- [Mark Miller] Stefani? - [Stefani Cuschnir] Yep. - Would you like me to put up the slides now? - [Stefani Cuschnir] Yeah, I was assuming that you were doing that. Sorry, I don't have them. Thanks, everybody, for joining us today. We'll begin momentarily. Okay, just 12 o'clock noon. Good morning, good afternoon, good evening, wherever you are. My name's Stefani Cuschnir. I'm part of the business development team here at TPGi. We're gonna get started with digital accessibility in 2024, legal update with Mark Miller and Kristina Launey and Ashley Jenkins. I have a few housekeeping items that I just wanna go over first. This session is being recorded, and we'll email everyone the recording after this event. We have captions available, so feel free to use them as needed. We're also going to have time for live Q and A. Please use the Q and A box, as we'll answer as many questions as we can at the end of the presentation. If something comes across that's relevant during the presentation, we might take a pause, but, in general, we like to do that at the end. Please try not to put your questions in the chat. Put them in the Q and A box 'cause they get missed if they're in the chat sometimes. And lastly, I'd like to mention that if anyone needs any accessibility support training or usability testing, I'll be sending out an email with a link to schedule a time to speak with one of our experts after the webinar. With that, I will turn it over to Mark Miller from TPGi to introduce himself and our guests. - Thank you, Stefani. I'm Mark Miller from TPGi. I'm director of sales here. Been in accessibility for over a decade now. Do quite a bit of work with the W3C and also speak on a regular basis. And I'm really pleased today to be joined by Kristina Launey and Ashley Jenkins, who are gonna help us understand what is new from a legal perspective around digital accessibility for 2024. So, with that, I'd like to turn it over to Kristina or Ashley. Ashley's gonna start. - Thanks, Mark, next slide, please. So this is just our legal disclaimer. You can read that on your own. Next slide, please. Great, so this is our agenda for today. We're gonna talk about six different items. The first one will be a brief legal overview, just so we can set the stage of where we are and why we're here today. Next, we're gonna discuss what it means to have an accessible website, and then we're gonna look at our law firm's data for ADA Title III websites for last year and the year before to show you the trends that we're seeing. Kristina will do a brief discussion of some brief takeaways from key lawsuits and settlements recently. And then, we'll finally turn to strategies for avoiding litigation and providing a roadmap for accessibility for your technology. Next slide, please. So this slide shows a list of the laws that may require accessible technology. First, there's Title II of the ADA, which pertains to state and local governments, Title III of the ADA, which pertains to public accommodations, Sections 504 and 508 of the Rehabilitation Act, which pertain to recipients of federal funding and technology sold to federal agencies. And there are state nondiscrimination laws. And then the Air Carrier Access Act, which requires primary websites of airline carriers to conform to WCAG 2.0. And finally, Section 1557 of the Affordable Care Act, which pertains to healthcare. Mark, did you wanna mention a little bit about the one that you have highlighted? - Yeah, so this is not, obviously, a US regulation, but it's also just important to note while you're considering kind of what's going on in accessibility globally, that the EAA has been working real hard, the European Accessibility Act, and there's actually some deadlines coming up for it. A 2025 deadline to be compliant. So, if you do business outside of the US, it's certainly something to pay attention to. - Great, thanks, next slide. All right, so this slide talks about the ADA. And for those of you who are unaware, the ADA is a federal law that prohibits discrimination against people with disabilities, and it covers various areas such as employment, state and local government, and public accommodations, which is what we will be discussing today. And a public accommodation is a private business that falls into one of 12 different categories, which we will discuss in a minute. Next slide, please. So under Title III of the ADA, public accommodations have certain obligations beyond simply refraining from treating a person with a disability differently. It's a unique statute in that it requires affirmative actions to level the playing field to ensure that people with disabilities have the same access to goods and services. The first affirmative obligation is to have physical facilities that are physically accessible to people with disabilities and then to maintain those features. What does that mean? For example, when you have accessible parking in front of your business, you must keep that parking clear of snow in the winter so that it's actually usable by individuals with disabilities. The second affirmative obligation is to make reasonable modifications to normal policies, practices, and procedures where necessary to ensure that people with disabilities have access to your services. The third and final obligation is to ensure effective communication with individuals with disabilities by providing them with auxiliary aids and services, which would include accessible electronic information, which is what we will be discussing today, at no additional charge. As a reminder, under Title III of the ADA, private individuals can sue for injunctive relief, which means that a court can make a business do what they should already be doing. They can also ask for attorney's fees and costs. There are no damages or penalties allowed under a private federal enforcement action, but there are damages allowed under certain state discrimination laws. Another enforcement mechanism is a DOJ action, which typically starts with an investigation, and then, if you come to an agreement with the DOJ, the investigation will end, so they don't file a lawsuit. But you will see that either way, the DOJ can seek a hefty civil penalty in addition to injunctive relief and damages. And in fact, we need to update this slide because just two days ago, the DOJ's penalties have gone up, so we'll be sure to circulate a revised deck. Next slide. - And two quick, two quick points- - Oh. - on that slide before we move on. So the reason why we're going through all of this, those of you who have been to some of these webinars before, thinking we know all this, right? We've heard all of this. But it's always important to level set because, as you're going to hear when we talk about the cases that we're going to talk about, we don't have regulations yet that set a standard for accessibility, nor is there any place in the ADA statute under Title III that says websites must be accessible, and this is how they must be accessible. So, Ashley just went through the main different categories of obligations under Title III of the ADA, so we can all remember that really what we're talking about here when