Small Business in Maine Pulled into Website Accessibility Lawsuit

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Editor’s notes: The conversation in this post has been edited for clarity. Here’s the Maine Website Accessibility lawsuit transcript that matches the podcast.

A small business in Maine started receiving letters from attorneys in New York according to a WGME story. These attorneys offered to help Lisa-Marie’s Made in Maine with a lawsuit against them. The business had no idea what this was about. They thought it was a scam.

Unfortunately, it wasn’t. The business received court papers. They stated a blind person named Andrew Toro couldn’t buy a t-shirt on their website. This business wasn’t alone. The name “Andrew Toro” appears on more than 100 federal lawsuits filed with the New York Southern District.

In this episode of A11y Insights, Ken Nakata from Converge Accessibility and Equal Entry CEO and founder Thomas Logan talk about the lawsuits and their impact on small businesses.

Settling for $9,000

Thomas Logan: A small business in Maine started receiving letters from attorneys in New York, according to a story from a local news site in Maine.

This case is interesting in the idea that there’s not a company doing business on the web now that is avoiding the potential risk of an accessibility lawsuit. We thought this was an interesting case because it’s a very small company that’s having to deal with this accessibility claim.

This particular case came from a plaintiff, Andrew Toro, who couldn’t buy a T-shirt on the website of a product site called Lisa-Marie’s Made in Maine. The defendants, Lisa-Marie’s Made in Maine paid $9,000 and now that’s the resolution.

Ken, what does it mean for them to settle for $9,000? How does that affect them in the future?

Ken Nakata: For the future, all it does is settle this case. Andrew Toro is dropping this claim of discrimination for this particular instance. It won’t prevent Andrew Toro from coming back to sue the website again.

It also doesn’t prevent any other plaintiff from doing the same thing. In all likelihood, a plaintiff from down the street could just as easily go and sue Made in Maine tomorrow.

Thomas Logan: Having to pay $9,000 and not getting any resolution to improving the accessibility of your site is not something I feel good about.

When you think about what it costs to make the site work or fix the issues, it’s probably going to cost about the same. It’s going to be within the scope of avoiding future lawsuits. It’s something to think about for companies that are choosing to settle these. It could easily come back again with a different plaintiff.

What’s the point of having that be your resolution? You’re gambling that no one might come back to you, but they easily could.

Ken Nakata: I think that’s right, Thomas. They did a cost-benefit analysis, and I think that they assumed that they’re not going to get sued tomorrow by another plaintiff.

But other companies get sued constantly. Those companies, which have a lot of public exposure need to think about web accessibility a lot more seriously.

Legislation About Requiring Notice to an Affected Website

Thomas Logan: Another detail in the WGME article was commentary from two Seyfarth Shaw lawyers, Cristina Lani and Minh Vu.

They discussed how many different lawsuits have been appearing and that there are some requests from the defendants in these types of cases to be able to have better clarity on how they can be notified about accessibility issues on their site. Ken, what’s your opinion about legal notification as it relates to the ADA?

Ken Nakata: I don’t think that’s going to go through. Over the last couple of decades, there have been a number of attempts to create a notification requirement in the ADA. They’ve always failed.

Every time this issue comes up, the plaintiffs have argued, and I think, justifiably, that requiring a notification is unfair because this is a basic civil right that they have. You shouldn’t have to notify somebody to do basic things that are right, and making sure your website is accessible is one of those things.

In general, I don’t give a whole lot of credence or faith to the idea that the notification requirements are going to end up being built into the ADA.

Thomas Logan: Maybe one thought for me on the technology side is that in reality, as we sit here today, you can go to most websites and find accessibility issues. From a notification standpoint, as a tech person, it’s like, “Okay, well then just notify everyone that your site’s not accessible because we almost always see that.”

That would be my other thought if that happens to go through. Well, you could easily do the notification in a simplified way, just using an automated tool. As we’ve discussed, automated tools don’t do everything, but they are showing violations and we can find violations easily on almost every website.

Ken Nakata: That’s true.

What Are Weaknesses in This Website Accessibility Case?

Thomas Logan: Can we talk about some of the weaknesses in this case then, Ken? What do you think are some weaknesses?

Ken Nakata: Absolutely. I think there are a number of weaknesses in this case. The biggest one is that a small company in Maine is getting sued by a serial plaintiff in Manhattan, which is where the Southern District of New York is.

The small little company in Maine probably barely does any business in New York. So, why are they getting hauled into court in New York City to defend themselves?

The reason is because of something that we call personal jurisdiction, and that comes down to what presence Made in Maine has. And the courts in this area have been pretty lenient, but not terribly lenient in what they look at. Most of it is how many sales do they have in New York?

It’s not just the fact that Andrew Toro was trying to buy a T-shirt. It’s looking at, instead, how many sales does Made in Maine have cumulatively in the Southern District of New York. Though Maine is a popular vacation spot for a lot of New Yorkers, I can’t imagine that Lisa-Marie’s Made in Maine does a huge amount of business. So, there’s that.

Also, the Southern District, where this case is being brought, is really, really tough on serial plaintiffs. It requires them to show a clear intent to return to the site and take advantage of their business.

And that’s not clear to me from this complaint. So, in that sense, I think that if they wanted to fight this case, they could have easily had this case dismissed. But that takes money and effort, and it probably would have cost them more than $9,000 in legal fees. But I think that the attorney could have at least pointed those things out, and at least gotten the settlement agreement down below $9,000.

I probably wouldn’t have settled this case for more than $5,000.

