By Ray Birch
WASHINGTON—In the face of ongoing legal threats, credit unions are spending money to make adjustments to their websites so as to make them more accessible to those with disabilities and to also stay out of attorneys’ crosshairs.
Yet that’s not a guarantee CUs won’t end up as defendants in such lawsuits, anyway.
As CUToday.info has extensively reported, credit unions across the nation have been hit with a rash of lawsuits over alleged violations by their websites of the Americans With Disabilities Act (ADA). The CU cases are now in the hundreds, and some experts have estimated that ADA cases are being filed at a rate of three- to four-dozen per day nationally. Yet despite a number of recent wins by credit unions in courtrooms, the industry is prepared for a long, drawn-out battle, sources indicate.
As CUToday.info reported here, one attorney recently offered a group of credit unions an update on the litigation and the steps she said it would be wise to take.
But it’s likely even that won’t be enough.
“We think this will be a long fight,” said Leah Dempsey, senior director of advocacy and council at CUNA, which has filed numerous amicus briefs supporting credit unions that are being sued. “We will have to continue to fight this in a number of different states and in different courts, and we are hoping that once we get to the appellate court level we can continue to get good decisions and slow these lawsuits down.”
The law firms sending the demand letters to credit unions and filing suits, however, have not been slowed much by those positive outcomes in cases in which the judge has ruled that the suits have no merit or the plaintiff no standing to sue, noted Dempsey. In fact, she said that those losses even led to attorneys deploying countermeasures.
Leah Dempsey
“The lawyers filing these suits are starting to address the issues that are having them lose some cases, such as the plaintiff having lack of standing as a credit union member,” she said. “While we feel these new arguments are meritless, the lawyers are not running and hiding due to these losses. They are not going away anytime soon.”
DoJ Guidance
Credit unions have been demanding that the Department of Justice provide additional guidance as to what is needed from websites to comply with the Americans With Disabilities Act, but those demands aren’t likely to be met anytime soon, said Brandy Bruyere, VP of regulatory compliance at NAFCU, which also has been assisting CUs with amicus briefs. She noted that the DoJ has instead turned to Congress for direction, even as Congress has pointed back at the DoJ.
“We don’t expect the DoJ to act quickly. They certainly have not already, and we have had discussions with folks on Capitol Hill,” explained Bruyere. “The challenge here is the same Congressional committee that’s tasked with the Americans With Disabilities Act is also tasked with immigration. These legislators have a lot on their plates.”
Bruyere noted that a plaintiff’s attorney in an ADA case against a credit union in Virginia has appealed a decision to the Fourth Circuit Court of Appeals.
“So there is potentially a (positive) outcome coming at an appellate court,” said Bruyere. “While that would only be binding in the Fourth Circuit Court—Virginia, Maryland, North Carolina—once an appellate court weighs in it can have a persuasive impact even in trial courts outside their area. Again, however, the decision would not be binding outside the Fourth Circuit. But if we don’t get clear guidance, and if we don’t get some more positive decisions, this issue could continue on for quite some time. We certainly expect it to continue through 2018.”
While both trade associations continue to work with Congress and the DoJ, Dempsey said that one of the best moves for credit unions is to follow guidance provided by the Web Content Accessibility Guidelines 2.0 (WCAG), issued by the World Wide Web Consortium.
“Credit unions should continue to consider this private entity guidance,” said Dempsey. “If they can, they should come into compliance with it. While it is not a safe harbor, coming into compliance with the guidance makes it much harder for a legal firm to take action against you.”
Site Audits
Valerie Moss, senior director of compliance analysis, products and services with CUNA, said the WCAG guidance was created for web developers.
“What we are hearing from credit unions is that they are starting here, conducting an audit of their site and digital content based on these guidelines, to just see where they stand and determining how many changes may need to be made,” Moss said.
Credit unions are also reviewing vendor contracts with online banking providers to determine whether a vendor’s site is WCAG compliant, she said.
“They don’t want members having problems going from one of their sites to another,” Moss said. “They want to make sure all of the sites they offer are accessible to the disabled.”
It’s going to take time to make the changes for most credit unions, said Moss, who termed the effort “likely a long-term process.”
“Credit unions have to look at their websites, digital content, mobile apps…,” she said.
Some of the changes credit unions are making, Moss said, include addressing their websites’ videos.
Brandy Bruyere
“If I am blind, my screen reader needs to be able to tell me what’s on the screen—tell me about what I cannot see,” Moss said. “So making sure sites have these kinds of assisted technologies. Assisted technologies are the main point of WCAG, now basically the de facto standard in the absence of regulations from the DoJ.”
Dempsey said it can be costly for credit unions to bring their sites into compliance with WCAG guidance.
“We have heard quotes ranging from $7,000 to $50,000 depending on the scope of the site,” said Dempsey. “This is certainly a lot of money for smaller credit unions. And once you bring your site into compliance, there are the ongoing costs for when you update your site.”
Yet there is little choice for credit unions.
“The demand letters, the calls for settlement, arguing a motion to dismiss and litigation in general, this is all very expensive,” said Dempsey, who reminded that settling with one legal firm does not prevent another lawyer from filing another suit. “This is a huge resource drain on credit unions.”
Not Hiding
But Moss said that many credit unions are not ducking their heads and hoping they don’t receive a demand letter.
“Credit unions are taking this very seriously,” Moss said. “They are being very proactive. They not only want to avoid potential legal issues, but also want to make their sites accessible to all members.”
Bruyere said that some credit unions are assessing their own websites based on what they are hearing plaintiffs’ attorneys are citing as issues.
“They are saying, ‘OK, these attorneys are going after this and that, so how does our website look?’ Some are addressing issues this way, addressing specific issues brought out in cases and fixing those, hoping to ward off litigation, make themselves less of a target,” Bruyere explained. “We are also seeing what we are calling a website accessibility statement being added to credit union sites—something that is screen reader compatible. It shares a general message that if you are visually impaired and having difficulty accessing the site to call a number for assistance.”
What may be the biggest challenge for credit unions, said Bruyere, is determining which content to address first. She said some credit unions are prioritizing information on how to join and how to open a product online.
To date, credit unions in 25 states have received demand letters, with Arizona one of the latest to join the growing list, sources said.
Dempsey said that what is most frustrating about the situation is that it is clear the legal action is not being conducted to benefit consumers.
“In these legal actions, these lawyers appear not to be too concerned about making things better for consumers,” Dempsey said. “Why I say this is that they are not giving credit unions time to come into compliance—sometime all that is given is a week to respond to a demand letter. In some cases lawsuits are being filed without giving the credit union any notice at all. We have seen credit unions in the middle of bringing their sites into compliance with WCAG 2.0 receiving demand letters. They bring to the lawyer’s attention what they are doing, yet it does not prevent legal action. This shows us that the lawyers have no desire to see that credit unions bring their sites into compliance, they just want the money.”