The Digital Accessibility Crystal Ball: What Does the Future Hold?

Transcription

1 The Digital Accessibility Crystal Ball: What Does the Future Hold? Content provided by Level Access and the quoted attorneys is intended for general information and education. The materials and facts presented do not constitute legal advice and should not be relied upon in the face of pending litigation. If you have specific legal questions, please contact a lawyer INFO@LEVELACCESS.COM

2 Table of Contents Introduction... 3 What notable cases have happened recently?... 3 Do court decisions reduce uncertainty?... 4 Will Winn-Dixie affect cases going forward?... 5 Why are so many lawsuits settled before they go to court?... 6 What's in the future of case law?... 6 Are digital accessibility lawsuits going to continue in the future?... 7 Are there any areas where we may see fewer lawsuits?... 8 Will the Trump administration mean less enforcement of accessibility regulations?... 8 Will there be new regulations? Or deregulation?...10 Is Congress likely to take action on the ADA?...12 What do businesses want as far as accessibility regulation?...13 Glossary of Terms...14 Parting Wisdom...15 Bios INFO@LEVELACCESS.COM 2

3 Introduction Digital accessibility measures the usability of electronic information, primarily websites and mobile apps, by people with disabilities. For example, people who are blind or with low vision access the Internet through assistive technology, such as a screen reader that reads the text on the screen out loud. People who are deaf often depend on closed captioning to enjoy watching videos. In addition, compatibility with alternative input devices for websites are important for people with mobility issues who may not be able to use a mouse or a keyboard. Legally speaking, certain organizations in the U.S. are required to keep digital accessibility in mind. The federal government (and some state and local governments) is bound by Section 508 of the Rehabilitation Act, requiring the agency to consider digital accessibility when procuring new hardware and software. However, for private companies, there is no explicit rule that their websites must be accessible. Despite the lack of clear regulations, many courts have maintained that there is an implicit requirement of digital accessibility in Title III of the Americans with Disabilities Act (ADA). Title III of the ADA requires that places of public accommodation are made accessible to people with disabilities. Some courts, and the Department of Justice (at least under the Obama administration), have advocated the idea that a website can be a place, and therefore is bound by the ADA. Because the ADA was originally passed in 1990, digital accessibility advocates called for new regulations to bring the ADA up to date with new technology. Although new regulations have been proposed for over a decade, nothing has been adopted. The lack of regulations in this area has led to a dramatic rise in lawsuits in recent years. Given President Trump's stated goal of deregulation, we wanted to know what the next few years may hold for digital accessibility. We talked to several attorneys who work in digital accessibility to forecast what may happen in the future. What notable cases have happened recently? One of the most talked-about decisions from 2017, Gil v. Winn Dixie Stores, Inc., came from a federal district court in Florida. Winn-Dixie runs a chain of supermarkets, predominantly in the Southeastern United States. The case involved a plaintiff, who is blind, who could not access Winn-Dixie s website. What made the case significant was that it was a bench trial, and the judge issued an opinion on the merits of the case. The judge ruled that the ADA requires websites to meet the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) standards. However, the WCAG 2.0 standards have several levels of success criteria, and no guidance was given on which successes criteria to use. Winn-Dixie is currently appealing the verdict in the Eleventh Circuit Court of Appeals INFO@LEVELACCESS.COM 3

