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Number of posts in this thread: 13 (In chronological order)

From: glen walker
Date: Wed, May 22 2019 10:36AM
Subject: cost of lawsuit?
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I have a client that has a "driveby" lawsuit (serial plaintiff) and they
just want to settle and pay the fee as the cost of doing business. That
is, they aren't really interested in fixing accessibility issues and just
want to pay some money to make the problem go away.

We know that lawsuits and fear are not great motivators. Ideally,
corporate/social responsibility comes into play as well as the ROI of the
business.

Are there any numbers out there regarding the cost of an accessibility
lawsuit? There are intangible costs, such as a company's reputation, and
the cost of actually making changes to the site to make it accessible
(which can vary widely depending on how large the site is, how complex the
pages are, whether common widget libraries were used, etc), and possibly
costs of setting up an accessibility program at the company (if required in
the settlement). But what about the fee (punitive?) paid to the plaintiff
or attorney fees (both the defendant's and the plaintiff's).

If you do settle and pay whatever fines and costs, are you really done?
Your site is still not accessible. Does "double jeopardy" protect you from
another ADA lawsuit? If so, that would be disappointing. For example, if
a big box company gets sued and the cost of settlement is just pittance to
what the company is worth, and they don't have to worry about being sued
again, it's a loss for everyone.

I know we're not lawyers (well, Lainey is) and I'm not asking for legal
advice. Just curious whether costs have been published. A lot of times
the settlement amounts are not published.

Glen

From: Lucy Greco
Date: Wed, May 22 2019 10:44AM
Subject: Re: cost of lawsuit?
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It's really too bad they're not thinking about this as an opportunity to
gain more customers it's only anecdotal but I'm betting that if they spend
the money to actually make the fixes which would definitely be less than
the settlement they would gain more business than they actually spent on
the settlement this is just really too sad making the problem go away never
happens once they've settled with one person what's stopping somebody else
this is not a class and even if it was a class I don't think that prevents
other people from being able to Sue

On Wed, May 22, 2019, 9:37 AM glen walker < = EMAIL ADDRESS REMOVED = > wrote:

> I have a client that has a "driveby" lawsuit (serial plaintiff) and they
> just want to settle and pay the fee as the cost of doing business. That
> is, they aren't really interested in fixing accessibility issues and just
> want to pay some money to make the problem go away.
>
> We know that lawsuits and fear are not great motivators. Ideally,
> corporate/social responsibility comes into play as well as the ROI of the
> business.
>
> Are there any numbers out there regarding the cost of an accessibility
> lawsuit? There are intangible costs, such as a company's reputation, and
> the cost of actually making changes to the site to make it accessible
> (which can vary widely depending on how large the site is, how complex the
> pages are, whether common widget libraries were used, etc), and possibly
> costs of setting up an accessibility program at the company (if required in
> the settlement). But what about the fee (punitive?) paid to the plaintiff
> or attorney fees (both the defendant's and the plaintiff's).
>
> If you do settle and pay whatever fines and costs, are you really done?
> Your site is still not accessible. Does "double jeopardy" protect you from
> another ADA lawsuit? If so, that would be disappointing. For example, if
> a big box company gets sued and the cost of settlement is just pittance to
> what the company is worth, and they don't have to worry about being sued
> again, it's a loss for everyone.
>
> I know we're not lawyers (well, Lainey is) and I'm not asking for legal
> advice. Just curious whether costs have been published. A lot of times
> the settlement amounts are not published.
>
> Glen
> > > > >

From: Jared Smith
Date: Wed, May 22 2019 11:17AM
Subject: Re: cost of lawsuit?
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> That is, they aren't really interested in fixing accessibility issues and just
> want to pay some money to make the problem go away.

Seems rather shortsighted to me.

> Are there any numbers out there regarding the cost of an accessibility
> lawsuit?

For clients that we've worked with and other interactions with those
involved in such things, it's difficult to imagine a scenario where
fighting the lawsuit would be less expensive than the payoff. This is
all, of course, very unfortunate as it simply pads the pockets of
unscrupulous lawyers and does little to effect change. Most of the
demand letters have asked for amounts in the $1000 - $8000 range. It
would probably cost that much in legal fees just to get to discovery
where the suit *might* be dismissed. And if it isn't dismissed (few
are), then they can spend many 10s of thousands in legal fees, and
then probably lose and thus end up paying the settlement amount, plus
legal fees for all parties, and have to implement accessibility
anyway.

