The Next Wave of Federal Lawsuits Facing ARM Companies is Approaching

ADA Filings Outpace TCPA Filings in 2019

ARM companies today are faced with a growing list of compliance obligations they must consider and respond to.  In virtually all areas, some ambiguity exists in the statute or regulation, or its application that opens the door to a challenge from consumer litigators.  Probably most familiar to companies operating in the ARM industry is the Telephone Consumer Protection Act (TCPA), where robustly vague language defining Automated Telephone Dialing Systems, a lack of settled case law and competing rulings continue to leave ARM companies exposed to potentially massive Class Action lawsuits brought many times by serial litigators. As a result, companies have been forced to invest heavily in compliance tools and training to address this risk, and many times, when challenged, are forced to accept large settlements to avoid the greater cost of defending against a class action.

As companies have become more aware of the risks associated with non-compliance of the TCPA, lawsuit filings have dropped from a peak of 4,840 cases in 2016 to just over 3,800 in 2018.  While this denotes a substantial improvement in the velocity of case filings year over year, consider that just 7 cases were filed under the TCPA in 2006[1], a decade prior to the year of peak filings under the statute.

Today, a new threat faces virtually every company operating in the ARM industry.  A threat where violations occur passively, without any action or activity required on the part of the company.  A threat from consumer litigation that could conceivably result in an exponentially greater number of filings than the TCPA, and by current statistics, will likely surpass the number of TCPA filings in 2019 by a factor of 2X or more.  And, all you need to do to potentially violate the statute is launch or operate a public facing website or collection application.  I am referring to a threat of litigation under the Americans With Disabilities Act (ADA) and Sections 504 and 508 of the Rehabilitation Act of 1973.  Some of the more notable cases filed against companies in 2019 whose websites are alleged to be inaccessible include entertainer Beyonce, Winn-Dixie, Dominos Pizza, Fox News Network, Burger King, Nike, Blue Apron, CVS Pharmacy, Hobby Lobby stores and Harvard University.

Like the TCPA, there remains much ambiguity around what defines a violation under these acts.  A common misconception is that one or both acts apply only to government websites or other digital services provided by the government.  However, the Department of Justice (DOJ) has repeatedly affirmed that Sections 504 and 508 apply to all persons covered under the act, not just government entities.  With regard to the ADA, in a recent landmark ruling by the 9th Circuit Court of Appeals overturning a lower court’s dismissal of Robles v. Dominos Pizza, LLC, the Court affirmed that “…the ADA applies to the services of a public accommodation, not services in a place of public accommodation.” 

Further frustrating the matter, DOJ has failed to adopt a set of defined standards around Section 508 and the ADA, and recently withdrew a proposal for rulemaking that would have provided much needed clarity around the acts.  Instead, they have simply said that websites and mobile applications should be accessible to all disabled users and have pointed to standards defined under WCAG 2.0 or WCAG 2.1 at the AA standard level as “Guidance” for achieving accessibility. 

Therefore, in the absence of clearly defined standards, a mere “Perceived” deficiency of a website or mobile application, resulting in a person being unable to access your website, or some function of your website, may open the door to a legal challenge through the filing of a Federal lawsuit.  The list of potential individuals that could encounter accessibility issues when interacting with your website includes, but is not limited to, visitors with a vision impairment, hearing impairment, motor impairment, seizure disorder and/or dyslexia.

Until recently, obtaining compliance and certification around the WCAG 2.0 or 2.1 at the AA Standard was costly, time consuming and required the manual review of the website by individuals with specific disabilities.  Remediation was also expensive and time consuming and required tedious code level edits to various aspects of the website covering images, forms, animated content and mobile website versions.  The cost of an audit and certification for a typical website of 300 pages or less could easily run $30K to $50K and annual audits and recertifications could easily exceed $15K or more.  Website plugins provided some assistance with addressing deficiencies but did not offer ongoing scanning or the ability to address new remediation issues proactively.

Now, an AI powered solution exists that provides an active scanning technology to constantly monitor your website for potential accessibility deficiencies and remediates these deficiencies in real-time as your website content changes or new content is added to your website.   The solution is available from AccessiBe, a technology company dedicated to providing a cost effective, solution for website operators to achieve the AA level compliance standard under WCAG 2.1. 

The solution runs in the background of your website, so it doesn’t impact your site’s performance and it doesn’t collect any personal information from website users, eliminating concerns around GLBA, CalOPPA or the GDPR in Europe.  Deployment of the application is as simple as adding a short snippet of Javascript to your website or adding a custom HTML tag in Google Tag Manager.  Further customization to match your website UI and white label branding are also available.

The application will scan your website and provide users with a robust, yet easy to navigate interface, like a chat widget, designed to manipulate your website content in specific ways to make it accessible for users with virtually any disability. 

The company claims the application will scan and remediate over 95% of deficiencies on most websites in about 48 hours, and they issue an accessibility statement under WCAG 2.1 at the AA level to back it up.  AccessiBe provides all of this for websites with 1,000 pages or less for an annually renewable license fee of just $490/year, and they offer a 7-Day Free Trial so you can try it out before making a commitment.

So considering the growing burden of compliance obligations facing ARM companies today, and the mounting cost of litigation defense, it is nice to know there is a simple, cost effective solution available to address the growing number of lawsuits in this area.  But without some type of solution, if challenged, $490 will likely not cover the first phone call to your legal counsel to discuss your options in responding to that challenge.

About the Author

Jeff Dickey is a marketing communications consultant who has worked in the ARM industry for the past 13 years and previously led the sales and marketing organizations of several FinTech companies in the ARM and Debt Relief sectors of Financial Services.  He consults with Collection Agencies and Debt Buyers on technology and compliance issues surrounding marketing and business development.  For assistance with deploying or customizing the AccessiBe solution, he may be contacted through his LinkedIn profile below.

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