May 22, 2019

Americans With Disabilities Act: Digital Accessibility

*This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

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• Title III of the ADA: “public accommodations” and the definition of a “disability”

• Regulatory landscape: websites and mobile apps as a “public accommodation”• DOJ rulemaking• DOJ enforcement actions• Other laws and regulations

• WCAG 2.0 and 2.1 Standards

• Latest litigation developments: demand letters and recent cases

• Mitigating risk and vendor selection

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Overview

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Title III of the ADA“Public accommodations” and the definition of “disability”

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• Title III of the ADA (public accommodations) prohibits discrimination against people with disabilities by “a place of public accommodation:”

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, (or leases to) or operates a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201.

• ADA covers 12 categories of private entities that are “places of public accommodation.” 42 U.S.C. § 12181(7)(F); 28 C.F.R. § 36.104

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Title III of the ADA

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• Title III of the ADA requires that public accommodations provide to persons with disabilities:• Equal access to goods, benefits and services• Auxiliary aids and services (“accessible electronic information technology”) at no extra charge to

ensure effective communication absent undue burden or fundamental alteration

• Effective communication must be provided in a method that respects the privacy and individuality of people with disabilities

• Title III of the ADA permits only injunctive relief and recovery of attorneys’ fees for persons bringing a private cause of action• Civil penalties for violations not permitted.

• If DOJ alleges a violation of Title III, a court can fine the violator up to $50,000 for the first violation and up to $100,000 for each subsequent violation, but no punitive damages are permitted

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Title III of the ADA (cont.)

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Statutory – 42 USC §12102 (1)

• The term “disability” means, with respect to an individual:• A physical or mental impairment that substantially limits one or more major life activities of such

individual• A record of such an impairment• Being regarded as having such an impairment (as described in paragraph (3))

• An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity

Practical Categories

• Sensory – An impairment of one of the five senses

• Cognitive – An impairment of the cognitive process

• Mobility – An impairment of an access of motion

• Speech – An impairment in the ability to speak6

What is a “disability”

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• The number of people worldwide aged 80 and over will quadruple to 400 million

• For the first time in history, there will be more people over the age of 65 than under the age of 14

People are getting older… and actively using technology!

A graying globe

“42% of adults ages 65 and older owning smartphones is up from just 18% in 2013.”

“67% of seniors use the internet – a 55-percentage-point increase in just under two decades.”

“45% of seniors under the age of 75 say they … use social networking sites, compared with 20% of those ages 75 and older.”

Sources: United Nations World Population Prospects, U.S. Census Bureau’s 2017 National Population Projections, McKinsey & Co., Pew Research Center Tech Adoption Climbs Among Older Adults

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Disability prevalence by age

55.8%

37.5%

29.6%

24.7%

20.4%

13.8%

7.3%

5.3%

70.5%

53.6%

42.6%

35.0%

28.7%

19.7%

11.0%

10.2%

80 and over

75 to 79

70 to 74

65 to 69

55 to 64

45 to 54

24 to 44

15 to 24With a disability

Severe disability

Source: US Census Bureau, Survey of Income and Program Participation

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• UN Convention on rights of persons with disabilities• Core aspect of the global convention is access to

information• Level access is proud to have worked with UNESCO,

GAATES and presented at the UN• We understand the accessibility challenges of

emerging and developing nations, and access through mobile devices at a deep level

• Contributed to establishing standards at the W3C:• WCAG 2.1, ARIA, Low Vision TF, Mobile a11y TF• Accessibility conformance TF; EU accessibility studies• Trusted tester and harmonized processes US Federal

government

Laws, regulations & standards are growing

Digital accessibility is a global issue

State Party RatifiedState SignatoryNo Action

1771110

Map: UN Office of the High Commissioner on Human Rights (OHCHR) Status of Ratification Dashboard.

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Regulatory landscapeWebsites and mobile apps as a “public accommodation”

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• In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) stating its position that websites for public accommodations must be accessible to persons with disabilities• Requested comments on appropriate website accessibility standards

• What is the legal standard for accessibility?• DOJ’s 2010 ANPR suggested standards promulgated by the World Wide Web

Consortium (W3C) – specifically, Web Content Accessibility Guidelines Version 2.0 with AA (intermediate) success criteria (WCAG 2.0 AA).

