Pub. 8 2017 Issue 2

www.wvbankers.org 14 West Virginia Banker Protecting Your Bank from Website and Mobile Device ADA Accessibility Claims By Sandra M. Murphy and Amy J. Tawney, Bowles Rice LLP H as your bank received a demand letter from a plaintiffs’ law firm threatening to file a lawsuit under the Americans with Disabilities Act (ADA) because the bank’s website is not sufficiently accessible to individuals with vision and/or hearing impairments? Financial institutions are the new target for these claims. The number of lawsuits filed in federal court since the beginning of 2015 has increased dramatically and it is only a matter of time before the lawsuits expand to include mobile banking applications. These demand letters usually seek a settlement payment and an agreement to work with the plain- tiffs’ law firm to modify the website in accordance with proposed regulations. If you receive such a demand letter, you can expect to pay between $15,000 and $50,000 to settle the claim. The cost to modify your website to prevent a future claim may be even higher. Current Law and Regulations Title III of the ADA prohibits discrim- ination on the basis of disability by certain covered public accommoda- tions (including banks) in the full and equal enjoyment of the goods, servic- es, facilities, privileges, advantages, or accommodations of such place. 1 The ADA requires that places of public accommodation make reasonable mod- ifications to eliminate barriers to that enjoyment, including changing policies and procedures, removing structural barriers and providing auxiliary aides and services to enable disabled indi- viduals to enjoy the place of public ac- commodation. 2 Although there are no references in the ADA to the Internet, a Summer 2017 15 West Virginia Banker website or a mobile banking application, in 2010, the Depart- ment of Justice (DOJ) amended the definition of auxiliary aids and services to include “accessible electronic information technology.” 3 In April 2016, the DOJ commenced a formal rulemaking pro- cess on the accessibility of website information and services, seeking public comment on its proposal that state and local governments and places of public accommodation make their websites and related services accessible to individuals with disabilities. 4 The DOJ specifically requested comment on whether it should adopt the standards in the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG 2.0 AA), the well-established industry guideline for providing website accessibility for vision-impaired consum- ers. The WCAG 2.0 AA Guidelines provide specific technical guidance on the design of websites to promote access to individuals with a disability. The DOJ initially indicated that the rules clarifying a compa- ny’s compliance obligations would be finalized in 2018. How- ever, experts now believe finalization of regulations is unlikely, given the Trump administration’s efforts to reduce regulation and the issuance of a recent executive order requiring that two regulations be erased for every new regulation enacted. It is unlikely there will be ADA rules and regulations govern- ing website accessibility, and courts are currently split on the issue, with some federal courts holding that current ADA accessibility provisions apply to websites. However, a bank’s proactive adoption of the WCAG 2.0 AA standards could address consumer concerns and avoid costly claims. The de- mand letters from plaintiffs’ lawyers usually claim that a bank is in violation of Title III of the ADA unless the bank modifies its website to meet these standards. Settlement agreements relating to these claims also typically include a requirement to conform to the WCAG 2.0 AA standards. Steps Your Bank Can Take To best protect your bank from website and mobile banking application accessibility claims, we recommend that you take the following actions: • Review WCAG 2.0 AA guidelines to understand the areas addressed by the guidelines and to determine if you need to modify your website and mobile applications to improve accessibility; • Work with website designers and vendors to modify your website and mobile applications to provide improved accessibility; • Include vendor compliance with WCAG 2.0 AA guidelines in any new contracts; • Implement accessibility policies and procedures to allow customers to report website and mobile application accessibility concerns; • Continue to monitor case law and DOJ rule-making ef- forts; • Determine if you have insurance coverage to cover these types of claims; and • If you receive a demand letter, seek legal counsel to help you assess your options and your defenses. Banking Industry Legislative Efforts On the national level, the banking industry in several states has sought to address this risk. The Texas Bankers Associ- ation and Independent Bankers Association of Texas sued one of the primary plaintiffs’ firms that files these types of cases for unlawful solicitation of business. Attorneys for the Washington Bankers Association and Community Bankers Association of Washington sent a letter to the same firm. The bankers’ associations in Colorado and Arizona are also assert- ing actions against this firm. Some states have also recently adopted laws to deter these lawsuits. One legislative approach is to require plaintiffs to certify that they were harmed by the violation and provide a cure period. Another approach is to prohibit out of state law firms from bringing a suit based on the theory that the firm is engaging in the unauthorized practice of law when soliciting business out of state. In the next legislative session, the West Virginia banking industry may want to consider legislation that would address these issues in a balanced and reasonable manner.  1 42 U.S.C. § 12182. 2 28 C.F.R. § 36.201(a) and §36.302(a). 3 28 C.F.R. § 36.303(b). 4 AdvancedNotice of Proposed Rulemaking, Non-Discrimination on the Basis of Disability: Accessibility ofWeb Information and Services of State and Local Government Entities (April 2016) available at https://www.ada.gov/regs2016/sanprm.html. Sandra M. Murphy and Amy J. Tawney are attorneys in the Charleston office of Bowles Rice LLP. Should you require more information, please feel free to contact the authors directly. Ms. Murphy is the leader of the firm’s Banking and Financial Services team. She concentrates herpractice inbanking,commercialandfinancialservices and securities law. She can be reached at (304) 347-1131 or by e-mail at smurphy@bowlesrice.com. Ms. Tawney focuses her practice on banking law, mergers and acquisitions, securities law and regulatory matters. She can be reached at (304)347-1123 or by e-mail at atawney@bowlesrice.com. It is unlikely there will be ADA rules and regulations governing website accessibility, and courts are currently split on the issue, with some federal courts holding that current ADA accessibility provisions apply to websites.