LAWSUIT THREATS: ADA TITLE III & TERMS OF USE - NJ TCCWNA. Dan Blouin Seyfarth Shaw LLP

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2 LAWSUIT THREATS: ADA TITLE III & TERMS OF USE - NJ TCCWNA Minh Vu Kristina Launey Dan Blouin Seyfarth Shaw LLP Melinda McAfee Abercrombie & Fitch

3 Presenters Minh N. Vu Partner Seyfarth Shaw LLP 975 F Street, NW Washington, D.C (202) mvu@seyfarth.com Kristina M. Launey Partner Seyfarth Shaw LLP 400 Capitol Mall Suite 2350 Sacramento, CA klauney@seyfarth.com Daniel M. Blouin, Partner Seyfarth Shaw LLP 131 South Dearborn St Suite 2400 Chicago, IL dblouin@seyfarth.com Melinda R. McAfee, Esq. Vice President & Associate General Counsel Abercrombie & Fitch 6301 Fitch Path New Albany, Ohio Melinda_McAfee@anfcorp.co m 3

4 ADA Title III Website Litigation FAQs 4

5 How does website access litigation fit within the ADA Title III framework? ADA Title III prohibits discrimination by public accommodations against individuals with disabilities. Equal access to goods, benefits, and services Auxiliary aids & services (e.g., accessible electronic information technology) must be provided absent undue burden or fundamental alteration No regulations specifically mention websites or standard for accessible websites Proposed regulations for public accommodations websites pushed back to 2018 DOJ will issue proposed regulations for state and local government websites first. 5

6 What are we seeing now in terms of website access litigation? 63% in federal ADA Title III lawsuits over 2015 based on mid-2016 data More than 200 website accessibility lawsuits filed since beginning of mostly in FL, PA, CA, NY Thousands of demand letters from 5-6 firms 6

7 Litigation Trends ADA Title III Lawsuits Nationwide in Federal Courts 7

8 Litigation Trends Five States with Most ADA Title III Lawsuits* * Filed in a Federal Court 8

9 How are businesses responding to these lawsuits and demand letters? Virtually all matters settle Attempts to fight have generally been unsuccessful Huntington Bank Harvard/MIT Bags & Baggage Harbor Freight 9

10 Which resolution options are best for preventing a future suit? Settlement without commitment to make website conform to WCAG 2.0 AA Settlement with commitment to make website conform to WCAG 2.0 AA in some reasonable time Consent Decree with commitment to make website conform to WCAG 2.0 AA Class action settlement with commitment to make website conform to WCAG 2.0 AA 10

11 How well would the following defenses work in a website lawsuit? There are no regulations yet Plaintiff lacks standing Alternative means of access provided (e.g., phone) You are already working on your website Website is useable by someone with the plaintiff s disability Barriers on website don t affect plaintiff 11

12 What is the usual process for making/keeping an accessible website? Commitment to meeting a certain standard (e.g. WCAG 2.0 AA) Expert does audit and produces report Website development team implements changes to website Revise processes for changing website structure & content Regular monitoring and auditing User feedback & complaint mechanism 12

13 What are some of challenges in making and keeping a website accessible? Client buy-in Finding the right consultant Finding skilled employees or vendors to fix website Getting vendors to cooperate Making sure changes to website don t negatively impact accessibility 13

14 What is the New Jersey TCCWNA? 14

15 What is the New Jersey TCCWNA? AKA Plaintiffs Attorneys Full Employment Act New Jersey Truth in Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14 Stated intent - protect consumers from onesided consumer contracts Stated concern consumers would see unenforceable terms in contracts and not exercise their rights 15

16 Un-waivable Protections Under NJ Law According to plaintiffs bar Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable N.J.S.A. 12A:2-719(3) Sellers cannot insulate themselves from damages for intentional or wanton acts. Sponsors Statement (May 1, 1980) Cannot preclude recovery for attorneys fees and costs. [Exclusion of implied warranties has not been challenged.] 16

17 What Can I do? 17

18 Legal Defenses Lack of Article III Standing (no injury in fact) Inadequate allegations regarding violation of clearly established legal right Choice of law language Arbitration Oppose Class Certification 18

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20 Modify Agreement Delete language being challenged Insert NJ qualifying language 20

21 Social Q&A

22 Questions? THANK YOU FOR COMING!! 22