• Because WCAG 2.0 AA was cited in DOJ’s ANPR and subsequently adopted in DOJ enforcement actions, it was the presumptive legal standard

• In Fall 2015 Statement of Regulatory Priorities, DOJ stated proposed rulemaking would not be issued until at least 2018

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Background & status of DOJ rulemaking

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Representative DOJ ADA settlements involving websites and/or mobile apps and requiring compliance with WCAG 2.0:• Quick Trip (settlement agreement) — July 2010• Hilton Worldwide (lawsuit/consent decree) — November 2010• Law School Admissions Council (settlement agreement) — April 2011• Louisiana Tech University (settlement agreement) — July 2013• H&R Block (lawsuit/consent decree) — February 2014• Florida State (settlement agreement) — June 2014• Peapod (settlement agreement) — November 2014 • Museum of Crime & Punishment (settlement agreement) — January 2015• edX (settlement agreement) — April 2015• Harvard & MIT (statement of interest) — June 2015• Carnival Cruise Lines (settlement agreement) — July 2015• Miami University (consent decree) — December 2016

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DOJ enforcement actions

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• Since 2014, expectation has been compliance with WCAG 2.0 AA

• Title III applies to discrimination in the goods and services of a place of public accommodation, rather than being limited to those goods and services provided at or in a place of public accommodation

• Websites with no nexus to a brick and mortar location are also covered under Title III of the ADA (rejected by some circuits)

• Comprehensive compliance plan to support that standard is also expected, which typically includes:• Engagement of independent accessibility consultant for initial audit• Formal accessibility policies and procedures• Designated personnel responsible for digital platform accessibility• Accessibility training for development teams• Ongoing monitoring to maintain compliance• Reporting channels for consumers and internally

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Common themes: DOJ expectations

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• DOJ under Trump Administration initially put the ANPR on the “inactive” list, and then at the end of 2017, they formally withdrew four ANPRs pertaining to the ADA

• In late 2018, DOJ wrote at least two letters to Congress (one to Sen. Grassley and the other to Cong. Budd) affirming the applicability of the ADA to websites of places of public accommodation

• The DOJ noted that the lack of specific technical requirements gives public accommodations flexibility in how to comply with the ADA• Accordingly, the DOJ noted that noncompliance with a voluntary technical

standard – does not mention WCAG 2.0 directly – does not necessarily indicate noncompliance with ADA

• This is a significant change from DOJ’s earlier position which relied heavily on WCAG.2 AA

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Latest DOJ statements on applicability of Title III to websites

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• In addition to ADA Title III:• Section 504 Rehabilitation Act for recipients of federal funding• Section 508 Rehabilitation Act for technology sold to the federal

government• Section 1557 of the ACA requires digital accessibility for specific parts

of health care programs• Air Carrier Access Act requires primary websites of airline carriers to

conform to WCAG 2.0 AA.• State Non-discrimination Laws application to pubic accommodations

(ie, California Unruh Act)

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Other laws requiring web/mobile accessibility

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• The Federal ESIGN Act Sections 101(c), (d) and (e) may be read to include implied accessibility requirements.

• In 2016, the CFPB finalized its Prepaid Rule, which requires, in part, that consumers receive certain pre-acquisition disclosures. To deliver such disclosures electronically, the disclosure must use machine-readable text that is accessible via a web browser or mobile application and via screen readers. Effective July 2019.

• In 2019, the CFPB released its proposed rule to update the Fair Debt Collection Practices Act. The proposed rule addresses: • Unless a debt collector knows that a consumer does not use a screen reader, it also may be

unreasonable for a debt collector to expect that a consumer has actual notice of an electronic disclosure that is not machine readable.

• The need for an electronically provided validation notice to be accessible via commercially available screen readers.

• CCPA requirements.

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CFPB: website and mobile accessibility requirements

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WCAG 2.0 AA standards

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• WCAG 2.0 has 12 guidelines that are organized under four principles: • Perceivable,• Operable,• Understandable• Robust.

• These guidelines are designed to provide a framework for compliance, and there are three levels of compliance: A (lowest), AA and AAA (highest)• Each tier is progressively more stringent, difficult to meet and costly to achieve compliance

• AA is the standard that has been adopted by the DOJ in its recent enforcement actions and is often invoked by plaintiffs • Also suggested in DOJ’s 2010 ANPR

• Many industry participants trying to comply with accessibility standards have proactively chosen WCAG 2.0 AA standard, based on DOJ enforcement actions

• In June 2018, however, the W3C recently announced that WCAG 2.1 was its new recommendation which includes practices for mobile apps

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WCAG 2.0 Standards

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• Perceivable1.1: Provide text alternatives1.2: Provide alternatives for time-based media1.3: Adaptability1.4: Distinguishability

• Operable2.1: Keyboard accessibility2.2: Provide users enough time to read and use content2.3: Seizures2.4: Navigation