we're talking about website accessibility is this effective communication obligation under the ADA, and that comes up in a lotta the case law that we're gonna talk about. - Thanks, Kristina, okay, as mentioned before, there are 12 categories of public accommodations, and this slide lists them. So, basically, if you're a place of lodging, a place that serves food and drink. We like to say if you open your doors either physically or virtually to the public and you provide a good or service, you are considered a public accommodation. Now, there's an interesting question here regarding if you are a virtual business and whether or not you must have a physical place in order to be considered covered under a public accommodation. And there's a circuit split. Right now, the Ninth, 11th, and Third Circuits say yes, you do have to have a physical place in order to be considered a public accommodation, and the First Circuit says no. Next slide. - And that means that all the rest of the circuits haven't decided on it yet, which is giving rise to a lot of the Wild West that we have in the case law. - Next slide, please. So, Mark, I'll turn it over to you to discuss what it means to have an accessible website. - Thank you, Ashley. So, yeah, there's a lotta things to consider when you're thinking about your website or an application or anything that's sort of presenting content or functionality from a digital standpoint. A lot of what we're talking about today, it's public-facing websites that people are most concerned with. So the question is, is can they be used by people with a variety of disabilities? And the guidelines, which we'll talk about soon, the WCAG guidelines, which are the most relevant, typically, when we're talking about these things, actually break that down into four categories. People who have vision disabilities, hearing disabilities, cognitive disabilities, and mobility impairments. So we can see here on this slide, if you have a vision disability, if you're blind, particularly, if you're blind and use a screen reader, alternative text for images, properly labeled form fields, proper use of headings, keyboard-only access, audio descriptions for videos. These are all important things so that that screen reader, that assistive technology can properly interpret the website and present that in a logical, understandable way to the screen reader user. If you just think about headings, for example, just a lotta the sites that we see, they may have a heading three followed by a heading one, right? Which visually, on the page, there may be some sense to it, but when the screen reader's trying to interpret it, those headings are all mixed up, and it causes confusion. And then, of course, people who are using screen readers rely on the keyboard to navigate. They can't navigate with a mouse. Just to give you a couple of examples of why these things are important. An image that conveys information can't be read by a screen reader. It needs a text equivalent. So if you're low vision, you may use something different. You may zoom in or use a combination of zooming and a screen reader. So things like color contrast for people who are low vision, so there can be difficulty in perceiving contrast, so if the contrast is too low, particularly if you have text on a background and the contrast is too low, it can be really difficult to perceive. And then, if the text on the site doesn't resize properly, then that zooming technology can't do what it needs to do for that user. People who have hearing impairments, of course, they rely on captions for any content that has audio. That could be a podcast, and that's probably more of a transcript, and we're all very familiar with the captions on a video. I'm sure you all have been out in public and been trying to watch your favorite sports game and been happy that it was captioned on the bottom because you can't hear it in the crowd, and so that's a case where that's benefiting more than just the people with that particular disability. Mobility, so people with mobility impairments, being able to access with a keyboard is also important to them. You may not be able to use your hands to navigate a mouse. I worked with someone who used a head wand, so think of like a kind of a stick coming out of, you know, a, what am I trying to say? Like a bandana on their head that enabled them to utilize their keyboard with that stick, but you can't use a mouse in the same way, so keyboard access was super important, as well as timeouts that didn't happen too quickly, right? Things could time out real quickly, and when you're working a little bit slower, that can cause some problems. And then, flashing content, of course, can be problematic for someone with epilepsy. And then, the color. The color contrast and then color not being used as an indicator alone. This actually came up for me earlier today, so imagine a bar graph, and that bar changes colors three times to indicate something, but the look of the bar doesn't change in any other way. A person who's colorblind may see that as one solid color or not understand or be able to perceive the colors in the key. And I believe, oh, so we were talking about the Web Content Accessibility Guidelines. This slide probably needs to be updated, too, because we have WCAG 2.2 that just came out at the end of last year. But the W3C, which is the World Wide Web Consortium, they have for many years published the WCAG guidelines and iterated them. They come in three levels, A, AA, and AAA. We consider AA to be market for striving for conformance, and they provide guidance on how websites and applications should behave. They are guidelines. It's right in the name, Web Content Accessibility Guidelines, so it's not a set of requirements that you apply to at 100%, but a set of success criteria that will guide how you can make your websites and applications accessible. And then, as it says here, and I'm sure that Ashley can add more color to it, but it's not a legal standard. This nonprofit group, the W3C, is creating it for guidance, but there's nothing in Title III that points to it and says that's what you have to do. And I think that's back to you, Ashley. - Thanks, Mark, oh, actually, Kristina, you're gonna handle the legal overview. - Okay, so we get to take a little walk down memory lane right now, and with my apologies, that I had some slides that were a little updated for you, so I'm just gonna breeze through these with the updated versions of what you need to know. So, on what you will hopefully get in your handouts that are a little more condensed version of what happened over the past, gosh, 14 years now. As we all know, right, the DOJ under Obama started the process of enacting regulations that would set a standard for website accessibility. That regulatory process was pending all the way until the Trump administration came in. All the while, while regulations weren't happening, we then saw the DOJ's enforcement arm taking matters into its own hands and just pursuing enforcement actions. So, on the next slide, we see that Trump administration came in after 2016 when the Obama administration came out, if we