A variety of our clients have recently received demand letters from ADA plaintiff’s attorneys, and as there seems to be a great bit of confusion behind these letters, I’d like to share a few notes to clear things up.
The first thing any organization that receives one of these letters should do is NOT call SSB, or any other technical expert in the digital accessibility space. The first thing you should do is contact your in-house legal team or external counsel and decide on an approach for handling the legal matter. Counsel is critical in this, as are issues of attorney-client privilege, and they need to be thought through first. Once that is in place we, SSB, typically engage with legal teams first as formal technical experts. As the situations evolve, the engagement model evolves accordingly. Given though that this is a new and specialized legal space, the need to have good legal counsel cannot be understated.
The vast majority of demand letters we have seen are boilerplate letters that are based principally on automatic testing results and are little informed by expert testing. Further, they cite standards – for example Section 508 and WCAG – which don’t actually have regulatory application to the sites being tested. As such, we recommend organizations proceed with a healthy skepticism about the nature and structure of the technical issues that are noted in these letters. These are matters for a technical expert like SSB to sort out in conjunction with internal technical teams and legal counsel.
Most organizations start the process with an audit of the relevant asset to determine its compliance with a key accessibility standard such as WCAG 2.0 AA. As noted above, the WCAG does not have direct regulatory relevance, but it does serve as a well-known and widely agreed upon benchmark for accessibility. Based on the results of the audit, organizations then work with a firm like SSB to build a multi-year accessibility compliance roadmap and program.
Finally, there are some questions about why firms are now pursuing these claims and “who is behind it all”. We would raise the somewhat obvious point that since the DoJ and plaintiff’s attorneys have largely proven out the litigation in this space over the last few years nobody is behind it. This is simply the next, obvious evolution of ADA litigation. We are there to help organizations mount a vigorous and well-informed response.