A new Kansas law will allow businesses to sue plaintiffs and their counsel over “abusive” litigation related to websites not complying with the Americans with Disabilities Act. This law helps them recover defense fees and potentially punitive damages. The name of the law is the Act Against Abusive Website Access Litigation. It went into effect on July 1, 2023.
This law comes about in response to the many frivolous lawsuits related to websites not complying with the ADA. It targets litigants who bring in many lawsuits on behalf of a few plaintiffs. Ken Nakata from Converge Accessibility , Josef Pevsner from National Organization on Disability, and I discuss the case in the following conversation.
Conversation on New Kansas Accessibility Law
Josef Pevsner
So, the Kansas legislature recently passed the Act Against Abusive Website Access Litigation. This new law will allow Kansas businesses that have been defendants of ADA web accessibility lawsuits to sue the plaintiffs and their counsel to recover legal fees, including potentially punitive damages.
Ken, tell us a little bit more about this case.
What prompts this law?
Ken Nakata
Well, I can’t tell you that much about the Kansas law, but I can tell you about some things that have been going on in the Southern district of New York. Last month I blogged about this. There was this attorney, Mark Rosenberg, who works with a firm called Stein Saks, and they’re one of these really vexatious litigants.
They brought hundreds and hundreds of lawsuits on behalf of a handful of plaintiffs, and they pretty much all allege the same thing. I found it kind of surprising because the Southern District is a very interesting place. It’s one of the most popular places for web accessibility lawsuits to be brought.
On the one hand, they’re making it much easier to bring lawsuits there because they’re allowing lawsuits to be brought against purely online companies, which you can’t do in the Southern District of Florida or the Center of District of California. These are other very popular venues for these cases.
But at the same time, as New York’s doing that, some of the judges are getting a little bit pissed off about how many web accessibility cases are being brought. So Mr. Rosenberg filed this lawsuit against Satya Jewelry Company. Judge Valerie Caproni from the Southern District warned him about how he had been filing hundreds of these identical lawsuits all at roughly the same time.
In fact, he filed over 500 of them. Judge Caproni said these things are all cookie cutter. They all allege basically the same thing. They’re all baseless because your client obviously has no interest in buying their products and asked him several times to explain himself, and he didn’t.
Ultimately the judge said, you know what? I’m gonna fine you a million dollars. And I have never seen a Federal court judge get so irritated that they’re actually gonna sanction them for a million dollars. Now of course, the court offered to stay that order if the attorney and his firm agreed to not file a similar lawsuit in the next two years.
We’ll see how that goes. It seems like he’s making too much money doing this.
Thomas and I spent a little bit of time looking up Mr. Rosenberg’s litigation history, and we were using Lexis and we were using Pacer and digging for complaints and whatnot.
We found another one of his clients, Marina Iskhakova, where he had filed 91 lawsuits and we pulled up three of the complaints just to get a sense of whether they were just alleging the same old thing. And so, Thomas, you looked at those complaints and what the substance of those, some of those complaints were. Maybe you could fill us in on what you found.
Cookie cutter complaints
Thomas Logan
We’ve saved a few of the complaints, so I’m gonna put them side by side. Let’s look at Iskhakova versus Caffe Panna and Iskhakova versus Resource Furniture.
The first thing we see, putting these documents side by side, they’re both exactly 20 pages long. That’s interesting. You know, the length of the document, if it had novel or specific information, it would probably be different between the two cases. On the left hand side is the complaint versus Caffe Panna.
It starts with the first sentence, plaintiff Marina Iskhakova on behalf of herself and other similarly situated asserts the following claims against defendant Caffe Panna LLC as follows. The right hand side has the exact same format. It’s just going versus Resource Furniture, LLC.
This part maybe we would expect it to be the same, but let’s go down to the details of what’s being alleged. All right, so we have mirror copies and we can see that point 20 in both of these documents is actually aligned perfectly with page five, and it’s using very generic language, such as a text equivalent for every non-text element is not provided.
Title frames with text are not provided for identification and navigation. There’s all of these listed here, but we need to get down to the statement of facts. What we have in both of these documents is the statement. Online 36. Through her attempts to use the website, plaintiff has actual knowledge of the access barriers that make these services inaccessible and independently unusable by blind and visually impaired people.
This is the exact same text in both complaints. My opinion of this is I want to hear specifically what is wrong with the furniture website and what is wrong with the Caffe Panna site. To have a case, or in my opinion, to actually work with the company to make something better you have to be specific about what the problem is.
Everything I’m seeing here in these documents is a high level statement of what the accessibility guidelines are, but nothing specific about what the plaintiff wasn’t able to do on either of these websites. What do you think, Ken?
Ken
I think that when you make these big allegations that it makes it so much easier to make a cookie cutter kind of complaint against one company and just reuse that same complaint against another company.
This is what the judge was talking about. It didn’t get into any specifics about exactly what the barriers were. It was pretty much the same general vague allegations. This person’s obviously shopping around for a lawsuit as opposed to actually trying to get the goods and services of the business, which is really what the ADA is all about.
I could totally see where some states would be very concerned about these kinds of things and would want to be able to allow their citizens to recover if they ended up getting sued, and it appears as though that’s what Kansas is doing. I think that one of the other things is just because you are getting sued in New York doesn’t mean you’re actually doing business in New York.