4 Many cases never get to trial. The timeline usually looks like this: 1 A lawsuit is filed by a plaintiff who cannot access a website. 2 The defendant files a motion to dismiss the lawsuit, alleging that the ADA does not require websites to be accessible to people with disabilities. 3 The court rules to either grant or deny the motion to dismiss. 4 3 If a motion is denied, it just means that the case can move forward in court; at this point, however, most cases are settled. Two cases that highlight the discrepancies in court rulings both come from the Central District of California, Robles v. Domino s Pizza and Gorecki v. Hobby Lobby Stores. The cases were heard by different judges. Both cases involved plaintiffs who were blind and unable to access the defendants websites. However, the judge in the Domino s case granted the defendant s motion to dismiss, while it was denied in the Hobby Lobby case. Though the fact patterns in the two cases were not identical, they were similar enough to create more uncertainty in the field of digital accessibility. Do court decisions reduce uncertainty? Since there are no explicit digital accessibility requirements in the ADA, the law in this area is cobbled together from a handful of court decisions. It seems that each court decision has its own unique spin on the ADA. Does this growing body of case law make things any clearer? Kristina Launey, Partner, Seyfarth Shaw LLP Each time a new [case] comes out, whichever side you re on, you re going to point to it and say that s good news. Ultimately, cases are still coming down different ways depending on the judge. I know that the plaintiff s attorneys were saying the Blick Art case was a total game-changer and we disagree. We think that judge relied on a case that really didn t stand for what he held it out to stand for. So, it s distinguishable. And all the rest have specific factual situations. These cases are part of a growing body of decisions that you can point to if you re trying to say that you can look at what this other judge did, but none of them are precedential yet. And again, they all depend on different facts and different arguments. You always have to remember that a judge is deciding a case based on the facts put in front of that judge. If the plaintiffs don t make certain arguments or don t put certain facts before the judge, the judge may not be ruling on the whole story. It s always tough for someone to say, 'Look at this case, it s the end-all, be-all' INFO@LEVELACCESS.COM 4

5 Donald Brown, Partner, Mannatt, Phelps, & Phillips LLP "If [digital accessibility] makes its way to a decision by a federal Circuit Court of Appeals, that could be very important and would likely have a huge impact even in courts beyond that particular circuit, so long as the decision wasn t extremely fact-specific. Until then, all we have are largely fact-specific decisions by federal district courts, which are not binding on anyone else." Will Winn-Dixie affect cases going forward? The Winn-Dixie case also divided the attorneys. Some saw it as an important case that will have impact for years to come. But others looked at it as another fact-specific case that has limited applicability to other cases. Nicole Sieb Smith, Partner, Rumberger Kirk & Caldwell [Winn-Dixie] is a real cautionary tale for businesses that think they can sit back and not be proactive in terms of their remediation efforts. They can really get hit pretty hard and have a court fashion a remedy for them. Even though the present administration is very clearly not going to be moving forward in this space with implementation of any type of regulations that would clarify the accessibility of websites and mobile apps, that s not going to stop private plaintiffs and nonprofit groups from moving forward and frankly, it might even embolden them to press ahead because of the lack of clarity and the conflicts in the courts right now. I think [Winn-Dixie] is impactful. I think people are taking note that this is a seminal decision. Let s see what the Eleventh Circuit Court of Appeals has to say now that it is up on appeal INFO@LEVELACCESS.COM 5

6 Why are so many lawsuits settled before they go to court? Although there is an increasing amount of case law in digital accessibility, it s hard to argue that the digital accessibility requirements are clear. The overwhelming majority of lawsuits are settled before they go to court for two major reasons: 1) it is often cheaper to settle than to go to court, and 2) arguing against a plaintiff with a disability could lead to bad publicity for the defendant. In addition, many of the court decisions that we have are from lower courts and some are very fact-specific decisions. Although courts have not reached consistent verdicts, many courts have been sympathetic to the plaintiffs in these cases. Olabisi Ladeji Okubadejo, Of Counsel, Ballard Spahr LLP For an accessibility issue that goes before a judge, a jury, or any kind of decisionmaker, there is some risk because most people know someone with a disability or have someone in their family who has a disability, if they don t have one themselves. There is some level of empathy for someone who is trying to navigate the world not being able to see it. And many of the tools that are online are even more meaningful for people who cannot drive because they are blind or may have some difficulty getting around. There are some things that just make sense, and I think that are intuitive to a decision-maker as they are thinking about accessibility. What's in the future of case law? One area where the attorneys had differing opinions is whether the cases we ve seen so far set any kind of precedent for future decisions. Robert L. Duston of Saul Ewing, LLP mentions a 2016 non-digital accessibility case from the Supreme Court, Spokeo, Inc. v. Robins, where the court held that in order to bring a lawsuit, a plaintiff must show that they were harmed by the defendant and the injury must be both concrete and particularized. What made the [Winn-Dixie] case significant was that it was a bench trial, and the judge issued an opinion on the merits of the case INFO@LEVELACCESS.COM 6

