Providing quality ADA Defense, Business & Real Estate Services throughout the United States for over 40 years.

The Leading Law Firm In The Nation For ADA Legal Defense

How to Handle ADA Website Claims

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:

  1. 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 chose to litigate.
  2. 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 a pre-notice and cure provisions,
  3. Prevention of Future Claims – Significantly lowering the risk of future claims from other Plaintiffs and other law firms by making available to the website owner and their technical staff our 7-point website claim prevention program. Web developers alone cannot provide this protection, and automated programs/apps/plugin never are enough.

The Karlin Law Website Claim Prevention Program

With regard to prevention services, it is our view that resolving the 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. There are six additional things that need to be done. We call it the Karlin Law Firm 7 Point Prevention Program. As mentioned above, no other law firm provides this additional service.

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

Danger of Paying Plaintiff’s Attorney’s 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” attorney’s fee penalty. That means if the Plaintiff wins, the Defendant will have to pay both its own attorney’s fees and will likely have to pay the Plaintiff’s attorney’s fees and costs. However, if the website owner wins the case, the Plaintiff is not required to reimburse the Defendant for its attorney’s fees. In effect, that unique part of the ADA law puts the Plaintiff in a “no-lose” position. The one-sided attorney’s fee provision is what often encourages very weak and questionable cases to be filed, what we call extortion or nuisance type ADA website lawsuits. Because of the risk of having to pay the Plaintiff’s attorney’s fees, it is important to act quickly to keep these law firms from building up extra attorney time and expense.

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 taking that approach. The most significant risk is that if the Plaintiff does not drop the case or settles for a lower amount, and instead takes the case to trial and prevails, the Plaintiff will request that you pay for all of their attorney’s fees. By the time the case goes to trial, their attorney’s fees may be five, ten, or twenty times what the case could have settled for early in the case.

Who We Are

With six attorneys providing ADA defense, Scott Karlin, his two attorney sons, together with three other attorneys have been providing quality ADA defense services for many years, starting almost fifteen years ago. We 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 on-going 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 7 Point Prevention Program.

Settlements. Settlements are complex as they need to address both an amount to be paid and changes to be made to the website as well as future maintenance. In any settlement we can usually avoid any requirements where the business owner is expected to make complex modifications in an attempt to adhere to some vague set of guidelines. In addition, a failure to negotiate a simple, no cost, and verifiable modification of the client’s website, can end up requiring the owner of the website to constantly monitor its website during the lifetime of the business for fear of being in breach of a settlement agreement. We have and can successfully negotiate ways to avoid all these major problems.

As soon as we are retained, we do everything we can to stop the Plaintiff’s lawyer filing a lawsuit, and if filed, from building up his attorney’s fees. We try to 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 he or she may later try to charge you for.

Settlement Concerns

If a case is settled vs 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 important other aspects of ADA settlements. These are:

  1. Website Compliance – How the website needs to be modified now and, in the future, and
  2. Potential Future Oversight, in addition to
  3. Amount of Settlement

Each of the above needs to be skillfully negotiated or eliminated. In cases where a lawsuit is filed or is likely to be filed, in addition to negotiating a low settlement amount where it appears there may be some degree of non-compliance, we also negotiate specific provisions in any resolution that renders 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.

Prevention – Avoiding Future ADA Website Lawsuits. Even when a lawsuit is not filed, or in cases where our clients may not be required to make a lot of modifications to their websites under a settlement agreement, it is very important that our 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 a second, third, and fourth claim by other plaintiffs and other law firms.

Our review of your website, testing, and 7-point programs addresses:

  1. Different methods of testing for WCAG compliance – what matters and what doesn’t – How to deal with false positives.
  2. Accessibility Statement and mistakes in referring to WCAG, adding helpful information to the Statement to enhance accessibility at no cost – supplying the Karlin Law prototype Accessibility Statement.
  3. The use of alternative and minimum cost methods – the use of help line telephone numbers – how to install and use at little or no cost.
  4. The use of widgets and add-on programs such as Userway, accessiBle, audio eye and others – do they make you more of a target and which ones are helpful even though not a solution.
  5. Periodic testing – different low-cost methods
  6. Employee input and easy low-cost testing at the input level
  7. Awareness of new types of Website compliance lawsuits – User Data Collection, Trap and Trace and Privacy Claims – Chat Box and Wiretap Claims and other concerning new trends.

Web Developers are Part of the Team but Should Not Determine Modifications to be Made.

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 has the experience with this type of case to provide direction on what needs to be done. As part of our services, we will walk the website owner and their technical team and/or their web developer through what we feel needs to be addressed and best methods for lawsuit and claim prevention. Often this can significantly reduce the technical team’s time, sometimes in half. Put another way, web developers may see the project as two to three times bigger than it needs to be, and 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 and can provide the guidance needed as part of a team approach to significantly lower the risk of future claims and lawsuits. In that regard, we can advise on additional techniques, including the proper use of inexpensive “add-ons,” communication alternative – how to deal with and communicate with user accessibility contacts, adding accessibility features not covered by WCAG, providing a proper “accessibility statement,” (most statements used today in our view are ineffective – see our discussion at www.AccessibilityStatements.com), and on-going maintenance and periodic testing. We have seven areas we address. Web Developers are sometimes familiar with one of the seven. This is understandable since they are web developers and not lawyers focused exclusively on the novel area of the law.

Do Not Rely on Automated Programs

Some clients have seen advertisements for “automated programs” or plug-ins that say they will make a website 100% “compliant.” Generally, they do not. Moreover, the key is lawsuit prevention. Even if there was a possibility 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 on our website at: www.ADAplugins.com

The above description of how best to handle ADA website claims and lawsuits applies to most of the extortion like ADA claims and lawsuits. Each claim and each case are different and needs to be individually assessed. The Karlin Law firm can provide a free initial assessment. When you call, also ask about out qualified “flat fee” program. Any of our staff can set up a time to speak with one of our attorneys.