The Journal. - Who is Filing Thousands of Disability Lawsuits Against Businesses?

Episode Date: August 5, 2024

Under the Americans With Disabilities Act, businesses are supposed to make their websites accessible to the visually impaired. WSJ's Ruth Simon found that this requirement has led to an explosion of lawsuits, many of which are against small businesses. Further Reading: - The Law Firm Hitting Businesses With Thousands of Disability Suits  Learn more about your ad choices. Visit megaphone.fm/adchoices

Jason Kraft runs a small online business in Pennsylvania. My name is Jason Kraft. I'm the CEO of Electric Bike Technologies, and I've been making electric bicycle products for the past 16 years. His company specializes in electric powered bicycles and tricycles. He sells his bikes exclusively online. But over the last two years, Jason has had a focus on something other than spokes and wheels. In 2022, he was served a lawsuit.

I was at home and someone knocked on the door, you know, serving me papers and my daughter was there. And it's uncomfortable. Someone comes to your house and they give you papers and it's kind of, you know, with this ominous look. What did it say? I didn't fully understand it right away, but it was, you know, it said,

your website is not accessible. I mean, that's mild terms of what it said, but you know, you've done something very wrong and you're in trouble. Electric Bike Technologies was being sued by a blind person who claimed he wasn't able to navigate Jason's website to buy a bike, which, according to the law, amounts to discrimination against the disabled. Jason said he'd never heard from this customer before, and to him, something about the case seemed unusual.

There's so much wrong with this suit. I sell electric bikes and I can tell you, blind people don't ride bikes. Shocker. Was this someone that you had ever really considered before, the accessibility of your website? considered before, the accessibility of your website? No, to be honest. It's super ironic because as somebody in the electric bike business, as long as I've been in it, we work so closely to the people that have mobility challenges. And so over the years, we've helped thousands of people.

I'm talking missing limbs, vets. I mean, just a million stories of people that got their mobility back through our products and our work. The lawsuit against Jason is actually one of thousands filed against businesses over the past few years. Many of them small operations like Jason's. The claim that their websites are inaccessible to people with visual impairments. that their websites are inaccessible to people with visual impairments. For Jason, when he learned about how many cases there were, he started to think he was just being fleeced.

I mean, it doesn't get any more clear. This is about money. This is about extortion. Welcome to The Journal, our show about money, business, and power. I'm Ryan Knudson. It's Monday, August 5th. Coming up on the show, as website disability lawsuits rise, is it about equal access or a money grab? This ad was expressly recorded to create a sense of simplicity. Just a few simple sounds. No complexity.

Like neutral. Made with just vodka, soda, and natural flavor. Neutral. Refreshingly simple. simple. Jason Kraft was being sued under the Americans with Disabilities Act, a law that was passed in 1990 and signed by President George H.W. Bush. And with today's signing of the landmark Americans for Disabilities Act, every man, woman, and child with a disability can now pass through once closed doors into a bright new era of equality, independence, and freedom.

And as I look around at all these joyous faces... The ADA's goal is to prevent discrimination against people living with disabilities. It's what mandates a wheelchair ramp for getting on a public bus, or an elevator in a two-story movie theater, or braille on the bathroom signs at your office. And as more of our lives have moved online, the Justice Department and federal courts have said that the law applies to the Internet too. As in, a bank's website needs to be just as accessible as its front door. To understand how web accessibility works for the visually impaired,

I called up someone who knows exactly what it's like. So my name is Chris Danielson. I am a totally blind person, and I also serve as director of public relations for the National Federation of the Blind. We are blind people working together to advance our rights and help each other to live the lives we want. What is using the internet like for a blind person? Like how does it even how does it even really work?

Well, blind people have technology that is called screen reader technology. It basically looks at a website or any other piece of digital content and then render it as speech or if you have certain devices, it can render it as Braille. Can you give me a demonstration of this? So, sure. If I pull up our website, our National Federation of the Blind website,

nfb.org. I'm going to go there as well, nfb.org. Okay. List of the 10 items. Deerwood, Multnomah, SC-107. And it's speaking very rapidly because most of us who are blind are used to setting our screen reader to pretty high rates of speed. So this is a pretty accessible website. We are the National Federation of the Blind.