We have, however, seen some instances where pre-trial negotiations
have resulted in processes to implement accessibility, typically with
a more minimal settlement amount. This would really depend on the
litigant - most these days seem to be after the pay-off rather than
actual accessibility.

> If you do settle and pay whatever fines and costs, are you really done?
> Your site is still not accessible. Does "double jeopardy" protect you from
> another ADA lawsuit?

No! We know of entities that have settled a lawsuit, implemented a
full accessibility plan with great results, and then received another
demand letter over trivial, automatically-detectable errors. It seems
good accessibility isn't even a suitable protection any more.

Jared

From: glen walker
Date: Wed, May 22 2019 11:41AM
Subject: Re: cost of lawsuit?
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We're all in the same boat with regards to this being shortsighted and a
missed opportunity. I was mainly curious from the monetary standpoint.
I've seen demand letters for $4k so that seems to be in the range you've
seen, Jared. I'm sure the lawyers have done their homework and set the
demand amount in the "sweet spot" where it's less hassle to just pay rather
than to fight the suit.

I hate these driveby lawsuits. It gives a11y a bad rap.

I'm curious why double jeopardy (5th Amendment - so a US based law) doesn't
apply. Is it because an ADA lawsuit isn't claiming the defendant is
committing a "crime"? The 5th Amendment pertains to being tried of a crime.

From: Jonathan Avila
Date: Wed, May 22 2019 12:30PM
Subject: Re: cost of lawsuit?
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The 4k amount you often hear of is in relation to statutory damages that some states allows when suits are filed against the ADA and state laws for accessibility such as the Unruh Act in California. Most settlements for folks who just want a payout are in the range of what Jared mentioned although sometimes slightly higher.

Regarding being sued again -- it's very common and unless the case was settled as a class action or there is an agreement with the DOJ or something similar. Otherwise the future plaintiffs were not involved in the original settlement and thus often have legal right to litigate as well. Class actions in this area are appearing more commonly but may be hard to get certified as a class -- but if they do the risk could be higher to defendants. ADA suits at civil suits filed in Federal courts and thus double jeopardy is not relevant. I'm not a lawyer though and this isn't legal advice.

Jonathan

From: Birkir R. Gunnarsson
Date: Wed, May 22 2019 1:01PM
Subject: Re: cost of lawsuit?
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Most accessibility litigation claims include defendant commitment to
fixing their site. I don't know of any letters that ask for a
statutory damage without requirements to fix.
I've heard the damage fees are relatively low, probably in the 10 to
20K area (Check
Seyforth's ADA title III articles, I think there are some numbers in
there about average cost of a settlement). This would not include cost
of a defense lawyer.

You'll probably pay in the hourly rate range of $300 to $600 for a
defense lawyer.
Your settlement will likely include protection from further lawsuits
from the particular plaintiff, but that protection does not extend to
anybody else, double jeopardy does not apply.
Sadly, having good accessibility is no longer sufficient protection
against the vast majority of lawsuits.
I believe not a single lawsuit has been dismissed on the grounds that
the website is accessible and the plaintiff is simply wrong. Unless
the government steps in somebody with a well-established accessibility
program/website may have to fight back on those grounds, else
accessibility litigation will provide easy money to any person with
disability and their lawyer buddies for years to come, all the while
doing great damage to the underlying cause, equal access for people
with disabilities.



On 5/22/19, Jonathan Avila < = EMAIL ADDRESS REMOVED = > wrote:
> The 4k amount you often hear of is in relation to statutory damages that
> some states allows when suits are filed against the ADA and state laws for
> accessibility such as the Unruh Act in California. Most settlements for
> folks who just want a payout are in the range of what Jared mentioned
> although sometimes slightly higher.
>
> Regarding being sued again -- it's very common and unless the case was
> settled as a class action or there is an agreement with the DOJ or something
> similar. Otherwise the future plaintiffs were not involved in the original
> settlement and thus often have legal right to litigate as well. Class
> actions in this area are appearing more commonly but may be hard to get
> certified as a class -- but if they do the risk could be higher to
> defendants. ADA suits at civil suits filed in Federal courts and thus
> double jeopardy is not relevant. I'm not a lawyer though and this isn't
> legal advice.
>
> Jonathan
>
>