can flip to the next slide, please. And the Trump administration withdrew the website accessibility rulemaking effort, and so pretty much nothing happened at all for the Trump administration other than Congress trying to get in on the act and saying, "Come on, DOJ, do something," and DOJ saying, "No, Congress, that's your job." And then, finally, we see in 2022 on the next slide, so things started to heat up a little bit in 2022, so we had some advocacy groups becoming a little more firm with DOJ, saying, "Come on, DOJ, please do something." And then we see the Biden Department of Justice in March of 2022 issuing guidance regarding website accessibility. A lotta people thought, oh, no, this means DOJ's issuing guidance, so that means it's not going to pursue any regulatory effort, and we really want regulations. We don't just want, you know, agency guidance. And the guidance, while it was great to get something, didn't really tell us anything we didn't already know. And then, so in the meantime or shortly thereafter, some senators in Congress were still going to DOJ saying, "Come on, come on, do something, do something." And then, in August of 2023, the DOJ issued an Advanced Notice of Proposed Rulemaking. So, finally, the DOJ is starting up rulemaking efforts again to hopefully set a standard and additional guidance around what it means for a website to be accessible. Really important for various reasons we won't get into today. We could talk about all of that ad nauseam, though, because it's important for both. It's important for businesses to have certainty. It's important for advocacy groups, for individuals with disabilities to also be able to point to a regulation and say, "This is what you need to do, business, to make sure you're complying with the law." So that was in August, and in October, 2023, the comments were due on that process. So, at this point, we're really just waiting. Interestingly, a little bit earlier in May of 2023, the Department of Justice and the Department of Education, Office for Civil Rights issued a letter informing colleges that it was engaging in enforcement activities under Title II and Section 504 of the Rehabilitation Act and this was on the heels of what you can see on this slide was a consent decree between the DOJ and UC Berkeley in 2022, November. So just like it had been doing before, the DOJ had still been doing some enforcement activity, even while the regulatory activity hadn't been going on, but now we are at least in the midst of actual rulemaking activity. Now, note that the proposed rulemaking notice that issued is under Title II, not under Title III. Title II applies to state and local governments, but it's very, very widely believed that whatever is enacted with respect to Title II will be the precursor for the Title III regulations and that they will really set the stage for those. So before we move on to the data, I think, which is going to be on the next slide, it's important to note that while, you know, through this discussion I just had with you, we've talked about how Congress and the Department of Justice have been kind of pointing the finger at each other over the years, saying, "You do something. You know, make regulations." "Oh, no, no, you do something. You're the lawmakers. Enact a statute." The states are kinda sick of waiting around, and last year, we saw Kansas enact a law called the Act Against Abusive Website Access Litigation, which, effective July 1st of last year, would allow Kansas businesses to sue ADA plaintiffs and their counsel to recover legal fees as well as potentially punitive damages for, and I'm quoting here, "Abusive website accessibility litigation commenced in any jurisdiction." We haven't really seen how that would play out yet, but that's one side of it. On the other side, in California, AB 1757, which was not enacted but is still alive and could make it through the process this year in California, would effectively make the WCAG 2.1 Level AA the required standard for websites and mobile apps of business establishments, which is the term of art, like place of public accommodation under the ADA that Ashley mentioned, which are covered by the Unruh Civil Rights Act in California. And importantly, it would also, I guess, importantly and sort of, you know, groundbreakingly because it's a new sort of thing here, the bill as presently drafted would allow individuals with disabilities as well as businesses to sue third-party developers that create noncompliant websites and mobile apps. And so that's, you know, kind of reminiscent of the Bashin versus Conduent lawsuit that a lot of you may have heard of. It was Tim Elder's case that had to do with the vendors that designed the California State Parks websites to the tune of, I think, $66 million that recently resolved. You know, it's a unique stance to allow a cause of action to proceed against a vendor, and it'll be really interesting to see if the bill proceeds through California with that provision in it, so we are watching that. So, with that, let's look at a little bit of data, Ashley? - [Ashley Jenkins] Sure. - Before you start, Ashley, I actually did just get my hands on a more updated version of the slide deck. If we can pause for 20 seconds and switch to that one, I think that'll be good. So give us just one second. And if you wanna give a precursor to what you were gonna say or anything like that, feel free. - Sure, so our law firm, Seyfarth Shaw, publishes a blog, which is adatitleiii.com, and every year, we track the data for all ADA Title III filings, including website filings, and I think we're the only firm that actually does that. But we do that so that we can track, you know, the trends, where are the filings, what kind of filings are there. And as you'll see on some of the slides and what we'll discuss is that it's growing exponentially in both physical access and digital access. But especially for website cases, I think we're up almost 300% more lawsuits than we were a decade ago, which is just crazy. - All right, I am almost there with... - [Ashley Jenkins] No problem. - [Mark Miller] Which should be the updated slide deck. - It's okay, you're keeping us on our toes. - Yeah, and so, I guess, so we don't lose time since we have limited time. While Mark's pulling that up, to Ashley's point, part of the reason why we started tracking this data is because, you know, the ADA is a relatively discreet law to start with, and we had seen the numbers of lawsuits filings go up year over year, or after year after year. We just felt like it was, so we wanted to actually check the data and see if that was true. And, you know, as you'll see, and we have it up on our blog as well, they really have grown exponentially year over year, and, you know, did level a little bit during COVID, but then seeing what's happening on the state filing levels as well as with respect to websites is really extraordinary. Okay, and here we go. - And, hopefully, these are a little more updated. You'll have to- - Sure, sure, so thanks. - Thank you. - So this website, or this slide, shows the total number of federal ADA Title III lawsuits filed nationally