We try really hard to have an accessible website. Doesn't mean we're perfect. So the first thing that's going to happen when I tab, it says to me is the title of the webpage, which is... National Federation of the Blind, click to return to home page. If I tab again, it tells me that I'm in a navigation region of the website.

Navigation region, list with three items, members linked, donate linked, join us linked. So that gives me an idea, or I can just down arrow and start reading the text. What is an accessible website like versus an inaccessible one? Okay, so for one thing, an accessible website will have all of its elements properly labeled. A screen reader can't just tell from looking at a button what that button does. There has to be text that tells the screen reader what it does.

So a lot of times I will go to a website and I'll be hearing from my screen reader just button, button, button, button, button. So it's important for there to be a label that tells the screen reader, okay, this button is the shopping cart button. And so when my screen reader sees that button, it will say shopping cart button. There are a ton of websites that don't work well with screen readers, and this is exactly what the ADA is for. So the ADA is an important law. And, you know, fortunately or unfortunately, depending on your perspective,

it's not self-enforcing, and it's not a criminal statute. It's not one of these laws that if you violate it, you know, the ADA police are going to come after you. Okay? So, one of the only ways to enforce it is a private right of action, which is the legal term for a lawsuit. That is the way that individuals like me, when we really need to access a website, you know, like maybe my mortgage company has made their website inaccessible and I literally

can't make my mortgage payment, which is going to get me in trouble with my mortgage company and cause me all kinds of problems. But if I really need access to something that I can't get access to, and I can't get a human being to help me deal with it, then my recourse is potentially going to be to file some kind of action under the ADA. Chris's organization, the National Federation of the Blind, has filed several of these lawsuits

against organizations including the Department of Veterans Affairs, the Virginia Department of Corrections, and a mail order pharmacy. He says they file these sorts of lawsuits to try and improve accessibility, not to make money. And he says they typically drop the case as soon as the defendant agrees to make changes. But in recent years, a lot of other people have been filing lawsuits under the ADA too. Our colleague Ruth Simon has been looking into an explosion of these cases, which target websites. I read a number of these lawsuits and many of them sound the same and critics of some of these law firms

that file many of these lawsuits, they talk about them as cut and paste or fill in the blank filings and that was one of the striking things to me too when I was reading these case files. So it sounds like these firms are just like throwing out tons and tons of lawsuits just to see what sticks. That's what the critics would say. Sometimes they'll file dozens or even more than a hundred lawsuits on behalf of one single plaintiff.

And sometimes some of those lawsuits are filed in a very short period of time. And you wonder, is this person really using or trying to use all of these different services? Ruth says a cottage industry has sprung up around these website accessibility claims. And one law firm in particular is leading the trend. My firm has filed the most class actions under the Americans with Disabilities Act in the past year than any other firm in the country. We vindicate the rights...

That's Edward Croube, a partner with the New York law firm Miz the largest filer and accounts for roughly a quarter of these website ADA lawsuits, according to UsableNet, which is a firm that tracks this data. What has Mizrahi Krubs said in response to this criticism, that its lawsuits are just sort of like, you know, a cut and paste way of trying to make money. They say that they're trying to make the websites more accessible and that there are lots of websites that aren't accessible and should be made accessible.

Mizrahi Krube is also the law firm that sued Jason Kraft, the owner of the electric bike company from earlier. So you decided to fight. Say more about why you decided to do that. Because I'm an entrepreneur. You know, I've been self-employed that whole time. It's a great thing. I mean, it's like the American dream.

To have unscrupulous people come out of the woodwork and attack you for your success is wrong. And so I just empathize with the small companies because that's who they target. And I just thought I'm gonna fight back. How we fought back, that's after the break. back? That's after the break. In pure Michigan, a fresh outlook is found among the trees as a canopy of color paints a vivid portrait.

