United States: M&A Diligence Checklist: Don't Forget Website And App Accessibility

Last Updated: March 26 2018
Article by Steven Helland

Buying a non-accessible website may buy you a class action lawsuit.

Context: High Volume of Website/App ADA Lawsuits

Website accessibility/Americans with Disabilities Act (ADA) lawsuits, including class action claims, continue to flourish in state and federal courts.

The lawsuits target website and app owners and operators of all sizes, large and small, across industries including: retail, banking & finance, health/medical, travel, hospitality, restaurants, auto and education. A typical complaint alleges that because a particular website is not designed to work well with electronic screen reader technology, it discriminates against blind potential-users in violation of the ADA, Rehabilitation Act and/or equivalent state anti-discrimination laws.

Fixing a Non-Accessible Website Can Be Expensive

The cost to fix a website so that it is accessible can range from $20,000 to $500,000 or more, per website. These costs are in addition to settlement costs and attorney fees in the event of litigation.

Risk Reduction in M&A Context

Potential buyers and their mergers and acquisitions legal counsel should consider the following measures to avoid unintentionally acquiring a website or app that is a vulnerable target for accessibility/ADA litigation: 

Diligence Questions

Ask the following questions as part of the diligence process:

  1. Has the company received any complaints regarding the accessibility, inaccessibility, or difficulty of use of its website(s), app(s) or other communication technologies (collectively "Websites and Apps") from any disabled person or their attorney?
  2. Has the company obtained a third party audit or report regarding the accessibility of the company's Websites and Apps, including but not limited to an audit regarding ADA compliance and/or Web Content Accessibility Guidelines (WCAG) compliance?
  3. Does the company have an accessibility policy?
  4. Does the company require by contract that its technology vendors provide Websites and Apps and similar items that are accessible to disabled users using assistive technology, comply with applicable accessibility law, and meet or exceed the WCAG2.[X]AA standards? Version 2.1 is on its way.

Representation and Warranty in Purchase Agreement

Consider including a clause such as the following in the purchase/merger/transaction agreement:

Seller [or whatever term is used in the rest of the Agreement] covenants, represents and warrants that as of the date of this Agreement the websites, apps, and other electronic and digital communication tools used by Seller in the operation of the Business (collectively, "Website and Digital Properties"): (a) are accessible to disabled users including disabled users using assistive technology, so that the disabled user(s) may fully enjoy and make full use of the Website and Digital Properties; (b) comply with and meet or exceed the requirements of the Americans with Disabilities Act, the Rehabilitation Act, any other applicable law related to accessibility, and any regulations issued under applicable laws; (c) comply with and meet or exceed the requirements of the Web Content Accessibility Guidelines version 2.0 [or 2.1, soon to be release] AA (WCAG2.0AA); (d) for apps and/or app-services provided by Seller, in addition to the foregoing, the app and/or app-services shall meet or exceed the then-current version of accessibility guidelines published by Apple and Google for mobile devices; (e) all Website and Digital Properties have been tested for accessibility by an experienced disability accessibility testing consultant or service provider; and (f) Seller has not, within the previous [24] months received any complaint, notice, demand or allegation of any kind from any blind, visually impaired, deaf, hearing impaired, or other disabled person, or any attorney or other person acting on their behalf, regarding the accessibility, inaccessibility, or usability of any Website and/or Digital Properties.

Post-Closing Actions to Reduce Risk

Although the law is not entirely clear, the following post-closing actions will reduce your risk of getting sued: 

  1. Improve the accessibility of your Websites and Apps. Use the WCAG2.0[2.1]AA as a guide.
  2. Consider engaging an experienced website accessibility consultant to help you. Your results will be better, and engaging an independent third party consultant will provide a stronger legal defense if you are sued.
  3. Adopt, post and follow an appropriate accessibility statement.
  4. Continue to monitor and improve accessibility to avoid backsliding as you post new content.
  5. Offer an alternate method of obtaining information, such as a 24x7 telephone line.
  6. Require all technology vendors to warrant the accessibility of the items they provide.
  7. If you are sued or receive a demand letter regarding website accessibility, seek legal counsel and investigate whether you can shift the risk to an existing insurer or to a vendor who provided the website or app.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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