Legal Alert Maryland – September 2022
RENEWED ADA WEBSITE COMPLIANCE ISSUES
LATEST CFPB UDAAP EQUITY SURVEY RELEASED
THE ELEVENTH CIRCUIT REVERSES THE FDCPA’S TROBLANT DECISION ON THE LACK OF PERMANENCE
Renewed ADA website compliance issues
As we noted earlier in our April 2022 Maryland Legal Alert, the Civil Rights Division (DOJ) of the United States Department of Justice has issued guidelines regarding website accessibility under the Americans with Disabilities Act (ADA). The ADA requires businesses open to the public to provide “full and equal enjoyment” of goods, services, facilities, etc. to people with disabilities. Businesses subject to the ADA must take steps to provide “appropriate communication aids and services” to communicate effectively with people with disabilities. The guidelines make it clear that a website with features inaccessible to people with disabilities may, in turn, limit accessibility to goods, services, facilities, etc. and is therefore subject to the general accessibility requirements of the ADA.
The guidelines summarize categories of barriers to website accessibility, including:
- Poor color contrast;
- Information conveyed only by color;
- Images without text alternatives;
- Videos without subtitles;
- Form-filling labels that screen reader tools cannot read; and
- Mouse navigation functionality only.
The guidelines do not provide website-specific accessibility standards; instead, it gives website operators the flexibility to ensure that goods, services and programs offered online are accessible to people with disabilities. The guidance refers to existing technical standards published by the Web Accessibility Initiative (WCAG 2 Standards) and provides a sample list areas of interest for website accessibility.
The guidelines clearly stated that the DOJ: (a) would likely increase enforcement activities of the ADA’s website; and (b) require operators of online-only websites to comply with the Guidelines. Several DOJ enforcement actions that have been resolved this year provide useful insight into steps website operators can take now to minimize the likelihood of website accessibility issues. The DOJ settlement agreements included requirements for website operators:
- Follow (in part materially) the WCAG standards in version 2.1 (available on Web Content Accessibility Guidelines (WCAG) 2.1 (w3.org))*;
- Include a prominent sub-page or link to a separate web page with an accessibility statement/notice including: (i) the website operator’s commitment to facilitating the accessibility and usability of the website for all people with disabilities; and (ii) a contact email address/toll-free telephone number (which accepts calls made using video relay services) where customers with disabilities can request technical assistance and/or provide feedback on how the accessibility of the website can be improved;
- Perform periodic testing of the website to identify accessibility issues for people who are blind, visually impaired or have difficulty using a computer mouse; and
- Provide ADA website compliance training to employees who develop and maintain the Website Operator’s website.
*It should be noted that the DOJ settlement agreements provide that a limited number of non-WCAG 2.1 compliant areas will not automatically mark a website as being accessed in an unauthorized manner, as long as the non-compliant areas are not not likely to prevent a person with a disability from accessing “material” information on the website or otherwise obtaining goods or services through the website.
We also note that there has been an upsurge in litigation activity by private plaintiffs in this space, with financial institution customers receiving a letter of formal notice with a draft complaint attached which would allegedly be filed if the financial institution does not contact the sender to discuss an acceptable resolution. Financial institutions should review the DOJ’s guidelines and specific list of areas of concern to ensure that public-facing websites are accessible to people with disabilities.
Publication of the most recent survey on CFPB’s UDAAP shares
We have updated our recurring article, An investigation of activities identified as unfair, deceptive or abusive by the CFPB . The article provides a detailed summary of legal actions taken by the Consumer Financial Protection Bureau (CFPB) regarding unfair, deceptive and abusive acts or practices (UDAAP) during the first half of 2022.
A review of the specific acts or practices identified by the CFPB as problematic and resulting in UDAAP violations is instructive for industry participants in conducting their own internal compliance reviews to ensure that they do not not engage in similar practices.
Eleventh Circuit reverses troubling FDCPA ruling on lack of standing
In a recent in bench decision, the United States Court of Appeals for the Eleventh Circuit reversed the course of two of its earlier decisions, now overruled, regarding whether a debt collector’s use of a third-party mail provider violated FDCPA (Fair Debt Collection Practices Act). The 11th Circuit had ruled that a collection agent’s electronic transmission of data about a consumer’s debt to a third-party mail provider violated Section 1692c(b) of the FDCPA, which prohibits sharing a consumer’s personal information. a consumer to a third party “in connection with the collection of any debt.”
The 11th Circuit originally reversed the trial court’s order dismissing the action. The debt collector then requested a new hearing from which the 11th Circuit issued a surrogate opinion in October 2021, which dealt with the decision of the Supreme Court of the United States in TransUnion LLC vs. Ramirez.
However, a few weeks later, the 11th Circuit issued a order spontaneously quashing the counsel’s opinion and ordering that the matter be heard again, this time before the in bench sign.
In its recent decision, the majority of in bench the panel decided in favor of the debtor collector on the strict basis of a lack of standing to act. Relying on recent Supreme Court decisions, the majority of the 11th Circuit found that the debt collector had only alleged a mere violation of the law and had not alleged concrete harm in fact sufficient to justify the Federal Court’s exercise of jurisdiction over the lawsuit.
practice pointer: While some collectors consider this decision a victory, caution is still in order. The 11th Circuit did not address the underlying problem; namely, whether the use of third-party providers violates the FDCPA. Moreover, this decision would not prevent similar lawsuits from occurring in state courts. Debt collectors and debt managers should continue to review and monitor their use of third-party vendors with a keen eye.
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