By Rose Oswald Poels
I have learned of recent activity by a California law firm contacting Wisconsin banks alleging the bank’s website is in violation of the California Unruh Act. The law firm, Pacific Trial Attorneys, engaged in similar activity in Wisconsin back in 2018.
The letter alleges the firm has been retained by a blind consumer to file suit against the bank, claiming the bank’s website is not fully accessible to blind users. The letter cites a California court case which held “disability access laws apply to commercial websites, including online-only businesses.”
If your bank receives such a letter, it is important to contact your legal counsel immediately. This law firm has a history of sending these letters to banks and other businesses and then promptly filing lawsuits against the bank/business, as is threatened in the letter. I suggest you not treat these letters as a “fishing expedition” but, rather, take them very seriously and work to respond with the advice of your counsel, promptly.
The letter references a violation of California law. Bank’s counsel need be in review of bank’s products and activities to identify whether the California law is applicable to the bank. While in review of bank’s website, I recommend you also consider whether bank’s website is in violation of the Web Content Accessibility Guidelines (Guidelines) as the California claim could potentially change from a violation of California law to a claim regarding violation of the Americans with Disabilities Act (ADA).
I also suggest you work with your website vendor to be sure your bank’s website complies with any relevant law, including the Guidelines and, if not, how quickly it can be changed to comply.
I further suggest that if it is not already in your legal contract with your website vendor, you should add provisions to your contract to put the burden of ensuring your bank’s compliance with the Guidelines on the vendor. And, if any legal demand or litigation is initiated against the bank claiming a violation of ADA or the Guidelines, that the vendor is wholly responsible.
I understand that receiving these kinds of letters from plaintiffs’ law firms is not only frustrating but can be a significant distraction from normal operations. However, as more commerce is done electronically including through bank websites, it is important to not lose sight of relevant law, including ADA-related guidelines, to the same degree you follow applicable requirements for physical access to your bank. There is not going to be any legislative change that would wholly exempt bank websites from any compliance with guidelines around providing access to the public including persons with disabilities. Consequently, it is very important for you to promptly respond to any such letter you receive.
Both the ICBA and ABA have materials on their respective websites available for members on the topic of ADA digital accessibility. WBA first wrote on the topic of ADA digital accessibility in the January 2017 issue of Wisconsin Banker.
Finally, WBA is collecting letters received by its member banks. If you have received a letter, we would appreciate your sending a copy to WBA’s Scott Birrenkott at email@example.com. If you have any questions or would like to discuss this further, please contact Scott, Heather MacKinnon, or me.