ARLINGTON, Va.—What are credit unions to make of the latest decision in a lawsuit over digital access and the Americans with Disabilities Act?
The answer is as clear as a double-cheese pizza, according to analysis by NAFCU, which said the decision could mean even more worries for credit unions facing such suits, or in light of other recent developments it could indicate calmer waters could be ahead.
As CUToday.info reported, in a lawsuit filed against Domino's Pizza, the U.S. Court of Appeals for the Ninth Circuit ruled that ADA requirements are applicable to websites and mobile applications.
"The Ninth Circuit upheld the Justice Department's longstanding position that ADA protections apply to websites, but provided no further clarity on what that entails. Additionally, the court went a step further by determining the ADA also applies to mobile apps," said Carrie Hunt, NAFCU's executive vice president of government affairs and general counsel.
Hunt said the decision, which overturned a lower court ruling, could present issues for CUs.
“I will note in the underlying case that the Ninth Circuit overturned, the issue of mobile apps was always on the table, so the lower court looked at websites and mobile apps and it was always part of the discussion,” Hunt said. “But this Ninth Circuit decision is the first time we have this explicit discussion that really pulled in mobile apps.”
Back in the Same Position
Hunt told CUToday.info it’s hard to predict whether or not this Ninth Circuit Court decision will directly result in increased litigation.
“For the most part, we are still back in the same position that we were in, that there is no clarity coming out of the Department of Justice and we will continue to see lawsuits, given the lack of clear guidance, even if this Ninth Circuit case had not come forward,” said Hunt.
As both NAFCU and CUNA have strongly emphasized, the Americans with Disabilities Act lacks sufficient guidance on websites. The Department of Justice has never promulgated regulations regarding website accessibility for public accommodations and has withdrawn previously issued advanced notices of proposed rulemakings
Carrie Hunt
on this subject.
Hunt acknowledged the Ninth Circuit Court’s focus on mobile apps and not just websites for ADA compliance could open up a new set of issues for CUs to address with their digital communications and possibly give attorneys another avenue to pursue. But she believes attorneys, based on results of past cases in which credit unions have had cases dismissed due to plaintiff’s lack of standing—as they were not members—will mean other businesses are targeted ahead of credit unions.
The Standing Issue
Hunt added said a lack of new ADA legal actions against credit unions has influenced her outlook.
“Over the past several months we have seen a dramatic decrease in new ADA filings against credit unions—none in the last two months. And, hopefully, because of the standing issue,” said Hunt. “Plaintiffs and lawyers will choose the path of least resistance and sue other entities. Still, it is hard to predict the future.”
Hunt said she believes attorneys are realizing that when it comes to ADA website lawsuits, it’s easier to sue other companies and retailers than credit unions.
“That’s my belief based on what I have seen. And, part of NAFCU’s strategy in filing amicus briefs and pushing back in these cases is to get this result,” she said. “We will see if this trend of no new filings against credit union continues.”
Hunt said if this new decision brings greater focus on ADA accessibility for websites and mobile apps, credit unions are ready.
Overturned Ruling
Hunt noted the Ninth Circuit Court’s decision overturned a lower court’s ruling.
“So now this gets pinged back to the lower court to examine again some of the issues,” said Hunt. “Certainly the Ninth Circuit Court made its opinion clear that, at a basic level, the ADA applies to websites and mobile apps.”
Hunt emphasized credit unions recently received a positive ADA website ruling in the Court of Appeals.
“On the flip side, we just saw a victory in the Fourth Circuit Court, which affirmed a dismissal of an ADA case against a credit union on the basis of standing,” she said. “The Domino’s case will have precedent in courts served by the Ninth Circuit Court, but we could see other courts go in a different direction. But the Domino’s case just creates additional uncertainty in this already uncertain area of law.”