back to 2013. So, as you'll see, when we started tracking this, there were about 2,700 lawsuits filed nationally. And then, last year, there were 8,200 lawsuits filed nationally. And right during COVID in 2021, we were at almost 11,500 lawsuits, which is crazy. So like we said, about 300% more lawsuits over a decade ago. - And don't forget, that's only lawsuits filed in federal courts. That doesn't include lawsuits filed in state courts. It doesn't include demand letters. It doesn't include structured negotiations. It doesn't include DOJ enforcement actions that aren't lawsuits. - Absolutely, thank you. Mark, next slide. So this slide talks about the states with the most federal Title III lawsuits. New York has taken the lead in the last two years to be the number one jurisdiction, with almost 2,800 lawsuits last year, followed by California, which is around 2,300 lawsuits. California was dominant up until about 2021, but then New York has taken the lead. Other states that we are seeing a lot of lawsuits in are Florida, and then nominally we see Texas, Illinois, Pennsylvania, Tennessee, Missouri, Georgia, and New Jersey. Now, you might ask, why are New York and California the hotbeds? One, it could be that's where the plaintiff's bars are most active, but two, these states provide for damages. So, as we mentioned earlier, Title III of the ADA only provides for injunctive relief and injunctive relief, attorney's fees and costs, but these states have specific state nondiscrimination statutes, which, if piled onto the ADA complaints, they can get damages for their clients. - And I'm gonna do- - Next slide, please. - I'm gonna do another quick switch. It's gonna take two seconds. - [Ashley Jenkins] Oh. - So a little bit of foreshadowing while Mark switches up the view here. And like Ashley just said, that last slide had New York off the charts. You know, it is now blowing the other states away. California closely behind but blowing the other states away. And when we switch to the website accessibility lawsuits data slide, you'll see why. It is almost entirely driven by the sheer numbers of website accessibility lawsuits we see filed in New York in federal courts. In state courts, we hadn't seen as many filed in New York, but we had seen a lot of lawsuits filed in California state courts, but that's starting to change a little bit in New York. Ashley, I'll hand it back to you. - Sure, so now we're turning to specific website accessibility lawsuit numbers, and you'll note that right now, we only have data for 2022. We're actively working on data for 2023, but that is a much harder task because we can't just look at the number of filings. We actually have to have somebody manually review complaints to make sure that it's about a website. We can't just do a keyword search. So we're hoping to have that published by the end of the month, maybe early March. So this will show you, oop, go. Thanks, Mark. So, as Kristina said, New York is just overtaking every other state when it comes to website accessibility lawsuits. In 2022, there was 2,500, and I'm sure the number will be exponentially higher for 2023. And again, these are just federal lawsuits. This doesn't account for the state lawsuits on website accessibility and all the demand letters that we see all the time. Next slide, please. All right, this is a nice chart that just shows you the uptick in federal website accessibility suits in just the last five, six years, and from 2017 to 2022, it's just, it's grown exponentially from, you know, 335 in New York to over 2,500. New York's- - And- - [Ashley Jenkins] Go ahead. - what's also pretty significant is the three closest states, Florida, Pennsylvania, and California have all stayed pretty close, but New York has just gone up, up, up. - Do you have any ideas of why that is, Kristina? - Copycat lawsuits, for one thing. We see a lot of new attorneys getting into the mix. We see just a few attorneys filing lots and lots and lots of lawsuits. We see some more plaintiff-friendly lawsuits in, or plaintiff-friendly decisions in New York than we see in other states. We also have in New York more of a web-only bend. In other words, the cases that are filed against web-only businesses have a shot of making it through in New York. Whereas, in California and in Florida these days as well, which we'll talk about in a minute, the state of the law is that there needs to be a physical nexus connected to the website. And we've seen at least one really prolific plaintiff's firm in California as well as a plaintiff's attorney in Florida get into a little bit of legal trouble of their own in the past year, and we saw filings drop pretty significantly by those attorneys, which probably had an effect as well. And finally, like I mentioned a minute ago, in California at least, we see a lot more filings in state courts so that's gonna keep the federal court numbers down in California. But we are now seeing more and more cases filed in New York state courts as well, so it'll be interesting to see if these federal lawsuit numbers come down in New York for 2023 and 2024. - Agreed, well, thank you for that. The next discussion topic is key website litigation themes, and, Kristina, I'll hand it over to you. - Okay, so we are going to stay pretty high level. Although, when you all get these slides, you'll see that we do have some pretty good, you know, detail, verbal detail on the slides. I'm just gonna hit the highlights in this presentation 'cause nobody wants to get into the weeds, but for those of you who do like to get into the weeds, it's there for when you wanna take a look on your own. A lot of this is not new because we don't have that many cases that actually go either to dispositive motion, meaning a court is ruling on a motion to dismiss or a summary judgment motion, or to a trial verdict. There are just very, very few, so we don't have a lot of really guiding decisions. So I will talk about, again, like we have in prior years, the real big significant ones from prior years, and then we've got a couple of updates from last year, most of which stick with the same themes that we've seen over the years. So the main themes that we see coming up in website litigation are, first, as Ashley mentioned at the very beginning, are web-only businesses covered public accommodations under Title III of the ADA? And we have a division of opinion in different courts on this issue. In the Ninth Circuit, which covers California and the Western states, the courts say that web-only businesses are not covered. That's both now under Ninth Circuit or federal law in the Ninth Circuit, as well as state courts have been ruling the same thing. The 11th Circuit essentially said the same thing. And in Winn-Dixie, the court said that not only does there have to be a physical place of business that's connected to the website, but the barrier on the website must actually somehow prevent the individual from being able to access the goods or services at the physical location. If the barrier on the website doesn't have any impact on the person visiting the physical location, then there is not the requisite nexus to be