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The Premiere ADA Lawsuit Defense, Business, and Real Estate Attorneys

Karlin Law Firm

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Watching new bill to curb ADA Website lawsuit abuse.  This bill adds a notice requirement to plaintiffs considering making an ADA claim or filing an ADA lawsuit.  If the website owner or operator makes appropriate changes within 90 days of the notice the plaintiff will have no right to file a lawsuit.  If the changes are not made within that time, the plaintiff will need to file a complaint with a federal agency first to allow the federal agency to make a determination if there is a violation.  Only if the federal agency fails to act can the person then file his or her lawsuit.  It is unclear if the person can file a lawsuit if the federal agency determines there was no violation, or is no violation at the time of review, or if the federal agency finds a violation and imposes its own remedy.  This bill may be amended so some of the things that are unclear may be sorted out.  The bill also make reference to the WCAB 2.0 as at least one “standard” that a website can comply with and the Bill makes website compliance, in effect, a “place of public accommodation” under the Americans with Disabilities Act (ADA).  As such the bill would make make businesses, even the smallest businesses subject to the “one way” attorney’s fees provision of the ADA, which underlies all of the ADA abusive and extortion-like litigation in the Untitled States.  While the bill appears to be intended to help business, it has the potential of greatly expanding these abusive lawsuits filed against event the smallest of businesses.  The great productivity gains in the United States economy have been a direct result of the ease in which small businesses are able to let people know about their goods and services by use of websites.  Abusive ADA lawsuits with the threat extensive litigation puts a significant brake on these economic advances but substantially increasing the cost of establishing and maintaining a website.

Currently, a significant number of Courts have held that websites do not fall under the ADA.  Other Courts have held that only websites with a reasonable connection to a company’s physical store are under the ADA, and a few Courts have held that all websites engages in at least consumer sales of goods or services are under the ADA.  No Court has held that the WCAG guidelines are required to be followed by any website, following the position of the Department of Justice.  HR 1100 greatly expands the type of website that would fall under the ADA, and significantly increases the pressure on businesses to have their websites “comply” with the WCAG guidelines.   The Karlin Law Firm is the largest provider of ADA website defense in the country and we are well aware of the shortcomings of trying to “comply” with WCAG guidelines, be it 2.0, 2.1 at any level.  Congress should be mindful that WCAG guidelines were not written by any governmental agency but were put together as voluntary guidelines by good hearted people around the world who had and have no accountability to any governmental agency, and who are generally not lawyers, and are unfamiliar with how one would go about writing laws and regulations.  Moreover, the “guidelines” were never intended to have penalties, but were put together as voluntary “guidelines.”  As such, they were never written with the type a clarity and precision as a law would be written where a violation might result in a significant penalty.  People can argue for years how best to “describe” a particular image.  So long as that is the case, lawsuits will move forward given the one-sided attorney’s fees statute where the plaintiff is put in a “no-lose” position, and is therefore free to make his or her claim against the owner of the website.   The owner is then faced with the choice of paying significant legal fees (both the website owners legal fees with the possibility of paying the plaintiff’s legal fees) or pay a much lower settlement.  The plaintiff on the other hand  does not have any risk of paying the website owner’s legal fees and is free to file a marginal case, like arguing over of an image is best described.  It is therefore unclear if the proposed HR 1100 will bring down or increase the number of ADA website cases.

Here additional information regarding HR 1100 as well as the current text of HR 1100

 

Introduced in House (02/18/2021)

[Congressional Bills 117th Congress]

[From the U.S. Government Publishing Office]

 

Action By: House of Representatives

HR. 1100

117th CONGRESS
1st Session

To amend the Americans with Disabilities Act of 1990 to include consumer facing websites and mobile applications owned or operated by a private entity, to establish web accessibility compliance standards for such websites and mobile applications, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

February 18, 2021

Mr. Budd (for himself, Mr. Hudson, and Mr. Correa) introduced the following bill; which was referred to the Committee on Energy and Commerce

A BILL

To amend the Americans with Disabilities Act of 1990 to include consumer facing websites and mobile applications owned or operated by a private entity, to establish web accessibility compliance standards for such websites and mobile applications, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Online Accessibility Act”.

SEC. 2. AMENDMENT TO THE AMERICANS WITH DISABILITIES ACT OF 1990 RELATING TO CONSUMER FACING WEBSITES AND MOBILE APPLICATIONS OWNED OR OPERATED BY A PRIVATE ENTITY.

