You've Received an ADA Demand Letter. Now What?

May 31, 2022

The most common introduction to web accessibility

It makes us sad as digital accessibility practitioners that most people learn about web accessibility as a result of private lawsuits filed under the Americans with Disabilities Act (ADA). We would much prefer to talk about the business (and moral) benefits of making your website more usable for everyone. But the fact is that a small number of plaintiffs file thousands of private lawsuits against small and medium sized businesses every year. The number of lawsuits has grown significantly each year and shows no signs of slowing down yet.

Ideally, you can address accessibility gaps on your website or mobile app before you run into legal trouble. But if you have received a demand letter from a potential plaintiff, what should you do?

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What is a demand letter?

Lawsuits are expensive. Just like you, plaintiffs would rather not spend time and money fighting in court. This is even more true of surf-by plaintiffs who file ADA complaints against businesses in bulk. Instead, most plaintiffs will first send you a letter. Typically, this letter describes accessibility violations that the plaintiffs found on your website and demands that you settle out of court. The terms typically include a requirement that you fix the relevant accessibility issues and that you pay a significant settlement. If you choose not to settle, the plaintiff would file a lawsuit against you in federal court.

First, call a lawyer

As accessibility subject matter experts, we have some insight into this situation. But we want to make it clear that we are not attorneys and this post is not legal advice. If you have received a demand letter, you should contact an attorney who is experienced in ADA cases. They will be able to advise you on the best steps to take in your case.

What is your liability under the ADA?

The federal government does occasionally pursue ADA digital accessibility complaints against larger companies. But most companies are more likely to face complaints under a private right of action. This means that individuals with disabilities can file a lawsuit in federal court to force a business to come into compliance with the ADA by making their website accessible (typically under WCAG 2.1 AA standards). There are no damages under the ADA, but the plaintiff is entitled to be repaid for their costs of pursuing the claim including their lawyers’ fees.

However, California does have a state law called the Unruh Act that parallels the ADA. Under the Unruh Act, plaintiffs can recover treble (3x) damages with a minimum of $4,000 for each individual violation. Unsurprisingly, it is common for plaintiffs to file Unruh complaints in California when possible.

How can you defend yourself?

As a reminder, you should probably discuss this question first with your lawyer. There are a number of defense strategies that have at least some record of success, but that’s for another blog post. The truth is that for most businesses, it makes more sense to settle out of court rather than fight. If you think through the potential outcomes of an ADA lawsuit, it should be clear why this is the case.

Outcome 1: You lose

In most cases, if you choose to go to court, you are likely to lose the lawsuit. But before you get to that point, both you and the plaintiff will have racked up legal fees. And you will have to pay for both sides. In summary, the outcome will include:

  • Your own attorney fees
  • The plaintiff’s attorney fees
  • Fix your website’s accessibility issues

Outcome 2: You win

One popular legal strategy in ADA cases is mootness; this means that if you fix any web accessibility issues before the case goes to court, there’s nothing to fight over any more and the case is dismissed. If you are able to successfully defend against a lawsuit, you are likely to have significant legal fees. While you won’t have to pay the plaintiff’s fees, it still won’t be cheap. And after all this, if you haven’t brought your website up to WCAG 2.1 Level AA standards, there is nothing stopping someone else from suing you. In summary, the outcome here might include:

  • Your own attorney fees
  • Fix your website’s accessibility issues

Outcome 3: You settle

The plaintiff’s ideal goal is to reach a settlement with you out of court rather than fight in court. In this case, you will probably still need to hire a lawyer, but it will be much less expensive than a lawsuit and the plaintiff’s attorney fees are included as part of the settlement amount. As part of the settlement, you will also have to bring your website up to WCAG 2.1 Level AA standards. The settlement is only binding between you and the plaintiff, which means that someone else can sue you separately even if you are in the process of remediation your website (and this has happened). To summarize:

  • Lower attorney fees
  • Cash settlement
  • Fix your website’s accessibility issues

The common element

You may have noticed a common element in almost all cases: fixing your website to bring it up to WCAG 2.1 Level AA standards. And the faster you get this taken care of, the stronger your legal position is. So why not start working on digital accessibility now?

How to get started

We have reviewed the role that accessibility remediation plays in ADA lawsuits and demand letters. It is in your interest to start making your website accessible to all users before you receive a demand letter. The Web Content Accessibility Guidelines technically demand perfection, but it is still very valuable to improve your site’s accessibility at whatever pace your business can accommodate. Every bit makes a difference and removing some of the largest accessibility barriers can immediately reduce your risk of being targeted for a lawsuit. And of course, making your website more usable for all visitors can expand your potential market while improving your site’s conversion rate. Access Armada can help you identify the best and highest impact places to start. 

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