able to bring a claim against that business. Now, note that that decision was vacated, so it's no longer alive, but that was the way the 11th Circuit went in that case. In the First Circuit, a business does not have to have a physical location serving customers to be covered, and the reason why I'm putting it that way is because we don't have a decision that expressly says that web-only businesses are subject to Title III or that there doesn't have to be a nexus to a physical place of business. But the trial courts, so, you know, we have trial courts, appellate courts, and then we have the Supreme Court, so we always like to look to the First Circuit, Ninth Circuit, 11th Circuit, those are the court of appeals 'cause those bind all of the trial courts in their district. So, in the First District, we have a decision that isn't on point but that a lot of trial courts have applied to say that web-only businesses are subject to Title III of the ADA. In the Seventh Circuit in Illinois, which interestingly, we were not seeing many web accessibility lawsuits filed until quite recently. All of a sudden, we've seen a good handful filed. I think it was just yesterday 'cause it just appeared in my inbox this morning, a case came down from a court within the Seventh Circuit basically saying, you know, that they seem to be going the same way, at least that specific judge, that a web-only business could be subject to Title III of the ADA. So that's the first theme, and it's a big theme because it's still an undecided issue. We keep wondering if it's going to be addressed in the regulations or if the Supreme Court will finally take it up and decide once and for all and say this is the rule that you all need to apply, courts, but as of right now, that hasn't happened. Second main theme, haven't seen it as much in recent years because I think the courts kinda got the message to the plaintiffs and defendants who were arguing this issue, but we did have one case that was somewhat on point last year, and that theme is if you settle a lawsuit regarding the accessibility of a website, can you then, if you get sued by a different plaintiff in a later lawsuit, say, "Hey, I've got this previous settlement agreement, so you can't sue me. You're barred from making a suit against me." And courts had universally, for good reason, quite honestly, said that doesn't matter. You had a prior settlement agreement with a completely different person who had completely different injuries and claims, and it was between you and them, so that does not bind a later completely different person who had a separate injury of their own due to your inaccessible website from bringing a suit against you. Now, if you resolved your case by entering into a consent decree, which is essentially a settlement agreement that you submit to the court and ask the court to enter it as an order so that the business is now under the court order to perform the obligations in that settlement agreement or that consent decree, that can be a bar to a subsequent suit because now, remember what Ashley said at the beginning, that the only relief available under Title III of the ADA is an order from the court that you fix the lawsuit or do whatever the law requires you to do. And so once you're under a consent decree, you're already under a court order to, in theory, you know, make the website substantially conform to WCAG or whatever you had agreed that would make the website accessible, so there's nothing else a court could order against you in that subsequent suit. So this case, the Allegiance Retail Services case, I'm not gonna try to pronounce the plaintiff's name without them telling me how to pronounce it, but that came outta New York in 2023, and that's what that case said, that a consent decree could potentially bar a subsequent lawsuit against the same business. Now, a corollary theme that we get a lot of questions about from clients is, "Well, I'm in the process of making my website accessible, so doesn't that mean that there's nothing a court could order against me that I'm not already doing, so I can just ask the court to dismiss the case as moot," and moot is one of those legal terms that means, you know, there's nothing for the court to decide, essentially. The issue is moot. And the answer is no. I mean, while there have been some outlier decisions actually, the vast majority of the courts have held being in the process of fixing something is not good enough to moot out a case. The website has to actually be accessible to moot out the case. Now, if you're under a court order to do that, that's a different story. That's the consent decree point that came up a minute ago. And finally, the other big theme we very often see is this whole concept of standing. This is another legal concept where you have to have standing to bring a lawsuit in court, and standing means that you have to have suffered some sort of injury and have a risk of being injured again. If you don't have that, then you're not the proper person to be bringing this claim before the court. And so some courts have held that if the plaintiff can't ever use the services of the business whose website is not accessible, then the case can be dismissed for lack of standing, and I'm gonna talk about more about those in just a minute. So let's go to the next slide, and I'll give you the high-level overview of some of the drill downs on some of these themes that have come up in 2023. So the big case from 2023 was this concept of standing but in the context of a serial plaintiff. Everybody was watching the Laufer versus Acheson case, which was taken up to the Supreme Court, and then the plaintiff tried to do some kind of fancy maneuvering up there and tried to dismiss the case, and ultimately, the Supreme Court said, "Yeah, the case is moot so we don't need to decide the issue." So the issue of whether a tester, meaning someone who is just filing suit against a business for the purpose of testing its compliance with the ADA and not really with any intent to have used the goods or services of that business, that's what a tester is, and the courts are divided on whether that sort of person has standing to bring a lawsuit for a violation of the ADA. Some courts have held, as you can see on the case here, in the First Circuit, the 11th Circuit, and the Fourth Circuit, all the cases brought by Ms. Laufer, that there doesn't need to be a desire to patronize the business to have standing to sue. A tester can sue. But, in the Fifth Circuit, 10th Circuit, Second Circuit, the courts have held that encountering a barrier on a website or at a location is not enough. There has to be some sort of downstream consequence to that. There has to have been some sort of actual denial of access to the goods or services of the business. We thought that maybe we would get some guidance from the Supreme Court as to whether testers have standing or not, we haven't. There is a case pending in the Ninth Circuit, Langer versus Kiser, which, you know, maybe will be taken up, that might give another chance for the court to visit the issue, so we are watching that one for now. And then also, in 