The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) is amended by adding at the end the following new title:

“TITLE VI—CONSUMER FACING WEBSITES AND MOBILE APPLICATIONS OWNED OR OPERATED BY A PRIVATE ENTITY

“SEC. 601. REQUIREMENTS FOR CONSUMER FACING WEBSITES AND MOBILE APPLICATIONS OWNED OR OPERATED BY A PRIVATE ENTITY.

“(a) General Rule.—No individual, by reason of a disability, shall be excluded from participation in or be denied the full and equal benefits of the services of a consumer facing website or mobile application, or be subjected to discrimination by any private owner or operator of a consumer facing website or mobile application.

“(b) Standard For Compliance.—

“(1) IN GENERAL.—A consumer facing website or mobile application shall be considered compliant under the requirements of this section if such website or mobile application is in substantial compliance with the Web Content Accessibility Guidelines (referred to in this title as WCAG) 2.0 Level A and Level AA standard established by the Accessibility Guidelines Working Group, or any subsequent update, revision, or replacement to the WCAG 2.0 Level A and Level AA standard published by the World Wide Web Consortium or successor organization.

“(2) ALTERNATIVE MEANS OF ACCESS.—A private entity that owns or operates a consumer facing website or mobile application that is not in substantial compliance with the standard set forth under paragraph (1) shall provide an alternative means of access for individuals with disabilities that is equivalent to access the content available on such website or mobile application.

“(c) Regulation.—

“(1) ACCESS BOARD.—

“(A) IN GENERAL.—The Architectural and Transportation Barriers Compliance Board (referred to in this title as the ‘Access Board’), shall issue and publish standards setting forth—

“(i) for purposes of this title, a definition of ‘substantial compliance’, ‘alternative means of access’, and ‘consumer facing website or mobile application’; and

“(ii) regulations necessary to implement the standard set forth in subsection (b).

“(B) TIMING OF REGULATIONS.—For purposes of this title:

“(i) Not later than 180 days after the date of the enactment of this Act, the Access Board shall promulgate a notice of proposed rulemaking.

“(ii) Upon issuance of the notice under clause (i), the Access Board shall solicit comments from the public on such proposed rule for a period of 90 days.

“(iii) After the Access Board has reviewed the comments solicited under clause (ii) and revised such proposed rule, the Office of Management and Budget shall conduct a regulatory assessment of the rule for a period not to exceed 90 days.

“(iv) Not later than 365 days after the Office of Management and Budget has completed the regulatory assessment under clause (iii), the Access Board shall issue final regulations.

“(C) REVIEW AND AMENDMENT.—The Access Board shall periodically review and, as appropriate, amend the standard required under subsection (b) to reflect technological advances or changes in electronic and information technology.

“(2) DEPARTMENT OF JUSTICE.—No later than 365 days after the end of the comment period under subparagraph (B)(ii), the Attorney General shall establish a procedure for receiving and investigating complaints filed under this title.

“(3) FLEXIBILITY FOR SMALL BUSINESS CONCERNS.—Regulations established under this section shall include flexibility for small business concerns to comply with the standard under subsection (b).

“SEC. 602. ADMINISTRATIVE REMEDIES.

“(a) Exhaustion Of Administrative Remedies.—No individual may bring an action before a civil court to enforce the provisions of this title until all administrative remedies under this section have been exhausted.

“(b) Notice To Owner Or Operator.—Prior to filing a complaint with the Attorney General under subsection (c), an individual must first notify the private owner or operator of a consumer facing website or mobile application that such website or mobile application is not in compliance with the standard for compliance under section 601 of this title.

“(1) If within 90 days of receiving notice under subsection (b) the owner or operator of a consumer facing website or mobile application fails to bring such website or such application into compliance with the requirement under section 601 of this title, an individual may file a complaint with the Department.

“(2) If an individual files a complaint with the Department of Justice (referred to in this title as the ‘Department’) under paragraph (1), a copy of such complaint shall be provided to the owner or operator of a consumer facing website or mobile application.

“(c) Reporting Of Violations To Attorney General.—

“(1) DEADLINE TO FILE COMPLAINT.—If an individual files a complaint with the Department, such complaint shall be filed within the 90-day period beginning on the date after the 90-day period under subsection (b)(1) has terminated.

“(2) INVESTIGATION BY ATTORNEY GENERAL.—Upon receiving a complaint of an alleged violation, the Attorney General shall complete an investigation within 180 days to determine whether a violation exists.

“(3) FINAL AGENCY DETERMINATION.—The Attorney General shall be considered to have made a final determination on a complaint if—

“(A) during the 180-day period after a complaint has been filed with the Department, the Attorney General determines the owner or operator of a consumer facing website or mobile application is not in compliance with the standard set forth under section 601; or

“(B) the 180-day period expires without the Attorney General having made such a final determination.

