Attorneys are now taking advantage of that ambiguity by suing and settling with companies in multiple industries. In the credit union space, much of the activity originates from a single entity, Pacific Trial Attorneys and its founder Scott Ferrell.
Regulatory Or Legislative
The two most obvious avenues for relief are regulatory and legislative.
“We’ve been successful in passing legislation in several states that curbs frivolous ADA lawsuits,” says Suzanne Yashewski, regulatory/compliance counsel with the Cornerstone Credit Union League.
“Unfortunately, these laws are helpful in state courts only,” Yashewski says. “At this point, what we need is for Congress to amend the federal statute to protect against frivolous lawsuits. Guidance from the Department of Justice would be extremely helpful but appears to be unlikely in the near future.”
Indeed, optimism that the DOJ would finalize rules it had first put forth in 2010 faded in December when the DOJ officially withdrew its Advanced Notice of Proposed Rulemaking for website accessibility.
Congressional efforts also appear stalled, according to Credit Union Times coverage of a recent hearing in the Senate Judiciary Committee.
Looking for guidance? Check out these links for more info on the ADA website issue:
That leaves credit unions trying to follow rules that don’t yet actually exist in an atmosphere of growing uncertainty.
“DOJ needs to implement requirements that credit unions can use as a benchmark,” says John Bley, president and CEO of Compliance Services Group in Olympia, WA, and a former Washington state regulator.
Credit unions are working to make their websites and apps accessible, Bley says, but for now they’re “just doing the best they can through best practices to abide by rules that don’t yet exist.”
There’s a double-edged sword here, as noted by another credit union attorney, Katherine Weber of The Weber Law firm in suburban Philadelphia.
“It’s not a matter of trying to escape compliance,” she says. “Credit unions are hesitant to execute on a major, costly website overhaul before knowing what the regulatory requirements will be. Unfortunately, this hesitation has made credit unions vulnerable to the risk of lawsuits.”
Andy Keeney of the Virginia-based Kaufman & Canoles law firm knows that vulnerability well. He’s helping with three of the lawsuits that have been filed in his home state.
“In 40 years of representing credit unions I’ve seen very, very few lawsuits against them,” he says. “The whole ADA situation is unique and most troubling to credit unions.”
One way credit unions are responding is by asking Pacific Trial Attorneys to stop sending its demand letters. NAFCU president and CEO Dan Berger sent one such missive this week. The letter challenges the legitimacy of the complaints, including whether the complainants have actually been affected by the websites involved or even have standing to successfully sue, since they might not be members or even eligible to join the targeted credit union.
The Pennsylvania Credit Union Association also sent Ferrell a cease-and-desist letter, noting the same sort of issues and stressing that the PCUA membership supports accessibility.
“In fact, many (PCUA credit unions) already have taken steps to implement measures that will greatly improve and enhance the accessibility of their websites,” the letter says.
Informing credit unions is another response. CUNA reports a webinar it is hosting this week is filled to capacity and the big trade group has added a breakout session on the threats during the GAC on Monday, Feb. 26.
How To Make Your Website Visually Accessible
Whether opportunistic legal eagles are circling or not, credit unions can take action to make their websites more accessible to the visually impaired.
Here’s what CUNA Mutual says: “Credit unions should conduct a thorough risk assessment of websites and mobile applications to identify any accessibility issues. Some common barriers are incompatibility with speech recognition or screen reading software; lack of text-based alternatives to media content; poor color contrast or small text size; and transaction timing requirements that do not take into account intellectual disabilities.”
Read how one California credit union did just that in "Tips To Improve Website Accessibility."
Mike Wishnow, the PCUA’s senior vice president of marketing and communications, says approximately 55 of the league’s 390 or so credit unions have been contacted, and they’re not alone.
“We find ourselves on the same side of the fence with our banking friends,” he says.
Although Wishnow recognizes the federal government is following through on promises to roll back regulations that make doing business more difficult, he says more regulation is better in this case.
Examiners also might prove to be a friend. Bley credits Washington state’s lead regulator Linda Jekel for making websites an examination priority for state-chartered credit unions there.
“As a result, I think there will be fewer chances of claims against Washington credit unions and plaintiff lawyers specializing in these claims will find more fertile ground elsewhere,” Bley says.
Indeed, they might even plow some of the same earth. Without legislative or regulatory clarifications, credit unions that have already settled once might hear again from other firms copying Pacific Trial Attorneys’ success. Keeney sees that happening.
If this feels like déjà vu, the ADA websites do sound much like the ATM disclosure sticker situation of a few years ago, when opportunistic trollers made hay before Congress acted. But there are some key differences.
“To some degree, ADA website accessibility concerns are more significant,” says Brian Godwin, interim CEO at PolicyWorks in Des Moines, IA. He says ATM fee claims were based on exploiting a clear rule within Regulation E. That's not the case here.
“The website accessibility concerns are based on a rule that does not technically apply to credit unions, making them much more subjective,” Godwin says.
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