Demand-Letter Deluge

Community banks are facing legal threats based on unclear website guidelines related to the Americans with Disabilities Act. Here’s what to do

By Rhonda Thomas-Whitley

Recently, ICBA has witnessed a growing and alarming trend: a resurgence of aggressive demand letters from plaintiffs’ law firms. Unlike the rash of demand letters regarding flimsy patent claims that many community bankers have experienced in the past, this new breed has found a novel source for trolling small businesses: the Americans with Disabilities Act (ADA).

Community banks clearly support the ADA and work to ensure access to their services for individuals with disabilities. The demand letters in question allege that recipient community banks’ websites are not in compliance with the ADA’s online accessibility standards. The law firms claim that community banks and other businesses are violating Title III of the act by operating websites that are not sufficiently accessible to individuals with visual disabilities.

In violation?
According to the letters, community banks that do not modify their websites to meet the standards in the World Wide Web Consortium Web Content Accessibility Guidelines, or WCAG, will continue to violate the ADA. The law firm letters pressure recipients to achieve an “enforceable agreement” with the firm that will provide injunctive relief and, of course, cover their attorney’s fees.

While the law firms claim in their demand letters that the Justice Department uses the WCAG guidelines as a “baseline requirement for website accessibility,” this is merely an attempt to intimidate letter recipients into reaching a settlement. What the letters don’t say is that the DOJ has yet to establish rules and regulations governing website accessibility. In fact, the department isn’t planning to do so until 2018.

In a recent letter, ICBA asked the Justice Department to intervene in these coercive letters by releasing interim guidelines or confirming that the agency will adopt the WCAG as guidance.

“The absence of a final rule both exposes community banks and other small businesses to litigation threats, and forces these businesses into complying with a provisional standard that could be substantially modified when the DOJ issues a final rule,” ICBA wrote. “Having a final rule provides community banks and other small businesses a safe harbor to ensure that accessibility compliance is assured.”

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Spreading like a virus
These lawsuits started with a federal class-action lawsuit filed in California against Target Corp., in which the court held that portions of Target’s website were covered by the ADA. ICBA research indicates that more than 100 lawsuits in various industries have since been filed in at least nine states. While most of those lawsuits have been filed against retail establishments and the restaurant industry, the rapid increase in reports from community bankers demonstrates that this is a legitimate threat.

ICBA has heard from community bankers in Colorado, Illinois, Michigan, Nebraska, Ohio, Pennsylvania, Texas and a growing list of other states that have received threatening demand letters. Most are mulling over whether they should settle out of court to prevent litigation, negative publicity and future harassment.

ICBA recently released guidelines to help community bankers caught in this situation (see “How to respond to demand letters from plaintiffs’ firms,” left).

Questionable legality
These demand letters rest on a questionable legal basis, but the litigation threat they pose is all too real. While ICBA has battled the patent-troll problem all the way through Congress, plaintiffs’ attorneys have once again proven a resourceful bunch, at least when it comes to lining their pockets at the expense of small businesses.

Community bankers remain committed to ADA compliance and accessibility, but anyone receiving this kind of demand letter should take this threat seriously, engage legal counsel, and partner with their vendors and others in their network to address the issue.

In the meantime, ICBA will continue to monitor this unfortunate trend, working with other industries to develop a policy response and pressing the Justice Department to intervene. Together, we can stand up to bullying of this new group by litigation trolls.

How to respond to demand letters from plaintiffs’ firms

  1. Do not ignore the letter. Community banks that receive demand letters are likely to be targeted for litigation. Disregarding the letter will not make the problem go away.
  2. Find strength in numbers. While plaintiffs’ law firms might encourage you to contact them immediately, ICBA strongly recommends you contact legal counsel to research them and their litigation history. Demand letters are often sent in batches, so tap your network to see who else has been targeted and coordinate your defense.
  3. Review your website. While your legal counsel researches the letter, assess your bank website and implement updates that meet WCAG guidelines. If your site complies by the time a suit is filed, there is a good chance the claim will be dismissed.
  4. Check vendor contracts. Review your website vendor’s contract to ensure that the provider complies with ADA requirements, and inform it of the demand letter so it can respond.
  5. Ask questions. Assess the demand letter’s claims and communicate with the law firm through your legal counsel.
  6. Follow up. When the law firm responds, evaluate its feedback and decide on a course of action. The firm might even ask you to hire it to consult on ADA accessibility issues. But don’t feed the troll—find another ADA specialist to work with.

Learn more: Read ICBA’s complete guidelines for responding to ADA website demand letters at
www.icba.org/advocacy


Rhonda Thomas-Whitley (rhonda.thomas-whitley@icba.org) is ICBA assistant vice president and regulatory counsel.

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