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RENEWED ADA WEBSITE COMPLIANCE CONCERNS

NEWEST SURVEY OF CFPB UDAAP ACTIONS RELEASED

ELEVENTH CIRCUIT REVERSES TROUBLING FDCPA RULING ON LACK OF STANDING

Renewed ADA Website Compliance Concerns

As we previously noted in our April 2022 Maryland Legal Alert, the U.S. Department of Justice Civil Rights Division (DOJ) issued guidance concerning website accessibility under the federal Americans with Disabilities Act (ADA). The ADA requires that businesses open to the public provide “full and equal enjoyment” of goods, services, facilities, etc. to individuals with disabilities.  Businesses subject to the ADA must take steps to provide “appropriate communication aids and services” to effectively communicate with individuals with disabilities. The guidance makes clear that a website with features inaccessible to individuals with disabilities can, in turn, limit accessibility to goods, services, facilities, etc. and are therefore subject to the broad ADA accessibility requirements.

The guidance summarizes categories of website accessibility barriers, including:

The guidance does not provide specific website accessibility standards; instead, it gives website operators the flexibility to ensure that the goods, services, and programs offered online are accessible to people with disabilities. The guidance points to existing technical standards issued by the Web Accessibility Initiative (WCAG 2 Standards) and provides a sample list of areas of website accessibility concern. 

The guidance made clear that the DOJ would: (a) likely increase ADA website enforcement activities; and (b) require online-only website operators to comply with the guidance. Several DOJ enforcement actions that have been resolved this year provide helpful insight concerning steps that website operators can take now to minimize the likelihood of website accessibility issues.  DOJ settlement agreements included requirements that website operators do the following:

*It is noteworthy that DOJ settlement agreements provide that a limited number of WCAG 2.1 non-compliant areas will not automatically indicate that a website is impermissibly accessible, so long as the non-compliant areas are not likely to prevent a disabled individual from accessing the “substantive” information on the website or otherwise obtain goods or services through the website.

We also note that there has been renewed private plaintiff litigation activity in this space, with financial institution clients receiving a demand letter with a draft complaint attached that allegedly will be filed if the financial institution does not contact the sender to discuss an acceptable resolution.  Financial institutions should review the DOJ guidance and the specific list of areas of concern to ensure that public-facing websites are accessible to those with disabilities.

Newest Survey of CFPB UDAAP Actions Released

We have updated our recurring article, A Survey of Activities Identified as Unfair, Deceptive, or Abusive by the CFPB . The article provides a detailed summary of enforcement actions brought by the Consumer Financial Protection Bureau (CFPB) concerning unfair, deceptive and abusive acts or practices (UDAAPs) in the first half of 2022.

A review of the specific acts or practices identified by the CFPB as being problematic and resulting in UDAAP violations is instructive for industry participants in conducting their own internal compliance reviews to ensure that they do not engage in similar practices.

Eleventh Circuit Reverses Troubling FDCPA Ruling on Lack of Standing

In a recent en banc decision, the U.S. Court of Appeals for the Eleventh Circuit reversed course on two of its prior, now vacated, rulings concerning whether a debt collector’s use of a third-party mailing vendor violated the Fair Debt Collection Practices Act (FDCPA). The 11th Circuit had ruled that a debt collector’s electronic transmission of data concerning a consumer’s debt to a third-party mailing vendor violated Section 1692c(b) of the FDCPA, which prohibits communicating a consumer’s personal information to a third party “in connection with the collection of any debt.”

The 11th Circuit originally reversed the trial court’s order dismissing the suit. The debt collector then sought a rehearing from which the 11th Circuit issued a substitute opinion in October 2021, which addressed the intervening U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez.

However, a few short weeks later, the 11th Circuit issued an order sua sponte vacating the substitute opinion and directing that the case be reheard, this time before the en banc panel.

In its recent decision, the majority of the en banc panel ruled in favor of the debtor collector strictly based on a lack of standing. Relying on the recent Supreme Court rulings, the 11th Circuit majority held that the debt collector had only alleged a bare statutory violation and failed to allege a concrete injury in fact sufficient to warrant the federal court’s exercise of its jurisdiction over the suit.

Practice Pointer: While some collectors are viewing this ruling as a win, caution remains warranted. The 11th Circuit did not address the underlying issue; namely, whether use of third-party vendors violates the FDCPA. Moreover, this ruling would not prevent similar suits from arising in state courts. Debt collectors and servicers should continue to review and monitor their use of third-party vendors with a careful eye.

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