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Shop everything you need for back to school at IKEA today. Jason Kraft was sued in 2022. He hired a lawyer who encouraged him to settle. The lawyer helped negotiate a settlement deal for just under $5,000. But there was one aspect of the agreement that didn't sit well with him, a non-disclosure agreement. You're not allowed to talk about what happened. So I just said, whatever we do next, I'm going to talk. And I want people to know it.

I'm going to share my experience. I made it very clear in emails and writing that I was not going to sign a confidentiality agreement as part of the settlement. I'm going to do as much as I can to make sure that this doesn't happen to other small business owners. I went, I fired the initial lawyer, I hired another attorney,

and we made it clear that we weren't gonna settle. The legal bills for fighting one of these lawsuits can add up pretty quickly, and it's usually cheaper just to settle, which is what most businesses do. But not Jason. He started racking up legal bills fighting Mizrahi Croub. And then he got sued again by a different law firm for the same exact thing.

And he kept fighting back. His tactics eventually got both firms to back off. But even though Jason succeeded, he ended up spending a lot more than the $5,000 he could have settled for at the beginning. But I had put in so much money. I mean, I'm embarrassed to say how much money I drop sometimes. How much money did you spend fighting this? Oh, oh, it's, you know, let's say $45,000 legal fees. So like 10 times the amount where you would have?

Yeah. And probably just that much time? Yeah, I could have settled for five grand. Jason says he also spent $13,000 to improve his various websites. He added scripts to videos and included text underneath photos. He even reluctantly changed the red, white, and blue color scheme on one of his sites to something with more color contrast to make things easier to read. But he refused to do some things that he thought might make his site run slower.

Yeah, we made changes to our website. And some of them we didn't make, to be honest. Let me tell you something. If they want you to make changes to your website that make it more accessible, in this case for someone who's blind, but makes your website less accessible to the other 99.9% of your actual real customers and prospects, that is unreasonable. And so there are certain things that I refuse and I still refuse to change

because it would make our website horrible. Our colleague Ruth says there are some jurisdictions that are trying to limit the growth of these lawsuits. So we've seen in Kansas, they've passed this law to try to prevent lawsuits that are frivolous. We do know also that a few years ago, their district attorneys in California tried to bring some cases on this. I imagine it must be difficult balance though, because you don't want to tip it in such a

way that these cases become too difficult or too impossible to bring and then therefore websites don't improve to become more accessible. But you don't want to make it be such a free for all that small businesses everywhere are getting hit with these things. I think the courts want to preserve this right for people who have a legitimate cause to be able to bring that action. And that's really one of the challenges here. This is a real problem. You can't say this isn't an issue for a bunch of people, but dealing with these lawsuits

is a real challenge for small businesses. I asked Chris Danielson from the National Federation of the Blind what he thinks about this cottage industry of disability lawsuits. From our perspective as blind people, that's problematic because what happens is a bunch of businesses get blanketed with lawsuits. They panic. They want to settle the lawsuits. They want to get out from under them as soon as

possible, and maybe they promise to fix their website, and maybe they do and maybe they don't or maybe the law firm doesn't follow up to see whether the website actually became accessible because their MO is just to sue a bunch of websites and try to get a bunch of settlements. And that doesn't do anybody any good. Do you think that this is a problem that is bound to go away over time as the technology improves, you know, and more websites update their accessibility features

and more platforms just make it part of the functionality or do you think it's something that like might continue to be a problem or get worse? Well, on the one hand, we are seeing a lot more awareness of accessibility and we are seeing a lot more websites making an effort to be accessible. Now, the problem is that there are millions of new websites getting built every day.

And so, bringing solutions to scale that really solve the problem in a big way for everybody all at once are a lot more challenging. And that really makes accessibility a moving target. And so unfortunately, it isn't something that a business can just set and forget. It's something that they constantly have to be aware of if they're truly going to remain accessible. That's all for today. Monday, August 5th. The Journal is a co-production of Spotify and The Wall Street Journal. If you like our show, follow us on Spotify or wherever you get your podcasts.

We're out every weekday afternoon. Thanks for listening. See you tomorrow.