2023, New York federal trial courts dismissed multiple cases on standing grounds, so it is a viable point to make. In those cases, it was interesting because there, the courts were really scrutinizing the lawsuits, saying you haven't alleged enough in your complaint that you really were trying to use whatever the services of the business were or that you suffered any injury as a result. So, at the very initial stage, they were saying you need to tell us more in your complaint about how you were actually injured here or what you were actually trying to do to have standing to bring this suit. And, you know, quite frankly, we think that those cases were largely driven by the courts just being sick of seeing so many of these lawsuits with kind of very similar complaints being filed in their courts. Okay, the next big development, and I'm watching the time here. And the next big development is not a new development. Actually, it's a reminder that one of the main key cases and themes that we keep talking about year after year after year because it is one of the only cases that gave us a substantive ruling was the Robles versus Domino's Pizza case. It came outta the Ninth Circuit in California in 2019. And just a reminder that the key holdings here from the Ninth Circuit were that the ADA applies to websites and mobile applications that have a nexus to a physical place. It didn't need to decide the issue of no nexus because Domino's has physical places of business. The defendant there had made due process and primary jurisdiction arguments, essentially that it wasn't fair to hold Domino's to any sort of standard for website accessibility because there's nothing in the regulations under Title III, and the court basically said don't make those arguments to us. You have enough notice under Title III that you need to provide access to your goods and services. That had been a fairly frequent argument before that case. We really haven't seen it anymore. And then third, that telephone service as an alternative could not be decided on a motion to dismiss. And what that means, it's going back to where Ashley was talking about the fact that we're really talking about the effective communication obligation under Title III of the ADA here. There are multiple ways that you can provide effective communication, and so it is a viable argument that even if your website might not be accessible, if you can say, "Hey, we have telephone customer service that provides service in the same manner and means as the website," you have a viable argument that you are providing effective communication. But the point that the court was making here was that that is a fact-specific inquiry as to whether the telephone communication really is close enough and provides, you know, all the same services in the same manner and means to be considered equally effective as the website, and so that's something that would need to go through fact development and either summary judgment or trial. As you all know, Domino's appealed to the Supreme Court. It declined to review it, and ultimately, the case settled in 2022 after lots of up and down fighting. Okay, the next key development is a nondevelopment, but we have this slide in here again for the same reason as Domino's, which is, this is the only other really big case that we've had come down on website accessibility in the recent era. There is the Target case as well from way back when, of course. But the Gil versus Winn-Dixie case, which the 11th Circuit ruled on in 2022, so about two years old now. The key takeaways from this one, though, were that the 11th Circuit was willing to order that the website be made accessible by a certain date to the WCAG standard, that there be training provided, that third-party content be accessible, that a policy be adopted, and awarded fees and costs to the plaintiff, and that's significant because it does show that there are some judges that are willing to go that far and really order some concrete relief, but most cases don't go that far. Next slide, okay. On this slide, I'm not gonna talk about it, but it's just really talking about how on the other coast, on the West Coast in California, because, as Ashley said, we have statutory damages available under the Unruh Act, we see a lot more lawsuits here. And in the couple of cases that have been taken all the way to a dispositive motion to summary judgment, there have been decisions in favor of the plaintiffs, where, like in the Thurston versus Midvale case, the court even ordered that the website conform to the WCAG 2.0 AA and pay statutory damages. Next slide, okay. I have one slide here about the DOT versus Scandinavian Airline System, and I always like to include this slide even though it is a bit old now because it stands for the separate but equal concept. We don't get it as much anymore, which was, you know, okay, our main website isn't accessible, so can we just create a second separate accessible website? And we don't really see businesses asking that anymore as much as they used to. It's not allowed under the Air Carrier Access Act. There is no such prohibition under Title III, but obviously, it's not the best idea for various reasons, and it does kind of take us into a different potential solution that a lot of businesses are thinking about because they see it all over the place, which is implementing some of these overlay products or widgets. And there have been lawsuits against businesses that have used overlay products that have, you know, pretty explicitly in the complaints try to demonstrate why the plaintiff thinks that the overlay not only didn't make the website accessible but maybe made it worse. I've even seen in some discussions with plaintiff's counsel, them expressly saying that, you know, we are not going to accept in negotiations that the company might even consider using an overlay as an accessibility solution at least exclusively. But I wanted to turn it to Mark real quick to give a couple of comments on the overlay issue since we're at that point in this slide here. - Yeah, thank you, Kristina. So, you know, our position is that coding the website correctly from the beginning and/or remediating the code at a later date to be accessible is really the proper way to go because it ensures accessibility, or you're looking at it very specifically, what you've done against the guidelines, and instead of sort of putting something on that kinda speculatively goes through and tries to make a bunch of changes to the website on its own, you know, from a technological standpoint, you're actually having human beings who are interacting with the website and recommending specific changes. In the case of automation, no automation can detect more than somewhere in the neighborhood of 30 to 40% of the failures to the WCAG guidelines, so it stands to reason that anything that is purporting to use automation to make a website fully accessible probably is not doing that. So, in our practice, we really look at building it into the software development life cycle of the company who's creating the website in the first place so that you're getting a high degree of