Written by Brandy Bruyere, Vice President of Regulatory Compliance, NAFCU
Just over a year ago, NAFCU began filing amicus briefs to support Virginia credit unions who were targeted by a California plaintiffs’ firm. This firm often claimed that a credit union’s website did not comply with the Americans with Disabilities Act because the credit union’s website allegedly did not meet private industry standards for accessibility. However, the Department of Justice’s ADA regulations do not contain specific website accessibility standards.
NAFCU recognizes the importance of the ADA and fully supports efforts to ensure individuals with disabilities have equal access to financial services. However, meritless and costly lawsuits are not the answer. NAFCU will continue to advocate for clear rules of the road in this area. In the meantime, we have our first federal appellate outcome on this issue.
So, how did we get here? In late 2017 and the early months of 2018, hundreds of credit unions in 26 states received demand letters, often from the same law firm, seeking damages because an unnamed client allegedly could not access the credit union’s website. The firm sued dozens of credit unions, often representing individuals who were not in the credit union’s field of membership. As these cases developed, NAFCU filed sixteen amicus briefs in seven states in support of credit unions. Five federal cases were dismissed in Virginia alone in the spring of 2018, and two of these were appealed to the Fourth Circuit, whose jurisdiction includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia. This is the first federal appeals court to hear one of these cases, and NAFCU filed amicus briefs in both pending appeals. The court held oral argument for one case back in October 2018, which NAFCU attended, and yesterday the panel of judges reached a unanimous decision – the plaintiff in this specific case did not have “standing” to bring a suit.
What is standing? This is a legal principle that generally determines whether a particular party has the ability to file a lawsuit in court. In a federal court, this requirement includes, in part, suffering an “injury in fact” meaning the harm is concrete, and actual or imminent. Many credit unions that defended ADA website accessibility cases argued that if the credit union is not legally permitted to offer services to the plaintiff, such as a person outside the credit union’s field of membership, then the specific plaintiff does not have standing.
Yesterday, the Fourth Circuit Court of Appeals agreed. The court noted that the plaintiff’s position, if adopted, would “allow any aggrieved person to challenge any allegedly deficient website belonging to anyone in the country. It would require us to open the courthouse doors to abstract and hypothetical controversies, in brazen violation of Supreme Court precedent.” Instead, the court unanimously agreed that, while the ADA is critical to surmounting the challenges posed to disabled Americans, this plaintiff, someone who is not in the credit union’s field of membership, does not have standing to bring this kind of lawsuit:
“…But to ignore the requirement of an injury in fact in this case would be to transform constitutional standing into a null item. [Supreme Court precedent] requires a concrete and particularized harm to find…standing…Standing doctrine will doubtless pose complicated questions as it is applied to Internet-based harms in the future, but the case before us today is straightforward and narrow. [The plaintiff] is not a member of the Credit Union, he is not eligible to become a member of the Credit Union, he has no plans to become eligible to be a member of the Credit Union, and no action we take could possibly make him eligible to become a member of the Credit Union….”
There are cases pending on other federal appellate courts. Appellate courts are not obligated to follow one another’s rulings, so time will tell if the two other circuits considering the issue will reach a similar conclusion. There is also a second case in the Fourth Circuit where NAFCU also filed an amicus brief. We will continue monitoring this issue and keep credit unions updated as the cases develop.
Meanwhile, as member-focused financial institutions, many credit unions have already taken steps to ensure their websites are accessible to those with visual impairments and they are serving all of their members’ needs. This may include adopting private industry standards to make their websites compatible with screen readers. This could also include placing accessibility statements along with toll-free numbers that are compatible with screen reader technology so those with visual impairments can easily access additional information and assistance as needed. Overall, credit unions are committed to providing members with high quality service, including being accessible.