media the only word we have on that is from the supplemental advanced notice of proposed rulemaking under title ii uh so you know the best practice as was noted in that san prm was if you're putting something on another site make sure it's available in you know an accessible form somewhere else at least if you don't have control on whatever wherever it's ultimately placed and you know make sure you hire a qualified accessibility expert and qualified legal counsel vet them ask the questions do interviews watch out for you know attorney client work product privilege issues make sure you don't just perform automated testing you need manual testing also you need user testing train again we talked about that a minute ago and um you know you have to prioritize sometimes and your consultant can help you to help you do that your legal counsel can help you do that make sure you don't just do try to do one and done this is an ongoing process you need to pre-op periodically re-audit to ensure continued uh accessibility of your digital assets and then finally make sure you have a mechanism to receive and act upon user feedback regarding the accessibility of your digital assets so with that i know we only have about two minutes to go uh noah so apologies but if we have any questions i'm happy to take them yeah awesome uh thank you so much uh christina for the presentation um we do have a lot of great questions in chat um i did want to say a lot of people were asking about the presentation and getting their hands on the slides um and so uh i wanted to let everybody know that um after the fact we'll be able to share uh presentations in some cases the presentations were shared um before the event and and they're like linked on the event page um in cases like this we'll be able to to get those presentations and share the slides after the fact so people will be informed of that and when i i got several questions about that so i just kind of wanted to address that yeah not everybody that was my fault because i always keep thinking oh there might be new development that i need to add at the last minute in the slides so we'll give them to you yeah absolutely not a problem um absolutely not a problem um i do want to apologize to everybody about the captions issue um we we did have a technical issue with the captions um in this presentation and i'm terribly sorry about that we are doing everything we can to restore captions across the board for for anywhere that that was missing so terribly sorry that uh we we missed out on that um there the one question i did want to bring up that that came up also several times in the q a is are there any trends around um uh like litigation and lawsuits with regard to higher learning higher education or even k-12 institutions is there any of that that you can comment on trends on that um you know we do monitor lawsuits that are filed and i haven't seen any on those bases come across i mean there have been lawsuits against higher education there have been advocacy actions against institutions of higher education i haven't seen a lot lately whether the doj whether the department of education are going to increase their potential actions um i think is you know something that's that is possible um you know kind of again picking up where the obama administration left off uh but i haven't seen you know just off the top of my head a whole lot yet obviously i haven't researched it either okay okay thanks for um addressing that um i'd like to find another question so have there been any um lawsuits that mention any of the newer standards above and beyond uh wiki 2.0 double a uh which kind of
has been sort of the de facto for a while are we seeing any legal action around the wcag 2.1 um standards or anything like that i have seen 2.1 cited in some lawsuits you know just the complaints that were filed especially when we're talking about about mobile apps right but we haven't seen any court decisions yet um that have referred to 2.1 i mean frankly we just
haven't seen many court decisions at all last year uh apart from the couple that i that i mentioned and the couple that had issued previously you know had all pointed to 2.0 okay um this is a fun question are there any good resources for tracking the progress of accessibility related laws ideally catering to somebody who's not a lawyer so anything that any good resources for a lay person gosh well our blog um you know while it talks about legal developments we try to write it so a lay person can understand it uh laney feingold's blog lflegal.com is a great resource um i'm trying to think i know there are others as well there are a couple of other resources that have an outline of the applicable laws and even some international laws um and i'm sure there's folks even on this this webinar that probably know those off the top of their head i can't remember it's usually just individuals you know who decide to keep track of them and post them um but you know if you want to follow up with me i can you know check my list and see if there's any else any others that i think are useful i know laney has a lot of links to other uh resources as well that you might be able to find useful in that way okay okay um well we are two and a half minutes over i want to thank christina again and everybody i'd like to remind everybody this is a recorded session we will be providing it um after the fact with full captioning um uh after the fact again i'm terribly sorry for the captions uh not working for this session um so yeah thanks to everybody for q a christina thank you so much for your time um and your knowledge i hope everybody enjoys the rest of their xcon thank you thank you
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