ADA Lawsuits Against CUs Spike in December
More than 30 new ADA suits were filed against credit unions last month over the accessibility of their websites, likely making it a “December to remember” for many in the credit union industry.
The surge brings the total number of suits filed to more than 60 so far. Credit unions in nine states have been served, according to court records.
Sources tell CU Times that demand letters, which typically precede the suits, have landed on the doorsteps of even more credit unions.
Pacific Northwest Ironworkers Federal Credit Union is one of them, according to CEO Teri Robinson. Based in Portland, Ore., the credit union, which has $26 million in assets and about 5,100 members, received a demand letter in November, she said.
“I actually got a call from another credit union first,” Robinson said. That credit union had already received a demand letter, she recalled. “I was kind of trying to talk them off the ledge about it, but he and I were both thinking it wasn't a big deal because we're both closed fields of membership…then a week later, I got mine,” she said.
The recent wave of legal activity around the Americans with Disabilities Act isn’t a new phenomenon, said John Bredehoft, who is an attorney specializing in credit unions at Kaufman & Canoles in Norfolk, Virginia. Kaufman & Canoles represents some of the credit unions named in the suits.
Several years ago, lots of ADA suits were filed against shopping centers over their parking lots and restroom access, Bredehoft recalled.
“We dealt with that, and some people had to restripe their parking lots and a couple of folks had to change the way that their flushers flushed. And then that receded,” he said. “This I think is the next rush of that.”
However, the shopping center cases involved very specific ADA guidelines about what had to be in place. Not so with the current batch of litigation, Bredehoft noted.
The ADA prohibits discrimination on the basis of disability for equal enjoyment of goods, services, facilities, privileges, advantages or accommodations in public places. According to the complaints, plaintiffs in the credit union cases have claimed that, among other things, failing to embed code that allows screen readers to vocalize descriptions of graphics on credit union websites, as well as having redundant links and empty or missing form labels constitutes discrimination and prevents visually impaired users from looking for locations or learning about credit unions’ services and amenities.
“The problem with this whole ADA website issue is there is really no agreement on whether the public accommodations provisions apply at all. And certainly if they do apply, there's no guidance on what standards are necessary,” Bredehoft explained.
To date, at least 15 cases have been voluntarily dismissed. Though public court records around the dismissals are brief and generally don’t say explicitly whether settlements occurred, a notice of dismissal in those circumstances is almost invariably an indication that a case has been resolved out of court, Bredehoft said.
One credit union whose case was resolved without further litigation was Richmond, Virginia-based Connects Federal Credit Union, which has $76 million in assets and about 9,700 members. Court records show it was sued last October. In December, the plaintiff voluntarily dismissed the case. For Evelyn Dowdy, who is the credit union’s president and CEO, it was a long two months.
“I have 26 employees, and I'm one of them. To me, this was taking up a whole lot of my time,” she said.
For many credit unions, especially small ones, how to handle a suit may come down to a business decision, Bredehoft noted.
“Sometimes that means settlement looks attractive, other times it may mean that fighting is important because you don't want to be taken as an easy mark,” he said.
Playing offense rather than defense is likely a worthwhile strategy, according to Richard Hunt, a Dallas attorney who specializes in ADA litigation.
“Any business should have a plan to make the website accessible,” he said. “If they get sued, they ought to be able to point to something before they got sued that said, ‘Look, we were doing this.’"
“I suspect that if you had a pretty good, accessible site and you could get an expert to state that it was accessible, you'd probably reach the point of where the plaintiff would decide to just back off if you push back hard enough,” Hunt added.
Regardless of what course a credit union takes, there are still worries about what could happen after the dust settles.
“I don't know if we've got the website totally behind us, because who's to say somebody else can't come up and do the same thing to me?” Dowdy asked. “That's why I'm just sad. I've been in credit unions for a long time. It just makes me sad that it's going to be a lot of this litigation going on that's going to hurt and affect small credit unions.”
Teri Robinson had similar sentiments. “My concern is that this isn't going to deter anybody from coming after us again,” she said. “If there's no real guidelines on it, how are we going to know what is right and what is wrong?”
That may be one reason few are willing to speculate on how many more credit unions will be hit with ADA suits.
“I can't imagine,” Hunt said. “My first thought is, how many credit unions are there?”