• Understandable3.1: Readable text3.2: Predictability3.3: Input assistance

• Robust4.1: Compatibility

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WCAG 2.0 – 12 guidelines

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• WCAG 2.1 provides updated guidance for users of mobile devices, users with low vision and users with cognitive, language and learning disabilities

• WCAG 2.1 is backwards compatible with 2.0, so websites that conform with WCAG 2.1 will also conform with 2.0

• WCAG 2.1 maintains the four principles but adds one guideline:• 2.5 – Input modalities

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WCAG 2.1 – Mobile

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Latest litigation developments: Demand letters and recent cases

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• Until December 2016, increased focus by DOJ on ADA digital platform enforcement actions and sporadic efforts to produce a proposed rule articulating a legal standard for accessibility.

• Recent DOJ statements, despite DOJ decision not to issue rules, confirm applicability of ADA to websites and mobile apps.

• Concurrently, litigation activity has significantly increased seeking digital accessibility for the disabled.

• Waves of demand letters and lawsuits filed over past 24 months by plaintiffs’ bar.• At least 2,258 digital accessibility cases filed in 2018.• Different judges, different cases, different rulings.

• These developments have significantly increased enforcement and litigation risks.

• Inconsistent court decisions further litigation risks.

• Compliance presents challenges in the absence of a clear accessibility standard, resulting in heightened regulatory risk.

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Current litigation landscape

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• ADA digital accessibility litigation continues to accelerate dramatically

• Increased 210% YoY in 2017 and 177% YoY in 2018

• Still a small percentage of overall ADA Title III lawsuits

• Takeaway: we expect growth will slow but still be robust going forward

• The supply of lawsuits is governed by the number of active plaintiffs counsel in the space

Overall trends

23 | May 22,

2019

ADA lawsuits

2722

4436 4789

66017663

10136

13135

17020

15 19 57 262 814

2258

5462

11664

0

2000

4000

6000

8000

10000

12000

14000

16000

18000

2013 2014 2015 2016 2017 2018 2019 2020

ADA Title III lawsuit breakout

ADA Title III Lawsuits Web Accessiblity LawsuitsSource: ADA Title III

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• List of industries with their percentage share of lawsuits

• We look at 55 industries• Retail and consumer facing services dominate

• As we start to reach saturation in some industries, expect new industries to be opened

• Takeaway: outsize risk in industries that are (i) consumer targeted and (ii) relates to a physical place of business

Target industries

ADA Digital AccessibilityLawsuits

Industry % of LawsuitsRetail 20.2%Hotels 18.0%Consumer Products Manufacturers 12.8%Consumer Services 12.6%Restaurants 6.7%Real Estate 4.3%State and Local Government 4.0%Food 3.1%Hospitals and Healthcare Providers 2.8%Colleges 2.6%Automotive & Transport 2.1%Banking 1.8%Beverages 1.0%Media 1.0%Financial Services 1.0%Education Services 0.8%Managed Care 0.8%Brokerage and Asset Management 0.5%Business Services 0.4%Telecommunications Services 0.4%Transportation 0.4%Computer Software 0.3%Cultural & Religious Institutions 0.3%Computer Hardware 0.2%Insurance 0.2%Associations 0.1%Computer Services 0.1%Industrial Manufacturing and Machinery 0.1%Law Firms 0.1%Oil and Gas 0.1%Other 0.1%Utilities 0.1%Agriculture 0.1%Basic Materials and Chemicals 0.1%Biotech and Pharmaceuticals 0.1%Construction 0.1%Electronics 0.1%Environmental Services & Equipment 0.1%K-12 0.1%

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• Specific plaintiff attorneys, specific industries

• The data suggests firms target lists of companies and file lawsuits in “waves”

• Lawsuits typically only cite automated testing results directly generated from tools

• Lawsuits discuss usability of the site by people with disabilities – which is very different from the automated testing results

• Follow-on discussions limited to automated testing results

Digital accessibility trends

How do these lawsuits work?

Pick a consumer facing industry

Pull a list of all the companies

Run a spider on the homepage of each company

Send out a form demand letter with a summary of spider

findings in it

Wait for a response

File a batch of lawsuits Takeaway: automated testing results (good or bad) strongly correlated with risk of digital accessibility lawsuit filing

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• Scope of public accommodations in the context of websites:• Websites of public accommodation associated with a physical business location

are clearly covered by Title III of the ADA• Circuit court split over whether businesses with no physical location are covered

under Title III• First, Second and Seventh Circuits: no need for associated physical location.