Thomas Logan: Another thing I noticed looking at Lisa-Marie’s Made in Maine site is that they’re a WordPress site using WooCommerce. These are third-party technologies that a small business is using to make their site.

This always comes back down to if you get sued at the individual site level, any work they’re doing to make fixes to improve access, a lot of that’s probably stuff that is coming from WooCommerce or WordPress. That’s another reason why, in that idea of spending the money to make the fixes, it might be that WordPress or WooCommerce comes up with another version and Lisa-Marie’s gonna have the same problems again.

So, there’s that piece too. The real problem here is these tools that small businesses are using aren’t accessible and we can see that then on any small business site made with these tools, they’re going to have similar types of issues.

Ken Nakata: Okay, Thomas, that’s interesting. That’s another weakness in this case.

As I’m looking over this complaint, as I mentioned, there are a number of weaknesses, but I was surprised by the level of detail in the allegations. What did you think about those?

Thomas Logan: Yes, I was pleasantly surprised, if you could say something about that, about reading a demand letter or a complaint letter. But I did find that the remarks about what the barriers were, were much more thought through than what I’m used to seeing in a lot of other lawsuits that felt more copy and paste.

Though this plaintiff has apparently done over 100 cases in federal court. When I went to what was alleged, the problems were on LisaMariesMadeInMaine.com. From looking at them, they show that the plaintiff was on the site and using the specific features of that site and not just something that they cut and pasted from a previous lawsuit.

So from that side, I think that’s a good sign that at least the violations, as described, look real.

Ken Nakata: I’m not surprised that there are so many very specific allegations in this complaint. Because the courts have been very clear that they do not like copy-and-paste, cookie-cutter allegations about the specific barriers that exist on a website. I think that that’s the reason why they went into such extreme detail on this case.

Demo of Buying a T-shirt

Thomas Logan: Ken, I agree. They did give a lot of details in the complaint. So now I’m going to open up the site and check out some of the items they reported to see if they’re still on the site. And you know I love to do a demo, so let’s look at it. First item I would like to look at from the complaint is “heading roles on the homepage of the website were applied to the inappropriate elements.”

Headings such as “Locally made and locally sourced” and “Featured Items” were redundantly indicated as headings and were attributed to the same section of the page and conveyed the same information. So, here I am on the Lisa Marie’s Made in Maine website. I’m going to start up VoiceOver, the screen reader on the Mac. I’m going to turn on the headings list. And here I can see that there are quite a lot of different headings on the homepage.

Now specifically, they mentioned featured items. But here is the “Featured Items” section of the page, and they also mentioned “Locally made and locally sourced”. So you can see there’s a heading level 6 for “Locally made and locally sourced”, and a heading level 2 for featured items.

While this is somewhat redundant pointing to the same place on the web page, these are items that Won’t cause it to be unable to purchase something on the website. So, I would kind of disagree from the standpoint that this is an item that, um, would cause someone to have a problem purchasing the item.

However, it would obviously make the site harder to use. So Lisa Marie’s Made in Maine should be making these fixes, and it is something that we can still see on the website. But it’s not going to be something that I would say is significant enough that it causes you to not be able to purchase a t-shirt from the website. So now let’s look at a different example. Another part of the complaint was the website did not provide helpful instructions on how to access the interactive elements using the arrow keys.

Therefore, the plaintiff did not know about the interactive elements from the page. Well, because this was specifically in the complaint and the complainant was trying to purchase a t-shirt, let’s load up the T-shirts page on Lisa-Marie’s Made in Maine and see what happens. Right. I’m gonna turn on the screen reader. I’m at the top of the page.

I’m gonna start tabbing through the page. As I tab through the page with the screen reader running, I see a good logical focus order moving from the top left to right and down through the page. However, as I get down into the t-shirt section of the web page, as I hit tab from the search icon, I’m going to be expecting to get to the price range slider. However, it skips over the price range slider and goes directly to the color section of the website. This ability to filter the prices on the page is something that’s not available to the screen reader and would be an example of functionality that’s on the site that’s not available and that is an interactive control.

I would definitely raise that up, as an issue. And the last thing I want to comment on is the use of an accessibility overlay on the site. This was not something reported in the original complaint. So I believe that what may have happened is after the Complaint was settled. They decided to put on an accessibility overlay thinking that’s going to fix everything on the site.

So, here I am turning on the accessibility overlay, and we can see, like, for example, they have options to turn on a screen reader mode. And so this screen reader mode would be something then that should add keyboard navigation and, um, support for screen reader users. So now that I’ve turned on that mode, Let’s see if the interactive slider now gets focused. I go back up to the search icon. Well, look.

Here we have that this button for search is not actually even labeled, so that’s a problem. And then when I hit the tab key, it still skips over the price range. So as we’ve said multiple times, a lot of times these accessibility overlays, they sell this fake solution to customers.

So, Lisa Marie’s Made in Maine may have thought that by deploying that overlay, they would be fixing the accessibility issues on the site. But here, which is this 1 simple example, showing you that issue that we’ve seen without the overlay turned on.

It’s still there with the overlay turned on. Again, this can’t be a solution for Lisa Marie’s Made in Maine. And they probably can have another lawsuit come at them. Again, just alleging that their site’s not accessible because The issue still exists on the website, and they’ll have to go through this whole process all over again.

Well, what do you all think? Why don’t you give us a comment? We’ll be looking to see what you think about this case and future work that we do on the A11yInsights podcast.

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Thomas Logan
Owner | NYC, USA
Founder | Accessibility Consultant | Global Speaker | ADA WCAG Section 508 | A11y | Accessibility VR & A11yNYC Organizer

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