7 Robert L. Duston, Partner, Saul Ewing Arnstein & Lehr I actually think that the most significant trend that we re going to see in ADA and Section 504 is not coming out of the Department of Justice or other federal agencies, but the Supreme Court decision, Spokeo, Inc v. Robins. This was not an ADA case, but it was a case on Constitutional standing and what injury-in-fact actually means. I think we re going to see a significant increase in federal courts being very receptive to the idea that unless a plaintiff can show that they were actually harmed in some way and prevented from shopping or prevented from accessing goods and services or participating in because of a clear barrier and will be prevented in the future they are not going to be able to state a claim. The contention that you can just encounter a barrier and know that it will interfere because you have a disability is not going to be enough. As far as digital access, a plaintiff will have to explain how the particular elements or functionality that did not meet WCAG 2.0 hindered their ability to shop online or to access good or services. If a blind person is trying to shop online, are the directions to the store critical? Most of the clients behind these suits are going to have difficulty saying that they just needed to see the information of this website or of this school. Are digital accessibility lawsuits going to continue in the future? Nearly everyone agreed that, in the absence of regulations or a higher court decision, we are going to continue to see uncertainty. Plaintiffs are going to continue to look to the courts for relief. Nicole Sieb Smith, Partner, Rumberger Kirk & Caldwell I think there s going to be continued filings throughout the country. I think we ve only seen the tip of the iceberg. I don t think with this administration we are going to see any type of regulation, so it s going to be left to the courts to decide. And just like remediation, it s a slow process; the wheels of justice turn pretty slowly too. And perhaps one day it will go to the highest court in the land, but that could still be years in the future INFO@LEVELACCESS.COM 7

8 Court Hierarchy Are there any areas where we may see fewer lawsuits? Robert L. Duston mentions that the websites of Internet-only businesses may not see as many digital accessibility lawsuits as the websites of brick-and-mortar stores. The ADA applies to places of public accommodation. Although many courts accept the argument that a website with sufficient nexus to a physical store qualifies as a place, the issue is far from resolved for businesses that only operate online. In 2017, a federal district court in New York denied the defendant s motion to dismiss in Andrews v. Blick Art Materials. Blick is an online-only retailer that sells art supplies. Robert L. Duston, Partner, Saul Ewing Arnstein & Lehr I think the one area where there may be still be less risk is in pure online entities, which have no brick and mortar presence or no physical structure. There is still a lack of clarity whether they are a public accommodation. Another category is business that sell or provide services only to other businesses, and not at retail. There has always been an exclusion for wholesalers and vendors. Will the Trump administration mean less enforcement of accessibility regulations? There are several actions the Department of Justice could take under the Trump administration, including passing new regulations and aggressively acting as advocates for plaintiffs. However, inaction is also a possibility. Shanti Atkins of NAVEX Global frames the possible changes under the new administration, if anything changes at all. It boils down to three scenarios: new regulations, deregulation, and nonenforcement INFO@LEVELACCESS.COM 8

9 Shanti Atkins, Founder, NAVEX Global There are three questions. Are there going to be new regulations? I think the appetite for that is going to be pretty low across the board. Are we actually going to undo some of what is already around? I m not an expert in technical accessibility regulations, but there s a very strong sentiment that there s going to be a tremendous state of flux for the regulatory environment in general. Financial regs are going to get the most attention, but accessibility protections I feel are unlikely to be targeted. And the third question is, aside from new regs or regs being undone, what s the enforcement appetite like? A great example of that is immigration reform, a lot of which isn t necessarily creating new laws and regulations; it s just the level and fervor of enforcement for what already exists. But whether government enforcement ramps up or down, the private litigation engine is likely to continue in full force. These are the three areas that are going to be looked at really closely. Under the Obama administration, the DOJ was very active in digital accessibility lawsuits, often acting as an advocate for plaintiffs who claimed that inaccessible websites violated the ADA. Are we going to see a change in approach from the government with the current administration? Robert L. Duston, Partner, Saul Ewing Arnstein & Lehr We ve all been through past changes in administrations, and know that in the Civil Rights Division in general, and particularly in the Disability Rights Section, there has been far less movement and change between administrations than in many other areas of the Department of Justice. We saw it with the change over to the Bush administration. In particular, you saw a lot more efforts at conciliation. You saw a softening of enforcement and a shift to education in other areas. They were not as aggressive with fines and penalties and not as expansive in trying to push new areas. But they still enforced the law and digital accessibility piece in general. That s so well-established in DOJ precedent, going back to the Target decision. That s not going to change. Nor is the idea that web access are part of the online services offered by brick and mortar colleges and universities. That s not going to get rolled back. The Department of Justice will not take that as a priority or push them, but DOJ has not been at the forefront of a lot of this in the last three years anyway; it s been Department of Education investigations and private lawsuits. I ve had to explain to clients that just because the current administration might choose to dial it back, it does not mean the courts are necessarily going to do the same INFO@LEVELACCESS.COM 9