• A few lower court decisions have also taken this position• Third, Sixth and Ninth Circuits: some nexus to a physical business required.

• Scope of public accommodations in the context of mobile apps

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Judicial guidance on scope of covered public accommodations

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Injunction entered July 6, 2017 • Winn-Dixie ordered to:

• Make its website “accessible” to the disabled no later than Dec. 1, 2017 • By January 1, 2018, adopt and implement a Web Accessibility Policy which

ensures that its website conforms with the WCAG 2.0 criteria and • By January 1, 2018, require any vendors that participate in its website to be fully

accessible to the disabled by conforming with WCAG 2.0 criteria• Additional terms of the injunction included a requirement to adopt a website

accessibility policy, conduct periodic accessibility testing, and provide annual accessibility training to its web content staff

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Key Cases – Gil v. Winn-Dixie Stores, Inc.

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Takeaways:• First reported ADA website accessibility case to go to trial in federal court• First instance of a federal court independently ordering a party to bring its website

into conformity with WCAG 2.0• Prior judicial involvement limited to entering and approving consent decrees

• First instance in which a website owner has been held accountable for inaccessibility of portions of the website operated and controlled by third-party service providers• Store locator tools and loyal points program operated and controlled by third

parties

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Key Cases – Gil v. Winn-Dixie Stores, Inc. (cont.)

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Background• Plaintiff (Case No. 2:17-CV-01138) alleged that the defendant’s website was incompatible

with his JAWS screen reader. In this case, the website contained an “accessibility banner:”

If you are using a screen reader and are having problems using this website, please call (888) 300-1515 for assistance.

Motion for summary judgment denied• The court rejected defendant’s arguments relying on its accessibility banner to meet its

ADA obligations because the banner itself was not accessible. It also rejected defendant’s primary jurisdiction argument that the court should first allow the DOJ an opportunity to decide website accessibility.

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Key Cases – Gorecki v. Dave & Buster’s, Inc. (Oct. 2017)

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Background• Legally blind plaintiff brought a class action in the Southern District of New York against the

defendant because she was unable to use its website to order food due to certain accessibility barriers (2017 WL 5054568, Case No. 1:17-CV-00788).

Motion to Dismiss Denied• Defendant argued that Title III only applies to physical locations and that the plaintiff did not, and

cannot, point to a violation of any established regulation implementing Title III. Defendant also argued that it was in the process of improving the accessibility of its website, rendering the case moot.

• The court held that the website was a place of public accommodation (either on its own or as a result of its close relationship with defendant’s physical locations) and that the plaintiff had sufficiently pleaded that she had been denied services under Title III.

• Court further held that being in the process of creating an accessible website is not sufficient to meet the mootness standard and thus justify dismissal.

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Key Cases – Markett v. Five Guys Enterprises LLC (July 2017)

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• Ninth Circuit reversed and remanded a lower court's dismissal of the plaintiff 's ADA claim. Held that ADA applied to defendant’s website and app. • Rejected claim that complying with ADA would violate defendant’s 14th Amendment right to due

process:• Defendant had received "fair notice" that its website and app must be ADA compliant• Plaintiff did not seek to impose liability based on WCAG 2.0, which are private guidelines, but

instead argued that the court could impose compliance with WCAG 2.0 as an equitable remedy if the website and app are not ADA compliant and

• Just because the DOJ has not issued specific regulatory guidance on how to comply with the ADA does not relieve the defendant of its statutory obligation

• Rejected “primary jurisdiction” argument because DOJ is aware of the issue of website accessibility but has not moved forward with regulating it.

• Noted that defendant started using a telephone number that customers could dial for assistance, but that mere presence of number, without discovery, was insufficient to grant summary judgment to defendant.

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Key Cases – Robles v. Domino's Pizza, LLC (Jan. 2019)

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• While plaintiffs are still more successful than defendants in most lawsuits, some courts are more closely scrutinizing serial filers, and denying standing where (i) the plaintiff is not close to the defendant and (ii) the plaintiff never patronized the business before. In particular, Florida courts have denied standing to serial filer Joel Price at least 2 times for Title III claims.• Price v. Escalante-Black Diamond Golf Club LLC, 2019 WL 1905865 (M.D. Fla. Apr. 22,

2019)• Court noted plaintiff lacked standing because, in part, his claimed times to golf in the

future conflict with claimed future golf time in another case in front of the court• Price v. Orlando Health, Inc., 2018 WL 6434519 (M.D. Fla. Dec. 7, 2018)

• Plaintiff lacks standing because “general desire to access Defendant’s facilities” does not constitute a threat of future injury when plaintiff has no doctors appointments scheduled and seldom leaves his home town

