Credit unions have seen a string of victories so far in 2018 with regard to lawsuits alleging violations of the Americans with Disabilities Act on CU websites. But despite those successes, some observers say the fight is just beginning – a point emphasized by the fact that several Texas-based CUs have received ADA demand letters within the past week.
When credit unions receive demand letters or are the victims of ADA-related lawsuits, they are often aided by representatives from the Credit Union National Association or the National Association of Federally-Insured Credit Unions, both of which have filed a number of amicus briefs on behalf of embattled CUs. Those briefs typically make four arguments for dismissal of the case:
- The plaintiff lacks standing to file 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
- In several credit union victories already, courts have agreed with the first argument – that the person named as plaintiff in the suit does not qualify for membership at the credit union in question, meaning he or she does not have the ability to join and is therefore not harmed by any alleged lack of accessibility on the credit union’s website.
But that’s only one court’s opinion, and that could be consequential moving forward.
Leah Dempsey, CUNA’s senior director of advocacy and counsel, said the Fourth Circuit Court in Virginia is the only court to have dismissed ADA website suits against credit unions, so far. In Texas, some plaintiffs have voluntarily agreed to dismiss, so there were no court rulings to go by in future cases. Dempsey said most of the dismissals in Virginia have been due to a finding of no standing to sue on the part of the plaintiffs, and there are several cases there where courts have found a website is not a place of public accommodation.
“The word ‘website’ is not in the ADA,” she noted, adding another argument available to CUs is the assertion that applying Title III of ADA renders it “impermissibly vague.”
“Credit unions do not have due process rights because the Department of Justice has not implemented regulations in this area,” Dempsey said. “The primary firm that is bringing these cases is starting to make different arguments because of the rulings in Virginia. We expect them to try to attempt to get personal jurisdiction. They are still sending out demand letters. Some demand letters we have seen recently bring up a California law that potentially would give them jurisdiction, but we do not think other states should be subject to a California statute.
“While there have been some positive rulings, we still have to work through a number of circuit courts, and will have to go to an appellate court at some point and possibly the Supreme Court,” Dempsey added.
Carrie Hunt, NAFCU’s executive vice president of government affairs and general counsel, told CU Journal when a credit union makes an argument relating to standing – meaning pointing out the plaintiff does not have the ability to join the CU given its field of membership rules – then the legal defense is there is no concrete or tangible injury.
“The other general argument goes to how the ADA applies to credit unions in the website realm,” she said.
Title III of the ADA sets certain standards for public accommodation, Hunt explained. It says, essentially, service establishments cannot discriminate against people with disabilities. The body of law has found this applies to credit unions, Hunt noted, but she said there is no specificity in applying the ADA to websites or if the needs for people with disabilities can be served in another way.
“When you look at case law not involving credit unions, some of these issues have been litigated,” Hunt said. “Courts look to whether certain services are only available on websites – for example, a shopper is only eligible for a discount if ordering online, which excludes a blind person. In one of the motions to dismiss an ADA suit against a credit union, the court agreed a website is not a place of public accommodation.”
Credit unions “strongly believe” in the ADA, and in providing services to everyone who is eligible to join their field of membership, Hunt added, “which is why these lawsuits are so frustrating. In some cases credit unions are in compliance with the existing standards and what is being asserted is false. They have readers to accommodate blind persons wanting to use their websites.”
Many say it’s now only a matter of time until the lawyers pursuing these suits begin seeking out plaintiffs who are eligible to join as a way around the argument claiming plaintiffs’ lack of standing. And that, sources say, is why credit unions need to continue to pursue other defenses – both in court and before demand letters are sent.
Attorneys who spoke to Credit Union Journal for a previous article on this topic have noted that in some instances, 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 lawyers.
Bill Adler and Cristina Miller are both 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 the 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.
CUNA’s Dempsey said the trade group is continuing to urge credit unions to take any compliance steps they can. “It is still important to comply with WCAG 2.0,” she offered.
Donovan said CUNA is continuing to work with its league partners and credit unions that have had suits filed against them.
“We will continue to help them, and we urge credit unions to get their websites compliant,” Donovan said. “We are advocating on Capitol Hill and asking the Department of Justice to provide more guidelines." CUNA representatives have had multiple meetings with DOJ reps, including the acting assistant attorney general for civil rights.
Both Dempsey CUNA Chief Advocacy Officer Ryan Donovan urged credit unions to make themselves as informed as possible and keep their websites as compliant as possible.
“We all need to be prepared,” Donovan said. “From a legal perspective, this is going to be a long fight. It is great to see dismissals and the Texas cases being withdrawn, but this is going to be a circuit-by-circuit fight. We need to be prepared to go on the appellate level and possibly the Supreme Court. This is going to be a long road.”
‘Momentum,’ but a long fight ahead
NAFCU has also met with DOJ reps, though Hunt previously noted that the agency is still in “listen mode” and hasn’t yet made any firm moves.
“We think there should be a window for a facility to be fixed prior to being sued, and the same should apply to websites,” she said. “Until the Department of Justice comes out with clarity, we support a standard. Some credit unions have very limited websites, so having an 800 number on the website is sufficient for a disabled person to get information about the credit union’s products and services.”
Hunt said that while CUs do have some “momentum” in fighting these cases, the battle is far from over.
“It is extremely positive that there have been these dismissals, but there are  states in which cases have been filed and each state is going to have different case law and different interpretations,” she said. “It is a positive trend but still a long way to go.”
More of Credit Union Journal's coverage of ADA lawsuits, amicus brief filings and case dismissals can be found here.