By Ray Birch
COLUMBUS, Ohio—One CEO says her credit union has had enough of the demand letters she is calling “extortion” related to website accessibility requirements under the Americans with Disabilities Act (ADA) that are hitting CUs across the country.
Becky Landis, CEO at the $64-million State Highway Patrol FCU, told CUToday.info that “enough is enough” and that her credit union feels the only way to stop these “frivolous” lawsuits is to litigate.
Landis’ reference is to a wave of lawsuits and threats to credit unions across the country that allege the CUs’ websites are out of compliance with the ADA. A number of credit unions have paid settlements, although it isn’t known how many.
“Yes, you could say that it might be cheaper and less costly for the credit union to roll over and settle, but am I really doing justice to my membership by doing that?” asked Landis, whose CU has received a demand letter from a law firm. “Another attorney can just come along later and do the same thing to us. You have to take a stand. I am passionate about this to give it a lot of my time and energy.”
Heading To DC
Landis is joining a group from the Ohio CU League and CUNA to meet Tuesday with John Gore, assistant attorney general at the Department of Justice who oversees the Civil Rights Division, to discuss clear guidance on what is required by websites to meet ADA requirements. As CUToday.info has reported, a lack of guidance from the DOJ has left credit unions not knowing what is needed to meet ADA requirements, and opened the door for lawsuits.
Landis said she hopes the meeting with Gore will 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.
“I will tell our credit union’s story and how this lawsuit is affecting me, my staff, the credit union and the membership,” said Landis. “I will tell Mr. Gore about all the of the time I am spending on this daily and the money we are spending on an attorney.”
Both CUNA and NAFCU have been pushing back against the tide of lawsuits against credit unions and website accessibility. As CUToday.info reported here and here, both the Pennsylvania CU Association and NAFCU, respectively, have sent cease-and-desist letters to Pacific Trail Attorneys, a Newport Beach, Calif.-based firm that has threatened a class action lawsuit against credit unions.
"These demand letters being sent to NAFCU members and other credit unions throughout the U.S. are misleading and need to stop," NAFCU President Dan Berger said. "We will continue to do all we can to end these meritless lawsuits. NAFCU and its members strongly support the protections of the ADA and efforts to ensure individuals with disabilities are not discriminated against and have equal access to financial services. However, credit unions should not be the victims of ambiguities in federal law and attorneys that exploit them."
Landis said the lack of direction from the Department of Justice on what is needed to comply with the ADA when it comes to websites leaves credit unions “not knowing what our websites are supposed to be. Credit unions are paying because they don’t know what to do and many don’t have the money to fight this through litigation. To me, this is extortion.”
Landis reported that more than 40 credit unions in Ohio alone have received demand letters from Pacific Trial Attorneys.
Landis said the first step her credit union took when receiving its demand letter late in 2017 was to contact its insurance company CUNA Mutual Group and to also run a WAVE (web accessibility evaluation) report on its website. The WAVE API allows automated and remote accessibility analysis of web pages using the WAVE processing engine.
“You run the report to see if there are any standards not being met by your website in accordance with the ADA,” said Landis, who said that the test is no replacement for DOJ guidance, yet is a place for CUs to start. “The report will tell you what you need to do, if you have any errors and if you need to correct them.”
Michael Bell, attorney and counselor with Royal-Oak, Mich.-based Howard & Howard, is representing credit unions fighting the lawsuits.
“We strongly believe credit unions should not be quick to settle and that they should contact legal counsel to discuss the situation,” said Bell. “An aggressive approach may actually save them some money and will also protect the industry from future class action ‘fishing expeditions.’”
Landis said State Highway Patrol FCU received its demand letter in December.
“The bad thing about this is that I have to spend money on an attorney, since we don’t have inside counsel. That is money I could use to serve our members,” said Landis about a difficult decision facing credit union CEOs across the country. “But I will have to use that money to fight this, and I am ready to go. I am ready to fight this to the dire end, and hopefully set a precedent that will stop any more of these lawsuits against our credit union and possibly others across the nation.”
50 Ohio CUs
The Ohio Credit Union League reported it is working with more than 50 Ohio credit unions—of all sizes and throughout the state—that have been impacted by ADA lawsuit threats, said Miriah Lee, manager, policy impact at the Ohio CU League.
“As their state trade association, the league is providing information about the issue and guidance to all Ohio credit unions so they can evaluate their websites and remediate as necessary,” said Lee. “Additionally, we are pursuing opportunities to press regulators to officially declare accessibility rules in order to eliminate the vagueness that makes this litigation possible. Later this week, league staff and leaders from some impacted Ohio credit unions will meet with federal regulators and Congress on the critical need to develop specific rules addressing ADA compliance for websites and how the absence of such creates this litigation opportunity that distracts from improving accessibility and serving all credit union members.”