The Karlin Law Firm has been attempting to reach out to the California Legislature to educate them on the dangers of passing the proposed AB 1751, set for hearing in the State Senate ‘s Judiciary Committee on July 11.
By way of Background, the Karlin Law firm has handled over 3,000 ADA claims and consulted on another 1,500 claims, for a total of 4,500 ADA cases to date. In addition to ADA litigation services our firm provides consulting services advising on ADA compliance, particularly ADA website compliance. We are the largest provider in the country of such services, serving large, medium, small, and very tiny “micro” family businesses. What follows is an overview of major concerns with the proposed Bill, which Bill we strongly oppose as currently drafted.
Executive Summary of Major Concerns with AB 1757
– WCAG cannot be objectively tested. There are no objective verifiable tests that will show if a website meets or conforms to any version of WCAG. The Bill Falsely Assumes that Compliance or Conformity to WCAG 2.1 (or any other version of WCAG) Can be objectively tested. This is an entirely false assumption. We understand this, but the promoters of the bill either don’t understand this or they are are not disclosing this important fact. Simply stated, there are no simple or objective methods to test a website for compliance with WCAG. Why, because had always been written as a set of WCAG “guidelines” and conformity to such guideline is often a matter of opinion. Given current state of testing methods (using Wave.webaim.com or Googles Lighthouse, or Powermapper.com) there is almost no website in the United Stated that our firm could not “argue” meets or conforms to any WCAG success criteria. Without simple, objective methods to test conformance, AB1757 will invite endless litigation against businesses and web developers, with each case requiring years of litigation with testimony from “expert” witnesses. Put another way, a web developer or business has no way to “test” their website before it goes live to insure their website conforms to WCAG 2.1 ( or any other version of WCAG).
– Reference to WCAG Will Not Be a Safe Harbor and Will Not Reduce Lawsuits. As a “safe harbor,” reference to WCAG falls short. It will not reduce the number of ADA website filings, given that over 99% of websites will show some type of real or “apparent” errors when one of the current testing programs is used. Plaintiffs will continue to use these very crude and often inaccurate automated tests as an excuse to file a lawsuit, and this will continue at the same levels as before, since no objective automated tests exists. Someone may ague that after years of litigation if an “expert” convinces a judge that the website conforms to WCAG, then that will be a deterrent to filing a weak case. No so. That’s the same situation that exists today. Because only the Plaintiff is entitled to attorney’s fees if they prevail and does not have to reimburse the business if the business shows the lawsuit laced any merit (or the website conformed to WCAG) the Plaintiff is still in the same “no lose” position and as such will continue to file very week cases despite the so-called new “safe harbor.” Therefore what may appear to some to be a safe harbor, does nothing to stop the growing number of ADA website lawsuits being filed in California, most of which are filed in California State Court and often do not show up in the statistics that only track federal case filings.
– ADA Website Lawsuits Will Increase. In fact, we believe lawsuits will go up by now giving plaintiffs an excuse to use these inaccurate testing methods to file even more lawsuits and will make it easier for new law firms to follow suit. What is more, give that web developers are now a new defendant, they will inevitably be added to lawsuits thus prolonging the litigation allowing the Plaintiff’s attorneys to ask for larger settlement for the “extra time” in adding and dealing with the new defendant now allowed under AB 1757.
– New Web Developer Liability Will Increase Litigation and Increase Costs for Website Owners and including Costs to the Courts. Liability Provisions Provision of the bill that make a web developer liable for creating or maintaining a website that is not in “conformity with” WCAG 2.1 will substantially increase litigation by adding web developers into the litigation either directly as a defendant or as cross-defendant. This will result in even higher settlements sought by Plaintiffs given the increase in the number of parties to the litigations and prolong the litigation. This will drive up litigation costs not only for the business and web developers, but also for the Courts. Since there has not yet been developed any simple methods of testing compliance or conformance, cases will now be filed against web developers that will take years to litigate, forcing settlement of cases without merit, simply because it is too expensive to litigate.
– Web Developers will be driven out of business in California. There are reported to be anywhere from 500,000 to 1 million web developers in the United States. That would mean that 35,000 to 70,000 web developers are located in California. Given that any website can be claimed to not conform to WCAG 2.1 (or any other version of WCAG), if AB 1757 were to become law, no web developer will want to be exposed to a lawsuit (or multiple lawsuits) every time they create, add on to, or maintain a website. They chose to either go out of business, or a few will move out of state. Does this Senate really want to be known as the Senate which killed the web development business in California?
– Web Developer Liability Substantially Increases Costs to Small Business and Minorities. The provisions that make web developers liable will substantially increase the cost of creating and maintaining a website for small, tiny, and micro businesses, which are disproportionately owned by minorities. The increase costs to the smallest businesses will result from web developers either not wanting to set up or maintain California websites, or if they were to do so they will need to substantially raise their prices to guard ageist years of litigation. A brief look at insurance available to web developers shows that insurance to cover compliance with WCAG is simply not available.
– The Higher Costs Resulting from Web Developer Liability Will Substantially Hurt Consumers. As a result of the added costs, many small businesses will decide to shut down their websites, which will result in loss of business to them and result in consumers not having access to information about the goods and services of the business, all to the loss of the consumer. We know of numerous small business that have already made this chose and that is without AB 1757 becoming law. It will be far worse if AB 1757 were to become law all to the loss of Consumers as well as to micro businesses disproportionally owned by minorities.
By: Mike Karlin and Scott Karlin at The Karlin Law Firm – www.Karlinlaw.com