10 Teresa Jakubowski, Partner, Barnes & Thornburg LLP As a practical matter, I don t think [the new administration] is going to affect the degree of enforcement in this area. I think it could shift the form of it. Because heretofore, enforcement has always been a mix of administrative agency and courts, and the courts of course are going to look to the Department of Justice to see what their position is and look at it as persuasive authority. The former administration was very aggressive in participating in court cases, once they were filed by other people, even if they weren t, at least in my opinion, pursuing the regulatory process with as much zeal as they possibly could have. I think it s realistic to note the fact that, irrespective of what the current administration decides to do, whether it decides not to issue regulations or decides to say they re not going to enforce in this area, there are already case decisions on the books about this. So, members of the disability community and the disability advocacy groups, not to mention the attorneys are not going to stop pursuing claims. I ve had to explain to clients that just because the current administration might choose to dial it back, it does not mean the courts are necessarily going to do the same. Will there be new regulations? Or deregulation? As of December 26, 2017, proposed updates to ADA regulations were officially withdrawn by the DOJ. This withdrawal does not preclude the DOJ from proposing new rules, but no further progress is anticipated at this point. But beyond deregulation, there is a question of whether some of the existing regulations will be repealed. Even if the DOJ does not take action to help people with disabilities, most experts agree that plaintiffs will turn to the court system. Olabisi Ladeji Okubadejo, Of Counsel, Ballard Spahr LLP I think that even though this administration seems to be very much in favor of deregulation, saying things like to get a rule issued, you need to withdraw two existing rules, which suggests that we re unlikely to see web accessibility regulations to come out any time soon. The current murkiness will only get less clear INFO@LEVELACCESS.COM 10

11 Donald Brown, Partner, Mannatt, Phelps, & Phillips LLP "It doesn't look like there will be online accessibility regulations in this administration. And the lack of specific regulations creates uncertainty regarding DOJ enforcement, as opposed to private enforcement, which is where most of the activity is coming from." One bill, the ADA Education and Reform Act of 2017, would limit the ability of plaintiffs to file lawsuits with regards to physical accessibility. David F. McDowell, Partner, Morrison Foerster [On new regulations] That train has already left the station. Regulatory action would be better than inaction at this point, given that right now the standard is going to be whatever some judge in some courthouse decides you re going to be obliged to do. Regulatory inaction is not going to turn back that clock. ADA Title III Lawsuits in Federal Court ( ) Graph information compiled by the Seyfarth Shaw law firm

12 Is Congress likely to take action on the ADA? With the sheer number of lawsuits and demand letters being generated in the name of digital accessibility, we often see the lawsuits being called frivolous by the popular media. A Congressional act could limit lawsuits under the ADA. One bill, the ADA Education and Reform Act of 2017, would limit the ability of plaintiffs to file lawsuits with regards to physical accessibility. Instead, businesses would be given time to remediate their facilities after a complaint is issued. Though nothing similar is currently in the works for digital accessibility, could the ADA, as a whole, land on Congress s radar? Teresa Jakubowski, Partner, Barnes & Thornburg LLP The prospect for legislation is uncertain at this point. There is concern on both sides of the political spectrum about abusive lawsuits, but less agreement on the manner in which the problem should be addressed. Neither side is adverse to accessibility for individuals with disabilities. It is just a question of addressing the abuse without undermining the rights of individuals with disabilities who have legitimate claims. Robert L. Duston, Partner, Saul Ewing Arnstein & Lehr In Congress, the most likely course is a broader-based push to stop drive-by lawsuits. They could translate the old notice and cure legislation into something that would require, for example, notice and specific evidence that an individual has been harmed, and particularly take the Supreme Court s Spokeo standard of standing. There have been so many people complaining about drive-by litigation over the years, and digital accessibility is just the latest bandwagon that plaintiffs are jumping on. If the business community is not crying about it and somebody isn t taking it up as a major issue, that s not going to be on Congress s radar screen. In general, the ADA has been the third rail of politics. No one wants to touch it. Kristina Launey, Partner, Seyfarth Shaw LLP I think the only thing you can say for certain is that companies can t sit around and wait for regulations anymore. They can t say they re just waiting for the regulations to come out because they re going to be waiting forever." Many of the tools that are online are even more meaningful for people who cannot drive because they are blind or may have some difficulty getting around INFO@LEVELACCESS.COM 12

