As more than 5,000 credit union leaders from around the country converge on Washington for the 2018 CUNA GAC, we'll be using this opportunity to address threats and legal actions from unscrupulous lawyers abusing the Americans with Disabilities Act, an important law created to protect vulnerable consumers.
Unfortunately, predatory law firms are taking advantage of ambiguities about whether there are requirements under the ADA for website accessibility. Thousands of credit unions around the country have received demand letters and have even had suits filed against them, alleging their website is not in compliance with the ADA.
Credit unions are then faced with an extraordinary problem because the Department of Justice has not specifically spelled out any requirements for websites and the ADA does not speak on this issue. Accordingly, while courts have identified certain compliance standards such as the Web Content Accessibility Guidelines (WGAC 2.0), it is impossible to know exactly what a credit union needs to do, or should have been doing.
At least one federal court has even said the term "website" does not appear anywhere in the ADA's exhaustive list of covered public accommodations and the omission of this term alone is sufficient to conclude that websites cannot be considered a place of public accommodation and are not subject to the ADA. However, adding to the confusion about what is required, other federal courts have come down differently on this matter.
Meanwhile, credit unions are caught in this tangled web of uncertainty and are an easy target because of their smaller size and sometimes limited resources.
Lawyers see this uncertainty and lack of due process as a cash cow to take advantage of. Credit unions as member-owned, not-for-profit financial cooperatives, of course, want to serve all consumers who are eligible for their membership. And, if they were given the opportunity to help any member access their services, they almost certainly would do so. But, that is not what is happening – they are receiving "gotcha" demand letters tantamount to extortion with no warning, and have even unknowingly had lawsuits filed against them with no previous communication at all from the plaintiffs' firm or the plaintiff themselves. What's most puzzling is often those bringing the lawsuits could not even possibly be a member of the credit union they are suing, so would arguably have no reason for wanting to access its website.
Using our CUNA/league 360-degree advocacy approach, our long-term goal is a permanent solution and our legal strategy is to put resources where we can have the greatest impact.
We have been advocating for action from Congress and the DOJ to address this issue for many months. In response to our efforts, a letter from Congress to the DOJ seeking clarity about this issue earned 61 cosigners, including the chairman of the Judiciary Committee. We met with the acting assistant attorney general the day the letter was delivered and we've maintained a dialogue with the office since that time.
On the litigation front, thus far we have filed amicus briefs in Texas and Illinois. We intend to file in every circuit where we can have an impact, and create or solidify helpful precedent as these lawsuits move through different stages of litigation. We've teamed up locally with our state league partners to make sure that we are representing both local and national concerns.
This week during the CUNA GAC, we'll be hosting a members-only breakout session where panelists will discuss steps credit unions can take in the absence of unclear standards. We'll also provide the latest on our advocacy efforts.
When credit unions are targeted for litigation because of unclear guidelines, resources are depleted from the entire membership. Certain smaller credit unions have considered taking down their entire website entirely or even closing their doors because of these threats. This harms all consumers, including those protected by the ADA, who rely on credit unions for safe and affordable products and services.
Ryan Donovan is Chief Advocacy Officer for CUNA. He can be reached at 202-508-6750 or [email protected].
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