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Re: Reclaiming ADA court costs from developers

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From: Birkir R. Gunnarsson
Date: Jul 30, 2018 6:07AM

This is where the legislative void surrounding the ADA hurts businesses.
Title III of the Americans with Disabilities Act says that "places of
public accommodation" should be accessible. It does not explicitly
define a business's website as a place of public accommodation. We're
all thinking "duh, of course it is", but if the law doesn't write it
out there are others that can say "if the law doesn't explicitly say
it, we can argue against it".

Needless to say, the ADA does not define what "accessible" means when
it comes to digital content. There's tons of case law (lawsuit
settlements, Department of Justice decisions, a draft legislation that
was shelved in 2016, they call it a notice of proposed rule making or
NPRM), and there is a note about "auxiliary aids" that was added in
2010, but it's not clearly defined in the ADA.
This is why accessibility must be explicitly required in contracts and
defined as compliance with the desired standard (WCAG 2.0 AA is the de
facto standard, there really isn't anything else available).
You can't just say "developers comply with applicable accessibility
regulations" because when it comes to digital content that language is
ambiguous and the developers have a pretty strong cas claiming they
followed the contract.

I'm not a lawyer, thank goodness, but I think your client is going to
have a pretty tennuous case suing the developers in your situation.

The plan forward for the client is to explicitly write accessibility
requirements into all contracts, for client facing digital content and
to define what "accessible" means in that context.

I'd be curious to hear what your client ends up doing, and I wish them
the best (if they are able to win that case I'd be pleasantly
surprised).




On 7/30/18, Steve Green < <EMAIL REMOVED> > wrote:
> One of my clients has just settled an ADA case for quite a substantial
> amount of money and is now looking to reclaim that from the developer. Both
> the client and developer are UK-based but the case related to one of their
> US websites for a physical premises in New York. Does anyone know of any UK
> case law or precedents for reclaiming these costs?
>
> Although the contract with the developers did not mention accessibility, our
> client is of the view that the developers should be aware of accessibility
> legislation and should design websites to be compliant. The developers are
> refusing to pay. For context, our client is large enough to sue the
> developers into oblivion if they wanted.
>
> Regards,
> Steve Green
> Managing Director
> Test Partners Ltd
> 020 3002 4176 (direct)
> 0800 612 2780 (switchboard)
> 07957 246 276 (mobile)
> 020 7692 5517 (fax)
> Skype: testpartners
> <EMAIL REMOVED>
> www.testpartners.co.uk
>
> Connect to me on LinkedIn - http://uk.linkedin.com/in/stevegreen2
>
> > > > >


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