If you’re a New York business and you’re reaching out to customers in Kansas, then you can be sued as a Kansas resident, but you can be sued in New York, even though you’ve never really set foot in New York.
The conversation that we’re having is really relevant because a lot of other states are worried about the same thing. As I’m sure you and Joseph and everybody else already knows, California has this really powerful law called the Unruh Act that allows treble damages and liquidated damages of $3,500 per claim in web accessibility lawsuits. California, for some reason, has been very concerned about web accessibility lawsuits under Unruh, even though it’s hard to bring a web accessibility case under Unruh.
How inaccessible or accessible must a website be?
Ken
But that’s a whole different story won’t get into that. Anyway, this new law would require that a plaintiff has to show that they did two things, that they encountered a barrier on the website that prevented them from accessing the goods and services in the same manner that’s comparable to somebody without a disability, and that they were deterred from accessing content on the site because of its failure to provide effective communication.
One of the interesting twists that they made was that if the website conformed, or it was even a set of webpages conformed to WCAG 2.1 A and AA, it creates a rebuttable presumption that it provided effective communication. Basically that means that if you met WCAG 2.1 A and AA on say, going to their page, looking for a product, adding it to the shopping cart, checking out through the shopping cart process, that set of pages, it creates this presumption that it’s already accessible.
I thought that was really novel because one of the complaints that I’ve heard from the IT industry is that you can never really get a website to be fully compliant with WCAG and I’ve heard that an awful lot. But have you heard that as well as the complaint, Thomas, from a lot of your corporate customers?
Thomas
Absolutely. I mean, there are so many different success criteria, and there are so many questions that potentially need to be answered to say that something meets WCAG 2.1.
I think it’s very difficult because if you dig into the language that’s in each of those success criteria, there’s a lot of detail that I would say even some of the most advanced consultants in the world for accessibility don’t necessarily know like a specific idiosyncrasy of one success criterion.
I think I would concur with that, that it’s quite difficult to confidently say, oh yes, we meet WCAG 2.1.
Ken
Right. So this is a really clever approach to me because if you are a plaintiff and you go to a website for a company and say you’re shopping for a product, you’re probably gonna only encounter, say, five or six web pages on your journey of searching for that product, adding it to your shopping cart and checking out.
And if you could just get those five or six pages correct as opposed to the millions of other potential pages on your website correct, it would create that rebuttable presumption and it basically sticks it to the plaintiff saying, “No, no, no. You’ve gotta prove more. You’ve gotta show how you are actually deterred despite that.”
Thomas
I like this word rebuttable presumption. I definitely think that every time I’ve worked on a plaintiff case, I’ve expected to have to be very demonstrative with what isn’t working and here’s why it impacts the plaintiff. I come at this with the presumption that if you’re bringing the case, you should be able to show that and explain it in terms that a layperson can understand.
I think when you get into just talking about the technical standard and adherence to it, you get beyond what was someone trying to do on the site? Like you said, just go to five or six pages and complete a transaction. That’s not how WCAG is worded at all. I definitely think that’s how it should be explained.
If the website does have that problem, if you can’t complete the purchase, then that should be a big problem. Maybe if it has one of the other lesser known success criterion problems, maybe that’s not actually an offense or like actually blocking someone from being successful on the site.
Can the law hold web developers liable?
Ken
Yeah, I was pretty excited about it. Now there’s something that I wanted to also mention, and I want to get the feedback of you and Joseph on this idea.
One of the things that they put in the AB 950 was they wanted to try to make website developers more liable under California law, and the way in which they do it is because you can’t sue a web developer directly under either Unruh or the ADA.
One of the things that this assembly bill would do is to provide some allocation of funding and some encouragement to include advisory statements that encourage business owners to include a warranty and indemnification clause in their contracts with web developers. That would basically say that all of the web developers work would have to comply with WCAG, and if it didn’t, then they would indemnify the business if they ever got sued for web accessibility.
And I thought that was neat because another big complaint I hear from the smaller businesses is that we have no idea how their website was developed. We relied entirely on our web developer and the fact that they didn’t take it seriously, shouldn’t be my fault. And now I’m the one that’s getting sued and they have no liability at all.
What do you guys think about that idea? Thomas?
Thomas
I think that it’s a good direction, but I would have the same argument maybe on behalf of the supplier in this instance. I do think that if you were gonna make it as broad as just AA left content accessibility guidelines, it would be really hard for anyone to be like, oh, I did everything perfectly and I want to sign up for being confident that I delivered that to you.
I would feel better about that if it was a more focused set of issues. I think that’s maybe where I would like to see it going. That there are certain things that are blocking issues or things that create huge barriers. There needs to be a difference between that. I think it would be the same problem for the platform provider or whoever is building the website.
It’s still too many details for them to feel confident . My other big point is the people that make the platforms that oftentimes the suppliers are using, they’re often much bigger companies. You know, for example, Microsoft, SharePoint, Sitecore, or WordPress.
These platforms I think, have the biggest responsibility and I haven’t seen any law that sort of has that understanding. That’s where I feel like the most change can come is that it should be easier to build a fully accessible website using today’s tools for building websites. So to put the onus on the supplier, I feel like that’s a lot of onus on them, when it should be more on the people that build the infrastructure or the platforms that they’re building on top of.
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