The Cornerstone Credit Union League, in conjunction with the Credit Union National Association, has filed an amicus brief supporting a Texas credit union embroiled in a lawsuit alleging website noncompliance under the Americans with Disabilities Act.
The national trade association and state league, which represents CUs in Arkansas, Texas and Oklahoma, are supporting $41 million-asset BCM Federal Credit Union in Houston.
The brief supports the credit union’s motion to dismiss based on the following claims:
- The plaintiff lacks standing to file a suit against the credit union
- A website is not a place of public accommodation
- Applying Title III of the ADA to websites renders the statute impermissibly vague in the absence of any implementing regulations by the Department of Justice
- The court should dismiss the complaint pursuant to the Primary Jurisdiction Doctrine.
"CUNA and [Cornerstone] are fighting back against an unscrupulous lawsuit alleging website noncompliance under ADA," CUNA President and CEO Jim Nussle said in a press release. "Credit unions are being hit with virtually identical lawsuits from plaintiffs' firms exploiting a law designed to protect those with disabilities. We intend to take similar action with the Illinois Credit Union League soon in a case against an Illinois credit union and anticipate engaging in several cases around the country in the coming weeks to maximize our impact on behalf of all credit unions and to ensure we preserve our arguments for any litigation that makes it to the appellate level."
Last month, a Virginia credit union successfully had a similar suit dismissed, with a federal judge claiming the plaintiff lacked standing to file suit, similar to what BCM alleges.
Cornerstone's legal action comes one week after the Michigan Credit Union League filed its own amicus briefs in support of Belle River Community Credit Union and Aeroquip Credit Union in lawsuits concerning ADA compliance on the credit unions’ websites. Both credit unions are under $50 million in assets.
“MCUL stands behind its member credit unions,” Michigan Credit Union League President and COO Ken Ross said in a statement, “At the end of the day, this is a colossal waste of time and money — if we had a clear sense of what the DOJ considered good faith compliance, our members would have a path forward, rather than playing a legal guessing game on a case-by-case basis.”
In an interview with Credit Union Journal, CUNA VP of Advocacy Ryan Donovan explained that the trade association's legal strategy for deciding which cases to join depends on where the association can have the biggest impact in setting a positive precedent. CUNA can’t weigh in until there is at least a motion to dismiss or a trial proceeding, he said.
In some situations, while CUNA is looking at a case, the traditions or the rules of the local court may make it more difficult to file there.
“We want to make sure that the strongest arguments are being made from the beginning so that as these cases go to the appellate level and perhaps even to the Supreme Court, we’re able to engage to the benefit of credit unions and their members,” Donovan said.
In cases where CUNA does not represent CUs in ADA compliance suits, the trade association still provides guidance to member credit unions. Donovan urged all credit unions to make sure their websites are WCAG 2.0 AA Accessibility compliant, and recommended that CUs reach out to CUNA in the event they receive demand letters or have suits filed against them.
In these and many other instances, plaintiffs are pursuing legal action against smaller credit unions -- a move Donovan posited was probably because "the plaintiffs probably view them as easy picking, and that’s really unfortunate."
Because there is a gap in public policy addressing ADA website compliance, CUNA’s campaign may be a long battle. Meanwhile, the association continues its “360 degree approach” by pushing for change in the courts and in congress.
Pressure from credit union trade associations may be starting to pay off. Last week Rep. Rod Woodall (R-Ga.) pledged to work with credit unions as the House approved the ADA Education and Reform Act (H.R. 620). The bill proposes a solution to lawsuits that target businesses' physical structures and ultimately take advantage of the disabled.
The Department of Justice is also evaluating a request made by 61 members of Congress seeking clarity on how ADA rules apply to websites.
This story was updated Feb. 22, 2018 at 2:08 p.m.