“(d) Enforcement By Attorney General.—

“(1) DENIAL OF RIGHTS.—

“(A) DUTY TO INVESTIGATE.—

“(i) IN GENERAL.—The Attorney General shall investigate alleged violations of this title, and shall undertake periodic reviews of compliance of consumer facing websites and mobile applications under this title.

“(ii) ATTORNEY GENERAL CERTIFICATION.—On the application of a State or local government, the Attorney General may, in consultation with the Access Board, and after prior notice and a public hearing at which persons, including individuals with disabilities, are provided an opportunity to testify against such certification, certify that a State law or local ordinance that establishes accessibility requirements that meets or exceeds the minimum requirements of this Act for the accessibility and usability of consumer facing websites and mobile applications under this title. At any enforcement proceeding under this section, such certification by the Attorney General shall be rebuttable evidence that such State law or local ordinance does meet or exceed the minimum requirements of this Act.

“(B) POTENTIAL VIOLATION.—If the Attorney General has reasonable cause to believe that—

“(i) any person or group of persons is engaged in a pattern or practice of discrimination under this title; or

“(ii) any person or group of persons has been discriminated against under this title and such discrimination raises an issue of general public importance,

the Attorney General may commence a civil action in any appropriate United States district court.

“(2) AUTHORITY OF COURT.—In a civil action under paragraph (1)(B), the court may—

“(A) grant any equitable relief that such court considers to be appropriate;

“(B) order monetary damages to persons aggrieved when requested by the Attorney General; and

“(C) assess a civil penalty against the entity in an amount—

“(i) not to exceed $20,000 for a first violation; and

“(ii) not to exceed $50,000 for any subsequent violation.

“(3) PUNITIVE DAMAGES.—For purposes of paragraph (2)(B), the term ‘monetary damages’ and ‘such other relief’ does not include punitive damages.

“(4) SINGLE VIOLATION.—For purposes of paragraph (2)(C), in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the consumer facing website or mobile application has engaged in more than one discriminatory act shall be counted as a single violation.

“(5) JUDICIAL CONSIDERATION.—In a civil action under paragraph (1)(B), the court, when considering what amount of civil penalty, if any, is appropriate, shall give consideration to any good faith effort or attempt to comply with this Act by the entity.

“SEC. 603. PRIVATE RIGHT OF ACTION.

“(a) In General.—Upon exhausting all administrative remedies under section 602, any individual aggrieved by a violation of this title may commence a civil action in any appropriate court of the United States against the owner or operator of a consumer facing website or mobile application that engages in such a violation, unless the Attorney General has instituted an enforcement action under this title. A civil action under this title is the sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application to meet the requirements of section 601. In any action filed under this title, the complaint shall plead with particularity each element of the plaintiff’s claim, including the specific barriers to access a consumer facing website or mobile application.

“(b) Tolling.—With respect to the running of the statutory periods of limitation for such action, the running of such statutory periods shall be deemed suspended during the period beginning on the date of the enactment of this Act and ending 180 days after the date the Access Board has issued final regulations under section 601.

“SEC. 604. DEFINITIONS.

“In this Act:

“(1) CONSUMER FACING WEBSITE.—The term ‘consumer facing website’ means any website that is purposefully made accessible to the public for commercial purposes.

“(2) MOBILE APPLICATIONS.—The term ‘mobile application’ means a consumer facing software application that can be executed on a mobile platform, or a web-based software application that is tailored to a mobile platform but is executed on a server.

“(3) SMALL BUSINESS.—The term ‘small business concern’ has the meaning given such term in section 3(a) of the Small Business Act (15 U.S.C. 632(a)).”.

SEC. 3. CLERICAL AMENDMENT.

The table of contents of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) is amended by inserting after the item relating to section 515 the following new item:

“TITLE VI—CONSUMER FACING WEBSITES AND MOBILE APPLICATIONS OWNED OR OPERATED BY A PRIVATE ENTITY

“Sec. 601. Requirements for consumer facing websites and mobile applications owned or operated by a private entity.
“Sec. 602. Administrative remedies.
“Sec. 603. Private right of action.
“Sec. 604. Definitions.”

__________________

[H.R. 1100 Introduced in House (IH)]

Sponsor(s): Rep. Budd, Ted [R-NC-13]

Committees:      House – Energy and Commerce

Latest Action:     House – 02/19/2021 Referred to the Subcommittee on Consumer Protection and Commerce

Actions:

02/19/2021         Referred to the Subcommittee on Consumer Protection and Commerce.

Action By: Committee on Energy and Commerce

02/18/2021         Referred to the House Committee on Energy and Commerce.