From: Steve Green
Date: Wed, May 22 2019 5:22PM
Subject: Re: cost of lawsuit?
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One of our US clients was sued last year and I had the opportunity to study the paperwork that was filed. The plaintiff was asking the court to award a whole raft of financial penalties and other burdens such as annual accessibility testing for five years. Not all of them would benefit the plaintiff, but the total cost to the defendant, including both sides' legal fees, would be well north of $100,000, perhaps twice that, not including the cost of remediation.

Given that the plaintiffs are lawyers who know how all this works, I would be amazed if they settled out of court for less than $50,000.

Steve Green
Managing Director
Test Partners Ltd

From: Amanda J. Rush
Date: Thu, May 23 2019 2:13PM
Subject: Re: cost of lawsuit?
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Re: cost of settlement: While doing client work, I've encountered
settlement costs between 4K and 20K, for a single demand. This is before
suit has been filed in the applicable jurisdiction. I'm not a lawyer,
and I don't play one on TV, but since ADA lawsuits are civil in nature
and not criminal in nature, the Fifth Ammendment does not apply. I can
tell you that everyone I've worked with who dealt with a demand letter
scenario was either (quite literally) horrified that their site was
inaccessible and took immediate steps to begin remedying the issues, or
at the very least was completely willing to start remediating issues.
I'm going to stop here because if I don't I'm going to start ranting on
how absolutely unproductive demand letters are and how the people
sending said letters or getting involved with the shady lawyers don't
realize the problems they're creating, and in most cases, (at least with
the people receiving the pay-offs, and there are a lot of blind people
in this category), the damage they're doing to the cause of equal access
for all.


Amanda



On 5/22/2019 3:01 PM, Birkir R. Gunnarsson wrote:
> Most accessibility litigation claims include defendant commitment to
> fixing their site. I don't know of any letters that ask for a
> statutory damage without requirements to fix.
> I've heard the damage fees are relatively low, probably in the 10 to
> 20K area (Check
> Seyforth's ADA title III articles, I think there are some numbers in
> there about average cost of a settlement). This would not include cost
> of a defense lawyer.
>
> You'll probably pay in the hourly rate range of $300 to $600 for a
> defense lawyer.
> Your settlement will likely include protection from further lawsuits
> from the particular plaintiff, but that protection does not extend to
> anybody else, double jeopardy does not apply.
> Sadly, having good accessibility is no longer sufficient protection
> against the vast majority of lawsuits.
> I believe not a single lawsuit has been dismissed on the grounds that
> the website is accessible and the plaintiff is simply wrong. Unless
> the government steps in somebody with a well-established accessibility
> program/website may have to fight back on those grounds, else
> accessibility litigation will provide easy money to any person with
> disability and their lawyer buddies for years to come, all the while
> doing great damage to the underlying cause, equal access for people
> with disabilities.
>
>
>
> On 5/22/19, Jonathan Avila < = EMAIL ADDRESS REMOVED = > wrote:
>> The 4k amount you often hear of is in relation to statutory damages that
>> some states allows when suits are filed against the ADA and state laws for
>> accessibility such as the Unruh Act in California. Most settlements for
>> folks who just want a payout are in the range of what Jared mentioned
>> although sometimes slightly higher.
>>
>> Regarding being sued again -- it's very common and unless the case was
>> settled as a class action or there is an agreement with the DOJ or something
>> similar. Otherwise the future plaintiffs were not involved in the original
>> settlement and thus often have legal right to litigate as well. Class
>> actions in this area are appearing more commonly but may be hard to get
>> certified as a class -- but if they do the risk could be higher to
>> defendants. ADA suits at civil suits filed in Federal courts and thus
>> double jeopardy is not relevant. I'm not a lawyer though and this isn't
>> legal advice.
>>
>> Jonathan
>>
>>

From: Mallory
Date: Fri, May 24 2019 12:55AM
Subject: Re: cost of lawsuit?
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Can we assume every time a payoff is done, it's adding more chum
to the waters? Maybe we don't want to encourage the feeding of
gremlins after midnight, as what we have no might just get much,
much worse?

cheers,
Mallory

From: Amanda J. Rush
Date: Fri, May 24 2019 8:19AM
Subject: Re: cost of lawsuit?
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Yes, I think so. If we can discourage just paying out that would be
good. I tell businesses making that consideration to consult their legal
eagles for advice on this on this and that we cannot
encourage/approve/whatever this course of action. If they don't have
legal eagles, I strongly encourage them to find some before we can work
together.


