By Ray Birch
ROYAL OAK, Mich.—Now that five ADA lawsuits against credit unions have been dismissed, is momentum building for a wave of dismissals among the hundreds of lawsuits brought against CUs nationally?
Two analysts say the mounting number of dismissals is certainly favorable for credit unions, which continue to face a rash of “frivolous” lawsuits across the country that allege the CUs’ websites are out of compliance with the Americans With Disabilities Act. However, experts still believe the road ahead may not be short, and what is still needed is guidance from the Department of Justice.
“I do think momentum is building,” said Michael Bell, attorney and counselor with Howard & Howard here, who is representing a number of credit unions that are facing ADA lawsuits. “I think momentum will continue to build. In general, the established law is on credit unions’ side. I do think the dismissals are providing an impact, but, procedurally, certain court decisions are not necessarily binding on other courts.”
Credit Union Wins
The latest victory came in a federal district court in Virginia, which this week ruled that the plaintiff to such a lawsuit did not have standing to sue Chesapeake, Va.-based ABNB FCU. Similar to other dismissed suits, the court found the plaintiff was not eligible for membership and would likely not use the credit union's services.
As CUToday.info reported here, the Virginia decision comes less than a week after a court in Texas dismissed a similar lawsuit against BCM FCU.
Carrie Hunt, NAFCU EVP-government affairs and general counsel, spoke with CUToday.info after meeting with the Justice Department's Disability Rights Section last Friday and outlined what she sees ahead.
“We are continuing to see lawsuits across the country; now, 21 states have been hit with the suits relative to ADA,” said Hunt. “And now there have been five dismissals, three in Virginia and two in Texas. Every victory is another step closer to clarity for credit unions, and we’re pleased to see things moving in the right direction."
While a positive step, Hunt emphasized there is a “long way to go on a very frustrating issue” for credit unions.
Asked if the decisions could set precedents for more positive rulings in other ADA cases, Hunt said the “short answer is yes. Of course, anytime you have something on the trial court level it can take a while to percolate up to higher courts and be adopted by other jurisdictions. So, this is a start, and we are certainly hopeful we will begin to see some of these lawsuits slow down—but so many suits have been filed across the country, hundreds just against credit unions, and that is not counting the suits against banks, hotels, restaurants …”
The key issue, reminded Hunt, is for the DoJ to provide some guidance on ADA website requirements. CU leaders have been meeting with the DoJ in the past months hoping to nudge the DOJ forward to release some guidance. The Department of Justice has never promulgated regulations regarding website accessibility for public accommodations and recently withdrew previously issued advanced notices of proposed rulemakings on this subject.
“The Department of Justice has long taken the position that the ADA applies to websites, but that is an informal position. If the Department of Justice were to adopt a standard we would want that to be very flexible so that it is not onerous for credit unions,” said Hunt, about a point she emphasized with the DoJ last week. “We suggested that a 1-800 number could be a mechanism to support compliance. I do think the DoJ realizes there is no one-size-fits-all approach to potentially how any institution could comply with the ADA. But there are m
any, many questions that remain unanswered and because of all that uncertainty is why we are seeing all these lawsuits.”
More Tools In Toolbox
If the DoJ provides some clarity, Hunt said credit unions would then have “more tools in their toolbox to show they are in compliance. In some of these (lawsuits) there are suggestions being made that credit unions should have to comply with private industry best practices, and that is not the law. That is not what the DoJ requires.”
Hunt said that in leaving the meeting with the DoJ Friday she believes the agency is sympathetic to the interests and concerns of credit unions.
“Yet they are still considering whether or not any formal rulemaking is needed, and I think they are in the process of deliberating that now,” she said.
And all the dismissals, Hunt said, possibly indicate there may be light at the end of the tunnel.
“To say all this will be over in a month or two, certainly not. What the decisions really indicate is that we are moving in the right direction,” Hunt said.