The two major credit union trade associations on Thursday each sent letters to the Department of Justice asking the DOJ to address an alleged “gray area” in parts of the Americans with Disabilities Act covering website accessibility.

According to the Credit Union National Association and the National Association of Federally-Insured Credit Unions, because requirements for access to credit union websites under the ADA are unclear, many CUs are being hit with litigation or, in lieu of lawsuits, demand letters seeking money.

Jim Nussle, president and CEO of CUNA, wrote in his letter these demand letters threaten litigation under the ADA that targets “highly technical alleged violations, based on unclear requirements for compliance.”

“Over the past few months, credit unions have seen a drastic rise in the number of demand letters threatening class action litigation concerning website accessibility requirements,” Nussle wrote. “Often the same law firms and lawyers will target many different credit unions, even under the guise of seeking protection for non-members of the credit union that could arguably have no reason for wanting to access the website. These shakedowns are harming credit unions and their members and are making it more difficult for credit unions to serve all members, including those who are protected by the ADA.”

Dan Berger, President of NAFCU.
Dan Berger, president of NAFCU.

Dan Berger, president and CEO of NAFCU, likewise urged the DOJ to move forward with proposed rulemaking to clarify the act's standards.

“NAFCU and our members respectfully request the department consider issuing additional guidance and/or an interim final rule that provides clear 'rules of the road' for financial institutions in the area of website accessibility under the ADA. The current 'gray area' has led to an increase in frivolous litigation, which is equating to real dollars being taken out of the hands of credit union members to be put into the pockets of plaintiffs’ attorneys.”

As the DOJ pursues rulemaking to clarify the ADA, Berger asked the department to keep in mind credit unions' status as "member-focused community-based financial institutions" and look to limit potential regulatory burdens credit unions could face as a result of website accessibility requirements.

‘Exact opposite effect’

CUNA’s Nussle said the threats of litigation are having the “exact opposite effect” of increasing the ability to provide services to all members.

“For example,” he wrote, “some credit unions have considered taking their website down altogether because of the confusion.”

Nussle said the previous leadership at the Department of Justice “failed to finalize” regulations governing website accessibility after issuing an Advanced Notice of Proposed Rulemaking on this issue in 2010.

Jim Nussle, CUNA
Jim Nussle, president & CEO of CUNA

“Plaintiffs' firms have taken advantage of this ambiguity to force credit unions and their members into paying settlement costs and of course, their attorneys’ fees,” Nussle wrote in his letter. “The courts have also taken liberties in interpreting the DoJ’s intent and have, in certain instances, required a standard despite no due process for what is required.”

ADA predates consumer Internet

According to attorneys interviewed by Credit Union Journal for a previous article on this issue, in some cases attorneys are using robotic scanners to look at websites, a practice some say can generate false positives. Those website owners then receive demand letters from the attorneys.

Bill Adler and Cristina Miller both are partners in the Glendale, Calif.-based law firm of Styskal, Wiese & Melchione, LLP, which has worked with credit unions on regulatory compliance and litigation matters for more than 40 years. Miller pointed out the ADA was passed into law in 1990, before the rise of consumer Internet and websites.

“Over the years, websites have been recognized as part of the ability to supply goods and services to the public,” Adler said in August. “There is a question as to how this applies because there are no regulatory standards for allowing access to a website. There is a standard that is an ideal, a private standard, created by the World Wide Web Consortium created in 2008 and referred to as WCAG 2.0. It is a very high standard and website technology has not caught up.”

Miller said in the absence of regulatory guidance, plaintiffs’ attorneys are going to court and asking for compliance on the WCAG 2.0 standards. Earlier this year there were four important cases she said are creating a lot of confusion because they are not consistent and they are coming from different jurisdictions.

“It is a bit of a muddle, which is a problem not just for credit union, but for other businesses,” she said. “One court in Florida suggested businesses have to meet those standards right now, which is creating a dislocation for website providers.”