Amanda



On 5/24/2019 2:55 AM, Mallory wrote:
> Can we assume every time a payoff is done, it's adding more chum
> to the waters? Maybe we don't want to encourage the feeding of
> gremlins after midnight, as what we have no might just get much,
> much worse?
>
> cheers,
> Mallory

From: Scott Tate
Date: Fri, May 24 2019 12:09PM
Subject: Re: cost of lawsuit?
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We've seen that as high as 50k depending on the industry. Airlines (ACAA) and hospitality tend to be somewhat higher than general retail. And, you still have to fix the issues even if you settle. 😐



The one thing we have seen as a common theme is that no one seems to ever get sued if you have a remediation effort currently 'underway'. ADA remediation is a lot like PCI remediation. Once you start 'fixing the issues', the legal world tends to back off in good faith.



http://www.blndspt.com/accessibility/

From: Amanda J. Rush
Date: Fri, May 24 2019 12:15PM
Subject: Re: cost of lawsuit?
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<blockquote>SC: The one thing we have seen as a common theme is that no
one seems to ever get sued if you have a remediation effort currently
'underway'.  ADA remediation is a lot like PCI remediation.  Once you
start 'fixing the issues', the legal world tends to back off in good
faith.</blockquote>


Problem is, the lawyers involved in the demand letter/driveby lawsuit
racket aren't operating in good faith. So i'm not sure anyone can count
on demand letters and the like being haulted while an ongoing
remediation effort is happening.


Amanda



On 5/24/2019 2:09 PM, Scott Tate wrote:
>
> We've seen that as high as 50k depending on the industry.  Airlines
> (ACAA) and hospitality tend to be somewhat higher than general
> retail.  And, you still have to fix the issues even if you settle. 😐
>
> The one thing we have seen as a common theme is that no one seems to
> ever get sued if you have a remediation effort currently 'underway'. 
> ADA remediation is a lot like PCI remediation.  Once you start 'fixing
> the issues', the legal world tends to back off in good faith.
>
> http://www.blndspt.com/accessibility/
>
>

From: Scott Tate
Date: Fri, May 24 2019 12:18PM
Subject: Re: cost of lawsuit?
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Agreed, but I can't find any lawsuits won against anyone who was currently in a remediation at the time of a demand letter. I've trolled Lexis Nexis and other sources at length, and can't find anyone that has ever lost while fixing their systems. As always, it's not a guarantee, but it's better than being blatantly exposed (e.g. CNN, Schwab, Home Depot and many other massive companies with more violations than a calculator can count! 😊)

From: Amanda J. Rush < = EMAIL ADDRESS REMOVED = >
Sent: Friday, May 24, 2019 12:16 PM
To: Scott Tate < = EMAIL ADDRESS REMOVED = >; = EMAIL ADDRESS REMOVED =
Subject: Re: [WebAIM] cost of lawsuit?


<blockquote>SC: The one thing we have seen as a common theme is that no one seems to ever get sued if you have a remediation effort currently 'underway'. ADA remediation is a lot like PCI remediation. Once you start 'fixing the issues', the legal world tends to back off in good faith.</blockquote>



Problem is, the lawyers involved in the demand letter/driveby lawsuit racket aren't operating in good faith. So i'm not sure anyone can count on demand letters and the like being haulted while an ongoing remediation effort is happening.



Amanda




On 5/24/2019 2:09 PM, Scott Tate wrote:

We've seen that as high as 50k depending on the industry. Airlines (ACAA) and hospitality tend to be somewhat higher than general retail. And, you still have to fix the issues even if you settle. 😐



The one thing we have seen as a common theme is that no one seems to ever get sued if you have a remediation effort currently 'underway'. ADA remediation is a lot like PCI remediation. Once you start 'fixing the issues', the legal world tends to back off in good faith.



http://www.blndspt.com/accessibility/