conformance to the guidelines and a very accessible site, and you're not running the risk of things occurring that you're not aware of that could actually degrade the accessibility. - Right, right, thank you, good points. Yeah, just tread very carefully when those folks approach you. I mean, really, you know, as you should with everything, you know, make sure you do your homework. And our last legal developments or lawsuit developments slide goes into detail on a couple of cases from the 11th Circuit, touching on physical nexus again. So if you wanna read them on your own, feel free. Some interesting quotes there. The point of this slide, though, is to just point out, as we talked about earlier, that it is still very much a live discussion over whether a web-only business is subject to Title III of the ADA or whether the business must have a nexus to a physical place of business to be subject to Title III of the ADA, and in California, to the Unruh Act as well. So we're gonna keep watching that issue as it goes on, and I think we're gonna go into next, whether and what the best practices are with respect to making sure you are complying with your obligations under Title III of the ADA. Before we do that, though, we did have one question that came in that looks like it's more legal related, and it is, "How does Title III affect nonprofit organizations which have no physical locations and the website is intended to provide general information on the organization as well as guidelines and instructions for its paid local member organizations." So very curious for your take on this, Ashley, especially having, you know, been at DOJ. We've seen lawsuits and claims against entities of all types, even entities that aren't, that clearly are not places of public accommodation. Entities that are manufacturers, for example, of like, laundry detergent and only sell their goods or services or sell their goods in places of public accommodation, but they themselves should not be. That hasn't stopped plaintiffs from coming after them and saying, "You provide information on your website about your products. Therefore, you have an obligation to make that information you're providing accessible on the website." Similarly, we've seen it against investor relations pages of websites, which, again, are not providing the good and service of the business. They're just providing information about the company or about how, you know, to then go to your stockbroker and potentially, you know, invest in the company. We saw a slew of lawsuits on that. So I think there is risk. I think, you know, any entity that has a website that provides information that you're intending the public to consume should think about providing the information so it is accessible. Any other thoughts on that, Ashley? - No, I completely agree. And from the nonlegal perspective, just even if there is no risk, it's still the right thing to do, right? We wanna make sure that everybody has access to all of the information you're putting out there. So, you know, being accessible isn't just a, you know, you know, we shouldn't just look at it from the legal perspective of whether or not there's risk of a lawsuit. - [Kristina Launey] Okay. Take that one. - Great segue. - So what's our roadmap to accessibility? You wanna take it from here, Mark, or would you like us to set it up further? - Sure, I can grab it from here. That's great. - Great. - So thank you for all that. It's always good to get the perspective of where we are from a legal standpoint, you know, and how that's evolved over time, so thank you so much. That was excellent. So what do you do about it, right? What are the things that you should be looking at if you're concerned or wanna look at mitigating your legal risk and possibly even, you know, creating some defensibility along the way? So the things that we're gonna talk about real quickly, and I'm gonna move quick 'cause I know we're starting to get towards the end of time, are a technical manual review, reporting, monitoring, user experience, so there's a little bit of difference between a technical manual review and user experience that we'll get into. Training, so if you think about that software development life cycle, what roles in there might need training to understand how to implement accessibility, whether they're a developer, QA staff, a manager. And then accessibility statements, policies, and procedures. And then, finally, we'll talk a little bit about VPATs, which, if you don't know what those are, I'm gonna keep you in suspense, and we'll look at those in a few slides. So the important thing, so first of all, a technical manual review. I separated it out that way because a technical manual review is really looking for what I would call the variances to the guidelines. So when we look at all the success criteria in the WCAG guidelines, how is the site behaving that may cause a variant to that or not behaving that may cause a variant to that? So it's very specifically not, or it's not directly looking at that user experience. While it may have an overall positive impact to the user experience, we're actually searching for those failures, and that's typically the very first step if you haven't done anything. There's some very important things to think about when you think about this technical manual review, and the first one really is scoping, right? You're not looking at every single page of the site because that is in no way practical. You just couldn't do it. It would cost too much. It would take too much time. So you're really looking at an overall representative sample, and that representative sample should be broken up into critical user flows because those represent the pathways that people need to travel through the site to participate in its accommodation, what it's trying to do for you, and then the representative components that exist within those pathways, and to look at that very completely, right? So you don't wanna overdo it and do too many of these things so that you're really getting a lotta redundancies, but you don't want to do too little so that you're missing critical functionality and content on the site. When we review audits that have been done out there by other organizations, this is probably where we see the biggest discrepancy, is that probably due to competitive pressures, budgetary constraints, all those things, lots of times, these scopes are reduced in a way where you're not really getting a true picture, and that can leave significant barriers on the site. And then we already talked about the different types of disabilities, and this is really interacting with the site, considering all those different, you know, how people with different disabilities interact with the site and the technologies they use, so screen readers, screen magnifiers, keyboard only, without sound, those types of things. The really important thing is, is that's great that all that stuff's looked at, but what does the reporting look like? How is that information then presented to you so you can be actionable on it? So the important things you wanna look at in a report is, does it have metrics to