13 What do businesses want as far as accessibility regulation? One thing was abundantly clear when speaking with practitioners. In digital accessibility, many businesses would vastly prefer concrete regulations and deadlines, as opposed to our current state, where businesses have to guess what their digital accessibility standards should be. Olabisi Ladeji Okubadejo, Of Counsel, Ballard Spahr LLP The clients I ve been working with still seem to be feeling like [digital accessibility] is something that they need to focus on. And I think some of that has to do with the persistent demand letters that are continuing to be issued, as well as the significant increase in litigation. I think [demand letters and lawsuits are] forcing businesses to continue to be aware of the issue, to have it in the front of mind. Teresa Jakubowski, Partner, Barnes & Thornburg LLP You have businesses saying, Look, the U.S. Department of Justice said it was going to issue regulations. It s not cheap to do this. Yes, WCAG 2.0 AA is out there, but many aspects of it are subject to interpretation. Tell me what I need to do. It s not an area where you want ad hoc decisions court-by-court defining what is an accessible website. This is an area that lends itself to some type of regulatory guideline, whether that s with respect to the technical criteria that a website is going to have to comply with or alternatively, just looking at different issues in terms of the scope of content, like we saw in the Department s Title II SANPRM. Although courts have not reached consistent verdicts, many courts have been sympathetic to the plaintiffs. David F. McDowell, Partner, Morrison Foerster Even before this president got elected, we ve been saying we d be better off with some regulation: some timeline that told people what we were supposed to be doing, when they were supposed to be doing it, and giving them a timeline to do it. Issue some regulations and tell me what the rules are. Tell me when I have to do it, and I ll do it. But don t tell me well, gee, we re going to get some regulations out and in the meantime, the DOJ is taking this litigation position and the plaintiff s lawyers are taking that position and lawyers are agreeing with them and we re now sort of stuck between a rock and a hard place INFO@LEVELACCESS.COM 13

14 Nicole Sieb Smith, Partner, Rumberger Kirk & Caldwell Imagine if you re a business that has a national footprint, as many of my clients do. If you are operating a website throughout this country, right now you kind of have to piecemeal together what the rulings have been from all the different districts and divine what your business should be doing in order to comply. How much easier would it be to have one national standard? I think that the thing businesses and Wall Street like least is uncertainty. And that s what the lack of regulations have been breeding here. There is a lot of uncertainty as to what is required in order to comply. So, it s unfortunate that we re here, but I think that most of my clients have been taking the position that the safest bet is to be proactive and go ahead and start working on accessibility. It s difficult because, as you know, it s not something that you can accomplish overnight. Websites are not static. They are dynamic. They are constantly changing content, so while you re going through this remediation process, you re still getting lawsuits. Glossary of Terms Accessibility: the extent to which a product is functionally usable by people with disabilities Assistive technology: tools used to increase, maintain, or allow access to something that would otherwise be difficult or impossible for a person with a disability to access Blind: having no usable level of visual perception Cognitive disability: a range of disabilities that may cause difficulty understanding or performing certain tasks Deaf: having no usable perception of sound Hard of hearing: having limited sound perception Limited mobility: having limited control of the physical body or pain when moving Low vision: having limited visual perception Notice and cure legislation: Under notice and cure legislation, the party that has allegedly committed a violation of the law must be given notice of the violation, as well as a period of time to cure the violation, before a legal action may be initiated. If they cure the violation within the specified time, then no further legal action may be taken SANPRM: Supplemental Advanced Notice of Proposed Rulemaking. In this context, SANPRM refers to the proposed changes to the ADA that would have made digital accessibility an explicit requirement Speech impairment: a range of disabilities ranging from no speech to difficulty speaking clearly INFO@LEVELACCESS.COM 14

