How To Handle ADA Website Claims

Established in 1979, Karlin Law Firm LLP has been delivering quality ADA defense services for over 40 years. We serve in California and nationally with offices in Tustin, Los Angeles, San Diego and San Jose, as well as a virtual office in New York. Our attorneys know how to get cases dismissed when there is no legal basis or when there is fraud in the claim. When the case does have a legal basis, we know how to obtain the lowest settlements either before or after the lawsuits have been filed.

We also know how to draft a proper settlement agreement that avoids any ongoing oversight by the plaintiff’s law firm or by some other third party, and we know about inexpensive ADA website solutions that will likely prevent other such future lawsuits, using our specially developed proprietary seven-point prevention program. This guide outlines our three-pronged approach to handling these increasingly common legal challenges.

Three Areas To Address, Not Just One

In handling any ADA website claim or lawsuit, there are three areas that need to be addressed by your legal team. These are:

• Obtaining a dismissal: Provide a strong legal and factual defense to argue for a dismissal or force a low settlement, or to put you in a winning position should you choose to litigate.
• No oversight by plaintiffs: In cases that are settled (vs. litigated), negotiate little or no website modification required as part of the settlement, with no right to oversee your website, as well as prenotice and cure provisions.
• Prevention of future claims: Significantly lower the risk of future claims from other plaintiffs and law firms by making available to the website owner and their technical staff our seven-point website claim prevention program. Web developers alone cannot provide this protection and automated programs/apps/plugins are never enough.

With regard to prevention services, resolving one case is never sufficient. You and your technical team will need to understand the best methods and practices to avoid similar lawsuits. To our knowledge, we are the only ADA website defense law firm that has developed a comprehensive training program for our clients. We address seven separate areas of prevention, not just an attempt to comply with WCAG 2.0 or 2.1.

Our training and prevention program will often save you and your web developer significant time and expense by focusing on areas often targeted, which can cut website modification time in half.

Danger Of Paying Plaintiff’s Attorneys Fees

Every website owner should know that because ADA claims are classified as civil rights claims, these cases carry with them a “one-way” or “one-sided” attorneys fee penalty. That means if the plaintiff wins, the defendant will have to pay both its own attorneys fees and likely the plaintiff’s attorneys fees and costs. However, if the website owner wins the case, the plaintiff is not required to reimburse the defendant for its attorneys fees.

This unique part of the ADA law puts the plaintiff in a “no-lose” position. The one-sided attorneys fee provision often encourages weak and questionable cases to be filed. This is what we call extortion or nuisance-type ADA website lawsuits. Because of the risk of having to pay the plaintiff’s attorneys fees, it is important to act quickly to keep these law firms from building up extra attorney time and expense.

The Risks Of Dragging Cases Out

You should beware of ADA defense attorneys who claim they may obtain a dismissal of the case or a very low settlement by dragging the case out. These defense attorneys may not fully explain the risks of such an approach. The most significant risk is that if the plaintiff does not drop the case or settle for a lower amount, and instead takes the case to trial and prevails, the plaintiff will request that you pay for all of their attorneys fees. By the time the case goes to trial, their attorneys fees may be five, 10 or 20 times what the case could have settled for early in the case.

The Nuances Of Settlements

Settlements are complex as they need to address both the amount to be paid and changes to be made to the website, as well as future maintenance. In any settlement, we can usually avoid requirements where the business owner is expected to make complex modifications in an attempt to adhere to some vague set of guidelines.

A failure to negotiate a simple, no-cost and verifiable modification of the client’s website can end up requiring the owner to constantly monitor its website during the lifetime of the business for fear of being in breach of a settlement agreement. We have successfully negotiated ways to avoid all these major problems.

As soon as we are retained, we do everything we can to stop the plaintiff’s lawyer from filing a lawsuit, and if filed, from building up attorneys fees. We evaluate the website to see if the ADA would apply, and if so, if any ADA website violations exist. Delay can cause the plaintiff’s attorney to build up time that they may later try to charge you for.

Steps To Take Immediately After Receiving An ADA Demand Letter

Reviewing the specific allegations is the necessary first action to help understand the scope of the digital barriers cited. So:

• Avoid making hurried alterations to your digital platform before logging the exact state of the site.
• Secure records of any accessibility features that were functioning when the letter arrived.
• Refrain from installing quick-fix plugins that act as a beacon for serial litigants.
• Do not reply directly to plaintiff attorneys. This helps prevent making inadvertent admissions.

Having handled over 6,000 ADA claims, we can help ensure you remain in the safe hands of the law.

Typical Settlement Concerns

If a case is settled versus being dismissed with no payment, then the settlement will have three parts, not just the amount to be paid. Attorneys who do not practice regularly in this field often overlook the other important  aspects of ADA settlements. These are:

• Website compliance, specifically, how the website needs to be modified now and in the future
• Potential future oversight
• Amount of settlement

Each of these needs to be skillfully negotiated or eliminated. In cases where a lawsuit is filed or is likely to be filed, we negotiate not only a low settlement amount, but also specific provisions that render any modification inexpensive, easy to do and easily verifiable, without a lot of ongoing future maintenance. We strive to eliminate language that simply says the defendant will comply with some standard set by the World Wide Web Consortium, and we are generally successful in avoiding any future oversight of the website.