prioritize? Is it rating the issues according to severity, how hard they might be to fix, and who's affected by it? All right, some people might prioritize, or some organizations might prioritize, for example, screen reader issues above other types of disabilities because they know that they've got a high degree of people using screen readers engaging in their site. Maybe there's a lawsuit that called out screen readers. There could be all sorts of reasons. So there's several metrics, including your own site metrics, that you can use to prioritize that should be in that reporting. And then it should be actionable. By actionable, what I mean by that is, what do you do about the issues? So you want direct advice at a code level on how to address those issues. You probably also want additional information. So when we do reporting, we actually deep link into our knowledge base, which is developed over the past 20 years by our engineers doing this very work, so you can go even deeper than just that immediate I looked at your code, and here's what I think you should do. And then, of course, having access to experts while you're remediating and following the guidance in that report is super, super important as well so that you get it right. What you don't want is your team Googling when they're uncertain. Lots of great information out there if you Google, but also outdated information and well-intended information that may not be accurate, so it's always best to ask an expert. And then, those reports hopefully will come to you in multiple different formats so that different roles in your organization can have the information that they need, and that may be dashboarding, so things like deep linking into a knowledge base and contextual help desk are possible, a spreadsheet that your project managers can use to organize the effort and assign and pull data into your bug tracking systems, and then a distributable report, so the full report easily distributed out, usually in like a Word format or something like that. And then, of course, an executive summary because you might have internal legal counsel, you might have people in your C-suite or other managers who don't care about the specific code to fix the issue, but do wanna know the high-level details so that they can manage that process. Now, we talked a little bit about automation. So, in a lotta practices, automation is used to get an idea of the types of issues that are on the site and detect that 30 to 40% that can be found, and that can be very helpful in measuring progress in a very efficient and inexpensive way while the team's remediating. It can also be a way to detect regression, so maybe it can't catch all issues, but 30 to 40% of the issues, it can detect. If you see a regression in those, you know you have overall regression, and then that can stay in place afterwards to make sure all that hard work stays conformant over time, and if something regresses in the future, you can react to it more immediately, and you don't sit at risk for as long of a time. We talked about the 30 to 40%. The other number out there is that, and this is sorta the good news, is that oftentimes, that 30 to 40% that is detectable represents somewhere between 60 and 70% of the errors on the average site. So don't think it's only catching 30 to 40% of the errors on the site. What it's catching on your site probably is quite a bit more than that, but still not 100% complete, but great data to have with you at all times. User experience, so we talked a little bit about the difference between technical conformance and user experience, and we typically recommend that when you hit a level of technical conformance to the guidelines, it is always good to go to the users that you're actually doing this for and saying, "Hey, what's your experience? How can we improve your experience?" They may catch additional important issues, but more likely, they're gonna be able to bring you to a new level of usability for people with disabilities. And that can be anything from users without experience in things like the guidelines and technical expertise, you know, just what I would call your average user that may be using a screen reader or some other assistive technology, what is their experience like? And it also may be technical experts that are native screen reader users or, you know, have some other type of disability, going through and saying, "This is my experience, and I have expertise, and I can give you additional guidance beyond that." And it's also a great way to make sure those user flows can truly be navigated. Training is another thing to think about and look at because when you start to train your developers, your QA staff, folks like that, then accessibility starts to be built in from the beginning. And then I know we're hitting time here, but a quick word on VPAT. They're not necessarily a solution in every single scenario. You want to work with your counsel and really make sure it makes sense for you to produce a VPAT. What they are is a way to report your level of conformance to the guidelines in sort of an official format that was put out by the Information Technology Industry Council, and they do cover multiple guidelines. This slide shows 508, EN 301 549, which relates to the EAA that we talked about earlier, and then all the different iterations of WCAG, and, of course, there's one that covers all of the above, right? The very bottom one, the D, all of the above one. They have to follow a full manual technical review. It's another sorta misstep that we see out there where somebody will do a review, the company will fix it, and they'll come in and only check the errors, and that does not account for regression or changes in that period of time that that remediation was going on. And you might think that you have a VPAT that's accurate when it's actually got a lot of inaccuracies in it. I just put these slides up here, and you can look at them when we send you the deck, but the idea is there's no light switch here. You can't just jump out and do something really quick and sort of be all set. It's likely a practice that you're gonna have to mature over time within your organization, and this just shows the types of things that might lead to that type of practice. And then also, how different things can be integrated into the software development life cycle over time so that you internally become better and better and better at putting out products that are as accessible as possible. And that brings us, like, one minute over time. Sliding right into home plate as the catcher's catching the ball. So if anybody has any additional questions, please submit them to us. We are happy to respond over email. I wanna thank Ashley and Kristina for everything that they brought to this, all the hard work to pull all the new things together, and, of course, their great presentation of all of it. And thank all of you for joining us today, and we really, really hope that this was helpful and that you learned something, and we'd love to hear from you if you have questions. - Everyone. - Thank. - [Ashley Jenkins] You. - [Stefani Cuschnir] Thanks, everybody.