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From: Steve Green
Date: Mon, Jul 30 2018 5:24AM
Subject: Reclaiming ADA court costs from developers
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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 ADDRESS REMOVED =
www.testpartners.co.uk
 
Connect to me on LinkedIn - http://uk.linkedin.com/in/stevegreen2

From: Birkir R. Gunnarsson
Date: Mon, Jul 30 2018 6:07AM
Subject: Re: Reclaiming ADA court costs from developers
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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 ADDRESS 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 ADDRESS REMOVED =
> www.testpartners.co.uk
>
> Connect to me on LinkedIn - http://uk.linkedin.com/in/stevegreen2
>
> > > > >


--
Work hard. Have fun. Make history.

From: Jared Smith
Date: Mon, Jul 30 2018 7:54AM
Subject: Re: Reclaiming ADA court costs from developers
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This is a very interesting case that could have notable ramifications
in the design/development community. Please keep us apprised of the
outcomes.

I can't speak to UK law, but under the Americans with Disabilities
Act, there is Section 303 which defines that discrimination can occur
for a "failure to design and construct facilities" that are not
accessible. There have been court rulings against designers and
contractors for not implementing physical accessibility, even when
this is not specifically defined in the contract. The onus is thus on
the architect and contractors to understand the accessibility
requirements and implement them.

As Birkir noted, we do not yet have technical specifications for web
accessibility under ADA, but this has not stopped lawsuits and
Department of Justice actions. In fact, the lack of technical
standards and implementation guidelines has certainly increased the
number of lawsuits because litigants need not define that a web site
failed to meet a defined technical standard, but only that it is
"discriminatory". This creates a higher burden of proof on contractors
to make things accessible - and, because the DOJ has utterly failed to
define what "accessible" even means here, the litigant can define this
to be pretty much whatever they want.

Jared

From: Wilson, Jordan
Date: Mon, Jul 30 2018 12:01PM
Subject: Re: Reclaiming ADA court costs from developers
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This is a very slippery slope - I've seen vendors who do go out of their way to include accessibility (and accessibility costs) into RFPs have to back out of it because adding A11y costs into a project when their competitors do not prices them out of the RFP.

I spoke about this at Accessing Higher Ground last year because its becoming a big problem - I recommend that agencies include accessibility as a line item in their RFP responses for this reason. Don't include it in the core prices so that your client can see that its in there and can differentiate your response from others.

Ideally everyone includes a11y, but we're not there yet.

I'd love to see a panel on this at CSUN in the future - many of us work with 3rd party design agencies and there's fear of liability there.

Jordan

From: Brandon Keith Biggs
Date: Mon, Jul 30 2018 1:11PM
Subject: Re: Reclaiming ADA court costs from developers
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As a customer I am asking for WCAG compliance rating when I look to buy new
systems and 95% of the time I hear: "What's WCAG, I've never heard of it in
30 years of sales". This is a plague and I can't buy most of the systems
out there because as a blind systems acquisition person, I can't evaluate
something I can't use. It is also not legal for us to buy a system I can't
use.
Most of the time companies just say they will add in accessibility later,
but they don't give a date and don't want to work with me to add
accessibility.
This is the wrong approach. You can't just "add" accessibility. You need to
design your product or service to the widest number of users possible, then
you may consider your product usable by a specific group of users.
It's really the company's fault for not getting UX testers for all the
possible users they wanted to serve, or evaluating the product from the
developer for different features that need to be included.
It's also the tools the developer is using. If they use most widget
frameworks from React, for example, Screen reader users won't be able to
use them. There is no way for the developer to know this without testing
them self.
Everyone just needs to start using AccDC and 95% of our problems about
screen reader access will be gone.
Thanks,


Brandon Keith Biggs <http://brandonkeithbiggs.com/>;

On Mon, Jul 30, 2018 at 11:01 AM, Wilson, Jordan via WebAIM-Forum <
= EMAIL ADDRESS REMOVED = > wrote:

> This is a very slippery slope - I've seen vendors who do go out of their
> way to include accessibility (and accessibility costs) into RFPs have to
> back out of it because adding A11y costs into a project when their
> competitors do not prices them out of the RFP.
>
> I spoke about this at Accessing Higher Ground last year because its
> becoming a big problem - I recommend that agencies include accessibility as
> a line item in their RFP responses for this reason. Don't include it in the
> core prices so that your client can see that its in there and can
> differentiate your response from others.
>
> Ideally everyone includes a11y, but we're not there yet.
>
> I'd love to see a panel on this at CSUN in the future - many of us work
> with 3rd party design agencies and there's fear of liability there.
>
> Jordan
>
>