15 Parting Wisdom Digital accessibility continues to be a thorny legal issue. Many businesses are faced with demand letters and lawsuits, while many plaintiffs find their best legal recourse is through the courts. Clear regulations for digital accessibility had been stalled for over a decade, before being withdrawn by the DOJ. New regulations are unlikely to be promulgated under the Trump administration. Although court decisions have generally favored plaintiffs, they are not binding, as many are fact-specific and decided in lower courts. Lawsuits tend to settle before they reach higher courts since it s often cheaper to remediate a website than to litigate, and businesses do not want to attract bad publicity. Winn-Dixie was the first case where a judge wrote a decision on the merits. The judge held that the defendant s website is required, under the ADA, to meet the WCAG 2.0 standards. Digital accessibility lawsuits are unlikely to cease in the future if nothing changes in terms of laws and standards. Although we are unlikely to get new regulations under the current administration, deregulation is somewhat unlikely. The most plausible scenario is inaction. Although the DOJ is probably not going to be as aggressive in enforcing digital accessibility, they will likely not ignore the issue. Congress may limit the so-called frivolous digital accessibility lawsuits, but is unlikely to repeal or modify the ADA. Most businesses would prefer clear digital accessibility regulations, as it gives them time to plan their remediation efforts and makes it explicit which standards are required. The safest bet for organizations is to be proactive about accessibility: build it into your software development lifecycle and you will mitigate the risk of legal actions against you INFO@LEVELACCESS.COM 15

16 Bios Shanti Atkins Founder, NAVEX Global Shanti Atkins was the driving force behind the creation of NAVEX Global, and has been an innovator in the governance, risk and compliance (GRC) space for more than fifteen years. A former attorney, she has specialized in the design of powerful ethics and compliance solutions for employers that create a culture of ethics, inclusion and respect. Shanti received her Masters of Law (LL.M.) from Harvard University, specializing in alternative dispute resolution (ADR) and corporate risk management. At Harvard she was a Viscount Bennett Fellow and served on the Harvard Negotiation Law Review. Well-known in the legal, ethics and HR industries, Shanti has been a featured expert in The New York Times, The Wall Street Journal, CNN, Corporate Counsel, Inside Counsel and HR Magazine, among others. Shanti is also a frequent lecturer and writer for several prominent professional associations. Kristina Launey Partner, Seyfarth Shaw LLP Kristina Launey is in the Labor & Employment Department of Seyfarth Shaw LLP and Managing Partner of the Sacramento office. A member of Seyfarth s ADA Title III Specialty Team, Ms. Launey regularly advises and defends clients in litigation arising under Titles II and III of the Americans with Disabilities Act and related California disability access laws - the Unruh Act and Disabled Persons Act. Ms. Launey has counseled clients on issues ranging from physical accessibility, to compliance with service animal, reservations, effective communication, ticketing requirements of California law and the ADA 2010 Standards, to cutting-edge digital accessibility issues. She is co-editor of Seyfarth s blog, and frequently speaks on accessibility issues INFO@LEVELACCESS.COM 16