Prioritizing The Prevention Of Future ADA Website Lawsuits

Our review of your website, testing and seven-point program addresses:

• Different methods of testing for WCAG compliance: What matters and what doesn’t, as well as how to deal with false positives
• Accessibility statements and mistakes in referring to WCAG: Adding helpful information to the statement to enhance accessibility at no cost, as well as supplying the Karlin Law Firm LLP prototype accessibility statement
• The use of alternative and minimum cost methods: The use of helpline telephone numbers, and how to install and use them at little or no cost.
• The use of widgets and add-on programs: Assessing the use of tools such as Userway, accessiBe, AudioEye and others – whether they make you more of a target and which ones are helpful even though it is not a solution
• Periodic testing: Different low-cost methods
• Employee input: Easy, low-cost testing at the input level
• Awareness of new types of website compliance lawsuits: This includes user data collection, trap and trace, privacy claims, chat box and wiretap claims and other concerning new trends

Even when a lawsuit is not filed, or in cases where one may not be required to make extensive modifications to their websites under a settlement agreement, it is very important that clients make changes on their website to significantly lower the risk of lawsuits from other potential plaintiffs. We can assist in significantly lowering the risk of additional claims by other plaintiffs and law firms.

Understanding The Role And Limitations Of Web Developers

Web developers often know part of what needs to be done but generally only focus on modifications using WCAG’s vague “guidelines.” Since the courts and regulatory agencies are not mandating WCAG as a formal requirement, and since the WCAG “guidelines” are just that – guidelines – there is more to add to a website to reduce the chance of future ADA claims and lawsuits.

For this reason, clients and their general counsel should not just turn the “compliance” changes over to web developers but should have one of the few law firms that have experience with this type of case to provide direction on what needs to be done. As part of our services, we will guide the website owner and their technical team and/or web developer through what needs to be addressed, and the best methods for lawsuit and claim prevention. This can significantly reduce the technical team’s time, sometimes by half.

Web developers may see the project as two to three times bigger than it needs to be. Even then, they are usually unaware of the additional techniques and add-ons we have developed to help prevent future ADA claims and lawsuits. We are uniquely aware of what typical plaintiffs and their lawyers are looking for. Our attorneys can provide the guidance needed as part of a team approach to significantly lower the risk of future claims and lawsuits.

Do Not Rely On Automated Programs

Some clients have seen advertisements for “automated programs” or plug-ins that claim they will make a website 100% “compliant.” Generally, they do not. Moreover, the key is lawsuit prevention. Even if there was a possibility that the use of such a program would convince a judge that the website had done enough, it is extremely expensive to take a case all the way to trial and have experts argue about the use of a plug-in.

It is more important that a future lawsuit not be filed in the first place. A client considering the use of such an automated program should first review our discussion of these programs.

Frequently Asked Questions

The appropriate response after a website claim defines a business owner’s legal standing in that case. The answers below can help you navigate the process.

How does California’s Unruh Civil Rights Act affect my ADA website claim?

Under the Unruh Civil Rights Act, plaintiffs can demand $4,000 in statutory damages for each individual violation or website visit. This specific provision makes local lawsuits significantly costly compared to standard federal actions.

Furthermore, jurisdictional boundaries do not shield out-of-state companies. If a website serves California residents, the business can face an Unruh Act claim regardless of where its physical headquarters are located.

Can I just use an automated accessibility widget to fix my website and avoid a New York or California lawsuit?

Even though many business owners turn to quick software fixes, digital compliance requires a much more comprehensive approach. Courts generally do not accept automated plugins or accessibility overlays as a valid defense. In fact, reactive measures often create unexpected vulnerabilities, including:

• Target creation: Using these widgets frequently acts as a beacon that draws the attention of serial plaintiffs.
• Incomplete protection: Software overlays rarely fix the underlying source code, leaving systemic barriers untouched.

Relying on software shortcuts often backfires in high-litigation states like New York and California. Instead of installing generic widgets, protecting a digital presence involves a thorough assessment.

If my business is not located in New York or California, can I still be sued there for ADA website violations?

Yes, because websites are accessible nationwide, digital commerce crosses state lines. As a result, serial plaintiffs from jurisdictions with highly active plaintiff bars frequently target out-of-state businesses.

Due to the complex nature of these cases, it is wise to work with a law firm with nationwide representation rather than a local attorney.

Get The Guidance You Need: Call Us Today

This guide on how best to handle ADA website claims and lawsuits applies to most of the extortion-like ADA claims and lawsuits. However, each claim and each case are different and needs to be individually assessed. Our attorneys at Karlin Law Firm LLP can provide a free initial assessment.

Schedule a consultation with us today by calling 888-698-8932 or by sending us a message through our contact form. Any of our staff can set up a time to speak with one of our attorneys. You can also ask about our qualified “flat fee” program.