• As more Title III lawsuits are filed, may see more cases dismissed for lack of standing

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Litigation trends: some courts taking closer look at serial filers

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Roadmap overview

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Roadmap overview

1. Webinar 2. Scan 3. Fix 4. Structure

Unknown risk Known risk Addressed risk Managed risk

Reactive Proactive

No legal standard Effective communication

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• Educate• Inform• Provide general framework for mitigation planning

Getting started today…

Roadmap overview

1. Webinar 2. Scan 3. Fix 4. StructureUnknown risk Known risk Addressed risk Managed risk

Reactive Proactive

No legal standard Effective communication

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Evaluate the website or digital asset against high risk accessibility compliance issues• Utilize Access Analytics to continuously track issues and remediation requirements• Hold a delivery meeting to review results and jointly work to prioritize remediation

work and further actions to be implementedThe information gathered from the above activities will inform a compliance, priority, and risk model that can be used to guide remediation activities and accessibility goals forward

Roadmap overview

1. Webinar 2. Scan 3. Fix 4. StructureUnknown risk Known risk Addressed risk Managed risk

Reactive Proactive

No legal standard Effective communication

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Identifying the overall compliance of the website or digital asset with key digital accessibility requirements• Ensure technical compliance – manually inspect code• Insure key work flows support assistive technology (functional testing) • Utilize Access Analytics to continuously track issues and remediation progress

• Provide option to deploy Access Alchemy (web overlay that can deliver fixes to certain accessibility issues on websites upon page load), while implementing code level enhancements

• Map and implement structured remediation plan in line with dev/feature enhancement schedule

Roadmap overview

1. Webinar 2. Scan 3. Fix 4. Structure

Unknown risk Known risk Addressed risk Managed risk

Reactive Proactive

No legal standard Effective communication

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Build out and provision organizational structure and policy:• Tooling• Training• Strategic consulting

• Required to maintain compliance levels that will afford indemnification from future accessibility law suits

Roadmap overview

1. Webinar 2. Scan 3. Fix 4. StructureUnknown risk Known risk Addressed risk Managed risk

Reactive Proactive

No legal standard Effective communication

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Mitigating risk

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• Start by monitoring your site• Engage via your DLA Piper primary contact point• They’ll connect your technical team with Level Access and setup the privilege for

the monitoring records• Based on that, you may wish to move forward with other activities

Getting started

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• Your team likely has some digital accessibility activities in place• Ultimately, you’ll want to prove that those activities support a defense for providing

effective communication for the covered goods and services and relevant technology

• The best way to provide that defense is in a robust, data-supported fashion• Gather data from your development and production systems to see if internal efforts

support such claims

Controls and governance

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• Begin working toward ADA compliance now• Don’t wait to receive a demand letter or lawsuit

• Settle on appropriate level of WCAG 2.0 compliance (AA recommended)• Create a cross-functional team to review website and mobile applications

• WCAG 2.0 is complicated and requires a high level of technical expertise• Engage appropriate technical consultants, if needed, to conduct or assist with

review• Consult your attorney before proceeding and protect work under attorney-client

privilege• Establish 24/7 telephone line that can perform all necessary website/app functions

for those with disabilities who cannot access your site

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Mitigating risk: practical tips

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• Audit existing websites/mobile apps to identify/prioritize areas of risk and develop corrective action plan

• Adopt an Accessibility Statement offering technical assistance and feedback opportunity for disabled consumers that is directly and prominently linked to home page

• Develop and implement accessibility policies and procedures.• Incorporate WCAG 2.0 AA compliance into any future website/mobile app updates• Implement routine website/mobile app monitoring to ensure compliance• Ensure customer complaints raising accessibility issues are escalated appropriately• Implement ADA accessibility training for appropriate employees• Incorporate WCAG 2.0 AA compliance expectations into vendor contracts as well as

related indemnity provision for failure to comply43

Mitigating risk: best practices

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Margo H.K. TankPartner+1 202 799 4170margo.tank@dlapiper.com

R. David WhitakerPartner+1 312 368 2199david.whitaker@dlapiper.com

eSignature and ePayment News and Trends Achieving Digital Transformation and Securing Digital Assets

DLA Piper (US) Monthly Newsletter available at www.dlapiper.com under Insights or at the DLA Piper Linkedin Pagewww.dlapiper.com/esignature-and-epay-news-and-trends

Eric BeanePartner+1 310 595 3005eric.beane@dlapiper.com

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Tim Springer

Founder and CEO

tim.springer@levelaccess.com

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