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Posted By:  ECT News Network on 09/17/2019 in Ecommerce

Targets for Lawsuits: Every Consumer-Facing Site Is at Risk

Targets for Lawsuits: Every Consumer-Facing Site Is at Risk

By Bill Sternoff 

We didn't know we were a sitting duck until a shot was fired, and then we discovered lawsuits are everywhere.

The number of suits is rapidly growing across the country. Many are lodged from Florida, filed in California and other states. Gibbons Law in New York wrote that more than 1,500 cases were clogging dockets in the Southern and Eastern Districts of New York and warned that "every business with a consumer-facing website is at risk."

Have a website? Sell goods and services? It makes no difference if your business is big or small. If you haven't taken action, chances are you have a target on your back, too.

That 'Junk Mail' Could Be a Legal Notice

Our Body Glide balms are used around the world to help protect skin from rubbing that causes irritation, chafing, foot blisters and raw skin. Sales are overwhelmingly through retail partners, some of 20-plus years. Of course, we have a website.

It was one of thousands targeted under the ADA, the Americans with Disabilities Act. The notice came by email -- not even a certified letter -- and I nearly deleted it. There was a draft civil complaint to be filed two states away in federal court in the Central District of California.

Once a journalist, always a journalist. Before considering a call to a lawyer, I started digging.

The lawyers at the door were on the East Coast, allied with other lawyers out west, and a plaintiff in Los Angeles. They alleged our website shut out people who are hearing, visually and physically impaired. We had 30 days to respond and after that, even in settlement, they wanted fees, costs and damages.

Almost 30 years ago, the ADA was signed before the Internet was a thing.

The true number of impacted businesses is large but elusive, because many and possibly most targets are settling out of court. Many are paying legal fees and costs to the plaintiffs and their lawyers, and some have faced significant legal defense costs. It can be avoided -- but first, why is this happening?

Congress MIA

The quasi-legal shakedowns are made possible because of inaction by Congress to close a gap in the law, and to tell businesses they need to comply with the ADA and how. Congress is missing in action, the gap is like an ATM machine for lawyers, and it needs to be responsibly addressed.

In 2012, the U.S. Census Bureau reported that one in five Americans have a disability. The number may grow when we see next year's census report as some of us are living longer.

You may not know the ADA applies to your website even if you don't have a storefront. The ADA definitions of businesses covered are broad and include professional offices and physical places wherever the public receives goods or services.

Body Glide has a website but no storefronts, so how does the ADA apply? The answer is that enforcement is not just at the federal level.

The draft lawsuit was teed-up to file in California where it pulled in Civil Code, Part 2, Personal Rights, Section 51 (b), generally known as the Unruh Civil Rights Act, which states the following: "All persons … are free and equal, and no matter what their sex, race … disability, medical condition … are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."  

In federal law, if you have a physical location and a website, both must be ADA-compliant.

In California, the Unruh Act requires equal access for persons hearing-, visually- and physically-impaired, even if you are only selling goods and services on a website seen by people in California. What public website is not seen in California? Yours?

Easy, Affordable Solution

If you are targeted, you may or may not need legal counsel. We didn't, and you can avoid trouble.

There are companies that quickly modify websites to be compatible with ADA, and we signed up. Their cloud systems scan and update websites for changes the previous 24 hours. Compliance is remarkably cheap compared to a couple of hours with a lawyer.

We were given one line of code and directions to install it. Within minutes, all content on our site was visibly compliant with Web Content Accessibility Guidelines. Check your software, get with your IT people and your site developer.

On our Body Glide website, there is a disabled symbol at the lower right. It opens options for font, scaling, color, contrast -- and all of the content is compliant with software used for access to the site by someone who is disabled. Our mobile site is similarly accessible. The entire annual cost was less than US$500, and we paid nothing more.

The lawyers who threatened the lawsuit dropped it, and we paid them nothing.

Be warned! It's best to act now. Here are two takeaways:

You can comply with ADA using an online vendor, provide access to everyone, and probably benefit from sales that offset the annual cost to stay ADA-compliant.

Or, be a sitting duck and take your chances, because there's nothing to stop a lawyer from targeting you. That's right. There's nothing!

About the Author
Bill Sternoff was a national correspondent for NBC News and anchored newscasts for many years in Washington D.C., Seattle, Denver and Los Angeles. In 1998, he became the CEO of Body Glide.

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