17 Donald R. Brown Partner, Mannatt, Phelps, & Phillips LLP Don Brown handles complex commercial litigation at the regulatory, trial, and appellate levels, focusing on defending e- commerce, direct marketing, and media companies in consumer class actions and FTC investigations. In addition, Don advises a diverse clientele regarding compliance with the Americans with Disabilities Act, the Fair Housing Act, and state disability access laws. He helps retailers, banks, media companies, property developers, lodging companies, health insurers, nonprofit foundations, educational institutions, and interactive media manufacturers address disability access issues in a variety of contexts, including stores, housing, lodging, websites, interactive media and media streaming, ATMs, kiosks, point-of-sale devices, and health plan benefits. Don also defends disability access lawsuits and helps clients navigate and resolve prelitigation demands and federal and state government investigations. Olabisi Ladeji Okubadejo Of Counsel, Ballard Spahr LLP Olabisi Ladeji Okubadejo represents institutions of higher education and business entities in civil rights and employment matters, with a particular focus on matters arising from alleged discrimination on the basis of race, disability, age, religion, and sex, including sexual harassment and sexual violence. She has experience both as an attorney in private practice and with the U.S. Department of Education s Office for Civil Rights (OCR). She advises clients on complying with various federal laws, including the Americans with Disabilities Act (ADA), Titles VI and VII of the Civil Rights Act, Title IX, the Clery Act, the Violence Against Women s Act, FERPA, Section 504 of the Rehabilitation Act, and the Age Discrimination Act. At the Department of Education, Bisi was most recently an OCR Supervisory General Attorney, managing civil rights attorneys and equal opportunity specialists who investigated discrimination complaints against educational institutions INFO@LEVELACCESS.COM 17

18 Robert L. Duston Partner, Saul Ewing Arnstein & Lehr Rob Duston is a business lawyer and litigator who helps a wide range of businesses, schools and other entities in three areas of the law: compliance with the public access requirements of the Americans with Disabilities Act ( ADA ), Fair Housing Act ( FHA ), Section 504 of the Rehabilitation Act and similar laws; employment and labor issues likely to significantly impact operations or lead to negative media attention; and legal issues affecting higher education and schools in these and other compliance matters, including Department of Education s Office of Civil Rights ( OCR ) investigations. Rob s ADA/FHA/504 work is informed by his personal experience with children and adults with disabilities and practical experience managing a major church building project. Over his 25 years of handling these legal matters, Rob has dealt with innumerable types of accommodations and accessibility questions and complaints. Nicole Sieb Smith Partner, Rumberger Kirk & Caldwell Nicole Smith represents employers in the public and private sectors in cases involving claims of discrimination, harassment, whistle-blower violations, wrongful termination, retaliation, and violation of civil rights. Nicole also has particular experience in defending website inaccessibility claims brought under the ADA and the Rehabilitation Act. She is an experienced speaker on the topic of website accessibility, and is able to assist her clients to identify the legal considerations involved in auditing and remediating web content and to retain appropriate consultants INFO@LEVELACCESS.COM 18

19 David F. McDowell Partner, Morrison Foerster Throughout his career, David McDowell has been on the forefront of legal issues facing retailers and consumer product manufacturers. With nearly 30 years experience advising retailers and consumer product companies, Dave speaks the language of his clients, providing practical and timely legal advice that is tailored to today s fast moving retail environments. As part of his regular practice focus on unfair business practice issues, false advertising, and other consumer class action litigation, Dave is currently working extensively in areas where consumers directly interact with technology, such as privacy and data security and accessibility under the ADA and related laws. Dave represents a myriad of companies in claims brought by consumers, the DOJ, and advocacy groups regarding accessibility barriers to technology. He represented Netflix, Target, and H&R Block in groundbreaking cases over the accessibility of websites, mobile applications, and streaming video technology. At the same time, he has successfully defeated penalty claims brought by putative classes relating to accessibility issues. Dave is presently advising various numerous Fortune 500 companies on regulatory and compliance issues under the ADA, Rehabilitation Act, Video Communications Act, California Unruh Act, and other laws. Teresa L. Jakubowski Partner, Barnes & Thornburg LLP Teresa L. Jakubowski is a partner in Barnes & Thornburg LLP's Washington, D.C., office where she practices labor and employment law and chairs the firm s accessibility and disability law practice. Her practice includes providing legal counsel and representing clients in litigation and administrative proceedings in the areas of accessibility for individuals with disabilities; employment law, particularly discrimination/equal employment matters; the Family and Medical Leave Act of 1993 (FMLA); wrongful discharge; state employment laws; and fair housing. Ms. Jakubowski s accessibility and disability practice focuses on all facets of compliance with the Americans with Disabilities Act of 1990 (ADA), Sections 504 and 508 of the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988, and analogous state and local laws INFO@LEVELACCESS.COM 19