The Community Banker - Quarter 4 2018

20 THE COMMUNITY BANKER QUART E R 4 2 0 1 8 Recent Developments in ADA Website Accessibility Claims Against Financial Institutions BY FLOYD BOONE, ZACHARY J. ROSENCRANCE AND JOSHUA A. LANHAM A s astutely forecast by our colleagues, Sandra M. Murphy and Amy J. Tawney, in their 2017 article Protecting Your Bank from Website and Mobile Device ADA Accessibility Claims, Americans with Disabilities Act (“ADA”) website accessibility litigation against financial institutions has reached our region in the last year. More recently, the U.S. Department of Justice (“DOJ”) has addressed the lack of regulatory guidance governing ADA website accessibility claims. This article discusses these recent developments. Title III of the ADA bars discrimination on the basis of disability in the full and equal enjoyment of the goods, services and facilities offered by places of public accommodation. Recently, some federal trial courts have held that Title III applies to online banking services. Successful claims have alleged denial of equal access to banking websites based upon accessibility barriers, including missing alternative text, redundant links and empty or missing form labels that allegedly prevent vision and hear- ing-impaired individuals from full and equal enjoyment of such services. To further complicate matters, the DOJ recently declined a request made by a bi-partisan group of members of Congress to promulgate regulations setting forth clear standards for website accessibility under the ADA. Over the last year, dozens of ADA website accessibility lawsuits against financial institutions have been filed throughout the Common- wealth of Virginia. In one of these cases, a federal trial court held that ADA website accessibility claims are within the scope of Title III. Given the widespread litigation in our state’s backyard and the fact that many West Virginia banks operate branches in Virginia, West Virginia banks should familiarize themselves with the claims and consider proactive steps to minimize exposure to such claims. Recent DOJ Guidance on ADAWebsite Accessibility Standards In June of this year, 103 members of Congress – from both political parties – urged the DOJ to issue regulatory guidance to provide clarity to website accessibility under the ADA. This request followed the DOJ’s decision to withdraw rulemaking, started under the Obama Administra- tion, that would have required public accommodation websites to comply with a privately developed set of standards known as the “Web Content Accessibility Standards (WCAG 2.0)” in order to comply with the ADA. The members of Congress noted that the current “statutory authority for applying the ADA to websites is unclear” and, as a result, “businesses of every shape and size throughout the country are being threatened with legal action by private plaintiffs for unsubstantiated violations of the ADA.” Accordingly, these lawmakers asked the DOJ to re-initiate efforts to promulgate regulations regarding web accessibility under the ADA. In late September, the DOJ declined the request to promulgate web ac- cessibility regulations under the ADA. Rather, the DOJ indicated it would continue to consider “whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure com- pliance with the ADA.” Notably, the DOJ opined that “absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Ac- cordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” The DOJ’s recent statements are a double-edged sword for financial institutions and other industries subject to the ADA. On one hand, the DOJ’s statements are helpful in that they indicate that businesses “have flexibility in how to comply with the ADA” and they make clear that the failure to adopt any particular technical standard for web accessibility does not automatically result in non-compliance. On the other hand, however, the DOJ’s statements are problematic in that the failure to adopt a regula- tory safe harbor for businesses will do nothing to stem the current wave of costly litigation. Moreover, the lack of a regulatory safe harbor means that opinions issued by different courts may impose varying, and even contra- dictory, website accessibility requirements on financial institutions. Actions Your Bank Can Take To limit your bank’s exposure toADAweb accessibility claims, your bank should reviewtheWCAG2.0 guidelines to determine if modifications to your online banking platform(includingmobile banking applications) are nec- essary. Although theWCAG2.0 guidelines are not regulatory standards, many individuals and institutions voluntarily followthemandmost cases brought by private plaintiffs are based on alleged failures to followthe guidelines. You should also carefully monitor any correspondence from plain- tiffs’ lawyers threatening litigation based upon ADA noncompliance. Typically, plaintiffs’ lawyers bringing these claims will attempt resolution without filing litigation. Engagement with the plaintiffs’ lawyers prior to litigation can be beneficial in avoiding litigation altogether or in setting the stage for a more efficient defense or settlement of any litigation. Law- yers in our firm have experience evaluating, litigating and resolving these claims in the context of financial institutions. About the authors: FloydBoone,ZacharyJ.RosencranceandJoshuaA.LanhamareattorneysintheCharlestonofficeof BowlesRiceLLP. Shouldyourequiremoreinformation,pleasefeelfreetocontacttheauthorsdirectly. Mr. Boone is the leader of the firm’s Financial Services Litigation team and is a partner in the firm’s Charleston office. He can be reached at (304) 347-1733 or by email at . Mr. Rosencrance practices in the firm’s Commercial Litigation and Creditors’ Rights and Bank- ruptcy groups. He can be reached at (304) 347-1161 or by e-mail at Mr.Lanhampracticesinthefirm’sCommercialandFinancialServicesLitigationteams. Hecanbe reachedat(304)347-1108orbye-mailat .